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2 Anonymous

Table of Contents
Index...............................................................................................................................10 CHAPTER I. Development Of Liability........................................................................16 Anonymous...................................................................................................................17 Weaver v. Ward............................................................................................................18 Brown v. Kendall..........................................................................................................19 Cohen v. Petty...............................................................................................................21 Spano v. Perini Corp.....................................................................................................22 CHAPTER II. Intentional Interference With Person Or Property..................................24 Garratt v. Dailey............................................................................................................25 Spivey v. Battaglia........................................................................................................27 Ranson v. Kitner...........................................................................................................28 McGuire v. Almy..........................................................................................................29 Talmage v. Smith..........................................................................................................30 Cole v. Turner...............................................................................................................31 Wallace v. Rosen..........................................................................................................32 Fisher v. Carrousel Motor Hotel, Inc............................................................................34 I de S et ux. v. W de S...................................................................................................35 Western Union Telegraph Co. v. Hill...........................................................................36 Big Town Nursing Home, Inc. v. Newman..................................................................38 Parvi v. City of Kingston..............................................................................................39 Hardy v. LaBelle's Distributing Co...............................................................................40 Enright v. Groves..........................................................................................................41 Whittaker v. Sandford...................................................................................................42 State Rubbish Collectors Ass'n v. Siliznoff..................................................................43 Slocum v. Food Fair Stores of Florida..........................................................................44 Harris v. Jones...............................................................................................................45 Taylor v. Vallelunga.....................................................................................................46 Dougherty v. Stepp.......................................................................................................47 Bradley v. American Smelting and Refining Co..........................................................48 Herrin v. Sutherland......................................................................................................50 Rogers v. Board of Road Com'rs for Kent County.......................................................51 Glidden v. Szybiak........................................................................................................52 Compuserve, Inc. v. Cyber Promotions, Inc.................................................................53 Pearson v. Dodd............................................................................................................54 CHAPTER III. Privileges...............................................................................................55 O'Brien v. Cunard S.S. Co............................................................................................56 Hackbart v. Cincinnati Bengals, Inc.............................................................................57 Mohr v. Williams..........................................................................................................58 De May v. Roberts........................................................................................................59 Katko v. Briney.............................................................................................................60 Hodgeden v. Hubbard...................................................................................................61 Bonkowski v. Arlan's Department Store.......................................................................62

Surocco v. Geary...........................................................................................................63

Anonymous

Vincent v. Lake Erie Transp. Co..................................................................................64 Sindle v. New York Transit Authority..........................................................................65 CHAPTER IV. Negligence.............................................................................................66 Lubitz v. Wells..............................................................................................................67 Blyth v. Birmingham Waterworks Co..........................................................................68 Gulf Refining Co. v. Williams......................................................................................69 Chicago B. & Q.R. Co. v. Krayenbuhl.........................................................................70 Davison v. Snohomish County.....................................................................................71 United States v. Carroll Towing Co..............................................................................72 Vaughan v. Menlove.....................................................................................................73 Delair v. McAdoo.........................................................................................................74 Trimarco v. Klein..........................................................................................................75 Cordas v. Peerless Transportation Co...........................................................................76 Roberts v. State of Louisiana........................................................................................77 Robinson v. Lindsay.....................................................................................................78 Breunig v. American Family Ins. Co............................................................................79 Heath v. Swift Wings, Inc.............................................................................................80 Hodges v. Carter...........................................................................................................81 Boyce v. Brown............................................................................................................82 Morrison v. MacNamara...............................................................................................83 Scott v. Bradford...........................................................................................................84 Moore v. The Regents of the University of California.................................................85 Pokora v. Wabash Ry. Co.............................................................................................86 Osborne v. McMasters..................................................................................................87 Stachniewicz v. Mar-Cam Corp....................................................................................88 Ney v. Yellow Cab Co..................................................................................................89 Perry v. S.N. and S.N....................................................................................................90 Martin v. Herzog...........................................................................................................91 Zeni v. Anderson...........................................................................................................92 Goddard v. Boston & Maine R.R. Co...........................................................................93 Anjou v. Boston Elevated Railway Co.........................................................................94 Joye v. Great Atlantic and Pacific Tea Co....................................................................95 Ortega v. Kmart Corp...................................................................................................96 Jasko v. F.W. Woolworth Co........................................................................................98 H.E. Butt Groc. Co. v. Resendez..................................................................................99 Byrne v. Boadle..........................................................................................................100 McDougald v. Perry....................................................................................................101 Larson v. St. Francis Hotel.........................................................................................102 Ybarra v. Spangard.....................................................................................................103 Sullivan v. Crabtree....................................................................................................104 CHAPTER V. Causation In Fact..................................................................................105 Perkins v. Texas and New Orleans Railroad Co.........................................................106 Reynolds v. Texas & Pac. Ry. Co...............................................................................107 Gentry v. Douglas Hereford Ranch, Inc.....................................................................108 Kramer Service, Inc. v. Wilkins..................................................................................109

Herskovits v. Group Health Cooperative of Puget Sound..........................................110

Anonymous

Daubert v. Merrell Dow Pharmaceuticals, Inc............................................................111 Hill v. Edmonds..........................................................................................................113 Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.................................................114 Summers v. Tice.........................................................................................................115 Sindell v. Abbott Laboratories....................................................................................116 CHAPTER VI. Proximate Or Legal Cause...................................................................117 Atlantic Coast Line R. CO. v. Daniels........................................................................118 Ryan v. New York Central R.R. Co............................................................................119 Bartolone v. Jeckovich................................................................................................120 In re Arbitration Between Polemis and Furness, Withy & Co., Ltd...........................121 Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1"122 Overseas Tankship Ltd. v. Miller Steamship Co. "Wagon Mound No. 2".................123 Palsgraph v. Long Island R.R. Co...............................................................................124 Yun v. Ford Motor Co................................................................................................126 Derdiarian v. Felix Contracting Corp.........................................................................128 Watson v. Kentucky & Indiana Bridge & R.R. Co.....................................................129 Fuller v. Preis..............................................................................................................130 McCoy v. American Suzuki Motor Corp....................................................................131 Kelly v. Gwinnell........................................................................................................133 Enright v. Eli Lilly & Co............................................................................................135 CHAPTER VII. Joint Tortfeasors.................................................................................137 Bierczynski v. Rogers.................................................................................................138 Coney v. J.L.G. Industries, Inc...................................................................................139 Bartlett v. New Mexico Welding Supply, Inc.............................................................141 Bundt v. Embro...........................................................................................................143 Cox v. Pearl Investment Co........................................................................................144 Elbaor v. Smith...........................................................................................................145 Knell v. Feltman..........................................................................................................147 Yellow Cab Co. of D.C., Inc. v. Dreslin.....................................................................149 Slocum v. Donahue.....................................................................................................150 Bruckman v. Pena.......................................................................................................152 Michie v. Great Lakes Steel Division, Nat'l Steel Corp.............................................153 Dillon v. Twin State Gas & Electric Co.....................................................................155 CHAPTER VIII. Duty Of Care.....................................................................................156 Winterbottom v. Wright..............................................................................................157 MacPherson v. Buick Motor Co.................................................................................158 H.R. Moch Co. v. Rensselaer Water Co.....................................................................159 Clagett v. Dacy............................................................................................................160 Hegel v. Langsam.......................................................................................................162 L.S. Ayres & Co. v. Hicks..........................................................................................163 J.S. and M.S. v. R.T.H................................................................................................165 Tarasoff v. Regents of University of California.........................................................167 State of Louisiana ex rel. Guste v. M/V Testbank......................................................169 Daley v. LaCroix.........................................................................................................171 Thing v. La Chusa.......................................................................................................173

Endresz v. Friedberg...................................................................................................175

5 Anonymous Procanik by Procanik v. Cillo.....................................................................................177 CHAPTER IX. Owners And Occupiers Of Land.........................................................179 Taylor v. Olsen............................................................................................................180 Salevan v. Wilmington Park, Inc................................................................................181 Sheehan v. St. Paul & Duluth Ry. Co.........................................................................182 Barmore v. Elmore......................................................................................................183 Campbell v. Weathers.................................................................................................185 Whelan v. Van Natta...................................................................................................186 Rowland v. Christian..................................................................................................187 Borders v. Roseberry..................................................................................................189 Pagelsdorf v. Safeco Ins. Co. of America...................................................................191 Kline v. 1500 Massachusetts Ave. Apartment Corp...................................................193 CHAPTER X. Damages................................................................................................195 Anderson v. Sears, Roebuck & Co.............................................................................196 Richardson v. Chapman..............................................................................................198 Montgomery Ward & Co., Inc. v. Anderson..............................................................200 Zimmerman v. Ausland..............................................................................................202 Cheatham v. Pohle......................................................................................................203 State Farm Mutual Automobile Insurance Co. v. Campbell.......................................205 CHAPTER XI. Wrongful Death And Survival.............................................................208 Moragne v. States Marine Lines, Inc..........................................................................209 Selders v. Armentrout.................................................................................................210 Murphy v. Martin Oil Co............................................................................................212 CHAPTER XII. Defenses.............................................................................................214 Butterfield v. Forrester................................................................................................215 Davies v. Mann...........................................................................................................216 McIntyre v. Balentine.................................................................................................217 Seigneur v. National Fitness Institute, Inc..................................................................219 Rush v. Commercial Realty Co..................................................................................222 Blackburn v. Dorta......................................................................................................223 Teeters v. Currey.........................................................................................................225 Freehe v. Freehe..........................................................................................................227 Renko v. McLean........................................................................................................229 Abernathy v. Sisters of St. Mary's..............................................................................231 Ayala v. Philadelphia Board of Public Education......................................................233 Riss v. New York........................................................................................................234 DeLong v. Erie County...............................................................................................235 Deuser v. Vecera.........................................................................................................237 CHAPTER XIII. Vicarious Liability............................................................................239 Bussard v. Minimed, Inc.............................................................................................240 O'Shea v. Welch..........................................................................................................242 Murrell v. Goertz........................................................................................................244 Maloney v. Rath..........................................................................................................245 Popejoy v. Steinle.......................................................................................................246 Shuck v. Means...........................................................................................................248

Smalich v. Westfall.....................................................................................................249

Anonymous

CHAPTER XIV. Strict Liability...................................................................................250 Rylands v. Fletcher.....................................................................................................251 Miller v. Civil Constructors, Inc.................................................................................252 Indiana Harbor Belt R.R. Co. v. American Cyanamid Co..........................................254 Foster v. Preston Mill Co............................................................................................256 Golden v. Amory........................................................................................................257 Sandy v. Bushey..........................................................................................................258 CHAPTER XV. Products Liability...............................................................................259 MacPherson v. Buick Motor Co.................................................................................260 Baxter v. Ford Motor Co.............................................................................................261 Henningsen v. Bloomfield Motors, Inc.......................................................................263 Greenman v. Yuba Power Products, Inc.....................................................................265 Rix v. General Motors Corp........................................................................................267 Prentis v. Yale Mfg. Co..............................................................................................268 O'Brien v. Muskin Corp..............................................................................................270 Anderson v. Owens-Corning Fiberglass Corp............................................................272 Friedman v. General Motors Corp..............................................................................273 Daly v. General Motors Corp......................................................................................275 Ford Motor Co. v. Matthews.......................................................................................277 Medtronic, Inc. v. Lohr...............................................................................................278 Peterson v. Lou Bachrodt Chevrolet Co.....................................................................280 Hector v. Cedars-Sinai Medical Ctr............................................................................281 CHAPTER XVI. Nuisance...........................................................................................282 Philadelphia Electric Company v. Hercules, Inc........................................................283 Morgan v. High Penn Oil Co......................................................................................285 Carpenter v. The Double R Cattle Company, Inc.......................................................287 Winget v. Winn-Dixie Stores, Inc...............................................................................289 Boomer v. Atlantic Cement Co., Inc...........................................................................291 Spur Industries, Inc. v. Del E. Webb Development Co..............................................293 CHAPTER XVII. Defamation......................................................................................295 Belli v. Orlando Daily Newspapers, Inc.....................................................................296 Grant v. Reader's Digest Ass'n....................................................................................298 Kilian v. Doubleday & Co., Inc..................................................................................299 Neiman-Marcus v. Lait...............................................................................................300 Bindrim v. Mitchell.....................................................................................................301 Shor v. Billingsley......................................................................................................303 Terwilliger v. Wands..................................................................................................304 Economopoulos v. A.G. Pollard Co............................................................................305 Carafano v. Metrosplash.Com, Inc.............................................................................306 Ogden v. Association of the United States Army.......................................................309 New York Times v. Sullivan......................................................................................310 St. Amant v. Thompson..............................................................................................312 Harte-Hanks Communications, Inc. v. Connaughton.................................................314 Gertz v. Robert Welsh, Inc.........................................................................................316 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc...................................................318

Philadelphia Newspapers, Inc. v. Hepps.....................................................................319

Anonymous

Milkovich v. Lorain Journal Co..................................................................................320 Sindorf v. Jacron Sales Co., Inc..................................................................................321 CHAPTER XVIII. Privacy...........................................................................................322 Joe Dickerson & Associates, LLC v. Dittmar.............................................................323 Sanders v. American Broadcasting Companies, Inc., et al.........................................326 Hall v. Post..................................................................................................................328 Cantrell v. Forest City Publishing Co.........................................................................330 Hustler Magazine v. Falwell.......................................................................................331 CHAPTER XIX. Civil Rights.......................................................................................332 Ashby v. White...........................................................................................................333 Camp v. Gregory.........................................................................................................334 Memphis Community School Dist. v. Stachura..........................................................335 CHAPTER XX. Misuse Of Legal Procedure...............................................................336 Texas Skaggs, Inc. v. Graves......................................................................................337 Friedman v. Dozorc....................................................................................................339 Grainger v. Hill...........................................................................................................340 CHAPTER XXI. Misrepresentation.............................................................................341 Swinton v. Whitinsville Savings Bank.......................................................................342 Griffith v. Byers Constr. Co. of Kansas, Inc...............................................................343 Derry v. Peek..............................................................................................................344 International Products Co. v. Erie R.R. Co.................................................................345 Winter v. G.P. Putnam's Sons.....................................................................................346 Hanberry v. Hearst Corp.............................................................................................347 Richard v. A. Waldman and Sons, Inc........................................................................348 Credit Alliance Corporation v. Arthur Andersen & Co..............................................349 Citizens State Bank v. Timm, Schmidt & Co.............................................................351 Ultramares Corporation v. Touche.............................................................................352 Williams v. Rank & Son Buick, Inc...........................................................................353 Saxby v. Southern Land Co........................................................................................354 Vulcan Metals Co. v. Simmons Mfg. Co....................................................................355 Sorenson v. Gardner....................................................................................................356 McElrath v. Electric Investment Co............................................................................358 Burgdorfer v.Thielemann............................................................................................359 Hinkle v. Rockville Motor Co., Inc............................................................................361 CHAPTER XXII. Interference With Advantageous Relationships..............................363 Ratcliffe v. Evans........................................................................................................364 Horning v. Hardy........................................................................................................365 Testing Systems, Inc. v. Magnaflux Corp...................................................................367 Lumley v. Gye............................................................................................................369 Bacon v. St. Paul Union Stockyards Co.....................................................................370 Della Penna v. Toyota Motor Sales, U.S.A., Inc........................................................371 Adler, Barish, Daniels, Levin and Creskoff v. Epstein...............................................373 Brimelow v. Casson....................................................................................................375 Harmon v. Harmon.....................................................................................................376 Neibuhr v. Gage..........................................................................................................377

Freeman & Mills, Inc. v. Belcher Oil Company.........................................................378

Anonymous

Nash v. Baker..............................................................................................................379 CHAPTER XXIII. Torts In The Age Of Statutes.........................................................380 Burnette v. Wahl.........................................................................................................381 Nearing v. Weaver......................................................................................................383 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics...................385 Alexander v. Sandoval................................................................................................387 De Falco v. Bernas......................................................................................................389 Pulliam v. Coastal Emergency Svcs...........................................................................392 CHAPTER XXIV. Compensation Systems as Substitutes for Tort Law.....................393 Blankenship v. Cincinnati Milacron Chemicals, Inc..................................................394

Index

Abernathy v. Sisters of St. Mary's..................................................................................231 Adler, Barish, Daniels, Levin and Creskoff v. Epstein...................................................373 Alexander v. Sandoval.387 Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.....................................................114 Anderson v. Owens-Corning Fiberglass Corp................................................................272 Anderson v. Sears, Roebuck & Co.................................................................................196 Anjou v. Boston Elevated Railway Co.............................................................................94 Anonymous17 Ashby v. White...............................................................................................................333 Atlantic Coast Line R. CO. v. Daniels............................................................................118 Ayala v. Philadelphia Board of Public Education..........................................................233 Bacon v. St. Paul Union Stockyards Co.........................................................................370 Barmore v. Elmore..........................................................................................................183 Bartlett v. New Mexico Welding Supply, Inc.................................................................141 Bartolone v. Jeckovich....................................................................................................120 Baxter v. Ford Motor Co.................................................................................................261 Belli v. Orlando Daily Newspapers, Inc.........................................................................296 Bierczynski v. Rogers.....................................................................................................138 Big Town Nursing Home, Inc. v. Newman......................................................................38 Bindrim v. Mitchell.........................................................................................................301 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.......................385 Blackburn v. Dorta..........................................................................................................223 Blankenship v. Cincinnati Milacron Chemicals, Inc......................................................394 Blyth v. Birmingham Waterworks Co..............................................................................68 Bonkowski v. Arlan's Department Store...........................................................................62 Boomer v. Atlantic Cement Co., Inc...............................................................................291 Borders v. Roseberry......................................................................................................189 Boyce v. Brown................................................................................................................82 Bradley v. American Smelting and Refining Co..............................................................48 Breunig v. American Family Ins. Co................................................................................79 Brimelow v. Casson........................................................................................................375 Brown v. Kendall..............................................................................................................19 Bruckman v. Pena...........................................................................................................152 Bundt v. Embro...............................................................................................................143 Burgdorfer v.Thielemann................................................................................................359 Burnette v. Wahl.............................................................................................................381 Bussard v. Minimed, Inc..240 Butterfield v. Forrester....................................................................................................215 Byrne v. Boadle..............................................................................................................100 Camp v. Gregory.............................................................................................................334 Campbell v. Weathers.....................................................................................................185 Cantrell v. Forest City Publishing Co.............................................................................330 Carafano v. MetroSplash.com, Inc..306

10 Anonymous Carpenter v. The Double R Cattle Company, Inc...........................................................287 Cheatham v. Pohle...203 Chicago B. & Q.R. Co. v. Krayenbuhl.............................................................................70 Citizens State Bank v. Timm, Schmidt & Co.................................................................351 Clagett v. Dacy................................................................................................................160 Cohen v. Petty...................................................................................................................21 Cole v. Turner...................................................................................................................31 Compuserve, Inc. v. Cyber Promotions, Inc.....................................................................53 Coney v. J.L.G. Industries, Inc.......................................................................................139 Cordas v. Peerless Transportation Co...............................................................................76 Cox v. Pearl Investment Co............................................................................................144 Credit Alliance Corporation v. Arthur Andersen & Co..................................................349 Daley v. LaCroix.............................................................................................................171 Daly v. General Motors Corp..........................................................................................275 Daubert v. Merrell Dow Pharmaceuticals, Inc................................................................111 Davies v. Mann...............................................................................................................216 Davison v. Snohomish County.........................................................................................71 De Falco v. Bernas...389 De May v. Roberts............................................................................................................59 Delair v. McAdoo.............................................................................................................74 Della Penna v. Toyota Motor Sales, U.S.A., Inc............................................................371 DeLong v. Erie County...................................................................................................235 Derdiarian v. Felix Contracting Corp.............................................................................128 Derry v. Peek..................................................................................................................344 Deuser v. Vecera.............................................................................................................237 Dillon v. Twin State Gas & Electric Co.........................................................................155 Dougherty v. Stepp...........................................................................................................47 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.......................................................318 Economopoulos v. A.G. Pollard Co................................................................................305 Elbaor v. Smith...............................................................................................................145 Endresz v. Friedberg.......................................................................................................175 Enright v. Eli Lilly & Co................................................................................................135 Enright v. Groves..............................................................................................................41 Fisher v. Carrousel Motor Hotel, Inc................................................................................34 Ford Motor Co. v. Matthews...........................................................................................277 Foster v. Preston Mill Co................................................................................................256 Freehe v. Freehe..............................................................................................................227 Freeman & Mills, Inc. v. Belcher Oil Company.............................................................378 Friedman v. Dozorc........................................................................................................339 Friedman v. General Motors Corp..................................................................................273 Fuller v. Preis..................................................................................................................130 Garratt v. Dailey................................................................................................................25 Gentry v. Douglas Hereford Ranch, Inc.........................................................................108 Gertz v. Robert Welsh, Inc.............................................................................................316 Glidden v. Szybiak............................................................................................................52

Goddard v. Boston M.R. Co..93

11 Anonymous Golden v. Amory............................................................................................................257 Grainger v. Hill...............................................................................................................340 Grant v. Reader's Digest Ass'n........................................................................................298 Greenman v. Yuba Power Products, Inc.........................................................................265 Griffith v. Byers Constr. Co. of Kansas, Inc...................................................................343 Gulf Refining Co. v. Williams..........................................................................................69 H.R. Moch Co. v. Rensselaer Water Co.........................................................................159 Hackbart v. Cincinnati Bengals, Inc.................................................................................57 Hall v. Post...328 Hanberry v. Hearst Corp.................................................................................................347 Hardy v. LaBelle's Distributing Co...................................................................................40 Harmon v. Harmon.........................................................................................................376 Harris v. Jones...................................................................................................................45 Harte-Hanks Communications, Inc. v. Connaughton..314 H. E. Butt Grocery Co. v. Resendez..99 Heath v. Swift Wings, Inc.................................................................................................80 Hector v. Cedars-Sinai Medical Ctr................................................................................281 Hegel v. Langsam...........................................................................................................162 Henningsen v. Bloomfield Motors, Inc...........................................................................263 Herrin v. Sutherland..........................................................................................................50 Herskovits v. Group Health Cooperative of Puget Sound..............................................110 Hill v. Edmonds..............................................................................................................113 Hinkle v. Rockville Motor Co., Inc................................................................................361 Hodgeden v. Hubbard.......................................................................................................61 Hodges v. Carter...............................................................................................................81 Horning v. Hardy............................................................................................................365 Hustler Magazine v. Falwell...........................................................................................331 I de S et ux. v. W de S.......................................................................................................35 In re Arbitration Between Polemis and Furness, Withy & Co., Ltd...............................121 Indiana Harbor Belt R.R. Co. v. American Cyanamid Co..............................................254 International Products Co. v. Erie R.R. Co.....................................................................345 J.S. and M.S. v. R.T.H....................................................................................................165 Jasko v. F.W. Woolworth Co............................................................................................98 Joe Dickerson & Associates, LLC v. Dittmar..323 Joye v. Great Atlantic and Pacific Tea Co........................................................................95 Katko v. Briney.................................................................................................................60 Kelly v. Gwinnell............................................................................................................133 Kilian v. Doubleday & Co., Inc......................................................................................299 Kline v. 1500 Massachusetts Ave. Apartment Corp.......................................................193 Knell v. Feltman..............................................................................................................147 Kramer Service, Inc. v. Wilkins......................................................................................109 L.S. Ayres & Co. v. Hicks..............................................................................................163 Larson v. St. Francis Hotel.............................................................................................102 Lubitz v. Wells..................................................................................................................67 Lumley v. Gye................................................................................................................369

MacPherson v. Buick Motor Co.............................................................................158, 260

12 Anonymous Maloney v. Rath..............................................................................................................245 Martin v. Herzog...............................................................................................................91 McCoy v. American Suzuki Motor Corp........................................................................131 McDougald v. Perry........................................................................................................101 McElrath v. Electric Investment Co................................................................................358 McGuire v. Almy..............................................................................................................29 McIntyre v. Balentine.....................................................................................................217 Medtronic, Inc. v. Lohr...................................................................................................278 Memphis Community School Dist. v. Stachura..............................................................335 Michie v. Great Lakes Steel Division, Nat'l Steel Corp.................................................153 Milkovich v. Lorain Journal Co......................................................................................320 Miller v. Civil Constructors. Inc..252 Mohr v. Williams..............................................................................................................58 Montgomery Ward & Co., Inc. v. Anderson..................................................................200 Moore v. The Regents of the University of California.....................................................85 Moragne v. States Marine Lines, Inc..............................................................................209 Morgan v. High Penn Oil Co..........................................................................................285 Morrison v. MacNamara...................................................................................................83 Murphy v. Martin Oil Co................................................................................................212 Murrell v. Goertz............................................................................................................244 Nash v. Baker..................................................................................................................379 Nearing v. Weaver..........................................................................................................383 Neibuhr v. Gage..............................................................................................................377 Neiman-Marcus v. Lait...................................................................................................300 New York Times v. Sullivan..........................................................................................310 Ney v. Yellow Cab Co......................................................................................................89 O'Brien v. Cunard S.S. Co................................................................................................56 O'Brien v. Muskin Corp..................................................................................................270 Ogden v. Association of the United States Army...........................................................309 Ortega v. Kmart Corp96 Osborne v. McMasters......................................................................................................87 OShea v. Welch..242 Overseas Tankship Ltd. V. Miller Steamship Co...........................................................123 Overseas Tankship v. Morts Dock & Engineering Co., Ltd...........................................122 Pagelsdorf v. Safeco Ins. Co. of America.......................................................................191 Palsgraph v. Long Island R.R. Co...................................................................................124 Parvi v. City of Kingston..................................................................................................39 Pearson v. Dodd................................................................................................................54 Perkins v. Texas and New Orleans Railroad Co.............................................................106 Perry v. S.N. and S.N........................................................................................................90 Peterson v. Lou Bachrodt Chevrolet Co.........................................................................280 Philadelphia Electric Company v. Hercules, Inc............................................................283 Philadelphia Newspapers, Inc. v. Hepps.........................................................................319 Pokora v. Wabash Ry. CO................................................................................................86 Popejoy v. Steinle...........................................................................................................246

Prentis v. Yale Mfg. Co..................................................................................................268

13 Anonymous Procanik by Procanik v. Cillo.........................................................................................177 Pulliam v. Coastal Emergency Svcs...............................................................................392 Ranson v. Kitner...............................................................................................................28 Ratcliffe v. Evans............................................................................................................364 Renko v. McLean............................................................................................................229 Reynolds v. Texas & Pac. Ry. Co...................................................................................107 Richard v. A. Waldman and Sons, Inc............................................................................348 Richardson v. Chapman..................................................................................................198 Riss v. New York............................................................................................................234 Rix v. General Motors Corp............................................................................................267 Roberts v. State of Louisiana............................................................................................77 Robinson v. Lindsay.........................................................................................................78 Rogers v. Board of Road Com'rs for Kent County...........................................................51 Rowland v. Christian......................................................................................................187 Rush v. Commercial Realty Co......................................................................................222 Ryan v. New York Central R.R. Co................................................................................119 Rylans v. Fletcher...........................................................................................................251 Salevan v. Wilmington Park, Inc....................................................................................181 Sanders v. American Broadcasting Companies, Inc326 Sandy v. Bushey..............................................................................................................258 Saxby v. Southern Land Co............................................................................................354 Scott v. Bradford...............................................................................................................84 Seigneur v. National Fitness Instiute Inc.219 Selders v. Armentrout.....................................................................................................210 Sheehan v. St. Paul & Duluth Ry. Co.............................................................................182 Shor v. Billingsley..........................................................................................................303 Shuck v. Means...............................................................................................................248 Sindell v. Abbott Laboratories........................................................................................116 Sindle v. New York Transit Authority..............................................................................65 Sindorf v. Jacron Sales Co., Inc......................................................................................321 Slocum v. Donahue.........................................................................................................150 Slocum v. Food Fair Stores of Florida..............................................................................44 Smalich v. Westfall.........................................................................................................249 Sorenson v. Gardner........................................................................................................356 Spano v. Perini Corp.........................................................................................................22 Spivey v. Battaglia............................................................................................................27 Spur Industries, Inc. v. Del E. Webb Development Co..................................................293 St. Amant v. Thompson..................................................................................................312 Stachniewicz v. Mar-Cam Corp........................................................................................88 State Farm Mut. Auto Ins. Co. v. Campbell....205 State of Louisiana ex rel. Guste v. M/V Testbank..........................................................169 State Rubbish Collectors Ass'n v. Siliznoff......................................................................43 Sullivan v. Crabtree........................................................................................................104 Summers v. Tice.............................................................................................................115 Surocco v. Geary...............................................................................................................63

Swinton v. Whitinsville Savings Bank...........................................................................342

14 Anonymous Talmage v. Smith..............................................................................................................30 Tarasoff v. Regents of University of California.............................................................167 Taylor v. Olsen................................................................................................................180 Taylor v. Vallelunga.........................................................................................................46 Teeters v. Currey.............................................................................................................225 Terwilliger v. Wands......................................................................................................304 Testing Systems, Inc. v. Magnaflux Corp.......................................................................367 Texas Skaggs, Inc. v. Graves..........................................................................................337 Thing v. La Chusa...........................................................................................................173 Trimarco v. Klein..............................................................................................................75 Ultramares Corporation v. Touche.................................................................................352 United States v. Carroll Towing Co..................................................................................72 Vaughan v. Menlove.........................................................................................................73 Vincent v. Lake Erie Transp. Co......................................................................................64 Vulcan Metals Co. v. Simmons Mfg. Co........................................................................355 Wallace v. Rosen...32 Watson v. Kentucky & Indiana Bridge & R.R. Co.........................................................129 Weaver v. Ward................................................................................................................18 Western Union Telegraph Co. v. Hill...............................................................................36 Whelan v. Van Natta.......................................................................................................186 Whittaker v. Sandford.......................................................................................................42 Williams v. Rank & Son Buick, Inc...............................................................................353 Winget v. Winn-Dixie Stores, Inc...................................................................................289 Winter v. G.P. Putnam's Sons.........................................................................................346 Winterbottom v. Wright..................................................................................................157 Ybarra v. Spangard.........................................................................................................103 Yellow Cab Co. of D.C., Inc. v. Dreslin.........................................................................149 Yun v. Ford Motor Co....................................................................................................126 Zeni v. Anderson...............................................................................................................92 Zimmerman v. Ausland..................................................................................................202

15

CH APT ER I. Dev elop men t Of Liab ility

16 Anonymous

Anonymous
Citation. King's Bench 1466 Brief Fact Summary. None. Synopsis of Rule of Law. None. Facts. None. Issue. None. Held. The judge observed that an individual must go about his/her business in such a way that "by his deed no injury or damage is inflicted upon others." Accordingly, if an individual is building a home, and a piece of wood falls on the individual's neighbor's home, the neighbor has a cause of action, even though the house was lawfully being built and the builder did not intend for the damage to occur. Additionally, if somebody defends themselves when another party assaults them, and in the course of this defense a third party is injured, that third party would have a cause of action, even though the injury was not intentional and was in the course of defending oneself. Discussion. This case offers a very early description of a duty and a breach of duty.

17 Weaver v. Ward

Weaver v. Ward
Citation. Hobart 134, 80 Eng. Rep. 284 (K.B. 1616). Brief Fact Summary. Two members of a military unit were involved in a drill. While discharging his weapon during the drill, Defendant accidentally injured Plaintiff. Plaintiff brought suit for assault and battery. Synopsis of Rule of Law. When injury results from one's actions, he will be held liable for that injury unless he can prove no fault whatsoever in the matter. Facts. In the course of a military skirmishing drill, Defendant discharged his weapon. Although Defendant had no intention that it did so, his weapon caused injury to Plaintiff. Plaintiff brought suit against Defendant. Defendant argued that he was not liable for the injury because it was unintentional and was not his fault. Plaintiff demurred and was awarded damages. Issue. Was Plaintiff properly awarded damages despite Defendant's argument that the injury was inflicted by accident? Held. Yes. The Court affirmed the award, finding Defendant had failed to prove he was totally blameless. 1 One may escape liability for an injury he has inflicted when he was utterly faultless in inflicting the injury, but it is his burden to prove his total lack of fault.

Discussion. This case shows the beginnings of possible defenses in the tort system. This marks a progression from Anonymous [Y.B. Edw. IV, folio 7, placitum 18 (K.B. 1466).], in which a more absolute rule was stated. It is important to note, however, that it is the Defendant's burden to plead and prove this defense; one the court found he failed to carry.

18 Brown v. Kendall

Brown v. Kendall
Citation. 60 Mass. (6 Cush.) 292 (Mass. 1850). Brief Fact Summary. Two dogs began fighting and their owners attempted to separate them. In an effort to do so, Defendant beat the dogs with a stick and accidentally injured the Plaintiff in the process. Plaintiff brought suit against the Defendant for assault and battery. Synopsis of Rule of Law. When a Defendant unintentionally injures another while undertaking a lawful act, the Plaintiff must prove that the Defendant acted without due care as adapted to the exigencies of the circumstances. Facts. Defendant accidentally injured Plaintiff while trying to separate two fighting dogs. At trial for Plaintiff's action for assault and battery, the Court instructed the jury that if beating the dogs with a stick was a necessary act, Defendant was required to prove that he used ordinary care. The trial court further instructed the jury that if beating the dogs with a stick was merely a permissible act, Defendant was required to prove that he acted with extraordinary care to avoid liability. Issue. Was the Trial Court correct in instructing the jury that there is a distinction between necessary lawful actions and permissible lawful actions such as would require different levels of care for the undertaking of each? 1 Was the trial court correct in instructing the jury that it was Defendant's burden to prove that he acted consistent with the applicable level of care when he unintentionally injures another?

Held. The Court reversed the verdict and ordered a new trial due to erroneous jury instructions. The requisite standard of care is the same for accidental injuries resulting from lawful actions, whether the actions are characterized as necessary or merely permissible. 1 The requisite standard of care is the same for accidental injuries resulting from lawful actions, whether the actions are characterized as necessary or merely permissible. When a trial court instructs a jury that the Defendant is required to prove he acted with due care to avoid liability, a new trial is necessary to place the burden of proof properly upon the Plaintiff.

Discussion. This case shows further evolution of the fault concept in tort law. Now, not only is lack of fault a defense to such a tort action, it is the Plaintiff's burden to prove the Defendant has acted with fault.

19 Brown v. Kendall 1 This case also endeavors to hone the definition of fault. The Court identifies the appropriate standard of care for lawfully actions unintentionally causing injury.

20 Cohen v. Petty

Cohen v. Petty
Citation. 62 App.D.C. 187, 65 F.2d 820 (D.C. Cir. 1933). Brief Fact Summary. Plaintiff was injured while riding in a car driven by Defendant. Plaintiff sued Defendant for negligence and claimed Defendant was speeding at the time of the accident. Defendant proffered uncontested evidence that he lost control of the car because he fainted immediately prior to the accident, on the strength of which the trial court directed a verdict for Defendant. Synopsis of Rule of Law. When a Plaintiff fails to show any actionable negligence on the part of the Defendant, and the Defendant's uncontested evidence shows the injury resulted from a sudden, unforeseeable illness, a verdict is properly directed for the Defendant. Facts. Plaintiff and his sister were riding in the back of a car driven by Defendant with Defendant's wife in the passenger seat. Plaintiff suffered injuries when Defendant lost control of the car and drove it off the road. Plaintiff and his sister testified that the car was traveling at an excessive speed, but Defendant's uncontested evidence showed that he fainted just before losing control of the car, that he had no reason to expect that such a fainting spell would occur, and that this is what caused the accident. Issue. Did the trial court properly direct a verdict in favor of the Defendant based upon evidence of the fainting spell? Held. Yes. The trial court's directed verdict was upheld. 1 A motorist suddenly stricken with illness causing loss of control of an automobile resulting in injuries to another is not guilty of negligence when he had no reason to anticipate the illness.

Discussion. This case introduces the issue of foreseeability into the question of fault. An essential component of its holding is that a motorist suffering from such an attack must have had no reason to anticipate the onset of a fainting spell. No longer inquiring solely whether Defendant intended to cause injury, the Court was required to consider whether Defendant had reason to foresee causing the injury.

21 Spano v. Perini Corp.

Spano v. Perini Corp.

Citation. 25 N.Y.2d 11, 250 N.E.2d 31, 302 N.Y.S.2d 527, on remand, 33 A.D.2d 516, 304 N.Y.S.2d 15 (N.Y. 1969). Brief Fact Summary. In the course of constructing a tunnel, Defendants set off a large quantity of dynamite that allegedly damaged Plaintiffs' property. Plaintiffs brought suit, claiming negligence but failing to offer any evidence that Defendants failed to exercise reasonable care. Plaintiffs relied instead upon a theory of absolute liability for blasting operations and received a favorable verdict, but Defendants won reversal of the verdict on appeal. Synopsis of Rule of Law. In the case blasting operations, failure to prove negligence will not bar recovery when damage to an innocent party results from the blasting. Because blasting is an abnormally dangerous activity, public policy requires that the costs of the damage resulting to innocent parties be borne by those undertaking the blasting, even when they have not behaved negligently. Facts. Plaintiffs' property was allegedly damaged as a result of blasting operations undertaken by Defendants. Plaintiffs brought suit to recover for these damages, but were unable to show that Defendants had acted negligently. Plaintiffs thus sought to recover on the theory that those engaged in blasting are subject to liability for damages resulting from the blasting even in the absence of a showing of negligence. This was the rule in the majority of jurisdictions at the time, but not in New York. Plaintiffs were awarded a verdict at trial, but that verdict was reversed on appeal. Issue. Was the Appellate Division correct in upholding the appellate term's reversal of the verdict in favor of the Plaintiff because there was no evidence of negligence on the part of the Defendant? Held. No. The Appellate Division's decision was reversed and the cause was remanded to the Appellate Division for an inquiry into the weight of the evidence with respect to the cause of the damages. 1 The majority rule that those engaged in blasting are subject to liability for the resulting damages is adopted, supplanting New York's previous rule that proof of negligence was required for recovery in such cases unless a physical trespass also occurred. Public policy requires that those engaging in abnormally dangerous or ultra hazardous activity bear the cost of the damages such activity inflicts upon innocent parties.

Discussion. This case helps reintroduce concepts of no-fault liability to the law of torts. These notions of strict or absolute liability for blasting and other "ultra hazardous" or

22 Spano v. Perini Corp. "abnormally dangerous" activity would seem to buck the trend toward requiring fault or wrongdoing as a prerequisite to recovery. 1 This case also marks an interesting example of public policy analysis. The Court explicitly mentions public policy and places great emphasis upon its relevance in finding the appropriate rule. This is illustrative of some of the many competing issues in the law of torts, many of which will be addressed later and in greater detail.

23

CHAPTER II. Intentional Interference With Person Or Property

24 Garratt v. Dailey

Garratt v. Dailey
Citation. 46 Wash.2d 197, 279 P.2d 1091 (Wash. 1955). Brief Fact Summary. Plaintiff brought suit for assault and battery against Defendant, a five year-old boy. Plaintiff alleged that Defendant intentionally moved a chair as she was about to sit down so as to injure Plaintiff, but the trial court found he was instead trying to prevent injury and had no intention of injuring or embarrassing her. Synopsis of Rule of Law. The relevant intent for the purposes of assault and battery may be found from evidence establishing that Defendant knew to a substantial certainty that contact or apprehension of contact would result from his actions. Knowledge of a grave risk that such contact or apprehension could occur is insufficient. A Defendant's age in such a case is relevant only insofar as it demonstrates Defendant's likely degree of knowledge based upon his experience and understanding. Facts. Plaintiff alleged that Defendant, a five year-old boy, moved a chair away just as she was about to sit down in it, causing her to be injured. At trial, the judge believed the testimony of Defendant, finding that he did not act with any intent to cause offensive contact, injury, or embarrassment to Plaintiff. The Trial Judge dismissed the case on the strength of these findings, and Plaintiff appealed. Issue. Does the finding that a Defendant did not intend to cause offensive contact, injury, or embarrassment to a Plaintiff warrant dismissal of the Plaintiff's claim for assault and battery? 1 Is a Defendant's age relevant in determining whether or not he has committed an intentional tort?

Held. The Court reversed the trial court's dismissal of the case and remanded the case for a determination of the extent to which Defendant knew, based upon his experience and understanding, that the injury would result from his actions. 1 The requisite intent for assault and battery substantial certainty that contact or apprehension of contact would result from his actions. Knowledge of a grave risk that such contact or apprehension could occur is insufficient. With respect to intentional torts, a Defendant's age is relevant only insofar as it demonstrates the Defendant's likely degree of knowledge based upon his experience and understanding.

Discussion. This case introduces some of the many critical distinctions at play in analyzing intent. The Court discusses at least three discernible classes of intent: 1) the intent to

commit the act of moving the chair; 2) the intent to injure, embarrass, or cause apprehension; and 3) the intent that may be inferred from what the Defendant knew was substantially certain to result. In this case, it appears that the trial court focused

25 Garratt v. Dailey exclusively upon the second category, and dismissed the case when it could not be found. This Court, however, placed greater emphasis upon the third category, which would clearly allow liability in a far greater array of situations.

26 Spivey v. Battaglia

Spivey v. Battaglia
Citation. 258 So.2d 815 (Fla. 1972). Brief Fact Summary. Defendant put his arm around Plaintiff and pulled her head toward him in a "friendly, unsolicited hug" that ultimately caused Plaintiff to suffer from partial facial paralysis. Plaintiff brought suit for assault and battery and negligence. Because the suit was brought after the statute of limitations for intentional torts had run, Defendant argued that the acts complained of were strictly intentional and the suit was barred. Synopsis of Rule of Law. With respect to assault and battery, one is deemed to intend that which is substantially certain to follow from his actions but need not intend to cause actual injury or harm. Knowledge of a risk of harm is not sufficient to establish the requisite intent. Facts. During a break at work, Defendant put his arm around Plaintiff and pulled her toward him. Plaintiff experienced sharp pains that culminated in partial facial paralysis. She sued Defendant under negligence and assault and battery theories. Relying upon a similar case, Defendant argued that his actions were strictly intentional, constituted assault and battery as a matter of law, and warranted dismissal of the case because it had been filed after the statute of limitations for assault and battery had expired. The trial court agreed and granted summary judgment for Defendant. Issue. Was the trial court correct in granting summary judgment for Defendant on the theory that his actions constituted assault and battery as opposed to negligence as a matter of law? Held. No. The grant of summary judgment was reversed to allow Plaintiff to proceed with her claim for negligence. 1 Knowledge of a risk that physical injury could result from an unsolicited, intentional touch does not mean that one taking such an action has committed assault and battery as a matter of law if physical injury results. Rather, it is only assault and battery as a matter of law when a reasonable person would have believed that physical injury was substantially certain to follow.

Discussion. Again, multiple issues of intent are implicated in this case. Defendant intended to touch Plaintiff, but certainly did not intend to cause her facial paralysis. Once again, the critical issue is Defendant's knowledge of the likelihood that injury would result. Later, a Defendant's knowledge of the likely extent of any potential damage also becomes important.

27 Ranson v. Kitner

Ranson v. Kitner
Citation. 31 Ill.App. 241 (Ill.Ct.App. 1889). Brief Fact Summary. While hunting for wolves, Defendants came across Plaintiff's dog and killed it. Defendants claimed it was an accident occasioned by the dog's uncanny resemblance to a wolf, and that they should therefore not be held liable. Synopsis of Rule of Law. Parties are liable for damages caused by their own mistaken understanding of the facts, regardless of whether they have acted in good faith. Facts. Plaintiff sued Defendants for the value of his dog after they killed it while hunting wolves. Defendants admitted to killing Plaintiff's dog, but argued that they were not liable because they did so out of a good faith belief that it was a wolf. The jury found them liable for the value of the dog. Issue. Were Defendants entitled to relief from a jury verdict that they were liable for the value of the dog due to their good faith, mistaken belief that the dog was a wolf? Held. No. The jury's verdict was affirmed. 1 When one damages another, he is liable for that damage, even if he would not have committed the act causing the damage but for a good faith but mistaken belief.

Discussion. This case focuses upon the intent relevant to liability. Defendants argued that they believed they were merely hunting a wolf, did not intend to kill anyone's dog, and thus should not be held liable. The Court is unmoved by this argument, because the animal's wolf status was not relevant to Defendants' admitted intent to kill it, which is what caused the damages to Plaintiff.

28 McGuire v. Almy

McGuire v. Almy
Citation. 297 Mass. 323, 8 N.E.2d 760 (Mass. 1937). Brief Fact Summary. Plaintiff was employed as a caregiver for Defendant, a mentally ill but physically fit woman. During one of Plaintiff's shifts, Defendant caused a loud disturbance and told Plaintiff she would kill her if she entered her room. Plaintiff entered the room anyway, was physically attacked by Defendant, and sued for assault and battery. Synopsis of Rule of Law. The insane are liable for their torts to the same extent as the sane, except for certain torts requiring malice of which they are incapable. Facts. Plaintiff sued Defendant for assault and battery for damages inflicted during a physical attack. Plaintiff was working as a nurse for Defendant, an insane person, at the time, and was aware of Defendant's propensity for violent behavior. The general rule for the insane at the time was that the insane were liable for their torts to the same extent as the sane. The jury returned a verdict for the Plaintiff. Issue. Did the trial court err in refusing to direct a verdict for Plaintiff for assault and battery because Defendant was insane when she attacked Plaintiff? Held. No. The verdict was upheld and the award sustained. 1 In order to be liable for intentionally damaging another, an insane person must have been capable of the same level of intent and have possessed the same level of intent as would give rise to liability for a sane person.

Discussion. Much like [Garratt v. Dailey, 46 Wash.2d 197, 279 P.2d 1091 (Wash. 1955)] held with respect to children, the Court in this case declines to carve out a specific exception to general conceptions of intent for the insane. Rather, the Court applies general standards of intent to the insane, with the caveat that insanity could preclude one's capacity to intend certain types of actions in certain circumstances.

29 Talmage v. Smith

Talmage v. Smith
Citation. 101 Mich. 370, 59 N.W. 656 (Mich. 1894). Brief Fact Summary. Defendant discovered several boys playing on top of sheds on his property. Defendant demanded that they get down and most complied quickly, but Plaintiff and a few others remained on the roofs. Defendant threw a stick in the direction of a few boys on one of the roofs, but the stick missed those boys and struck and injured Plaintiff. Synopsis of Rule of Law. A Defendant's intent to cause physical contact with one party can be considered intent to commit battery against a second party when unreasonable force is used because the Defendant has no right to commit such an act. Facts. Defendant threw a stick toward one member of a group of several boys to get them to leave his property. The stick missed the first boy and struck Plaintiff in the eye. Plaintiff sued and recovered on a jury verdict. The jury was instructed that Defendant could be liable if he threw the stick with the intent to hit the first boy or Plaintiff and did so with force that was unreasonable under the circumstances Issue. Was the jury properly instructed that Defendant could be liable if he intended to hit either boy and used unreasonable force? Held. Yes. The judgment was affirmed, with costs. 1 When a Defendant intends to inflict harmful or offensive contact upon one party but instead inflicts such contact upon another, he is liable for the resulting injury.

Discussion. This case introduces the doctrine of transferred intent. As the Court explains, the doctrine is based upon the notion that one should not be allowed to escape liability for wrongdoing simply because someone other than the intended target was injured. This shows once again that tort law is not overly preoccupied with intent to cause a specific injury to a specific party - the overriding concern is with wrongful conduct.

30 Cole v. Turner

Cole v. Turner
Citation. 6 Modern Rep. 149, 90 Eng. Rep. 958 (Nisi Prius 1704). Brief Fact Summary. No facts are given. Synopsis of Rule of Law. The lightest angry touch constitutes battery. A gentle touch made in close quarters with no ill intention is not a battery. A forceful or reckless touch, in close quarters is a battery. Facts. As indicated above, no facts are given. This case only sets forth recitations of law. Issue. Under what circumstances and with what mindsets may a touching constitute battery? Held. Any degree of touching coupled with angry mindset qualifies as battery. 1 2 A light degree of touching in circumstances that may make avoiding such a touch difficult is not a battery in the absence of negative intent. A reckless or violent touching is a battery, even under circumstances that make avoiding physical contact difficult.

Discussion. These early pronouncements on battery demonstrate the elements at play in determining whether a battery has occurred. Far from being a simple matter, one must look to the parties' states of mind, the degree of contact, and their surroundings in analyzing whether a battery has occurred. It is also noteworthy that these pronouncements suggest that a party's intentions are the most important factor in the battery analysis, as an angry mindset can render even the most minimal contact a battery.

31 Wallace v. Rosen

Wallace v. Rosen
Citation. 765 N.E.2d 192 (Ind. App. 2002) Brief Fact Summary. A student's parent was standing at the top of a staircase in a school talking to her daughter and some of her daughter's friends. During the conversation, a fire alarm went off and while the students were evacuating, the parent fell down the stairs. The parent alleged that a teacher pushed her down the stairs. Synopsis of Rule of Law. The Plaintiff failed to show that the trial court abused its discretion by not reading the jury a civil battery instruction. Facts. The Defendant, Rosen (the "Defendant"), was a high school teacher. On April 22, 1994, the high school had a fire drill while classes were being conducted. None of the teachers knew about the fire drill in advance. The Plaintiff, Wallace (the "Plaintiff'), was at the school on the day of the fire drill delivering homework to her daughter Lalaya. The Plaintiff was speaking with Lalaya and two of her friends on the top of a staircase when the fire alarm went off. The Plaintiff alleged that during the course of the fire drill, the Defendant pushed her down the stairs. The Defendant admitted to touching the Plaintiff's back to get her attention, but says she did not push her down the stairs. The trial court judge refused to instruct the jury about civil battery. The trial court ruled in favor of the Defendant, and the Plaintiff appealed. Issue. Should the court have given the jury an instruction about battery? Held. No. The court first set forth the Indiana Pattern Jury Instruction for the intentional tort of civil battery. It reads: "A battery is the knowing or intentional touching of a person against [his] [her] will in a rude, insolent, or angry manner." The court also observed that a battery is an intentional tort, and it went on to discuss the differences between negligent acts, reckless acts and intentional acts. The court further recognized "[t]he intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although intending nothing more than a good-natured practical joke, or honestly believing that the act would not injure the plaintiff, or even though seeking the plaintiff's own good." 1 More than one witness testified that the Defendant touched the Plaintiff on her back before she fell. This touch caused the Plaintiff to fall and injure herself. However, not all touching rises to the level of civil battery. "For battery to be an appropriate instruction, the evidence had to support an inference not only that Rosen intentionally touched Wallace, but that she did so in a rude, insolent, or angry manner, i.e., that she intended to invade Wallace's interests in a way that the law forbids." The court also relied upon Professors Prosser and Keaton's observations about battery. The court observed "The conditions on the stairway

of Northwest High School during the fire drill were an example of Professors Prosser and Keeton's 'crowded world.' Individuals

32 Wallace v. Rosen 1 standing in the middle of a stairway during the fire drill could expect that a certain amount of personal contact would be inevitable. Rosen had a responsibility to her students to keep them moving in an orderly fashion down the stairs and out the door. Under these circumstances, Rosen's touching of Wallace's shoulder or back with her fingertips to get her attention over the noise of the alarm cannot be said to be a rude, insolent, or angry touching." Discussion. The judge relied greatly on Professor Prosser and Keeton's writings about the intentional tort of battery. The Professor's stated, "[I]n a crowded world, a certain amount of personal contact is inevitable and must be accepted. Absent expression to the contrary, consent is assumed to all those ordinary contacts which are customary and reasonably necessary to the common intercourse of life, such as a tap on the shoulder to attract attention, a friendly grasp of the arm, or a casual jostling to make a passage.... The time and place, and the circumstances under which the act is done, will necessarily affect its unpermitted character, and so will the relations between the parties. A stranger is not to be expected to tolerate liberties which would be allowed by an intimate friend. But unless the defendant has special reason to believe that more or less will be permitted by the individual plaintiff, the test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity. "

33 Fisher v. Carrousel Motor Hotel, Inc.

Fisher v. Carrousel Motor Hotel, Inc.

Citation. 424 S.W.2d 627 (Tex. 1967). Brief Fact Summary. At a professional conference held in Defendant's hotel, one of Defendant's employees seized a plate from the Plaintiff's hand, shouting that a "Negro could not be served in the club". Defendant's employee did not make physical contact with Plaintiff, but the event was witnessed by many of Plaintiff's colleagues. Plaintiff sought actual and punitive damages for assault and battery. Synopsis of Rule of Law. A Plaintiff may recover for battery even when not physically touched so long as the Defendant committed an unwanted an intentional invasion of the inviolability of the Plaintiff's person. Facts. Plaintiff sued for assault and battery when Defendant's employee forcibly removed a plate from Plaintiff's hand, but did not actually make physical contact with Plaintiff. The jury returned a verdict of $400 for actual damages and $500 in punitive damages. The trial court, however, set aside the verdict because no actual physical contact was made with Plaintiff. Issue. Did the trial court correctly set aside the jury's verdict because no actual physical contact was made with the Plaintiff? 1 May actual damages stemming from mental suffering be awarded when no physical contact occurred?

Held. The trial court's decision was reversed and the verdict reinstated. 1 2 Unwanted and intentional invasion of one's person through dispossession of an object is battery even in the absence of physical contact. Actual damages for mental suffering stemming from battery may be awarded even when no physical contact is made.

Discussion. The Court distills battery as a tort concerned primarily with personal dignity, not merely personal space. However, the Court repeatedly refers to offenses to "the person", implying that some nexus with physical contact must be present in cases of battery. The Court suggests that any objects grasped by a person are considered part of "the person" for the purposes of battery. Other courts have sometimes referred to such objects as "appurtenances".

34 I de S et ux. v. W de S

I de S et ux. v. W de S
Citation. Y.B.Lib.Ass. folio 99, placitum 60 (Assizes 1348). Brief Fact Summary. Defendant W de S went to the home of Plaintiffs I de S and M de S at night to purchase wine. Upon finding the door closed, Defendant beat the door with a hatchet until M de S stuck her head outside and told him to stop. W de S swung the hatchet toward M de S but did not strike her, and Plaintiffs sued for assault. Synopsis of Rule of Law. Physical contact is not a necessary element of an action for assault. Facts. Plaintiffs sued Defendant for assault after he swung a hatchet at but did not strike M de S. Defendant pled not guilty on the ground that there was no physical contact. An inquest into the matter confirmed that no physical contact had occurred. The inquest concluded that no harm was thus done and dismissed the case. Issue. Did the fact that no physical contact occurred mean that no harm was done, warranting dismissal of the case? Held. No. The Court reversed the decision of the inquest and awarded damages. 1 Assault may be found and damages awarded in the absence of physical contact.

Discussion. Not unlike Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967), this case shows that interference with one's person is actionable, and that this need not include actual physical contact. 1 Neither the inquest nor the Court appears to have made any inquiry into the state of M de S's mind as W de S swung his hatchet toward her. Her state of mind, as the victim of an alleged assault, will become relevant in later assault cases.

35 Western Union Telegraph Co. v. Hill

Western Union Telegraph Co. v. Hill

Citation. 25 Ala.App. 540, 150 So. 709 (Ala. Civ. App. 1933). Brief Fact Summary. Defendant's employee routinely provided repairs to the clock located in Plaintiff's business. On one occasion when Plaintiff's wife requested that he repair the clock, Defendant's employee allegedly offered to fix the clock in exchange for sexual favors and unsuccessfully reached out to grab her. When Plaintiff sued for assault, Defendant denied the allegations and argued the physical evidence showed he could not have reached Plaintiff's wife. Synopsis of Rule of Law. For assault to occur, there must be an intentional and unlawful offer or attempt to touch another's person in a harmful or offensive manner such that it creates a well-founded apprehension of imminent battery. One accused of assault must also appear to have the present ability to commit the battery if not prevented. Facts. Plaintiff sued Defendant for assault on the grounds that its employee made offensive remarks to his wife and attempted to grab her when she came into its store. Defendant's employee admitted to having been mildly intoxicated at the time, but denies Plaintiff's wife's version of events. The physical evidence also suggested that Defendant's employee would have been unlikely to be able to touch Plaintiff's wife as described. The trial court found that whether assault had been committed was a question for the jury, who found for Plaintiff. Issue. Did the trial court err in submitting the question of whether assault had occurred to the jury? Held. No. The Court found the trial judge properly submitted the question to the jury. 1 When the evidence shows that a party could have made an effort to reach out and touch another in an offensive, unwanted manner and may or may not have had the apparent ability to do so at the time, whether an assault has occurred is a question for a jury. The Court also found, however, that the employee was acting beyond the scope of his employment if he committed assault and Defendant was thus not liable for his actions. The Court reversed the verdict on this ground.

Discussion. Defendant was attempting to avoid liability on the ground that its employee could not have succeeded in touching Plaintiff's wife, even had he tried. As the Court explains, such an argument is largely irrelevant to the tort of assault. Assault requires only that the victim be put in apprehension of imminent battery. As a corollary to this rule, there may be some circumstances when no reasonable person could possibly apprehend imminent battery. For example, the alleged assailant may have been so far away from the

party claiming assault that it would be impossible to reasonably believe battery was imminent. Or the alleged assailant could have been in such an obviously

36 Western Union Telegraph Co. v. Hill weakened or vulnerable position that such a belief would be impossible. However, when it simply appears that actual battery might have been difficult or unlikely, it is for the jury to decide whether the party claiming assault could have had the requisite apprehension of imminent battery.

37 Big Town Nursing Home, Inc. v. Newman

Big Town Nursing Home, Inc. v. Newman

Citation. 461 S.W.2d 195 (Tex.App. 1970). Brief Fact Summary. Plaintiff, a retiree, was checked into Defendant's nursing home at the behest of his nephew. Upon checking in, the admission papers indicated that Plaintiff's presence was strictly voluntary and he could leave at any time. However, when Plaintiff attempted to leave on numerous occasions, he was restrained, punished, denied privileges, and moved to a wing of the home for drug addicts and the insane. Synopsis of Rule of Law. False imprisonment is one person's direct restraint of another's physical liberty in the absence of sufficient legal justification. Facts. A few days after Plaintiff was checked into Defendant's nursing home, he decided he wished to leave. However, despite the fact that his admission papers indicated his presence was strictly voluntary, he was denied use of a telephone, had his personal belongings seized, and was forcibly restrained and returned to the home on the occasions when he escaped. He was also transferred to an area reserved for drug addicts and the insane. Plaintiff brought suit for false imprisonment and was awarded actual and punitive damages. Issue. Was the jury wrong to find Plaintiff had been falsely imprisoned? 1 Was the award of punitive damages improper under these circumstances?

Held. The jury's verdict was upheld, except the award was found excessive. Plaintiff accepted the remittitur proposed by the court of appeals. 1 When a nursing home detains a retiree against his will despite an agreement that his presence is voluntary and has no other legal justification for the physical detention, it has committed false imprisonment. When a Defendant's acts giving rise to actual damages are undertaken wrongfully, intentionally, and without regard to the rights of the Plaintiff, punitive damages may be appropriately awarded.

Discussion. This is a rather straightforward false imprisonment case. Plaintiff was even able to identify a contractual provision specifically demonstrating the Defendant's knowledge that it acted in disregard of his rights. The relative simplicity of the case allows the Court to set forth the precise elements of the tort of false imprisonment.

38 Parvi v. City of Kingston

Parvi v. City of Kingston

Citation. 41 N.Y.2d 553, 362 N.E.2d 960, 394 N.Y.S.2d 161 (N.Y. 1977). Brief Fact Summary. Police officers for the Defendant City of Kingston took custody of Plaintiff, who was intoxicated, and drove him outside the city limits instead of arresting him. After he was deposited on a golf course, Plaintiff found himself on the New York Thruway, where he was struck by a car and injured. Although he had little or no recollection of the entire evening, Plaintiff sued for false imprisonment. Synopsis of Rule of Law. Consciousness of confinement is a necessary element of false imprisonment, but recollection of that consciousness is not. It is thus possible to maintain a cause of action for false imprisonment despite lacking any recollection of confinement. Facts. Plaintiff brought suit against Defendant for false imprisonment after he was taken into custody by its police officers and was later injured. Plaintiff admitted, however, that he had no recollection of actually having been in police custody on the evening in question. Because Plaintiff could not remember having been confined, the trial court dismissed his claim for false imprisonment. Issue. Did the trial court correctly dismiss Plaintiff's false imprisonment claim because Plaintiff had no recollection of confinement? Held. No. The trial court's decision was reversed to allow a jury to consider whether the Plaintiff was conscious of the confinement at the relevant times. The failure to recall one's confinement does not mean that one was not conscious of such confinement at the time, which is the relevant question in actions for false imprisonment. Dissent. Plaintiff utterly failed to make even a prima facie case for false imprisonment. He set forth no evidence such as would allow a conclusion that he was conscious of his confinement at the relevant time, and his failure to recall the confinement defeats his case. Discussion. This case hones the elements of the false imprisonment action. A Plaintiff is required to prove consciousness of the confinement as a prerequisite to recovery. This being a dignitary tort, it would not make sense to allow recovery when an insult to one's dignity is not realized. The Court explains, however, that such a dignitary insult is actionable so long as the victim is aware of it as it occurs. The failure to recall the insult does not erase the harm inflicted.

39 Hardy v. LaBelle's Distributing Co.

Hardy v. LaBelle's Distributing Co.

Citation. 203 Mont. 263, 661 P.2d 35 (Mont. 1983). Brief Fact Summary. An employee of Defendant informed Defendant that Plaintiff, a recently hired temporary employee at Defendant's jewelry department, had stolen a watch. The store manager invited Plaintiff into his office, claiming she was being given a tour as a new employee. The manager closed the door behind him, and Plaintiff was ultimately questioned in the room for 20 to 45 minutes by the manager, at least one uniformed police officer, and others. Synopsis of Rule of Law. While actions or words may give rise to a claim of false imprisonment, the actions or words must rise to the level of unlawful restraint against one's will to be actionable. Facts. Plaintiff had been recently hired as a temporary employee in Defendant's jewelry department. Another of Defendant's employees told store management that she had seen Plaintiff steal a watch from the store. Under the guise of giving her a tour of the store, the store manager lured Plaintiff into his office and closed the door behind him. The manager, at least one uniformed police officer, and others questioned Plaintiff for 20 to 45 minutes, during which time Plaintiff did not ask or attempt to leave and was not told she could not leave. The manager was eventually satisfied that Plaintiff had not committed the theft. Plaintiff later brought suit for false imprisonment, and admitted that she would have entered the manager's office even had she not been lured there. The jury found for Defendant. Issue. Was the jury wrong to find that Plaintiff had not been restrained against her will? Held. No. The jury's verdict was upheld. The Court found that Plaintiff was not unlawfully restrained against her will because she would have entered the office voluntarily, never asked or attempted to leave, and was never told she could not leave. Discussion. The Court acknowledges that words can suffice to create the kind of unlawful restraint as could give rise to false imprisonment. However, the facts of the underlying case did not demonstrate that any such words were used. Rather, it appears Plaintiff may have held a subjective belief that she was not allowed to leave the manager's office. Creating circumstances that may engender such a belief does not rise to the level of false imprisonment without further words or actions confirming such a belief.

40

Enright v. Groves

Enright v. Groves
Citation. 39 Colo.App. 39, 560 P.2d 851 (Colo. Ct. App. 1977). Brief Fact Summary. Defendant, a police officer spied a dog running without a leash in violation of Defendant city's local ordinance. After determining the dog belonged to Plaintiff, the officer located Plaintiff and demanded her driver's license, which Plaintiff refused to give. The officer told Plaintiff he would arrest her if she didn't turn over her license, and when she failed to do so he placed her under arrest, after which she was convicted of violating the leash ordinance. Synopsis of Rule of Law. Conviction of the crime for which one is arrested bars a subsequent claim for false imprisonment, but does not provide a defense when there was probable cause to arrest for a different crime. Facts. When Defendant officer saw a dog running without a leash in violation of an ordinance, he searched for its owner. When he determined Plaintiff to be the owner, he located her and demanded her driver's license without explaining why. Plaintiff refused, instead telling the officer her address. The officer told Plaintiff he would arrest her if she did not surrender her driver's license. Plaintiff again failed to do so, and the officer placed her under arrest. Plaintiff was later convicted of violating the leash ordinance. Plaintiff brought suit for false imprisonment, and the jury awarded her $500 in actual damages and $1000 in punitive damages. Issue. Was the jury correct in returning a verdict for Plaintiff despite her subsequent conviction for violation of the leash ordinance? Held. Yes. The judgment was affirmed. While Plaintiff was ultimately convicted of a crime, she was not convicted of the crime for which she was arrested. As the facts elucidate, she was arrested for failing to produce her driver's license to the officer, which is not a crime. The officer's arrest of Plaintiff was therefore unlawful and the verdict was proper. Discussion. In an action for false imprisonment involving police officers, the defense will often be raised that Plaintiff was ultimately convicted of a crime. This case makes it clear, however, that the conviction must mirror the basis of the arrest. Probable cause to believe that one crime has been committed does not provide blanket authority for an officer to arrest someone for any other crime. Had the officer in this case arrested Plaintiff solely for violation of the leash ordinance, the defense would have been valid.

41

Whittaker v. Sandford

Whittaker v. Sandford
Citation. 110 Me. 77, 85 A. 399 (Me. 1912). Brief Fact Summary. Plaintiff and her husband were members of a religious group headed by Defendant and based in Tel Aviv. Plaintiff decided she would like to leave the group and return to the United States, in response to which Defendant offered transportation via his yacht and assured her she would not be detained. Upon arrival, Defendant refused to grant her use of a boat to reach the shore, and she remained on board against her will except for brief, supervised excursions until she finally obtained release through a writ of habeas corpus. Synopsis of Rule of Law. Physical as opposed to moral restraint is required for false imprisonment, but this does not mean actual physical force must be used. Refusing to provide one with the means to overcome a physical barrier can constitute restraint such as can give rise to a claim for false imprisonment. Facts. Plaintiff was a member of a religious organization of which her husband was a minister and Defendant was the head. The group was based in Tel Aviv, but Plaintiff decided she would like to leave the group and return to the United States with her children. Defendant offered to grant them passage aboard his yacht and promised that they would not be detained when Plaintiff expressed concern that he would refuse to let her leave the ship. When they arrived, Defendant refuse to let Plaintiff use a boat to reach the shore and said it was up to her husband to decide whether she should be allowed to do so. Plaintiff's husband, in turn, said that it was up to Defendant to decide. Although Plaintiff was occasionally allowed to leave the yacht briefly, she was always supervised and was only able to reach the United States after she secured a writ of habeas corpus. She sued Defendant for false imprisonment. At trial, the court instructed the jury that while physical restraint was a necessary element of false imprisonment, actual physical force need not have been used. Issue. Did the trial court properly instruct the jury that actual physical force is not required for a case of false imprisonment to succeed? Held. Yes. The verdict was upheld. Physical restraint can be found in the refusal to grant one the means to overcome a barrier to free movement, particularly when one has sole control over those means. The boats in question were under the control of Defendant and were necessary to provide Plaintiff with the means to reach the shore. Discussion. While false imprisonment is not so broad a concept as to allow recovery when one merely persuades another to restrict his own movements by appealing to his morals or reason, nor is it so narrow that actual physical force must have been used. This case addresses the grey area in which a physical impediment to a Plaintiff's free movement existed and a Defendant refused to remove it. In this case, the fact that the Defendant

caused the impediment to exist and controlled the means to remove it meant that his refusal to do so constituted false imprisonment.

42

State Rubbish Collectors Ass'n v. Siliznoff

State Rubbish Collectors Ass'n v. Siliznoff

Citation. 38 Cal.2d 330, 240 P.2d 282 (Cal. 1952). Brief Fact Summary. Defendant, a non-member of Plaintiff association, collected garbage from a company Plaintiff claimed was within its domain. Plaintiff's agent allegedly demanded that Defendant surrender the money derived from the collection or suffer physical consequences, in response to which Defendant attended Plaintiff's meeting and signed notes promising to pay. Plaintiff sued Defendant to force payment of the notes, and Defendant argued they were unenforceable and counter-sued for intentional infliction of mental distress. Synopsis of Rule of Law. There exists a cause of action for intentional infliction of emotional distress for serious threats of physical violence whether or not such threats technically rise to the level of assault. When one acts outrageously, intends to cause such distress and does so, he is liable for the emotional distress and the bodily harm resulting therefore. Facts. Defendant collected garbage from a company Plaintiff claimed was properly subject to collection by one of its members. Defendant alleged that agents of Plaintiff threatened him with physical violence if he did not make an arrangement to pay Plaintiff's member the money derived from the collection, and demanded that he attend a meeting of the association. Defendant also alleged that he was only allowed to leave that meeting after he signed notes promising to pay the money demanded. When Plaintiff sued to collect on the notes, Defendant claimed they were invalid and counter-sued for intentional infliction of mental distress. The jury returned a verdict in favor of Defendant for both the notes and the intentional infliction of mental distress. Issue. Was the jury correct to find Plaintiff liable for the damages resulting from Defendant's mental suffering, even though Plaintiff caused no actual physical damage? Held. Yes. The verdict was sustained. One who behaves outrageously in causing severe emotional distress to another is liable for the damages stemming from that emotional distress, including physical injury. It is a question for the jury whether outrageous conduct has caused emotional distress and physical injury. Discussion. The Court focuses upon the role of a jury and its likely capabilities in reaching this decision. Recognizing that a jury may not be equipped to accurately track the cause of a physical injury, the Court makes paramount the question of whether one has engaged in outrageous conduct such as would warrant imposition of liability for resulting emotional and physical damages. The Court is clearly concerned about unleashing a whole new range of causes of action, and attempts to use the outrageousness standard to limit that possibility.

43

Slocum v. Food Fair Stores of Florida

Slocum v. Food Fair Stores of Florida

Citation. 100 So.2d 396 (Fla. 1958). Brief Fact Summary. Plaintiff was a customer in Defendant's store and asked an employee the price of an item. The employee insulted her by responding that "[i]f you want to know the price, you'll have to find out the best way you can" because "you stink to me". Plaintiff, taken aback by the comment upon her bodily odor, brought suit for intentional infliction of emotional distress, and the trial court dismissed for failure to state a cause of action. Synopsis of Rule of Law. Mere expressions of insults or general abuse are not actionable unless it can be shown that they were intended to bring about severe emotional distress. Facts. Plaintiff, a customer in Defendant's store, inquired as to the price of a certain item. The employee responded that "[i]f you want to know the price, you'll have to find out the best way you can" because "you stink to me". Plaintiff brought suit for intentional infliction of emotional distress, and claimed the insulting characterization of her bodily scent led to a heart attack and exacerbated heart disease. The trial court dismissed the case for failure to state a cause of action. Issue. Was the trial court correct to find that the Plaintiff's allegations were insufficient to state an independent cause of action? Held. Yes. The judgment was affirmed. 1 2 3 Only such conduct as exceeds all bounds permissible in society can give rise to an independent claim for intentional infliction of emotional distress. The conduct complained of must be substantially certain to result in severe emotional distress. Mere insults or general abuse do not rise to the requisite level of outrageousness to allow for recovery for infliction of severe emotional distress.

Discussion. The Court recognized that a trend toward allowing causes of action for intentional infliction of emotional distress was emerging. The Court felt compelled, however, to place some limitations upon such claims. In this case, the concept of outrageousness is further defined, with the result that garden-variety insults are excluded from the conduct that can give rise to such a claim. This particular example, an insulting comment upon someone's bodily odor, is found not to be sufficiently outrageous as to give rise to a cause of action for intentional infliction of emotional distress.

44

Harris v. Jones

Harris v. Jones
Citation. 281 Md. 560, 380 A.2d 611 (Md.App. 1977). Brief Fact Summary. Defendant was Plaintiff's supervisor at a factory, and was aware that Plaintiff suffered from a speech impediment causing him to stutter. Defendant frequently mocked Plaintiff and his condition on the job, causing him to feel distress. Plaintiff sued for intentional infliction of emotional distress. Synopsis of Rule of Law. For intentional infliction of emotional distress: 1) the conduct must be intentional or reckless; 2) the conduct must be extreme and outrageous; 3) the wrongful conduct must cause the distress; and 4) the emotional distress must be severe. Facts. Defendant supervised Plaintiff at an automobile factory and frequently mimicked his stuttering condition while at work. Plaintiff asked him on numerous occasions to stop, but he persisted. Plaintiff sued Defendant for intentional infliction of emotional distress, but admitted that Defendant was not the only one who mocked him and that he had had problems with other supervisors in the past. The jury returned a verdict in Plaintiff's favor, but this was reversed on appeal. Issue. Was the Appellate Court correct to reverse the verdict based upon its finding that there was insufficient evidence from which the jury could conclude that the wrongful conduct caused the distress and that the distress was severe? Held. Yes. The reversal of the verdict was affirmed. 1 In determining whether conduct is outrageous, the totality of the circumstances must be considered. The environment and characteristics of the individuals involved must be taken into account. Whether conduct can be considered outrageous is initially a question for the judge. When reasonable people could form different opinions as to whether conduct was outrageous, it is a question for the jury. The severity of the emotional distress must be proven by the Plaintiff and must also be considered in light of the totality of the circumstances.

Discussion. In addition to clearly setting forth the elements of intentional infliction of emotional distress, the Court places a heavy burden upon the Plaintiff to demonstrate the causation and severity of that distress. This case demonstrates once again that this is a difficult tort to prove, despite or perhaps as a reaction to the concurrent trend toward allowing its recognition.

45

Taylor v. Vallelunga

Taylor v. Vallelunga
Citation. 171 Cal.App.2d 107, 339 P.2d 910 (Cal. Ct. App. 1959). Brief Fact Summary. Plaintiff Gerlach alleges Defendants physically attacked him and Plaintiff Taylor, Gerlach's daughter, alleges she witnessed the attack. Gerlach sued for damages stemming from his physical injuries while Taylor sued for the emotional distress she suffered from witnessing the attack. Synopsis of Rule of Law. For one to recover for emotional distress when she has experienced no physical injury, she must establish that the Defendant intentionally caused her to suffer from severe emotional distress. Facts. Plaintiff Taylor witnessed Defendants intentionally attacking and beating her father, Plaintiff Gerlach. While Gerlach sued for his physical damages, Taylor sued to recover for the emotional distress she experienced as a result of witnessing the event. Taylor failed to allege that the Defendants knew she was present for the event or that they intended the beating to cause her to suffer distress. The trial court granted the Defendants' motion to dismiss Taylor's claim and Taylor appealed. Issue. Did the trial court err in dismissing Taylor's complaint for intentional infliction of emotional distress? Held. No. The dismissal was affirmed. When a Plaintiff seeks to recover for emotional distress but does not allege any physical damage, she is required to prove that the emotional distress was intentionally inflicted upon her by the Defendant. When a Defendant is not even aware of the Plaintiff's presence or does not commit the acts causing the distress with the intention of causing Plaintiff such distress, the Defendant has not intentionally inflicted emotional distress upon the Plaintiff. Discussion. The Court focuses on the Plaintiff's failure even to allege the Defendants were intending to cause her to suffer emotional distress. While it was alleged that the Defendants intended to injure Plaintiff Gerlach, there are no allegations with regard to their intent to injure Plaintiff Taylor. Because Taylor suffered no physical injuries herself, she could only recover for emotional distress if the Defendants' actions met the requirements for an intentional infliction of emotional distress claim. Because Taylor did not allege the Defendants knew she was present or intended her to suffer from emotional distress, the dismissal was proper.

46

Dougherty v. Stepp

Dougherty v. Stepp
Citation. 18 N.C. 371 (N.C. 1835). Brief Fact Summary. Defendant entered Plaintiff's land to perform a survey, but did not mark trees or cut timber. Plaintiff sued for trespass. The trial court instructed the jury that no trespass had occurred and the jury found for Defendant. Synopsis of Rule of Law. Every unauthorized entry upon another's land qualifies as a trespass, regardless of the degree of damage done in the process. Facts. Defendant and his survey team entered Plaintiff's land for the purpose of conducting a survey. Defendant and his team did not do any damage to or mark the trees or shrubbery upon the property. Plaintiff sued Defendant for trespass. The trial court instructed the jury that no damage had been inflicted and thus no trespass occurred. The jury returned a verdict for Defendant. Issue. Did the Trial Court properly instruct the jury that no trespass had occurred because there was no palpable damage to the land? Held. No. The case was reversed for a new trial. The actions taken upon the land and the effects of those actions are relevant in calculating damages, but the entry upon another's land without authorization always qualifies as a trespass. Discussion. This case demonstrates the distinction between liability and damages in tort. Although the Court acknowledges that the actual damages suffered by the Plaintiff were probably minimal, this has no bearing upon whether a trespass was committed in the first place. The Court also noted that the law infers some damage results from such a wrong, and will grant it once liability is proven.

47

Bradley v. American Smelting and Refining Co.

Bradley v. American Smelting and Refining Co.

Citation. 104 Wash.2d 677, 709 P.2d 782 (Wash. 1985). Brief Fact Summary. Defendant American Smelting and Refining Co. operated a smelter near the Plaintiff Bradley's property. As a result of its operations, Defendant's smelter caused various gases and particulate matter, imperceptible to the naked eye, to be deposited upon Plaintiffs' property. Plaintiff sued to recover for trespass and nuisance. Synopsis of Rule of Law. Trespass is the interference of one's right to exclusive possession of land, while nuisance is the interference with one's right to exclusive use and enjoyment of land. Accordingly, particles that quickly dissipate may give rise to a nuisance action while particles that are deposited and do not pass away may give rise to an action in trespass. However, the prior rule that any trespass whatsoever entitles a landowner to nominal or punitive damages is no longer appropriate or workable in these circumstances. Actual damages must now be proven to sustain a trespass claim. Facts. Plaintiffs, an association of landowners on an island, sued Defendant, the operator of a nearby smelter, for trespass and nuisance due to gaseous and particulate emissions. The parties filed cross-motions for summary judgment, and the United States District Court for the Western District of Washington certified the matter for the Supreme Court of Washington. Issue. Are Plaintiffs entitled to nominal or punitive damages as a matter of law due to the interference with their exclusive possession, use, and enjoyment of their land by gaseous and particulate emissions? Held. No. The matter was remanded with instructions that actual damages needed to be shown for recovery. 1 2 3 Trespass occurs when one interferes with another's right to exclusive possession of property. Nuisance involves the interference with one's right to exclusive use and enjoyment of property. Particles that remain deposited and do not quickly pass away interfere with one's exclusive possession of land and are thus the subject of the law of trespass. Quickly dissipating particles interfere only with one's use and enjoyment and are thus properly subject to nuisance law. Although trespass entitled a plaintiff to nominal and punitive damages as a matter of law at common law, such a rule is inappropriate and unworkable

4 5

with respect to wide-ranging pollutants. A trespass plaintiff must now prove actual damages to recover.

48 Bradley v. American Smelting and Refining Co. Discussion. The Court is clearly mindful that the common law rule would require recovery of at least nominal damages for any trespass, no matter how minimal. Based upon these facts, however, and paying particular attention to policy considerations of safeguarding industries against widespread and unnecessary litigation, the Court requires that actual and substantial damages be shown for one to recover for trespass.

49

Herrin v. Sutherland

Herrin v. Sutherland
Citation. 74 Mont. 587, 241 P. 328 (Mont. 1925). Brief Fact Summary. Defendant, while hunting, fired his shotgun at birds flying over Plaintiff's land. Plaintiff sued for trespass, claiming damages of $10. Synopsis of Rule of Law. Interference with the airspace over one's property can give rise to an action for trespass. Facts. Defendant was hunting while standing on someone else's property. He fired his shotgun at ducks flying over Plaintiff's land. Plaintiff sued for trespass to his land. Plaintiff was granted a default judgment, and was ultimately awarded $1 in nominal damages. The Defendant timely appealed. Issue. Did the trial court err when it granted Plaintiff nominal damages for the discharge of a shotgun over his land? Held. No. The judgment was affirmed. 1 2 Under Blackstone's interpretation, land extends upwards and downwards, giving its owner rights in its air space. Air space, at least near the ground, is nearly as subject to protection as is the ground.

Discussion. The Court confirms that the air space over one's land is subject to protection against trespass. The Court is not called upon to determine how far such protection might extend, as the intrusion upon Plaintiff's land occurred merely a few feet off the ground, but it does suggest that the degree of protection diminishes the further from the ground it gets.

50 Rogers v. Board of Road Com'rs for Kent County

Rogers v. Board of Road Com'rs for Kent County

Citation. 319 Mich. 661, 30 N.W.2d 358 (Mich. 1947). Brief Fact Summary. Pursuant to a license, Defendant placed a snow fence and posts upon Plaintiff's husband's property with the understanding that it would be removed at the end of winter. Defendant did not remove the fence at the end of winter, and Plaintiff's husband was killed by an accident involving the fence's continued presence on his property. Plaintiff sued for trespass and negligence. Synopsis of Rule of Law. When one consents to the presence of a structure or chattel on his property and that structure or chattel is not removed after the consent is revoked or terminated, he may recover for damages resulting from its continued presence. Facts. Defendant obtained a license to place a snow fence upon Plaintiff's husband's property, but in so doing agreed to remove the fence after the winter months when it was necessary. Defendant failed to remove the fence after winter as agreed. When Plaintiff's husband was later mowing the area, he was injured by a collision with the fence and ultimately died. Plaintiff sued for trespass and negligence. The Trial Court dismissed the action, finding that there was no basis for finding trespass. The Plaintiff appealed. Issue. Was the Trial Court correct in dismissing the cause of action in trespass? Held. No. The judgment was reversed and remanded. The license and agreement rendering the snow fence's presence initially lawful did not bar an action for its presence after it should have been removed. Once consent or license to a structure or chattel's presence upon one's land is effectively terminated, the presence may revert to a trespass. Discussion. This case demonstrates other possible dimensions of an intrusion upon another's land. The Court recognizes that the fence was properly on the property in the first instance and was thus not originally a trespass. Had the injury occurred during the winter months, no damages could have been sought in trespass. However, due to the expiration of the license period, the fence's continued presence ripened into a trespass, and the damages became recoverable.

51 Glidden v. Szybiak

Glidden v. Szybiak
Citation. 95 N.H. 318, 63 A.2d 233 (N.H. 1949). Brief Fact Summary. A dog owned by Defendants bit Plaintiff, a four year-old girl. Plaintiff sued to recover for her personal injuries. Defendants contended that Plaintiff was guilty in committing a trespass by meddling with the dog and thus not entitled to recover. Synopsis of Rule of Law. In order to prove a case of trespass to chattels, there must be damage to the chattel, the owner must be deprived of use of the chattel for a substantial period of time, or bodily harm must result from the trespass. Facts. Plaintiff, a four year-old girl, encountered a dog owned by Defendants. She approached the dog, played with him and pulled his ears. The dog bit Plaintiff, and she sued to recover for her injuries. Defendants argued that Plaintiff, in playing with the dog, had committed trespass to chattels and was thus not entitled to recover. Issue. Was Plaintiff's approach upon and subsequent play with the dog trespass to chattels such as would bar recovery for her injuries? Held. No. Judgment was entered for the Plaintiff. 1 One who non-consensually uses or interferes with a chattel of another is guilty of trespass if the chattel is damaged, the possessor is deprived of use for a substantial time, or bodily harm is caused by the interference. Unlike trespass to land, trespass to chattels does not entitle one to nominal damages. Some sort of damage must result from the interference because sufficient legal protection of the inviolability of possession of a chattel is found in the privilege to use reasonable force to maintain possession.

Discussion. This case introduces the tort of trespass to chattels, albeit in the context of a defense to another action. The Court sets forth the essential elements of the tort and explains its distinction from trespass to land. Defendants' inability to prove any damage to the dog doomed the invocation of trespass to chattels as a defense.

52 Compuserve, Inc. v. Cyber Promotions, Inc.

Compuserve, Inc. v. Cyber Promotions, Inc.

Citation. 962 F.Supp. 1015 (D. Ohio 1997). Brief Fact Summary. Despite Plaintiff's request that they cease to do so, Defendants continually distributed unsolicited e-mail advertisements to the subscribers of Plaintiff. Although Plaintiff implemented measures to filter out Defendants' unsolicited messages, Defendants reconfigured their messages so as to circumvent these measures and reach the intended targets. Plaintiff sought to enjoin Defendants from continuing in its efforts to send such unsolicited messages to its subscribers. Synopsis of Rule of Law. Electronic signals sent via a computer are sufficiently tangible to form the basis of a cause of action for trespass to chattels, and interference therewith can be actionable. Facts. Defendants distributed e-mail advertisements to Plaintiff's subscribers. Plaintiff requested that Defendants stop, but Defendants continued. Plaintiff employed measures to block Defendants' messages, but these measures were frequently circumvented. Plaintiff obtained a temporary restraining order to block the messages, and then sought a preliminary injunction to extend the duration of the blockage. Defendants argued that Plaintiff's computer equipment and service was not dispossessed, and that this prevented the issuance of such an injunction. Issue. Is Plaintiff entitled to a preliminary injunction to block Defendants' messages despite the fact that the computer equipment and service were not being dispossessed? Held. Yes. The preliminary injunction was granted. Dispossession is only one example of an occasion in which trespass to chattels has occurred. Such a trespass may also be found when the chattel is damaged or devalued, the possessor is deprived of its use for a substantial period of time, or bodily harm results from the interference with the chattel. Discussion. This case again addresses the extent of interference with chattels that must exist in order to be actionable. The Court rejected Defendants' argument that a plaintiff must show actual dispossession of the chattel to find for a Plaintiff. Rather, any actionable interference can give rise to a claim and, as this case demonstrates, an injunction.

53 Pearson v. Dodd

Pearson v. Dodd
Citation. 410 F.2d 701, cert. denied, 395 U.S. 947, 89 S.Ct. 2021, 23 L.Ed.2d 465 (D.C. Cir. 1969). Brief Fact Summary. Staffers of Plaintiff, a United States Senator, repeatedly entered his office and removed various documents. They made copies of the documents and distributed the copies to Defendants, who published their contents. The originals were returned to Plaintiff's office. Synopsis of Rule of Law. Conversion is the intentional exercise of control or dominion over a chattel that interferes with another's rights to control it with sufficient severity that the party exercising such control may fairly be required to pay for its full value. Facts. Defendants published articles based upon information contained in documents stolen from Plaintiff's office. Defendants would receive the information from Plaintiff's own employees, who would temporarily remove the documents from Plaintiff's office, copy them, and return the originals to the office. Plaintiff sued for conversion. The District Court ruled that the Defendants had committed conversion Issue. Was the District Court correct in finding that Defendants committed conversion by paying for and using the photocopies of Plaintiff's files? 1 Was the information contained in the files in question properly subject to protection under a lawsuit for conversion?

Held. No. The District Court's decision was reversed. 1 The interference with Plaintiff's use of the files was not so severe as to warrant payment for their entire value. The files were removed at night, photocopied, and returned to their usual place. The interference with a Plaintiff's use must be far greater for the tort of conversion, which necessitates an award of the entire value of the property in question. The information in this case is not the sort of information properly protected under conversion. In this case, the information involved was internal correspondence and office records, while conversion protects intellectual property, trade secrets, and the like.

Discussion. The Court sets forth the elements of conversion, noting its most striking feature to be its award of the entire value of property with which interference has occurred. As a result of this relatively drastic remedy, the interference must be severe. The Court explains that a lesser interference will fall into the realm of trespass to chattels, in which the measure of damages tends to be diminution in value.

54

C H A P T E R I I I . P r i v i l e g e s

55 O'Brien v. Cunard S.S. Co.

O'Brien v. Cunard S.S. Co.

Citation. 154 Mass. 272, 28 N.E. 266 (Mass. 1891). Brief Fact Summary. Plaintiff was a passenger aboard one of Defendant's ships. She was vaccinated while on the ship, and suffered from complications resulting in injury. She sued for assault and negligence. Synopsis of Rule of Law. When consent is used as a defense to an assault action, the totality of the circumstances must be considered, but only overt acts and outward manifestations may demonstrate such consent or lack thereof. Facts. Plaintiff was given a vaccination while aboard on of Defendant's steamships. Plaintiff suffered blistering and ulceration thereafter, and alleged this was due to the vaccination. Plaintiff had presented herself to Defendant's surgeon in the quarantine area and did not object when he indicated his intention to vaccinate her. Nevertheless, she sued for assault and negligence. The trial court directed a verdict for Defendant on the basis of consent. Issue. Did the trial court err in directing a verdict for Defendant on the basis of consent? Held. No. The judgment was affirmed. When one's overt acts and outward manifestations of intent indicate consent to physical contact in light of the surrounding circumstances, the making of such physical contact is consensual and therefore lawful. Discussion. This case introduces the defense of consent into the law of torts. More importantly, it sets forth the proper analysis of a claim of consent. As the Court explains, such a defense will be analyzed according to the overt acts of the party attempting to defeat the defense, and will be considered in light of the surrounding circumstances. The defense of consent thus cannot be defeated on the basis of one's unexpressed feelings or intentions. One must produce evidence to the effect that the other party had reason to know consent was not given.

56 Hackbart v. Cincinnati Bengals, Inc.

Hackbart v. Cincinnati Bengals, Inc.

Citation. 601 F.2d, cert. denied, 444 U.S. 931, 100 S.Ct. 275, 62 L.Ed.2d 188 (10th Cir. 1979). Brief Fact Summary. Plaintiff, a professional football player, was injured when one of Defendant's players intentionally struck him during a game. Both continued to play in the game and did not make any complaints at the time. Plaintiff later sued to recover for his injuries. Synopsis of Rule of Law. Even in an inherently violent situation such as a game of professional football, it is possible for one to go beyond its customs and so be liable for injuries in tort. Facts. Plaintiff was injured by one of Defendant's players in a professional football game. Defendant's player intentionally struck Plaintiff, but was not found to have intended to injure him. Neither of the two complained to officials at the time of the injury, but Plaintiff later sued to collect for his personal injuries. The trial court took judicial notice of the violent nature of professional football and found that the only remedies available to Plaintiff would be those administered within the game. Issue. Was the Trial Court correct in finding that Plaintiff had no remedy at law due to the extremely violent nature of professional football? Held. No. The judgment was reversed and remanded for a new trial. Despite the generally violent nature of professional football, there are rules prohibiting certain conduct such as the intentional striking of other players. The very existence of such rules demonstrates that there are boundaries to what constitutes acceptable behavior in the sport, and Plaintiff was entitled to a determination of whether his rights were violated. Discussion. The Court was called upon to analyze an implied consent defense. The trial court clearly found that one engaging in professional football was aware of its dangers and therefore surrendered his rights to seek redress for injuries sustained in the process. The Court explains here, however, that there is a question of scope to such consent, and the mere understanding of a sport's generally violent nature does not extinguish all rights to recover for truly egregious conduct that is beyond the pale even of what professional football commonly entails.

57 Mohr v. Williams

Mohr v. Williams
Citation. 95 Minn. 261, 104 N.W. 12 (Minn. 1905). Brief Fact Summary. Defendant was performing an operation upon Plaintiff's right ear when he decided that the condition was not so serious as to warrant the operation. While Plaintiff remained under anesthetic, Defendant discovered a more serious condition in her left ear. Without awakening her to receive consent, he performed the operation on the left ear. Synopsis of Rule of Law. While implied consent for a surgeon or doctor to operate in emergency, life-threatening situations may exist; the consent to perform one operation does not automatically operate as consent to perform other, similar operations. Facts. Defendant was to operate on Plaintiff's right ear for a medical condition. During the operation, Defendant determined that the condition did not require the operation. However, Defendant also discovered a more serious condition in Plaintiff's left ear. Rather than awaken Plaintiff to receive consent, he simply performed the operation while she remained under anesthetic. Plaintiff sued for battery and received a jury verdict. Defendant's motion for a judgment notwithstanding the verdict was denied. Issue. Did the trial court err when it denied Defendant's motion for judgment notwithstanding the verdict on the basis of consent? Held. No. The judgment was affirmed. Reasonable latitude must be afforded a surgeon or physician in the course of medical procedures, but such discretion is not unfettered. In the absence of express consent or implied consent justified by emergency, it is a question for a jury whether one has consented to a medical procedure. Discussion. The Court here addresses the scope of consent and the related issue of implied consent in the medical context. In the case of an emergency, life-threatening medical condition, implied consent exists to carry out procedures necessary to alleviate the problem. Such a condition can exist independently, or can be found in the course of performing another procedure. However, whether a situation is sufficiently life threatening so as to warrant such consent is a question of fact for a jury.

58 De May v. Roberts

De May v. Roberts
Citation. 46 Mich. 160, 9 N.W. 146 (Mich. 1881). Brief Fact Summary. Plaintiff Roberts had requested that Defendant De May, a doctor, visit her house for medical purposes. He arrived along with a second person, Defendant Scattergood, who was not a doctor. Plaintiff allowed both into her home and voiced no objection to Scattergood's presence, but later sued for deceit. Synopsis of Rule of Law. Consent given under false pretenses is not valid consent and will not operate as a defense to a subsequent action. Facts. Defendant De May, a doctor, visited the premises of Plaintiff. Because he was sick and the roads were difficult to travel, De May brought Defendant Scattergood along to assist him, even though Scattergood was not a doctor and was not invited to Plaintiff's premises. When Defendants arrived, De May introduced Scattergood as his assistant, and Plaintiff did not protest or object to his presence. Later, after discovering Scattergood's identity, Plaintiff brought suit for deceit. Defendants argued she had consented to Scattergood's presence. Judgment was entered for the Plaintiff. Issue. Should judgment have been entered for the Plaintiff even though she did not object to Scattergood's presence? Held. Yes. The judgment was affirmed. The consent to Scattergood's presence was clearly predicated upon the Plaintiff's mistaken belief that he was a physician. As the Defendants fostered this belief, it cannot give rise to a valid claim of consent. Discussion. This case demonstrates that the mere expression of consent of itself is not necessarily sufficient. The consent must be made with knowledge of the relevant facts to operate as a valid defense in a subsequent tort action. Consent given under a misapprehension of pertinent facts is of no moment.

59 Katko v. Briney

Katko v. Briney
Citation. 183 N.W.2d 657 (Iowa 1971). Brief Fact Summary. Plaintiff broke into and entered a farmhouse owned but not occupied by Defendant for the purposes of theft. Plaintiff was injured in the process by a "spring gun" trap Defendant had set to thwart intruders. Although "no trespass" signs were posted on the property, no warning about the trap was posted. Synopsis of Rule of Law. No privilege exists to use force intended or likely to cause death or great bodily harm to prevent trespass to land or chattels unless the trespass threatens death or great bodily harm to the occupier or user of the land or chattel. Facts. Plaintiff broke into a farmhouse owned but not occupied by Defendant to steal items he might find inside. Unbeknownst to the Plaintiff, Defendant had set a shotgun trap inside, and the gun fired at and injured Plaintiff when he entered the house. Defendant testified that he had placed the trap because he was tired of people breaking into the farmhouse, but did not intend to injure anyone. There were "no trespass" signs posted around the farmhouse, but no indications of any traps therein. The Trial Court instructed the jury that such a spring gun trap was prohibited unless it was used to prevent a trespasser from committing a felony of violence or punishable by death. The jury returned a verdict for Plaintiff and the Trial Court denied motions for judgment notwithstanding the verdict. The Defendant appealed. Issue. Was the Trial Court correct to instruct the jury that such a trap could not be used except to prevent a trespasser from committing a felony of violence or punishable by death and to deny the motion for judgment notwithstanding the verdict? Held. Yes. The judgment was affirmed. 1 The Trial Court's instructions were correct. A privilege to use means intended or likely to cause death or great bodily harm in order to prevent trespass to land or chattels exists only when the trespasser is committing a felony of violence or punishable by death. Such was not the case here. Criminal liability may also result from the use of such traps.

Dissent. The instructions made no provision for the possibility that the device was set with no intent to actually strike or harm an intruder, and previous cases on the subject dealt with intrusions to a vineyard, not a burglary such as this. Discussion. The Court acknowledges one's rights to protect against trespasses, but places important limitations upon those rights. Of paramount concern, the Court explains, is the value of human life and well-being. It is therefore necessary that actions risking loss of human life or damage to well being are prohibited except under circumstances when another party has already created a risk to either.

60

Hodgeden v. Hubbard

Hodgeden v. Hubbard
Citation. 18 Vt. 504, 46 Am.Dec. 167 (Vt. 1846). Brief Fact Summary. Plaintiff purchased a stove from Defendants on credit and took it away. Defendants quickly discovered that Plaintiff's credit information was false and immediately set out to overtake him and recover the stove. Defendants ultimately retook the stove by force, and Plaintiff sued for assault and battery. Synopsis of Rule of Law. One has a right to retake property that is rightfully his so long as it can be done without unnecessary violence to the person and without creating a breach of the peace. Facts. Plaintiff went to a warehouse owned by Defendants to purchase a stove. He supplied Defendants with credit information to consummate the purchase and left with the stove. Defendants discovered that Plaintiff's credit and assets were not what he claimed and they sought to recover the stove. They eventually overtook him and, after Plaintiff drew a knife, forcibly extracted the stove from his possession. At trial for assault and battery, the court instructed the jury that Defendants were not entitled to use force to recover the stove, even though Plaintiff misrepresented his credit. Plaintiff was awarded $1, and the Defendants appealed. Issue. Was the trial court correct in instructing the jury that Defendants were liable to Plaintiff if they used any force at all in retaking the stove? Held. No. The judgment was reversed and remanded. The stove was passed to Plaintiff under false pretenses, leaving all rights to its possession with Defendants. Defendants therefore were privileged to retake the property if this could be accomplished without unnecessary violence or breach of the peace. Only if Defendants used unnecessary violence or breached the peace were they liable to Plaintiff. Discussion. This case recognizes the privilege an owner of property has to recover that property when it is wrongfully taken. The most important aspect of this ruling is the limitation placed upon that privilege. Once again, of primary concern is the prevention of violence and breach of the peace.

61

Bonkowski v. Arlan's Department Store

Bonkowski v. Arlan's Department Store

Citation. 12 Mich.App. 88, 162 N.W.2d 347 (Mich. Ct. App. 1968). Brief Fact Summary. Plaintiff had left Defendant department store after shopping. Defendant Reinhardt, a security guard working for the store approached her in the parking lot and asked to see the contents of her purse. He determined that, despite reports of another witness, Plaintiff had not stolen anything and returned to the store. Synopsis of Rule of Law. There exists a privilege for merchants or shopkeepers to detain those whom they reasonably believe to have unlawfully taken chattels for a reasonable investigation and thereby avoid liability for false imprisonment. Facts. Plaintiff had been shopping at the Defendant department store. Defendant approached Plaintiff in the parking lot and explained that someone had told him that she had placed jewelry in her purse and not paid for it. He requested that she show him the contents of her purse, which she did. Defendant was satisfied by the presence of receipts that she had not stolen anything. Plaintiff later sued Defendant and the store for false imprisonment and slander. The jury returned a verdict for Plaintiff in the amount of $43,750. The trial court denied Defendants' post-trial motions. Issue. Was the trial court correct in denying the Defendants' motion for judgment notwithstanding the verdict on the basis of privilege? Held. No. Reversed and remanded for new trial. If Defendant reasonably believed that Plaintiff had unlawfully taken items form the store, he was privileged to detain the Plaintiff for a reasonable investigation. Discussion. This case introduces the shopkeeper or merchant's privilege to detain a suspected shoplifter for investigation. There are two important issues with respect to the privilege: 1) whether there was a reasonable belief that an item had been unlawfully taken; and 2) whether the investigation undertaken in response to this belief was reasonable. Satisfaction of both elements will provide a defense to a claim of false imprisonment.

62

Surocco v. Geary

Surocco v. Geary
Citation. 3 Cal. 69, 58 Am.Dec. 385 (Cal. 1853). Brief Fact Summary. Defendant, the Alcalde of San Francisco, destroyed Plaintiffs' house in an attempt to halt the progression of a fire in the city. Plaintiffs sued to recover for the damages sustained by the destruction. Synopsis of Rule of Law. Otherwise tortious acts may be rendered non-tortious when necessity dictates that they be undertaken for the greater interests of society. Facts. Defendant had Plaintiffs' house destroyed in an effort to save many more buildings from a fire. Plaintiffs sued to recover for the damages to his property. Judgment was entered for Plaintiffs, and the Defendant appealed. Issue. Was Defendant privileged to destroy Plaintiffs' house in order to halt the spread of the fire? Held. Yes. The judgment was reversed. The private rights of an individual in a house that is in danger of spreading flame to other houses and thus an entire city yield to the interest in protecting against such a spread. In such case, one is privileged to destroy the house to stop the spread. Discussion. In this case, the Court recognizes the common law privilege of necessity. In cases involving a fire that is likely to spread, an individual is privileged to destroy the house when such destruction is necessary to halt the spread. No recovery may be had for the damages flowing from such a necessary destruction.

63

Vincent v. Lake Erie Transp. Co.

Vincent v. Lake Erie Transp. Co.

Citation. 109 Minn. 456, 124 N.W. 221 (Minn. 1910). Brief Fact Summary. Defendant's steamship was moored to Plaintiffs' dock to unload cargo. A massive storm prevented the arrival of tugboats to remove the steamship after the unloading. Rather than cast the ship adrift, Defendant's employees kept the boat moored to the dock, which resulted in damage. Synopsis of Rule of Law. One who takes actions to protect his property that result in damage to another's property is required to compensate for those damages, even when the actions taken were necessary to prevent the destruction of his own property. Facts. Defendant's steamship was moored to a dock owned by Plaintiffs to allow for the unloading of cargo. By the time the unloading was complete, the weather had grown so perilous that no tugboats could enter the area and remove the ship. Rather than risk the ship's loss or destruction by untying it from the dock, Defendant's employees kept the mooring intact, which resulted in damage to the dock. Plaintiffs sued to recover for the damage caused by the ship's continued mooring. After a jury trial, a verdict was entered for Plaintiffs. The trial court denied Defendant's motion for a new trial, and Defendant appealed. Issue. Did the trial court properly deny Defendant's motion for a new trial on the basis of necessity? Held. Yes. The judgment was affirmed. While necessity may sometimes require that one individual use the property of another to avoid destruction of his own property, the party whose property is damaged is entitled to compensation. Discussion. The Court here distinguishes between public necessity for the greater good of society and private necessity for the good of one's own property. In the case of public necessity, compensation is not required for resulting damage. In the case of private necessity, however, while one may be entitled to use another's property and the act of so doing is thus not considered unlawful, any resulting damage must be compensated.

64

Sindle v. New York Transit Authority

Sindle v. New York Transit Authority

Citation. 33 N.Y.2d 293, 307 N.E.2d 245, 352 N.Y.S.2d 183 (N.Y. 1973). Brief Fact Summary. Plaintiff was a passenger on a school bus owned by Defendant transit authority and driven by Defendant Mooney. Students aboard the bus were behaving rather disobediently and causing damage to the bus despite Defendant's admonitions. Ultimately, Defendant bypassed the usual stops and took the Plaintiff and a few other students to a police station. Synopsis of Rule of Law. Reasonable restraint or detention undertaken with the aim of preventing another from inflicting personal injury or damaging property is not unlawful. Facts. Plaintiff was a student and passenger aboard a school bus owned by the transit authority and driven by Defendant. Several of the students aboard the bus were engaged in raucous behavior and caused damage to the bus. Defendant repeatedly told them to behave, but to no avail. Finally, after he had inspected the damage, Defendant informed the students that he was taking them to the police. He stopped making the usual stops and delivered the students to the police. Plaintiff sued for false imprisonment. At trial, Defendant argued his actions were justified, but the trial court excluded evidence of justification. Judgment was entered for Plaintiff and the Appellate Division affirmed and Defendants timely appealed. Issue. Did the trial court abuse its discretion in excluding the evidence of justification proffered by Defendants? Held. Yes. The judgment was reversed and remanded for a new trial. 1 One is justified in restraining or detaining another in a manner reasonable under the circumstances to prevent personal injury or damage to property, and evidence regarding such justification should not have been excluded in evaluating this claim of false imprisonment. A parent, guardian, or teacher entrusted with care of a child is justified in using that physical force reasonably necessary for discipline or the child's own welfare. It is the Defendant's burden to plead and prove justification.

Discussion. The Court introduces the defense of justification for the use of physical force. In finding justification, the Court focuses upon the bus driver's role as the supervisor of the students on the bus, creating a special relationship between the parties. The Court also notes that the burden is on the Defendant to prove justification.

65

C H A P T E R I V . N e g l i g e n c e

66

Lubitz v. Wells

Lubitz v. Wells
Citation. 19 Conn.Sup. 322, 113 A.2d 147 (Conn. 1955). Brief Fact Summary. Defendant Wells, Sr. left a gold club lying in his yard. His son, Defendant Wells, Jr. and his friend, Plaintiff, were playing in the yard when Wells, Jr. discovered the club. Wells, Jr. picked up the club and swung it, striking the Plaintiff in the face and injuring her. Synopsis of Rule of Law. A golf club is not so inherently dangerous that leaving it lying in a yard can constitute negligence. Facts. After Plaintiff was accidentally struck by a golf club wielded by Defendant Wells, Jr., she brought suit against Wells, Jr. and Wells, Sr., who had left the club lying in his yard. Wells, Jr. was accused of being negligent in swinging the golf club and failing to warn the Plaintiff that she might be struck. Wells, Sr. was accused of behaving negligently by leaving the club in the yard where children might play with it. The Defendants brought a demurrer against the action stated against Wells, Sr. Issue. Does leaving a golf club lying in a yard where children might find it qualify as negligence? Held. No. The demurrer as to the Plaintiff's action against Wells, Sr. was sustained. A golf club is not so inherently dangerous that leaving it where children could play with it and hurt themselves could constitute negligence. Discussion. Something greater than the realization that some possible injury could result from leaving an item on the ground is required to sustain a negligence claim. For the discarding of such an item to give rise to negligence, it must be obviously or intrinsically dangerous.

67

Blyth v. Birmingham Waterworks Co.

Blyth v. Birmingham Waterworks Co.

Citation. 11 Exch. 781, 156 Eng. Rep. 1047 (Court of Exchequer 1856). Brief Fact Summary. Defendants had installed water mains along the street with hydrants located at various points. One of the hydrants across from Plaintiff's house developed a leak as a result of exceedingly cold temperatures and caused water damage to the house. Plaintiff sued for negligence. Synopsis of Rule of Law. Negligence is the failure to do something a person of ordinary prudence would do or the taking of an action that a person of ordinary prudence would not take. A mere accident that is not occasioned by the failure to take such an action or the taking of such an action does not qualify as negligence. Facts. Plaintiff sued to recover for damages sustained when a water plug installed by the Defendants sprung a leak and doused the Plaintiff's house. The plug had been installed 25 years prior to the incident, which was caused by extraordinarily cold weather. Prior to the incident, there had been no problems with the plug. The jury was allowed to pass upon the question of the Defendants' negligence and returned a verdict for Plaintiff. Issue. Was the jury properly allowed to consider whether Defendants were guilty of negligence? Held. No. Verdict was entered for Defendants. No evidence was entered showing any acts or failures to act on the part of Defendants such as could comprise negligence. The evidence showed that Defendants routinely took precautions against cold weather, and that only due to a particularly and unforeseeably cold winter did any damage occur. This was properly characterized as an accident, not as negligence. Discussion. The Court distills the essence of basic negligence. The mere fact that someone has been injured by another or another's property does not mean negligence has occurred. Rather, one must act or fail to act in a way that someone of ordinary prudence would not act or fail to act. Otherwise, there is no fault and no liability.

68

Gulf Refining Co. v. Williams

Gulf Refining Co. v. Williams

Citation. 183 Miss. 723, 185 So. 234 (Miss. 1938). Brief Fact Summary. Plaintiff was injured after a gasoline container delivered by Defendant exploded while he was trying to remove its cap. The explosion occurred as a result of a spark caused by worn threads on the cap. Plaintiff sued to recover for his personal injuries. Synopsis of Rule of Law. Foreseeability of a harm is the existence of such a likelihood of damage so as to induce action to take care against it on the part of a reasonably prudent person. Facts. The Defendant delivered a gasoline container to Plaintiff for use in refueling a tractor. The container had been in use for about nine years and was in a state of considerable disrepair. When Plaintiff went to refuel the tractor, he removed the container's cap and the gasoline exploded, causing him great injury. The jury found Defendant liable for Plaintiff's injuries. Defendant appealed, arguing that the explosion was so unusual, extraordinary, and unforeseeable that they cannot be held liable for damages resulting from its occurrence. Issue. Was the damage inflicted upon Plaintiff foreseeable so as to give rise to a claim for negligence based upon the failure to take steps to safeguard against it? Held. Yes. The judgment was affirmed. The state of the gasoline container, as was known to Defendant, was such that a reasonable person should have anticipated that its disrepair could cause an explosion and thus should have taken care to safeguard against such a result. Defendant's failure to do so subjected it to liability. Discussion. This case attempts to define the concept of foreseeability. As the Court explains, such foreseeability as can give rise to negligence can be found when there exists sufficient likelihood of damage to induce a reasonably prudent person to take care against it.

69

Chicago B. & Q.R. Co. v. Krayenbuhl

Chicago B. & Q.R. Co. v. Krayenbuhl

Citation. 65 Neb. 89, 91 N.W. 880 (Neb. 1902). Brief Fact Summary. Plaintiff, a four year-old child, was injured while playing on dangerous equipment owned and operated by Defendant, a railroad company. Despite the fact that Defendant had rules requiring the equipment to be locked and inaccessible to members of the public, Plaintiff was able to access it when he discovered it. Plaintiff was injured while playing on the equipment, and sued for negligence. Synopsis of Rule of Law. With respect to dangerous instrumentalities, the character, location, and utility of the instrumentality as well as the ease of making it safer must be taken into account in determining what degree of precaution is necessary so as not to be negligent. Facts. Defendant owned and operated railroad equipment. Defendant had guidelines requiring that dangerous railroad equipment remain locked when not in use, but these guidelines were frequently ignored. When the Plaintiff came upon such equipment owned by the Defendant, it was unlocked and the Plaintiff was injured while playing on it. Trial resulted in a verdict for the Plaintiff, and the Defendant appealed. Issue. Was the Defendant negligent in failing to safeguard against the Plaintiff's injuries? Held. Probably. When, under all relevant circumstances, one fails to take such precautions as would one of reasonable prudence, he has acted negligently and is liable for the damages resulting from that negligence. In this case, the use of a lock to prevent public access to the equipment is such a minimal restriction upon the equipment's utility that the failure to keep such a lock in place likely amounted to negligence. However, the trial judge improperly commented upon the evidence, necessitating a new trial. Discussion. The Court tackles the difficult issue of the appropriate standard of care with respect to inherently dangerous but necessary instrumentalities of business. The Court determines that the appropriate approach is to analyze the character, location, and utility of the instrumentality as well as the ease of making it safer. One is negligent when, under all relevant circumstances, he has failed to take such precautions, as would one of reasonable prudence.

70 Davison v. Snohomish County

Davison v. Snohomish County

Citation. 149 Wash. 109, 270 P. 422 (Wash. 1928). Brief Fact Summary. Plaintiffs were driving their car across a bridge, at which point the car lost control and drove off the road, over the guardrail. Plaintiffs suffered severe injuries and wrecked their automobile. Plaintiffs brought an action to recover for their damages. Synopsis of Rule of Law. While municipalities are required to maintain roads for public use, there are limitations to the extent of safety that can be provided to all roads. For elevated causeways or viaducts, municipalities are required only to take such measures as are reasonable to prevent against injury. Absolute safety cannot be guaranteed. Facts. Plaintiffs suffered from damages after the car they were driving went off the road as they made a turn. Plaintiffs sued for the resulting damages, arguing that the road was not sufficiently maintained so as to prevent the accident or at least diminish the damages. Defendants argued that Plaintiffs were guilty of contributory negligence in operating their vehicle. The verdict was for the Plaintiff, and the trial court denied Defendant's motion for judgment notwithstanding the verdict. Issue. Did the trial court err in denying Defendants' motion on the basis of contributory negligence? Held. Yes. There was insufficient evidence to warrant submitting the question of negligence to the jury. The judgment was reversed with instructions to dismiss the action. Discussion. The Court acknowledges that municipalities have certain duties with respect to road maintenance. The Court further acknowledges that some roads can be rendered quite safe by the expenditure of additional money. The Court points out, however, that for cases such as this, in which only a certain degree of safety can reasonably be attained, a municipality is not negligent for failing to somehow make these roads safer.

71 United States v. Carroll Towing Co.

United States v. Carroll Towing Co.

Citation. 159 F.2d 169 (2d Cir. 1947). Brief Fact Summary. A ship owned by the Conner Company had its mooring lines shifted by a tugboat working for Defendant. As a result, the ship broke free from the pier, drifted, collided with a tanker, and sank. The ship's cargo, flour belonging to the United States, was lost as a result. Synopsis of Rule of Law. In the event that a ship breaks its moorings, its owner's duty is a function of 1) the probability that the ship will break away; 2) the gravity of the injury resulting; and 3) the burden of necessary precautions. Facts. A tugboat working for Defendant caused the mooring lines of a ship carrying cargo owned by the United States to shift. Nobody was aboard the ship or the tugboat to stop the lines from shifting. The ship ultimately sunk as a result, and the cargo was lost. The United States sought compensation for the lost cargo. The trial court divided the damages between the Conner Company and Defendant. Issue. Was Defendant negligent in failing to have a Bargee aboard the ship to prevent against such injury? Held. Yes. To have no Bargee aboard the ship for a period of twenty-one hours was negligent. Discussion. This case introduces Learned Hand's tripartite test for analyzing negligence. The Court explained that liability for negligence in such cases is dependent upon whether the burden of taking adequate precautions is less than the likelihood that an injury will occur multiplied by its gravity. When the burden is less than that product, negligence has been committed.

72 Vaughan v. Menlove

Vaughan v. Menlove
Citation. 3 Bing. (N.C.) 467, 132 Eng. Rep. 490 (Court of Common Pleas 1837). Brief Fact Summary. Defendant paced a stack of hay near cottages owned by Plaintiff. Defendant was warned that there was a substantial possibility that the hay would ignite, and Defendant replied that he would "chance it". The hay eventually did ignite and burn Plaintiff's cottages, and Plaintiff sued to recover for their value. Synopsis of Rule of Law. The standard for negligence is an objective one. One has behaved negligently if he has acted in a way contrary to how a reasonably prudent person would have acted under similar circumstances. Facts. Defendant was warned that his haystacks posed a substantial risk of igniting and damaging Plaintiff's cottages. He disregarded these warnings and kept the hay in place. The hay did ignite and damage Plaintiff's cottages, and Plaintiff brought suit for negligence. The trial court instructed the jury that the issue was whether the fire was occasioned by gross negligence, and explained that Defendant was bound to act as a reasonable man would have under the circumstances. The jury found for Plaintiff, but Defendant obtained a ruling on the ground that the jury should have been instructed to find negligence only if it found Defendant had not acted to the best of his own judgment. Issue. Was the trial court correct in instructing the jury that whether or not Defendant had been negligent was to be evaluated from an objective standpoint, not taking Defendant's intellectual limitations into account. Held. Yes. The standard of negligence is an objective one. The ruling was discharged. Discussion. This case rejects the argument that a Defendant's particular sensibilities or weaknesses should be taken into account in evaluating negligence claims. Rather, one must look only to whether one has acted as would a reasonably prudent person under similar circumstances.

73 Delair v. McAdoo

Delair v. McAdoo
Citation. 324 Pa. 392, 188 A. 181 (Pa. 1936). Brief Fact Summary. Defendant attempted to pass Plaintiff as they were driving in their cars. Defendant's tire exploded as they were alongside one another, causing a collision. Plaintiff sued Defendant for negligence. Synopsis of Rule of Law. Drivers are required to know the condition of the parts of their vehicles that may become dangerous when their dangerous condition could be found through a reasonable inspection. Facts. While driving, Defendant attempted to pass Plaintiff. When Defendant drew alongside Plaintiff, one of his tires blew out, causing the cars to collide. Plaintiff sued for negligence, claiming that Defendant was negligent in driving on tires that were poorly maintained. The jury returned a verdict for Plaintiff, and Defendant moved for a judgment notwithstanding the verdict. Issue. Was the trial court correct in refusing to grant Defendant's motion for a judgment notwithstanding the verdict on the ground that he did not know his tires were in a dangerous state? Held. Yes. The judgment was affirmed. The jury was qualified to determine that the tires were in a dangerous state and that Defendant was negligent in driving upon them. Discussion. The Court rules that those driving automobiles are required to take certain precautions to maintain them. When a reasonable inspection would disclose a dangerous condition in an automobile, a party is charged with that knowledge and is guilty of negligence when he ignores it and drives in spite of it.

74 Trimarco v. Klein

Trimarco v. Klein
Citation. 56 N.Y.2d 98, 436 N.E.2d 502, 451 N.Y.S.2d 52 (N.Y. 1982). Brief Fact Summary. Plaintiff suffered severe injuries when the glass of a bathtub he was in shattered. Defendants owned the building in which the incident occurred, and had used ordinary glass for the bathtub enclosure despite the common practice of using shatterproof glass in such cases. Plaintiff sued for his personal injuries. Synopsis of Rule of Law. When custom and practice have removed certain dangers, the custom may be used as evidence that one has failed to act as is required under the circumstances. Facts. The shattering of a bathtub enclosure's glass door led to Plaintiff's severe injury. Defendants owned the building in which this occurred, and had used ordinary as opposed to shatterproof glass in constructing the enclosure. Plaintiff sued to recover for his injuries, and received a substantial judgment. The Appellate Division reversed and dismissed the complaint. Issue. Was Defendants' failure to use safety or plastic glass conclusive proof that they had not acted with due care so as to warrant liability? Held. No. Although custom and practice can has definite relevance to whether or not one has acted with due care, it remains a jury question whether one has acted with due care under particular circumstances. 1 2 Proof of the existence of a custom and practice coupled with evidence showing adherence to it may establish one has acted with due care. Proof of the existence of a custom and practice coupled with evidence showing failure to adhere to it may establish liability.

Discussion. This case demonstrates that custom and practice can be important in evaluating the appropriate standard of acre in negligence cases. However, even after such custom and practice are established, adherence or non-adherence thereto is not conclusive proof of liability or innocence.

75 Cordas v. Peerless Transportation Co.

Cordas v. Peerless Transportation Co.

Citation. 27 N.Y. S 2d 198 (1941). Brief Fact Summary. A taxi driver working for the Defendant, Peerless Transportation Co. (Defendant), jumped from his taxi while it was running to escape an armed highwayman who was being pursued by his victim. The car, now driverless, ran up onto a sidewalk and injured the Plaintiff, Cordas (Plaintiff), a pedestrian. Synopsis of Rule of Law. Reasonable and prudent action is based on the set of circumstances under which the actions took place. Facts. A driver working for the Defendant's taxi company, jumped from a running taxi when a highwayman entered the taxi and demanded to be driven away while being chased by a recent victim. The driver left the cab while it was still running and it subsequently ran up onto a sidewalk and injured the Plaintiff and her two children. Issue. Whether abandoning a running car is reasonable behavior. Held. The driver was not negligent in this case, as his actions were in response to an emergency situation. Discussion. Negligence is defined as the failure to exercise that care and caution which a reasonable and prudent person ordinarily would exercise under like conditions or circumstances. In an emergency situation, the law does not hold a person to the same standards as if he had opportunity for deliberate action. The circumstances dictate what is or is not prudent action.

76 Roberts v. State of Louisiana

Roberts v. State of Louisiana

Citation. 396 So. 2d 566 (1981). Brief Fact Summary. The Plaintiff, Roberts (Plaintiff), fell and broke his hip when a blind man bumped him into. Synopsis of Rule of Law. The handicapped are held to a reasonable standard of care for a person with their disability, the handicap is considered part of the circumstances. Facts. The Plaintiff, an elderly gentleman, sued the Defendant, the State of Louisiana (Defendant), when he fell and broke his hip after being bumped into by the blind operator of the concession stand at the United States Post Office Building. The concession operator failed to use his cane while walking from his stand to the bathroom when the accident occurred. At trial, the Plaintiff's suit was dismissed. Issue. Was it reasonable for a blind man to walk from his place of employment to the restroom without the use of his cane? Held. The concession operator was not negligent and therefore the trial courts' ruling is upheld. Discussion. Because the blind operator, Burson, had worked at the vending stand for several years and because he testified that he does not use a cane for short trips within familiar buildings, Burson was not acting negligently when he bumped into the Plaintiff. The court also looked at the testimony of the director of the Division of Blind Services who said that nine out of ten blind persons do not use their canes when moving about familiar surroundings. The court also considered Burson's testimony that he had special training in moving about without a cane. Burson's actions were reasonable for a blind person, working in a familiar setting, with special training on moving about without the use of a cane.

77

Robinson v. Lindsay

Robinson v. Lindsay
Citation. 598 P. 2d 392 (1979). Brief Fact Summary. The plaintiff, an eleven-year-old girl, lost the use of her thumb as a result of a snowmobile accident. The driver of the snowmobile was a thirteen-year-old boy. Synopsis of Rule of Law. When a child causes injury by engaging in dangerous or adult conduct, they are held to an adult standard of care. Facts. This case was brought on behalf of Kelly Robinson, a minor, for the injuries she sustained during a snowmobile accident that cost her the use of her thumb. The driver of the snowmobile at the time of the accident was a thirteen-year-old boy. A jury verdict was entered in favor of the boy and a new trial was ordered. Issue. Whether to apply an adult standard of care to acts of children who engage in adult behavior. Held. Children who engage in hazardous activity are to be held to the same standard of care that an adult would be held to. Discussion. Courts have traditionally given children a flexible standard of care to determine their negligence. Children are expected to exercise the degree of care and discretion that is reasonable of a child of their particular age. The standard looks at the age of the child, intelligence, maturity, training and experience. But there are some circumstances where it is appropriate to apply an adult standard. When operating a motorized vehicle, or taking part in a dangerous activity, children should be held to an adult standard of care because this will discourage them from engaging in the activity. When a child operates a motorized vehicle, he should be held to an adult standard of care because the chances of injury and accident are increased.

78 Breunig v. American Family Ins. Co.

Breunig v. American Family Ins. Co.

Citation. 173 N.W. 2d 619 (1970). Brief Fact Summary. The Plaintiff, Breunig (Plaintiff), was injured in a car accident when Erma Veith (Ms. Veith), the Defendant, American Family Ins. Co.'s (Defendant) insured, drove her car into the Plaintiff's truck after suffering a schizophrenic attack. Synopsis of Rule of Law. It is unjust to hold a person to a reasonable person standard in evaluating their negligence when a mental illness comes on suddenly and without forewarning causing injury to another. Facts. Ms. Veith was driving home when she saw a white light on the back of the car ahead of her and followed it for three or four blocks. The next thing she recalled she was lying in a field on the side of the road. At trial, a psychiatrist testified that Ms. Veith told him that she believed God took control of the car and she stepped on the gas when she saw the Plaintiff's truck coming towards her because she knew she would become airborne. The psychiatrist testified that while driving her car, Ms. Veith was not able to operate the vehicle with a conscious mind because she suffered from a schizophrenic reaction of which she had no forewarning. Issue. Whether mental illness is an exception to the reasonable person standard. Held. Although generally insanity is not a defense to negligence, when the insanity is unforeseen and unavoidable, it is unjust to hold a person responsible for the conduct that caused the injury. Discussion. The effect of mental illness on liability depends on the nature of the insanity. The illness or hallucination must affect the person's ability to understand and act with ordinary care. For insanity to be an exception to liability, there must also be an absence of notice or forewarning that the person might be subject to the illness or insanity. In situations where the insanity or illness is known, liability attaches. But in this case, where the driver was suddenly overcome by a disability that incapacitated her from conforming her conduct to that of a reasonable person, the general policy is too broad. It is unjust to hold a person responsible for conduct that they are incapable of avoiding.

79 Heath v. Swift Wings, Inc.

Heath v. Swift Wings, Inc.

Citation. 252 S.E. 2d 526 (1979). Brief Fact Summary. Pilot error caused an airplane crash, killing the pilot and the passengers. Synopsis of Rule of Law. A professional standard of care is not a subjective standard, it is an objective standard predicated on the rules and guidelines of the profession. Facts. This suit is the result of an airplane crash that charges the pilot with negligence. The pilot and his passengers all died as a result of the crash. According to the widow of the passenger, the pilot spent a long time loading and reloading the small aircraft prior to take off. There was evidence that the plane was not properly balanced. At trial, an expert testified that in his opinion the pilot should have used flaps to aid in the takeoff and should have made a controlled landing shortly after takeoff. In the expert's opinion, had the pilot taken these measures, the crash would have been avoided. The jury found there was no pilot error after receiving a jury instruction containing a definition of negligence that focused on the defendant's own experience and training. Issue. Whether professionals should be held to an industry standard of care or one that is predicated on their individual experiences and training. Held. The proper standard of care for professional negligence is an objective standard, using minimum industry standards and not looking into the individual's actual training or experience. The jury instruction instead created a subjective standard by focusing on the defendant's personal training. Discussion. The jury instructions in this case imposed a subjective standard by asking the jury to decide if the pilot acted in a reasonably prudent manner given the pilot's own particular experience and training. Instead, the pilot's actions are to be measured by an industry standard that is applicable to all pilots. By using an objective standard the court avoids imposing a different standard of care for each case.

80 Hodges v. Carter

Hodges v. Carter
Citation. 80 S.E. 2d 144 (1954). Brief Fact Summary. The Plaintiff, Hodges (Plaintiff), is suing the Defendants, his former attorneys (Defendants), alleging that they negligently prosecuted his insurance claims against out of state insurance companies when the attorneys failed to properly serve the complaints. Synopsis of Rule of Law. Attorneys are not liable for errors in judgment or mistakes of law if they are made in good faith and the attorney uses reasonable care and diligence that other attorneys similarly situated would use. Facts. The Plaintiff lost his drug store in a fire in 1948 and subsequently filed four separate insurance claims pursuant to policies he held. The four claims were denied and the Plaintiff then sought recovery in the courts. In four separate actions, the Defendants served each insurance company through the Commissioner of Insurance. The insurance companies claimed improper service of process and the trial courts concluded that service was proper. However, that decision was appealed and reversed by the Supreme Court of North Carolina. In 1952, the Plaintiff then filed this suit against the Defendants alleging they were negligent in prosecuting his actions. The trial court found for the Defendants and the Plaintiff now appeals. Issue. Whether Plaintiff's attorneys were negligent in failing to properly serve the Plaintiff's complaints against his insurance companies. Held. The Defendants were not negligent in the prosecution of Plaintiff's cases against the insurance companies. Discussion. An attorney is not liable for an error of judgement or for a mistake made on a point of law, when that point of law has not been settled by the highest court in the jurisdiction. An attorney is liable for loss to the client that results from a lack of knowledge or skill that would ordinarily be possessed by others in the profession, failure to use reasonable care and diligence and failure to exercise good faith. Because the Defendants followed a custom that had been in place in North Carolina regarding service of process for twenty years and because the Defendants had obtained a judicial declaration from the Superior Courts that the Commissioner's acceptance of service subjected the insurance companies to the court's jurisdiction, they did not act negligently in prosecuting the Plaintiff's case.

81 Boyce v. Brown

Boyce v. Brown
Citation. 77 P.2d 455 (1938). Brief Fact Summary. Nannie Boyce (Ms. Boyce) suffered pain and disability seven years after the Defendant, Brown (Defendant), placed a metal screw in her ankle. The Plaintiffs, Nannie and Berlie Boyce (Plaintiffs), sued the Defendant. Synopsis of Rule of Law. Medical malpractice can only be shown where, by expert testimony, it is established that the doctor acted outside of the community norms in their treatment of the patient. Facts. Ms. Boyce sought the services of the Defendant, a medical doctor, to reduce a fracture of her ankle. The Defendant performed the operation, using a metal screw to keep the bones in place. Seven years latter, the Ms. Boyce returned to the defendant complaining of pain in her ankle. The Defendant examined the ankle and wrapped it before sending her home. For the next two years, the ankle continued to worsen and Ms. Boyce eventually saw a second doctor who surgically removed the screw, offering Ms. Boyce a full recovery. The Plaintiffs sued the Defendant for malpractice, claiming he was negligent in not removing the screw when Ms. Boyce returned to his office seven years after surgery. At trial, the second doctor testified to the condition of Ms. Boyce's ankle at the time she was seen by him, but could not say if the Defendant acted outside the scope of proper medical standards when the Plaintiff was seen two years prior. Issue. Whether the Defendant was negligent when he failed to remove the screw from the Ms. Boyce's ankle. Held. The expert testimony could not establish that the Defendant acted outside of the community standards and therefore the Defendant did not commit malpractice. Discussion. Medical doctors are required to possess the degree of skill and learning possessed by an average member of the medical profession in good standing in the community in which they practice and apply that skill and knowledge with reasonable care. To be liable for malpractice, a doctor must have used a treatment that the medical community where the doctor practices forbids, or have neglected to do something that community standards would require. To successfully allege malpractice, a plaintiff must offer expert testimony on the community standards of medical care. In this case, because the expert testimony could not establish that the Defendant acted outside of the community medical standards when the Ms. Boyce returned seven years after surgery, the Defendant cannot be found guilty of malpractice.

82 Morrison v. MacNamara

Morrison v. MacNamara
Citation. 407 A.2d 555 (1979). Brief Fact Summary. The Plaintiff, Morrison (Plaintiff), was injured when he fell after undergoing a medical test. The test was administered to the Plaintiff while he was standing. Synopsis of Rule of Law. A national standard of care is a more modern method for measuring whether a doctor has committed negligence. Facts. The Plaintiff patient was given test for a urinary tract infection. The test was administered while the Plaintiff was standing. The Plaintiff had an adverse reaction to the test and fell, hitting his head. The Patient suffered permanent loss of his senses of smell and taste as a result of his fall. At trial, the Plaintiff provided expert testimony from a doctor practicing in Michigan. The doctor stated that the test is always performed while the patient is sitting or prone. The trial court refused to allow the testimony and held that the expert testimony for medical malpractice cases must come from a doctor who practices in the community where the malpractice is alleged, in this case Washington D.C. Issue. Whether to use a community based standard or a national standard when determining a professional standard of care. Held. The locality rule for expert testimony in medical malpractice cases is antiquated and unnecessary. The court adopts a national rule. Discussion. The locality rule developed to protect rural doctors who lacked means of transportation and communication by which they could acquire the same set of skills as urban doctors. But the policy behind the locality rule does not hold true of doctors in the District of Columbia and the disparity between doctors in urban and rural areas has mostly been eliminated. Furthermore, due to the uniformity of the proficiency certifications that are required by national boards, a national standard is more practical.

83 Scott v. Bradford

Scott v. Bradford
Citation. 606 P.2d 554 (1979). Brief Fact Summary. After suffering from complications of surgery, the Plaintiff, Mss. Scott (Plaintiff), seeks recovery from the Defendant doctor alleging he failed to inform her of the risks. Synopsis of Rule of Law. To establish a breach of duty of informed consent, a patient must establish they would not have elected treatment had they been made aware of the risks. Facts. The Defendant performed a hysterectomy on the Plaintiff. Before the surgery, the Plaintiff signed a routine consent form. After the hysterectomy, the Plaintiff experienced incontinence as a result a complication of the hysterectomy. The problem was corrected by three subsequent surgeries performed by a different doctor. The Plaintiff alleges that the Defendant failed to inform her of the risks involved or the alternatives to the hysterectomy. The Plaintiff testified that if she had known of the risk of incontinence, she would not have elected the surgery. Issue. Whether the Plaintiff must establish that a reasonable person would not have elected treatment if informed of the risks, or if they must merely show that they would not have elected treatment. Held. To sustain a cause of action in a theory of informed consent, a patient must show that: 1 2 3 the physician failed to inform the patient of a material risk the patient, if informed, would not have elected the treatment the risks that were not disclosed resulted in injury to the patient.

Discussion. In a departure from the rule established in an earlier case, the court reasoned that if the patient can show they would not have elected the procedure had they been properly informed, then a malpractice case against the doctor can be maintained. The former rule established an objective standard for informed consent that required the patient to establish that a reasonable person in their position would have refused treatment. The court elects to follow a subjective standard in this case to maintain a patient's right of selfdetermination.

84 Moore v. The Regents of the University of California

Moore v. The Regents of the University of California

Citation. 793 P. 2d 479 (1990). Brief Fact Summary. The Plaintiff, Moore (Plaintiff), alleges financial injury when cells removed from his spleen were used to create commercial genetic products. Synopsis of Rule of Law. The principles of informed consent extend to disclosing unrelated interests of the physician because that information is material to the patients decision. Facts. The Plaintiff was diagnosed with leukemia in 1976. Following the diagnosis, the Plaintiff underwent treatment by one many Defendants, Dr. Golde, a doctor at University of California Los Angeles (UCLA) Medical Center. Based on test results, Dr. Golde recommended that the plaintiff have his spleen removed. The patient underwent the recommended surgery and subsequent follow up treatment. The spleen was then used for unrelated research and the Plaintiff's cells were used to create a cell line licensed for commercial development. The Plaintiff filed a complaint alleging, inter allia, conversion and lack of informed consent and breach of fiduciary duty for failing to disclose the financial interests of Dr. Golde in the plaintiff's spleen. The trial court dismissed the complaint and the court of appeals reversed. Issue. Whether Dr. Golde's failure to disclose his financial interests to the Plaintiff was a breach of fiduciary duty and therefore created a lack of informed consent. Held. 1 2 Physicians must disclose personal interests, which are unrelated to the patient's health and may effect the physician's professional judgment. The failure to disclose those interests can lead to a cause of action for lack of informed consent.

Discussion. Consent consists of three principles. First, an adult has the right to exercise control over his body. Second, a patient's consent to treatment must be informed to be effective. Third, a physician has a fiduciary duty to disclose all information that is material to the patient's decision. Normally, the duty requires the physician to inform the patient of the risks involved in medical care, however, the principles of informed consent are broad enough to require physicians to disclose their personal interests. The scope of informed consent is guided by the patients need to have all information material to their decision.

85 Pokora v. Wabash Ry. Co.

Pokora v. Wabash Ry. Co.

Citation. 292 U.S. 98 (1934). Brief Fact Summary. After coming to a stop at a train crossing where the intersection with the road was obscured, the Plaintiff, Pakora's (Plaintiff) truck, was hit by an oncoming train. Synopsis of Rule of Law. Standards of prudent conduct should be cautiously framed when the rule of law is imposed. Facts. The Plaintiff's truck was hit by an oncoming train at a railroad crossing. The crossing consisted of four tracks. To the north, boxcars blocked the field of vision and the Plaintiff stopped his truck before continuing forward. He proceeded slowly, looking and listening for a whistle or a bell. Hearing none, the Plaintiff pulled ahead to the main track where his vehicle was struck by a passenger train. Issue. Whether the Plaintiff's actions were prudent given the circumstances. Held. The driver acted within the standards of prudent conduct. Discussion. There is no duty to get out of the vehicle to inspect the intersection after the driver both stopped and looked and listened for an oncoming train. Requiring a driver to stop at an uncontrolled or obscured intersection is practical and prudent. But to form a rule of law that states the driver has a duty to exit the vehicle and inspect the intersection is both impractical and possibly dangerous. It is not the role of the judiciary to determine what is prudent behavior in extraordinary circumstances. That is for the jury to decide.

86 Osborne v. McMasters

Osborne v. McMasters
Citation. 41 N.W. 543 (1889). Brief Fact Summary. A woman died as a result of ingesting poison from an unlabeled bottle purchased at the Defendant, McMaster's (Defendant) drug store. The Defendant was required by law to label all poisons. Synopsis of Rule of Law. If a person neglects to perform a duty imposed by either statute or common law and that law is designed for the protection of others, then the evidence of the act or omission constitutes negligence per se. Facts. A clerk working in the Defendant's drug store sold an unlabeled bottle of poison to the Plaintiff, Osborne's (Plaintiff) wife. Not knowing that the drug was poisonous, the Plaintiff's wife took the drug and died. By statute the clerk was required to label the drug as poison and by failing to do so, he broke the law. Issue. Whether the Defendant was negligent in failing to abide by the statutory requirement to label all poisons. Held. The Defendant was negligent. The non-performance of a legal duty constitutes negligence per se. Discussion. When a statute imparts a specific duty for the specific protection of others and a person neglects to perform that duty, it is evidence of negligence per se. This is also true when there is a clear duty imposed by common law that requires the exercise of due care.

87 Stachniewicz v. Mar-Cam Corp.

Stachniewicz v. Mar-Cam Corp.

Citation. 488 P.2d 436 (1971). Brief Fact Summary. The Plaintiff, Stachniewicz (Plaintiff), was injured during a barroom brawl with customers at the Defendant, Mar-Cam Corp's (Defendant) drinking establishment. Synopsis of Rule of Law. Negligence per se results when a statute or regulation has been violated and that violation results in injury to a member of the class that the legislation was meant to protect and the harm is of the kind that the legislation was intended to prevent. Facts. The Plaintiff suffered severe head injuries when he was injured during a barroom brawl. The assailants had been at the bar drinking for over two hours when the fight erupted. A state statute forbids people from giving alcoholic beverages to anyone visibly drunk. A state licensing regulation forbids licensed bar owners from permitting disorderly conduct or visibly intoxicated persons upon the licensed premises. The trial court held that the Defendant's violations of both the statute and the regulation did not constitute negligence per se. Issue. Whether the violations of the statute or the regulation constitutes negligence per se. Held. 1 2 Discussion. 1 The statute makes it illegal to give an alcoholic beverage to someone already intoxicated. It is impossible to determine whether the injury sustained was the result of the drink given after intoxication occurred, or if the injuries would have occurred without that drink. The regulation, on the other hand, is drafted to prevent injuries and abuses associated with the types of disturbances connected with bars and intoxication. Because the Plaintiff was within the class of persons the regulation sought to protect and because the injuries he sustained were of the type of harm the regulation sought to avoid, the violation of the regulation can be used as evidence of negligence per se. The violation of the statute was not negligence per se. The violation of the regulation is negligence per se.

88 Ney v. Yellow Cab Co.

Ney v. Yellow Cab Co.

Citation. 117 N.E.2d 74 (1954). Brief Fact Summary. The Defendant, Yellow Cab Co.'s (Defendant), cab was stolen from the street side where its driver had left it running, unlocked and unattended. While driving the stolen cab, the thief struck and damaged the Plaintiff, Ney's (Plaintiff) vehicle. Synopsis of Rule of Law. If the harm resulting from negligence is foreseeable, then an intervening criminal act does not break the chain of causation. Facts. A cab driver, working for the Defendant, left his cab parked with the ignition running and the car unlocked. A thief stole the vehicle and while fleeing the scene, struck and damaged the Plaintiff's car. By leaving the car running and unlocked on the street, the Defendant's driver violated a section of the Uniform Traffic Act. Issue. Whether the legislative intent of the Uniform Traffic Act was to protect persons in the Plaintiff's class from the type of property damage caused by the violation. Held. The statute is a public safety measure meant to protect the public from the foreseeable harm caused by leaving an unlocked, running car, unattended. A violation of that statute is evidence of negligence per se. Dissent. The legislative intent was to prevent injury caused by an unattended vehicle that is not properly secured from moving on its own and doing damage. The statue is not an antitheft statute. It is recognized that one can leave a vehicle unattended temporarily and not be negligent as long as one takes proper precautions to secure the car from uncontrolled movement. If that car is then set in motion by the willful and negligent act of a third party, then it is the third party's negligence that is the proximate cause of the injury resulting. Discussion. It is foreseeable that if you leave your car unlocked and running on the curb, a thief might take it and in doing so cause damage. Since the legislative intent of the statute was to protect the public and the act of the Defendant's driver put the public at risk, then the risk is the type of foreseeable harm that the legislature intended to prevent and the Defendant is liable.

89 Perry v. S.N. and S.N.

Perry v. S.N. and S.N.

Citation. 973 S.W.2d 301 (1998). Brief Fact Summary. The parents of two children who were sexually abused at their day care center filed a complaint against friends of the alleged abusers for failing to report the abuse. In failing to report, the defendants violated a section of the Family Code. Synopsis of Rule of Law. A cause of action in negligence per se requires that there be an underlying duty at common law. Facts. The plaintiffs allege that the defendants were negligent per se because they failed to report the defendant's sexual and physical abuse of the plaintiff's children to child welfare agencies as required by the Family Code. The defendants, friends of the alleged child abuser and day care operator, allegedly witnessed the abuse of the plaintiffs and other children, but said nothing to authorities. In failing to report, they violated the Family Code. The code requires a person to file a police report if they have reason to believe that a child's physical or mental health is at risk due to abuse. Issue. Whether the defendants breached a duty to the plaintiffs when they violated the Family Code. Held. There cannot be negligence per se without an underlying common law duty. Discussion. Although the plaintiff's children are within the class of persons the legislation is intended to protect and the harm they suffered is of the type the legislation intended to prevent, the defendants here are not negligent per se for their violation of the Family Code. To sustain a cause of action for negligence per se, the defendant must owe the plaintiff a pre-existing duty of care in common law of which the violation of legislation is evidence of the negligence. In this case, the duty extends solely from the Family Code and there is no preexisting duty at common law between these defendants and the plaintiffs. To hold a person liable for a duty that is only imposed by legislation would create a new type of tort liability.

90

Martin v. Herzog

Martin v. Herzog
Citation. 126 N.E. 814 (1920). Brief Fact Summary. The plaintiff, Elizabeth Martin's (Plaintiff) husband William Martin, was driving a buggy after dark without using lights. He was killed when the Defendant, Herzog's (Defendant) car collided with the buggy. Synopsis of Rule of Law. If the plaintiff's negligence is a contributory cause of the injury, then he cannot recover for the negligence of the defendant. Facts. The Plaintiff's husband was killed as a result of a collision between the buggy he was driving and the Defendant's car. The decedent was driving the buggy at night without lights on in violation of a criminal statute. Issue. Whether the decedent's violation of a criminal statue, which constitutes contributory negligence, precludes the Plaintiff's recovery. Held. The decedent's negligence was a contributory cause of his injury and so the Plaintiff cannot recover for the negligence of the defendant. Discussion. The purpose of the statue was to protect travelers on the roads at night. The fact that the Plaintiff violated this statue is negligence in itself and cannot be ignored as a contributing factor in the accident. The decedent's negligent failure to use lamps or lights on his buggy must be considered as a cause of the accident in light of the fact that the accident took place after sunset on a dark road. The trier of fact must consider the decedent's negligence.

91

Zeni v. Anderson

Zeni v. Anderson
Citation. 243 N.W.2d 270 (1976). Brief Fact Summary. The Plaintiff, Zeni (Plaintiff), was injured when she was hit by the Defendant, Anderson's (Defendant), car on her way to work. The Plaintiff was not using a sidewalk, but a snow path, and was therefore in violation of a statute requiring pedestrians to use sidewalks where available. Synopsis of Rule of Law. The violation of a statute creates a rebuttable presumption of negligence, which can be overcome by providing an adequate excuse as to why the statue was ignored. Facts. The Plaintiff was hit by the Defendant's car while walking to work one winter morning. The Plaintiff, instead of using the sidewalk, was walking along a well-used pedestrian snow path with her back to oncoming traffic. The Defendant, having defrosted her windows and scraped them that morning, was traveling within the speed limit down the busy street when she hit the Plaintiff with her car. There was testimony at trial that the Defendant's windows were clouded over and that the snow path that the Plaintiff used was safer than the sidewalk on cold icy days. By using the snow path instead of the sidewalk, Plaintiff was in violation of a state statute, which required the use of sidewalks where provided and where they are not, pedestrians must walk on the side of the road facing oncoming traffic. Issue. Whether the Plaintiff's failure to use the sidewalk constituted contributory negligence. Held. In a civil action for damages, violation of a statute creates a rebuttable presumption of negligence. Discussion. Violation of a statute creates a rebuttable presumption of negligence, which can be overcome by showing that there was an adequate excuse or reason for such action under the circumstances of the case. The court declines to attach contributory liability to the Plaintiff because it was shown at trial that using the sidewalk would put the Plaintiff in danger of falling.

92

Goddard v. Boston & Maine R.R. Co.

Goddard v. Boston & Maine R.R. Co.

Citation. 179 Mass. 52, 60 N.E. 486 (Mass. 1901) Brief Fact Summary. An individual slipped on a railroad platform and sustained certain injuries. Synopsis of Rule of Law. A railroad is not liable for negligence, if the negligent action may have been perpetrated by a passenger of the railroad. Facts. The Plaintiff, Wilfred H. Goddard (the "Plaintiff"), brought suit against the Defendant, Boston & Maine Railroad Co. (the "Defendant"), after falling on a banana peel lying on one of the Defendant's railroad platforms. The Plaintiff fell right after disembarking from the train. Issue. None. Held. "The banana skin upon which the plaintiff stepped and which caused him to slip may have been dropped within a minute by one of the persons who was leaving the train." Discussion. This case offers an early discussion about negligence.

93

Anjou v. Boston Elevated Railway Co.

Anjou v. Boston Elevated Railway Co.

Citation. 94 N.E. 386 (1911). Brief Fact Summary. The Plaintiff, Anjou (Plaintiff), slipped and fell on a banana peal left on the Defendant, Boston Elevated Railway Co.'s (Defendant), train platform. Synopsis of Rule of Law. Circumstantial evidence can be used to establish proof of negligence. Facts. The Plaintiff, a passenger on the defendant's railway, injured herself when she slipped and fell on a banana peel. The Plaintiff had been following behind one of the railroad's uniformed workers when she slipped. The banana peal was described as black, dry and gritty and appeared as if it had been trampled on. Issue. Whether the Defendant is negligent. Held. The Defendant was negligent in not removing the banana peal. Discussion. Because the appearance of the banana peal suggested that it had been on the ground for some time, it could be inferred that the peal had been seen and could have been removed by one of the employees of the railway. This fact distinguishes this case from Goddard, as there is evidence upon which to base a conclusion that the peal was not dropped a moment before the Plaintiff's fall by another passenger. Here, the railway employees had time to pick up the hazard and they did not.

94

Joye v. Great Atlantic and Pacific Tea Co.

Joye v. Great Atlantic and Pacific Tea Co.

Citation. 405 F.2d 464 (1968). Brief Fact Summary. The Plaintiff, Joye (Plaintiff), slipped and fell on a banana peal in the Defendant, Atlantic and Pacific Tea Co.'s (Defendant), store. Synopsis of Rule of Law. If there is no evidence to establish that the defendant had notice of the hazard, then the plaintiff cannot prove negligence. Facts. The Plaintiff was injured when he slipped and fell on a banana peal in the Defendant's store. The banana peal was brown and sticky with bits of dirt and sand on it. The floor around the peal was also dirty. Issue. Whether the Defendant had sufficient notice of the hazard to be found negligent. Held. The circumstantial evidence is insufficient to determine whether the Defendant had notice of the banana peal on the floor. Discussion. The evidence presented shows that the floor was not swept for up to thirty-five minutes. Also, by the condition of the banana, there was no way to determine how long it had been on the floor. Without evidence that the store had, or should have had notice of the hazard, the Plaintiff cannot prove negligence.

95

Ortega v. Kmart Corp.

Ortega v. Kmart Corp.

Citation. 114 Cal. Rptr. 2d 470, 26 Cal.4th 1200, 36 P.3d 11 (Cal. 2001) Brief Fact Summary. An individual slipped and fell on a puddle of milk left on the floor of a store. Neither the individual nor the store was sure for how long the milk had been on the floor. Synopsis of Rule of Law. "[P]laintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard." Facts. While shopping at one of the Defendant, Kmart Corp.'s store (the "Defendant"), the Plaintiff, Richard M. Ortega (the "Plaintiff"), slipped on a puddle of milk on a floor near a refrigerator. The Plaintiff suffered a substantial knee injury, including torn ligaments. The Plaintiff sued the Defendant for his injuries. During his testimony, the Plaintiff could not remember much about the milk or how long it was on the floor for. Although he did not know how long the milk was on the floor, the Plaintiff argued that the Defendant had not inspected the floor in a reasonable amount of time prior to the accident. A Kmart employee testified that the milk would have probably been mopped up within 15-30 minutes, but it could have been on the floor for up to 2 hours. The jury awarded the Plaintiff $47,200 in damages. Issue. Did the dangerous condition, the spilled milk, exist long enough for a reasonably prudent person to have discovered it? In other words, did the Defendant have constructive knowledge? Held. The court first observed "[i]t is well established in California that although a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe." Ordinary care is exercised by a store owner "making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved." If the store involved is "a self-service grocery store where customers are invited to inspect, remove, and replace goods on shelves, 'the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise' and creating potentially hazardous conditions." The Plaintiff has the burden to prove "the owner had notice of the defect in sufficient time to correct it". A Plaintiff need not demonstrate "actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence." Circumstantial evidence can be used to prove this knowledge. The owner is under an obligation to "inspect the premises or take other proper action to ascertain their condition, and if, by the exercise of reasonable care, the owner would have discovered the condition, he is liable for failing to correct it."

96

Ortega v. Kmart Corp.

1 The court concluded "that plaintiffs still have the burden of producing evidence that the dangerous condition existed for at least a sufficient time to support a finding that the defendant had constructive notice of the hazardous condition." Also, that "plaintiffs may demonstrate the storekeeper had constructive notice of the dangerous condition if they can show that the site had not been inspected within a reasonable period of time so that a person exercising due care would have discovered and corrected the hazard." Discussion. This case illustrates the duty owed by a store to those who shop in the store.

97

Jasko v. F.W. Woolworth Co.

Jasko v. F.W. Woolworth Co.

Citation. 494 P.2d 839 (1972). Brief Fact Summary. The Plaintiff, Jasko (Plaintiff), was injured when she slipped and fell on a slice of pizza in the Defendant, F.W. Woolworth Co.'s (Defendant), store. Synopsis of Rule of Law. When the defendant engages in a business that is prone to hazardous mishaps, then the nature of the business serves to put the business on notice of possible injuries. Facts. The Plaintiff was injured when she slipped and fell on a slice of pizza in the Defendant's store. The pizza was sold over the counter to patrons shopping in the store. The area around the pizza counter was tiled. Issue. Whether the Plaintiff must show that the store had notice of a dangerous condition. Held. Notice of a dangerous condition need not be shown in cases where the business itself creates the hazard. Discussion. The store's method for selling slices of pizza created a foreseeable risk of danger. The slices were sold on wax paper to standing patrons and therefore it was foreseeable that food would drop on the floor. It was also foreseeable that if there were food on the floor it would be hazardous. No further evidence is needed to show notice to the storeowner because the risk that someone might slip is a recognized danger under these circumstances.

98

H.E. Butt Groc. Co. v. Resendez

H.E. Butt Groc. Co. v. Resendez

Citation. 988 S.W.2d 218 (Tex. 1999) Brief Fact Summary. The manner that grapes were displayed in a supermarket was at issue. Synopsis of Rule of Law. "As a matter of law, [ ] the mere fact that a store has a customer sampling display cannot, without more, be evidence of a condition on the premises that poses an unreasonable risk of harm." Facts. The Respondent, Maria Resendez (the "Respondent"), was shopping in one of the Petitioner, H.E. Butt Groc. Co.'s (the "Petitioner" or "HEB") grocery stores, when she slipped near certain displays of grapes. The Respondent sued the Petitioner alleging that the grape displays posed an unreasonable risk of harm that caused her injuries. The trial court ruled in favor of the Respondent, and the Court of Appeals affirmed. The Petitioner supermarket had two grape displays, one for sale and one for sampling. Each display had a three inch railing and there were floor mats around the display tables. The bowl of grapes for sampling sat on ice and was level. Issue. "Can mere display of produce for customer sampling constitute an unreasonable risk of harm to customers?" Held. Yes, but not here. The court observed that to recover, the Respondent must prove "that (1) HEB had actual or constructive knowledge of a condition on the premises, (2) the condition posed an unreasonable risk of harm, (3) HEB did not exercise reasonable care to reduce or to eliminate the risk, and (4) HEBs failure to use such care proximately caused her injuries." The court observed that unlike [Corbin v. Safeway Stores, Inc.], no evidence was presented demonstrating that the "display created an unreasonable risk of customers falling on grapes." In [Corbin], there was more evidence than just a display. The grapes were displayed "in a slanted bin over a linoleum tile floor with no protective floor mat--that created an unreasonable risk of customer falls from grapes falling on the floor." Discussion. Negligence will not be found unless a condition posed an unreasonable risk of harm.

99

Byrne v. Boadle

Byrne v. Boadle
Citation. 159 Eng.Rep. 299 (1893). Brief Fact Summary. The plaintiff was injured when a barrel of flour fell out of the defendant's shop window and knocked him down. Synopsis of Rule of Law. Res Ipsa Loquitur means the thing speaks for itself. The fact that some types of accidents occur, proves negligent cause with no more evidence needed. Facts. The plaintiff was injured when a barrel of flour fell out of the defendants shop window and knocked him down. Issue. Whether the defendant's negligence caused the barrel of flour to fall out of his shop window. Held. The fact that a barrel of flour fell from a shop window demonstrates that some negligence caused it. Thus, the accident "speaks for itself." Discussion. Because the barrel was in the custody of the defendant, who owned the shop from which the barrel was being lowered out of, he is the responsible party for the manner in which the barrel was lowered. Barrels don't just fall out of shop windows by themselves so the fact that the accident took place is enough to show negligence.

100 McDougald v. Perry

McDougald v. Perry
Citation. 716 So.2d 783 (1998). Brief Fact Summary. The Plaintiff, McDougald (Plaintiff), was injured when the spare tire flew off of the Defendant, Perry's (Defendant) trailer and hit the Plaintiff's windshield. Synopsis of Rule of Law. Res Ipsa Loquitur applies to rare occurrences where the accident itself is evidence upon which to base an inference of negligence. Facts. The Plaintiff was injured when the spare tire on the Defendant's truck fell out of its carrier, was run over by the rear wheels of the Defendant's truck and then collided with the Plaintiff's windshield. The Defendant testified that the tire was held in place by its own weight and by a chain that was usually attached to the trailer of the truck with a latch. The defendant also testified that on the day of the accident the chain was attached with only a nut and bolt, but that he did a pre-trip inspection on the trailer and found no problems. However, the chain did have a loose link that lead to the release of the tire. At trial, the jury was instructed on Res Ipsa Loquitur, but on appeal the court found error in this instruction and held that the jury should not have been allowed to consider the doctrine. Issue. Whether the doctrine of Res Ipsa Loquitur applies to the accident. Held. The doctrine of Res Ipsa Loquitur applies. Discussion. The mere fact that the accident occurred does not always warrant the application of the doctrine. But in rare instances the fact that the accident occurred, along with a showing of an immediate precipitating cause, permits the inference of negligence. In this case, the spare tire would not have come loose had the Defendant exercised reasonable care when inspecting his vehicle and therefore Res Ipsa Loquitur applies and the Defendant is liable

101 Larson v. St. Francis Hotel

Larson v. St. Francis Hotel

Citation. 188 P.2d 513 (1948). Brief Fact Summary. The Plaintiff, Larson (Plaintiff), was injured when an armchair thrown from a window of the Defendant, St. Francis Hotel (Defendant), struck her. Synopsis of Rule of Law. Res Ipsa Loquitur does not apply unless the object that caused the accident is under the exclusive control of the defendant and under ordinary circumstances using ordinary care, the accident would not have happened. Facts. The Plaintiff was walking along the sidewalk outside of the Defendant's hotel when she was struck and knocked unconscious by an armchair. It is assumed that the armchair came from one of the hotel room windows. Issue. Whether the doctrine of Res Ipsa Loquitur applies and Defendant is negligent. Held. Res Ipsa Loquitur does not apply. Discussion. For the doctrine to apply, California law requires that: (i) there was an accident; (ii) the object that caused the accident was under the exclusive control and management of the defendant and (iii) had the defendant been using ordinary care, in the course of ordinary events, the accident would not have happened. 1 The doctrine can have no application when there is evidence of divided responsibility and the accident can have several causes, some of which the Defendant is not responsible for. In the case of hotel rooms and their furnishings, the hotel itself has no control over the furniture, the guests do. Furthermore, this is a case where despite the Defendant using ordinary care in the ordinary course of events, the accident would still have occurred

102 Ybarra v. Spangard

Ybarra v. Spangard
Citation. 154 P.2d 687 (1944). Brief Fact Summary. The patient underwent surgery for an appendectomy and woke with severe shoulder pain that worsened and eventually caused atrophy and paralysis. Synopsis of Rule of Law. Some injuries speak for themselves and the fact that they occurred is proof of negligence. Facts. The Plaintiff, Ybarra (Plaintiff), a patient of the Defendants, various doctors (Defendants), underwent an appendectomy and woke from the anesthesia with arm and shoulder pain. The pain worsened over the next several days and spread down his arm. The condition worsened until the Plaintiff suffered paralysis and atrophy in the muscles around his shoulder. Issue. Whether the doctrine of Res Ipsa Loquitur applies and Defendants are negligent. Held. The doctrine does apply. Discussion. 1 The doctrine of Res Ipsa Loquitur is best applied in a situation like this where the Plaintiff has no way of knowing which Defendant or which instrument injured him. Like the woman walking down the street who is struck by an object falling from a building, the Plaintiff in this case, having been unconscious during the injury, can have no knowledge of who or what injured him. The fact that he has the injury speaks for itself that negligence occurred. In a case where there are multiple defendants, some of whom may or may not share liability, the burden falls to them to sort out who bore the responsibility for the negligence since the Plaintiff can have no way of knowing.

103 Sullivan v. Crabtree

Sullivan v. Crabtree
Citation. 258 S.W.2d 782 (1953). Brief Fact Summary. The passenger in a truck was killed when the truck swerved and went off the road and down a steep embankment. The driver of the truck was unable to determine the exact cause of the accident. Synopsis of Rule of Law. The doctrine of Res Ipsa Loquitur creates a burden on the defendant to show a reasonable explanation for the injury. The strength of that burden depends on the facts of each case and the strength of the inference created. Facts. Mr. and Mrs. Sullivan, the Plaintiffs' (Plaintiffs), adult son was killed when the truck he was a passenger in went off a steep embankment and crushed him. The Defendant, Crabtree (Defendant), was driving the truck at the time and testified that there could have been several reasons that the truck went off the road and down the embankment, including brake malfunction. The day was clear and sunny, but there was loose gravel and broken pavement on the road. Issue. 1 2 Whether the doctrine of Res Ipsa Loquitur applies to this case. Whether by application of the doctrine of Res Ipsa Loquitur, the Defendant is guilty of negligence.

Held. 1 2 Res Ipsa Loquitur does apply to this case. It is for the trier of fact to determine the strength of the inference of Defendant's negligence.

Discussion. 1 The doctrine of Res Ipsa Loquitur does not generally apply to motor vehicle accidents, but in cases such as this, where the cause of the accident is within the driver's control and the accident is not one that would normally occur without negligence, the doctrine may be applied. The determination of what procedural effect the application of the doctrine of Res Ipsa Loquitur has is done on a case-by-case basis. A defense to the doctrine requires that reasonable evidence be shown that the accident was not caused by the defendant's negligence. The weight of this burden on the

defendant depends on the strength of the inference that the circumstances create.

104

C H A P T E R V . C a u s a t i o n I n F a

c t

105 Perkins v. Texas and New Orleans Railroad Co.

Perkins v. Texas and New Orleans Railroad Co.

Citation. 147 So2d 646 (1962). Brief Fact Summary. The husband of the Plaintiff, Ms. Perkins (Plaintiff), was a passenger in a car when a train at a railway crossing struck the car. The Plaintiff's husband was killed. Synopsis of Rule of Law. The defendant's negligence must be a substantial factor in the cause of the harm for liability to attach. Facts. The Plaintiff's husband was killed in a collision between the car he was a passenger in and a freight train operated by the Defendant, New Orleans Railroad Co. At the intersection of the road and rail crossing where the accident occurred, a large warehouse obstructed the view of both the car's driver and the train's engineer and brakeman. The train's engineer and brakeman were aware of the obstruction and while approaching the intersection rang the train's bell and whistle and put its headlights on. The intersection also had warning signals to warn drivers of approaching trains. These signals were operating at the time of the accident. Of the three railway employees in the forward engine of the train only two, the brakeman and a fireman saw the car emerge from the intersection. The third, the engineer did not see the car due to the obstructed view, but applied the emergency brakes when his companions alerted him to the presence of the car. At the time of the accident the train was between 30 to 60 feet from the car. Both parties have conceded that the driver of the car, who was also killed, was negligent in driving upon the train track with the signal lights on. The parties have also conceded that the train was traveling at 37 miles per hour when the self-imposed speed limit for the intersection was 25 miles per hour. Issue. Whether the negligence of the Defendant was a substantial factor in causing the accident. Held. The train's speed was not a substantial factor in the cause of the accident. Discussion. By traveling twelve miles over the self-imposed speed limit, the engineer was negligent. The engineer testified that even at a rate of 25 mph, the train could not have avoided the car. Based on this testimony, the court finds that the speed of the train was not a substantial factor in the crash. Because the accident would have occurred even if the train had been traveling within the speed limit, the negligence of the train's operator is not a substantial factor in the collision.

106 Reynolds v. Texas & Pac. Ry. Co.

Reynolds v. Texas & Pac. Ry. Co.

Citation. 37 La.Ann. 694 (1885). Brief Fact Summary. The Plaintiff, Reynolds (Plaintiff), was injured when she fell down an unlit stairway while exiting the Defendant, Texas & Pac. Ry. Co.'s (Defendants) train. Synopsis of Rule of Law. If the defendant's negligence is of a character naturally leading to the character of the injury, then causation is established. Facts. The Plaintiff was injured when she fell down an unlit stairway while exiting Defendant's train at night. Because the train was running late, the passengers were told to hurry and exit the train. In doing so the Plaintiff lost her footing and fell. Issue. Whether the negligence of the Defendant caused the injury to the Plaintiff. Held. The Defendant's negligence was a cause of the Plaintiff's injury. Discussion. While it is possible that the Plaintiff might have fallen had she exited the train during the daylight, the possibility is not sufficient to divest the Defendant of liability for its negligence. The Defendant's negligence was of a character naturally leading to the character of the Plaintiff's injury and therefore causation is established.

107 Gentry v. Douglas Hereford Ranch, Inc.

Gentry v. Douglas Hereford Ranch, Inc.

Citation. 962 P.2d 1205 (1998). Brief Fact Summary. The Plaintiff, John Gentry (Plaintiff), brought this action on behalf of his wife, who was shot in the head when a rifle accidentally went off when its owner slipped. The Defendants were the Douglas Hereford Ranch, Inc (Douglas Hereford Ranch) and Bacon (Bacon) an employee of the ranch (Defendants). Synopsis of Rule of Law. Causation requires proof of proximate cause and cause in fact for liability to attach. Facts. The Plaintiff's wife was shot in the head and died when a hunting rifle was accidentally discharged. The gun went off when Bacon, the guns owner, slipped while ascending the Douglas Hereford Ranch's porch stairs. At trial, Bacon testified that he was unable to say what caused his fall. Douglas Hereford Ranch was not found liable at trial. Issue. Whether Douglas Hereford Ranch's negligence caused the Plaintiff's injury. Held. Douglas Hereford Ranch cannot be liable for the Plaintiff's injury. Discussion. Because there was no way for either the Plaintiff or the Defendants to say whether a condition of the porch stairs caused the fall that lead to the accident, Douglass Hereford Ranch cannot be found liable for the Plaintiff's injury. The evidence does not establish that the condition of the porch step was a cause in fact of the Plaintiff's injury.

108 Kramer Service, Inc. v. Wilkins

Kramer Service, Inc. v. Wilkins

Citation. 186 So. 625 (1939). Brief Fact Summary. The Plaintiff, Wilkins (Plaintiff), received a cut on his forehead due to the negligence of the Defendant, Kramer Service, Inc. (Defendant). The cut did not heal and developed into skin cancer. The Plaintiff seeks damages for the resultant cancer. Synopsis of Rule of Law. In cases where the causal link between negligence and injury is based on subject matter that is beyond the experience and observation of laypersons, expert testimony must be considered to determine whether the link is sufficient to attach liability. Facts. The Plaintiff was injured while staying in the Defendant's hotel as a guest. The injury occurred when the Plaintiff opened a door and a piece of glass fell from a broken transform. The condition of the transform had existed long enough to assume the Defendant had notice of it. The accident resulted in a cut on the Plaintiff's forehead that did not heal and eventually became cancerous. At trial, two medical experts testified. One said there was only a one in one hundred chance that the Plaintiff's original injury would result in cancer and the other said it was impossible. Issue. Whether the jury can consider the expert testimony on whether the Defendant's negligence caused the Plaintiff's cancer. Held. Expert testimony must be considered by the fact finder when deciding if a substantial a link exists between the negligence and the injury when the subject matter is beyond the scope of lay knowledge. Discussion. It is not enough that negligence and injury occur at the same time, there must be a causal link between them. The possibility of an injury occurring as a result of negligence is also not enough of a link. In cases where the subject matter is beyond the experience or observation of laymen, courts must depend on medical testimony to determine whether the causal link has a substantial enough foundation to find liability. The jury must be allowed to consider the expert testimony when deciding whether to award damages for the Plaintiff's cancer in addition to his original injury.

109 Herskovits v. Group Health Cooperative of Puget Sound

Herskovits v. Group Health Cooperative of Puget Sound

Citation. 664 P.2d 474 (1983). Brief Fact Summary. Due to the Defendant, Group Health Cooperative of Puget Sound's (Defendant), failure to promptly diagnose the decedent's lung cancer, the decedents chances of surviving went from 39% to 25%. The Plaintiff in this matter, Edith Herskovits (Plaintiff), is the decedent's estates personal representative. Synopsis of Rule of Law. Even if the total chances of survival are below 50%, a negligent Defendant is liable for the reduced chance of survival directly caused by the negligence. Facts. The Plaintiff is seeking to recover from the Defendant for failing to timely diagnose the decedent's lung cancer. The Defendant's failure to diagnose the decedent's lung cancer on his first visit to the hospital caused his chance of survival to go from a 39% to a 25% chance. Issue. Whether, due to the Defendant's negligence, a decrease in the chances of survival that are already lower than 50% is actionable negligence. Held. A reduced chance of survival, no matter what the percentage, is an actual harm. The Defendant's negligence caused a reduction in the decedent's chances of survival and therefore a causal link is established between the negligence and the harm. Discussion. Once the plaintiff demonstrates that the defendant's negligence caused a decrease in chance of survival, there is sufficient information to determine whether the negligence was a substantial factor in the resultant harm. The court notes that a reduction in the opportunity to recover due to negligence does not mean that the jury must award full damages to the plaintiff's estate, but rather only award damages based on premature death i.e. lost wages.

110 Daubert v. Merrell Dow Pharmaceuticals, Inc.

Daubert v. Merrell Dow Pharmaceuticals, Inc.

Citation. 43 F. 3d 1311 (1995). Brief Fact Summary. The Plaintiffs, Daubert and other minors (Plaintiffs), suffered limb reduction birth defects. They claim the defects were caused when their mothers ingested drugs manufactured by the Defendant, Merrell Dow Pharmaceuticals, Inc. (Defendant), while they were pregnant. Synopsis of Rule of Law. To be admissible, expert scientific testimony that is derived from research done for the purpose of litigation must show that the conclusions were reached after following recognized scientific methods of research. Facts. The minor Plaintiffs were injured when their mothers ingested drugs manufactured by the Defendant. According to the Plaintiffs' experts, the drug manufactured by the Defendant caused the deformities. However, the majority of the scientific field does not agree that the drug causes limb deformities and the Federal Drug Authority (FDA) continues to approve of its use in pregnant women. Issue. Whether the expert testimony offered by the Plaintiffs is admissible. Held. The Plaintiffs' expert testimony is not admissible. Discussion. 1 When it comes to expert testimony and scientific theory, it is hard for the courts to determine what is a fact and what is a scientific theory admissible in court. Federal Rule of Evidence 702 (Rule 702) is now the standard for admitting expert scientific testimony. Under Rule 702, there are several factors to consider when determining whether expert testimony is admissible:

i. Whether the theory is generally accepted in the scientific community; ii. Whether the theory/method has been subjected to peer review and publication; iii. Whether the theory/method has been tested or can be tested; iv. Whether the potential or known rate of error is acceptable. 1 It is the court's responsibility to resolve disputes among the respected and credentialed scientists about matters within the scientists' expertise and to reject testimony if it is not obtained by the scientific method.

111 Daubert v. Merrell Dow Pharmaceuticals, Inc. 1 If expert testimony is shown to be the result of research conducted for the purpose of litigation, the expert must show precisely how they reached their conclusions and point to an objective source to show they followed the scientific method as it is practiced by at least a recognized minority in their field. Because the Plaintiffs' experts cannot do this, the testimony is not admissible. 2 The Plaintiffs' experts did not conduct their research independent of the litigation and the theories have not been published in scientific journals or reviewed by peers, thought there has been ample time to do so because the theories and litigation has been around for a decade. Furthermore, under Rule 702, the Plaintiffs must show that the evidence they offer would assist the trier of fact in determining a factual issue. The Plaintiffs cannot show causation directly and attempt to show it through circumstantial evidence provided by their experts. The testimony cannot establish that the defects were not caused by an independent cause, since limb reduction defects occur in the babies of mothers who did not take the drug. The Plaintiffs' experts cannot say that the drug more than doubled their risk of the defect, only that there was a statistical relationship between he drug and the birth defect.

112 Hill v. Edmonds

Hill v. Edmonds
Citation. 270 N.Y.S.2d 1020 (1966). Brief Fact Summary. The Plaintiff Hill, (Plaintiff), was injured when the car he was riding in collided with a tractor left in the road without its lights on. Synopsis of Rule of Law. When two separate acts of negligence produce a single harm, each tortfeasor is wholly responsible for the harm even though his act alone may not have caused it. Facts. The Plaintiff was injured when the car the Plaintiff was riding in hit a tractor truck left parked in the road without its lights on. The driver of the car testified that she saw the tractor ahead of her before the collision and so may have been negligent in causing the accident. At trial the court dismissed the complaint against the owner of the tractor due to the testimony of the car's driver. Issue. Whether two separate tortfeasors can be liable for one injury that could not have resulted without the negligence of both parties. Held. Multiple tortfeasors are each responsible for the entire injury and the complaint against the tractor's owner must be reinstated. Discussion. The accident would not have happened had the tractor's owner not left the tractor in the road without its lights on. Because the harm could not have resulted without the negligence of both the driver of the car and the tractor's owner, they both may be responsible for the injury.

113 Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.

Anderson v. Minneapolis, St. P. & S.St. M. R.R. Co.

Citation. 179 N.W. 45 (1920). Brief Fact Summary. A forest fire resulted in the destruction of the Plaintiff, Anderson's (Plaintiff), property. The fire had two origins, one cause was due to the negligence of the Defendant, Minneapolis, St. P. & S. St. M.R.R. Co. (Defendant), the other cause was unknown. Synopsis of Rule of Law. When the injury is caused by multiple acts of negligence, but only one tortfeasor is known, that party is still liable for the injury. Facts. A forest fire resulted from the negligence of the Defendant. The fire combined with another of unknown origin and together the fires caused damage to the Plaintiff's property. Issue. Whether the Defendant's negligence was a substantial or material cause of the damage to Plaintiff's property. Held. The Defendant is still liable for its negligence even though the fire it caused combined with another to result in damage to the Plaintiff's property. Discussion. The jury instructions directed the jury to determine that if they found the fire set by the Defendant's train to be materially or substantially responsible for the Plaintiff's damage, either alone, or in connection with the other fire, then the defendant is liable. The Defendant's argued, based on [Cook v. Minneapolis, St. P. & S.S.M. Ry. Co., 74 N.W. 561], the jury should have been instructed that if they found the unknown fire was of more superior force, then the Defendant would not be liable since the fire it was responsible for would not have caused the damage to Plaintiff's property, but for the negligence of someone else. The court rejected this argument reasoning that the Cook case makes sense if you have two fires from known origins because the result is joint and several liability. However, Cook does not work in cases where the other fire is from an unknown source because it leaves the Plaintiff with no possible recovery.

114 Summers v. Tice

Summers v. Tice
Citation. 199 P.2d 1 (1948). Brief Fact Summary. Plaintiff was injured when he was shot in the eye during a hunting expedition. Two defendants negligently shot in his direction at the same time. Synopsis of Rule of Law. When there is negligence by multiple parties, and one party can only have caused the plaintiff's injury, then it is up to the negligent parties to absolve themselves if they can. Facts. The plaintiff was shot in the eye during a hunting trip. Both defendants shot in the plaintiff's direction at the same time while trying to shoot a quail. The plaintiff's injury was caused by one shot. Issue. Whether two tortfeasors can both be liable when the injury can only have been caused by one of them. Held. It is up to the tortfeasors to prove they were not responsible for the injury, since both were negligent towards the plaintiff. Discussion. The plaintiff should not be deprived of his recovery from negligent defendants just because he cannot know which defendant actually shot him. Because both of the defendants were negligent and both were wrongdoers, then it is their burden to absolve themselves if they can. If the rule were that the plaintiff must choose one or the other tortfeasor and that tortfeasor escaped liability by pointing to the second tortfeasor, then second tortfeasor can do the same and leave the plaintiff without recovery.

115 Sindell v. Abbott Laboratories

Sindell v. Abbott Laboratories

Citation. 607 P.2d 924 (1980). Brief Fact Summary. The Plaintiff, Sindell (Plaintiff), developed cancer as a result of a drug her mother took while pregnant. Synopsis of Rule of Law. In certain circumstances where the plaintiff is unable to identity the actual tortfeasor and it is unjust to preclude them from recovery, then the group responsible for the overall harm can be held liable. Facts. The Plaintiff's mother took synthetic estrogen while pregnant with the Plaintiff. As a result of receiving the drug in-utero, the Plaintiff developed cancer as an adult. The drug was manufactured by the Defendants, five drug companies (Defendants) and by about 195 other companies not named in the suit. The Defendants together produced 90% of the drug. The Plaintiff is unable to identify which company produced the actual drug her mother took. Issue. Whether the Defendants are liable for the Plaintiff's cancer. Held. The Defendants are liable for the injury to Plaintiff. Discussion. 1 This case is unlike others in which the plaintiff is unaware of the identity of the tortfeasor. First, there is a large number of possible tortfeasors, the majority of which are not named defendants. Second, the industry responsible for the production of this drug is large, so holding all of the manufacturers responsible becomes impractical. There are strong policy reasons for fashioning liability to the Defendants. First, the Plaintiff was innocent of any wrongdoing and has no way of knowing which of the drug manufactures caused her injury. Second, the manufacturers of such drugs should be culpable for producing a drug that has harmful effects to future generations. Third, the manufactures are in a better position to bear the cost of such harm and they are in the best position to discover and guard against future harm. If the Plaintiff joins a substantial share of the manufactures into the lawsuit, the chances of the actual tortfeasor escaping liability is greatly reduced. To determine damages, each manufacturer's liability will depend on the share it had in the market for the drug unless that defendant can show that it could not have made the product that Plaintiff's mother ingested. In this way, each manufacturer is liable for an equivalent portion of the injury as to its share of the defective drug it manufactured.

116

CHA PTER VI. Proxi mate Or Legal Cause

117 Atlantic Coast Line R. CO. v. Daniels

Atlantic Coast Line R. CO. v. Daniels

Citation. 70 S.E. 203 (1911). Brief Fact Summary. None provided. Synopsis of Rule of Law. To limit a potentially limitless chain of causes, we must look to the proximate cause of the injury and draw arbitrary lines to limit liability. Facts. N/A Issue. N/A Held. To limit a potentially limitless chain of causes, we must look to the proximate cause of the injury and draw arbitrary lines to limit liability. Discussion. Questions of cause and effect create potentially limitless liability so courts must draw a line to sever the liability of a tortfeasor at a reasonable place in a chain of events. Otherwise, a tortfeasor could theoretically claim the injury would not have happened if the plaintiff had not been born at all.

118 Ryan v. New York Central R.R. Co.

Ryan v. New York Central R.R. Co.

Citation. 91 Am.Dec. 49 (1866). Brief Fact Summary. Due to the Defendant, New York Central R.R. Co.'s (Defendant) negligence, a fire started in a populated area and spread to the Plaintiff, Ryan's (Plaintiff) home, destroying it and several other properties. Synopsis of Rule of Law. Parties are not liable for the remote results of their negligence, only the proximate consequences. Facts. A woodshed on the Defendant's property caught on fire from one of the Defendant's rail engines. The fire spread and consumed the Plaintiff's property. Several other properties were also destroyed and valiant efforts were made to save the homes. Issue. Whether the spread of the fire to the Plaintiff's home is a proximate or remote result of the Defendant's negligence. Held. The spread of the fire was a remote result and not a foreseeable consequence to the burning of one building. Discussion. The building that catches fire due to the Defendant's negligence, is a foreseeable consequence. But the spread of the fire to other properties is not necessarily a proximate result since that result depends on several accidental occurrences. Circumstances such as the degree of heat, the weather and the materials used to construct the adjoining properties are all contributors to the result. None of these circumstances are under the control of the Defendant. Therefore, the burning of the Plaintiff's property is a remote result of the Defendant's negligence and liability does not attach.

119 Bartolone v. Jeckovich

Bartolone v. Jeckovich
Citation. 103 A.D.2d 632 (1984). Brief Fact Summary. The plaintiff suffered whiplash and other injuries as a result of a car crash. His injuries aggravated a pre-existing schizophrenic condition. Synopsis of Rule of Law. The defendant must take the plaintiff as he finds him and maybe liable fore aggravating pre-existing illnesses. Facts. The plaintiff was injured as a result of a four-car pileup caused by the defendant's negligence. Although the plaintiff's initial injuries were relatively minor, whiplash and lower back pain, the incapacity resulted in aggravating a pre-existing paranoid schizophrenic condition, which has completely debilitated the plaintiff's life. Issue. Whether the defendant is liable for the schizophrenic condition of the plaintiff. Held. The defendant is liable for aggravating the plaintiff's pre-existing psychological condition. Discussion. The evidence demonstrates that the plaintiff lead a normal active life before suffering minor physical injuries in the car accident. Expert medical testimony explained how the injuries lead the plaintiff to exhibit schizophrenic behaviors. The defendant must take the plaintiff as they find him. The plaintiff must demonstrate a predisposition to the resultant psychological illness and in this case he did.

120 In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.

In re Arbitration Between Polemis and Furness, Withy & Co., Ltd.

Citation. 3 K.B. 560 (1921). Brief Fact Summary. While discharging cargo from a ship, a wooden plank fell causing a spark to ignite the petrol the ship carried. The resulting fire destroyed the ship. Synopsis of Rule of Law. The exact way in which damage or injury results need not be foreseen for liability to attach, the fact that the negligent act caused the result is enough. Facts. The owners of a vessel chartered its use to the Appellants for the purposes of carrying, among other things, petrol to Casablanca. While unloading the cargo in Casablanca, a wooden plank fell into the hold containing the petrol and caused an explosion. The fire completely destroyed the vessel. The owners, charging the chatterers with negligence, claimed the value of the vessel from the charterers. The charterers responded that the fire was a remote consequence of their actions, so they are not responsible. The case was referred to arbitration and the arbitrators found that the fire was caused when the wooden plank hit metal and caused a spark. The arbitrators agreed with the charterers that the spark was an unforeseen consequence of the original negligence and therefore the destruction of the vessel was a remote consequence. The only damage the charterers should be liable for is the approximate damage done to the vessel by the falling wooden plank, not the damage done by the fire. The owners sought review. Issue. Whether the charterer's negligence was a proximate cause of the fire. Held. The fire was a foreseeable consequence of the negligence. Discussion. The finding that the spark was too remote to confer liability on the charterers was based on the contention of the charterers that the fire was an unforeseen consequence of the falling wooden plank. The actual anticipations of the negligent party are irrelevant when considering whether the resulting damage is remote. In this case, the fire was a direct result of the negligent act and therefore the charterers are liable for the fire. That damage that might result when a wooden plank falls while discharging cargo is a foreseeable consequence of the negligence, whatever that damage might be.

121 Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1"

Overseas Tankship v. Morts Dock & Engineering Co., Ltd. "Wagon Mound No. 1"
Citation. Privy Council, 1961. Brief Fact Summary. The defendants negligently caused oil to spill into the Port of Sydney and do minimal damage to the plaintiff's wharf. The oil subsequently caused a fire when molten metal dropped into the water and ignited cotton waste floating in the port. Synopsis of Rule of Law. The natural consequences rule is overruled and reasonable foreseeability test is adopted. Facts. The Plaintiff, Morts Dock & Engineering Co., Ltd. (Plaintiff), operated a dock in the Port of Sydney. The Defendants were the owners of the vessel Wagon Mound (Defendants). Wagon Mound was moored 600 feet from the Plaintiff's wharf when, due the Defendant's negligence, she discharged furnace oil into the bay causing minor injury to the Plaintiff's property. However, the oil was ignited when molten metal dropped from the wharf and came into contact with cotton waste floating on the water's surface. The fire seriously damaged the wharf and two ships docked there. Issue. Whether the fire that destroyed the Plaintiff's wharf was a foreseeable consequence of the Defendant's negligence. Held. The injury to Plaintiff's property, though a direct result of the defendant's negligence, was an unforeseeable consequence and liability does not attach. Discussion. The natural consequences rule leads to instances where a negligent party is liable for both the direct trivial foreseeable damage and all unforeseeable and grave consequences too. This takes the law beyond the principle that a man should be liable for the probable consequences of his actions. The prior rule has led to much confusion and inconsistent results in the law. In some cases, the negligent actor is held responsible for results that might be natural or probable and are therefore deemed to be foreseeable to the reasonable man, when they are in fact not foreseeable. The Defendant is liable for the fire if the injury by fire is a foreseeable consequence of their negligence.

122 Overseas Tankship Ltd. V. Miller Steamship Co. "Wagon Mound No. 2"

Overseas Tankship Ltd. V. Miller Steamship Co. "Wagon Mound No. 2"
Citation. Privy Council 1966. Brief Fact Summary. The defendants negligently caused oil to spill into the Port of Sydney. This spill did minimal damage to the plaintiff's ships. The oil subsequently caused a fire when molten metal dropped into the water and ignited cotton waste floating in the port. The fire destroyed the ships. Synopsis of Rule of Law. If a party did nothing to prevent the injury, he is liable for the foreseeable consequences of his actions, even if the consequences are remote. Facts. The defendants are the owners of the vessel Wagon Mound, which was moored 600 feet from a wharf. The plaintiffs are owners of ships docked at the wharf. Due to the defendant's negligence, furnace oil was discharged into the bay causing minor injury to the plaintiff's ships. However, the oil was then ignited when molten metal dropped from the wharf and came into contact with cotton waste floating on the water's surface. The fire that resulted seriously damaged the wharf and two of the plaintiff's ships. Issue. Whether the fire, which was found to be foreseeable to the reasonable man, was reasonably foreseeable to the extent liability attaches. Held. If a reasonable man can foresee and prevent the risk, then he is liable for the foreseeable damages. Discussion. Based on the trial court's findings, it is true that the Wagon Mound's operators would have foreseen that oil spilling into the harbor had a possibility of causing a fire, but would have only a very low probability. A fire could only result under exceptional circumstances. However, because the risk of fire was foreseeable, the defendants bore a duty to prevent the risk, even if the risk was a remote possibility.

123 Palsgraph v. Long Island R.R. Co.

Palsgraph v. Long Island R.R. Co.

Citation. 162 N.E. 99 (1928)/. Brief Fact Summary. A railway guard employed by the Defendant, the Long Island R.R. Co. (Defendant), caused a man to drop a package of fireworks upon the tracks. The fireworks caused an explosion and the force of the explosion caused a scale at the other end of the station to fall on the Plaintiff, Ms. Palsgraph (Plaintiff) and injure her. Synopsis of Rule of Law. A negligent party only owes a duty to the party who was directly wronged by them. Facts. While waiting on the platform of the Defendant's train station for her train to arrive, the Plaintiff was struck and injured when the station's large scales fell on her. The scales fell when a large explosion occurred. The explosion was the result of a package of fireworks hitting the rails. The man carrying the package dropped the fireworks when he was assisted onto a moving train by one of the train guards. Issue. Whether the Defendant's negligence was a proximate cause of the Plaintiff's injury. Held. When the Defendant's guard attempted to assist the man with the package onto the train, the guard committed an act of harm on the man. The Plaintiff, on the other had, was several feet away and there was no warning that the guard's action could harm a person standing on the opposite side of the rail platform. The guard's actions did not violate a right or an interest of the Plaintiff's and so the Defendant owes no duty to the Plaintiff because the wrong was not done to her, but to another. Dissent. The theory of negligence posed by the dissent looks not at the duty, but at the proximate cause of the injury to the Plaintiff. If an act unreasonably threatens the safety of others, the party responsible for the act is liable for all of the proximate consequences, even if they are outside of the "orbit" of danger. The dissent points out that limiting the legal duty owed by the Defendant to just the man entering the train and not the other passengers is too narrow. Some wrongs are to the public at large because due care is a duty imposed on all of society to protect each other from unnecessary danger. If an unreasonable risk is taken, then its consequences are not confined to individuals. Discussion. The "orbit" of the duty here is the "orbit" of foreseeability. The defendant's guard was negligent when he dislodged the package from the man carrying the fireworks. It was not foreseeable that this act could cause injury to the Plaintiff, who was several feet away from the initial injury. The guard owed no duty of care to the people on the platform generally, and could not have known the nature of the contents of the package. The harm to the Plaintiff was the unforeseeable result of harm caused to another person. Furthermore, by dislodging the package from the man's arms, the guard could not have expected the harm to carry a risk to people standing several feet away on the platform. The plaintiff cannot predicate her injury upon the wrong done to someone else. The duty

124 Palsgraph v. Long Island R.R. Co. the Defendant owed is defined by the risk reasonably perceived. The reasonable person would not perceive that the risk created by dislodging a package while attempting to help a passenger onto a train would carry with it a duty to persons several feet away.

125 Yun v. Ford Motor Co.

Yun v. Ford Motor Co.

Citation. 647 A.2d 841 (1994). Brief Fact Summary. A car struck the plaintiff's father when he attempted to retrieve a spare tire and support brackets from the highway after they had fallen off. Synopsis of Rule of Law. An intervening cause, which is an unforeseeable or extraordinary event, breaks the chain of causation. Facts. The plaintiff was driving her van when the spare tire came loose from its holding and came off of the van. The plaintiff and her father Chang, who was a passenger, stopped the van when they heard the tire come off. Chang got out and crossed the highway to retrieve the tire and other parts of the support bracket. On his way back to the van Chang was hit by a car and killed. Issue. Whether the decedent's conduct was reasonably foreseeable or if it was so out of the ordinary that it broke the chain of causation. Held. The decedent's actions where senseless and liability for his injuries should not attach. Dissent. The issues of proximate cause and intervening cause should be left to the jury for factual determination. In cases where reasonable persons may differ the issue should go to the jury. A jury might find that it was reasonably foreseeable that the tire would dislodge and fall onto the roadway while the van was in operation and that someone might try to retrieve those parts. Discussion. 1 Proximate cause is any cause that in the continuous sequence, unbroken by an intervening cause, produces the resultant injury and without which injury would not have occurred. The defect in the spare tire did not cause Chang's injuries, the injury occurred after he recklessly crossed the highway. The spare tire created circumstances upon which the subsequent intervening negligence occurred, but there was no proximate cause between the defect in the product and the injury. The manufacture of the spare tire holder is also not responsible for the decedent's injuries. The facts show that the plaintiff and Chang had the opportunity to fix the holder thirty days before the accident occurred. As a matter of public policy, the court can decide the issue of proximate cause, which is usually reserved for the trier of fact, when the injury is so

126 Yun v. Ford Motor Co. 1 extraordinary that it cannot be an expected result. This is such a case as the harm caused to the plaintiff is so unexpected.

127 Derdiarian v. Felix Contracting Corp.

Derdiarian v. Felix Contracting Corp.

Citation. 414 N.E.2d 666 (1981). Brief Fact Summary. After suffering an epileptic seizure, the driver of a car crashed into the Defendant, Felix Contracting Corp.'s (Defendant), worksite and hit the Plaintiff, Derdiarian (Plaintiff), who was severely burned by liquid enamel as a result. Synopsis of Rule of Law. Intervening acts of a third person do not automatically sever liability between the plaintiff and the defendant. The liability survives if the intervening act is a normal or foreseeable consequence of the circumstances created by the defendant's negligence. Facts. The Plaintiff was severely burned while working as a subcontractor on street repairs. The accident occurred when the driver of an automobile traveling down the street where Plaintiff was working suffered an epileptic seizure and hit the Plaintiff causing him to fly through the air. When the Plaintiff landed, liquid enamel was splattered on his face and body. The Plaintiff became engulfed in flames. Issue. Whether the intervening act of the car accident severs the Defendant contractor's liability. Held. The injury to the Plaintiff is a foreseeable consequence of the negligence of the defendant. Discussion. The Defendant was negligent in not properly protecting the worksite where the Plaintiff was working. It is a naturally foreseeable consequence that a car might enter the worksite and injure a worker. The precise nature of the injury need not be foreseeable. The fact that a car could enter the unprotected worksite is a natural, normal and foreseeable risk created by the Defendant's failure to protect the site.

128 Watson v. Kentucky & Indiana Bridge & R.R. Co.

Watson v. Kentucky & Indiana Bridge & R.R. Co.

Citation. 126 S.W. 146 (1910). Brief Fact Summary. The Plaintiff, Watson (Plaintiff), was injured when a third party lit a match and ignited gasoline vapor causing an explosion. The gasoline vapor was the result of the derailing of a rail car owned by the Defendant, Kentucky & Indiana Bridge & R.R. Co. (Defendant). Synopsis of Rule of Law. If an intervening act is merely unforeseeable it does not sever the liability of the primary negligent party. However, if the intervening act is so unexpected or extraordinary that the primary tortfeasor could not and ought not to have anticipated it, then liability is severed. Facts. The Defendant railroad's tank car filled with gasoline derailed and spilled its contents into the street where the Plaintiff was a bystander. A third party struck a match igniting the gasoline vapor and causing the explosion, which injured the Plaintiff. There was conflicting testimony at trial over whether the third party started the fire while lighting a cigar, or whether he dropped the match with the intention of igniting the gas. Issue. Whether the intervening act of the third party was a contributing cause, or the proximate cause of the Plaintiff's injury. Held. A foreseeable intervening act severs liability only if it is so unexpected or extraordinary that the defendant could not and ought not to have anticipated it. Discussion. 1 If the third party inadvertently lit the match, then the negligence of the Defendant is a proximate cause of the Plaintiff's injury because it is reasonably foreseeable that someone might light a cigar on the street. In this instance the explosion could not have occurred without the gasoline first having been spilled. If the act of the third party was intentional and done with the purpose of lighting the gasoline, then the Defendant is not liable because the Defendant could not have foreseen that someone would maliciously light a match with the purpose of causing an explosion. Because such an act is not reasonably foreseeable, the Defendant had no way to guard against it.

129 Fuller v. Preis

Fuller v. Preis
Citation. 322 N.E.2d 263 (1974). Brief Fact Summary. Following a collision with the defendant, the decedent suffered head injuries causing multiple serious epileptic seizures. After several months he committed suicide. Synopsis of Rule of Law. An intentional intervening act like suicide does not sever the causal relationship with the primary tortfeasor, when it is shown that the decedent was incapable of resisting the impulse to kill themselves as a result of the tortfeasor. Facts. The decedent, Dr. Lewis, was in good health physically and mentally before he suffered head injuries as a result of a collision with the defendant. After the collision, the decedent suffered epileptic seizures and unconsciousness. Eventually Dr. Lewis took is own life. Issue. Whether the decedent's suicide was an irresistible impulse caused by injuries he suffered due to the defendant's negligence. Held. An act of suicide does not preclude liability on the tortfeasor, it is not a superseding cause. Discussion. If the act of suicide is a foreseeable result of the defendant's negligence, then the defendant may be liable for the suicide even though suicide is an intentional act. To be held liable, the evidence must show that the decedent was incapable of resisting an impulse to destroy themselves due to the negligent act.

130 McCoy v. American Suzuki Motor Corp.

McCoy v. American Suzuki Motor Corp.

Citation. 961 P.2d 952 (1998). Brief Fact Summary. The Plaintiff, McCoy (Plaintiff), was injured when he was attempting to help at an accident sight and was hit by a car. Synopsis of Rule of Law. The rescue doctrine may apply in products liability cases. Facts. The Plaintiff was struck by a car while offering assistance at the scene of a car accident. The Plaintiff was following behind the driver of a Suzuki motor vehicle when it crashed. A state trooper arrived at the scene soon after and asked the Plaintiff to put flares on the road, which the Plaintiff did. After the accident scene and the injured parties were removed, the Plaintiff headed back to his car along the shoulder of the road carrying a lit flare in his roadside hand. He was then struck from behind by a passing car. The state trooper had pulled away and left the scene when the hit and run occurred. The Plaintiff sued various Defendants including the driver and the passenger of the Suzuki, the State for the negligence of the trooper and American Suzuki Motor Company along with its parent Suzuki Motor Company (Defendants). Issue. Whether the rescue doctrine protects the Defendant from claims brought under a theory of products liability. Held. Products liability, like any other tort, is subject to the rescue doctrine. Discussion. 1 The rescue doctrine allows an injured rescuer to sue the party that caused the danger. The tortfeasor owes a duty to the rescuer that is similar to the duty they owed to the party injured in the first place. The doctrine also negates the presumption that the rescuer assumes risk of injury when undertaking a dangerous rescue as long as the rescuer does not act recklessly. The rescue doctrine requires that:

i. The defendant acted negligently towards the person rescued and the negligence caused the danger to the rescuer, ii. The danger was imminent, iii. A reasonably prudent person would have concluded that the danger existed and iv. The rescuer acted with reasonable care.

131 McCoy v. American Suzuki Motor Corp. 1 In this case, the court found that the Plaintiff met the requirements to achieve rescuer status. 2 The rescuer doctrine was developed for public policy reasons because rescuers should be anticipated and should not be barred from bringing suit. There is no reason that this policy should not apply to situations where a manufacturer causes the danger. Therefore, for the rescuer to show causation, they only need to show that the defendant proximately caused the danger and that they were injured as a result of their actions as rescuer. It is a possibility that Suzuki's negligence caused the Defendant driver's accident and therefore they should not be protected from liability to the Plaintiff.

132 Kelly v. Gwinnell

Kelly v. Gwinnell
Citation. 96 N.J. 538, 476 A.2d 1219 (1984). Brief Fact Summary. Zak provided Gwinnell with alcoholic beverages and then allowed him to drive home. Gwinnell was involved in a head on collision with Kelly on his way home. Kelly sued Gwinnell and Zak for negligence. The trial court granted Zak's motion for summary judgment. Synopsis of Rule of Law. Social hosts who allow guests to become intoxicated and then drive, may be liable for injuries caused by the guest's negligent drunk driving. Facts. Two of the Defendants were Zak and Gwinell (Defendants). Gwinnell drove Zak to Zak's home, where Gwinell consumed alcoholic beverages. Zak walked Gwinnell to his car, where he chatted with him and watched him drive off. On his way home, Gwinnell was involved in a head on collision with the Plaintiff, Kelly (Plaintiff), who was seriously injured. Plaintiff sued the Defendants. The trial court granted Zak's motion for summary judgment, ruling as a matter of law that a host is not liable for the negligence of an adult social guest who has become intoxicated at the guest's house. The appellate court affirmed. Issue. Is a host who serves liquor to a guest, knowing that the guest is intoxicated and will be operating a motor vehicle, liable for injuries inflicted on a third party when the injuries are a result of negligence and the negligence is caused by the intoxication? Held. Yes. Judgment reversed and remanded. 1 Tortfeasors are generally held liable for injuries that occur in the ordinary course of events from their negligence if the negligence was a substantial factor in bringing about the injuries. Zak provided his guest with liquor, knowing the guest would be driving later. Viewing the facts most favorably for the plaintiff (in light of the summary judgment motion) it is reasonable to conclude that Zak continued to serve Gwinnell after he was becoming visibly drunk. A reasonable person in Zak's position could foresee that unless he stopped providing Gwinnell with alcoholic beverages, Gwinnell was likely to injure someone while operating his car. The remaining question is if this Court should impose a duty to prevent such a risk. Although imposing a duty may interfere with accepted standards of social behavior, this Court believes that the just compensation of drunk driving victims along with its deterrent effect outweigh the opposing policy considerations.

Dissent. This type of liability imposition is best left up to the legislature. Unlike commercial licensees who serve alcoholic beverages, average social hosts have less knowledge in determining levels of intoxication, don't always serve guests directly, and

133 Kelly v. Gwinnell have no insurance to spread the cost of liability. Additionally, it is not clear from the majority's decision to what length a host must go to prevent an intoxicated guest from driving. Discussion. The majority's decision to impose a duty on social hosts was based both on fairness and policy considerations.

134 Enright v. Eli Lilly & Co.

Enright v. Eli Lilly & Co.

Citation. 77 N.Y.2d 377, 570 N.E.2d 298, 568 N.Y.S.2d 550 (N.Y.App.1991). Brief Fact Summary. The Plaintiff, Patricia Enright on behalf of Karen Enright an infant (Plaintiff), sued the Defendants, various manufacturers of DES (Defendants), for damage done to her because of a premature birth. This premature birth was allegedly the result of damage to Patricia Enright's mother's reproductive system, which was damaged due to in utero exposure to DES. Synopsis of Rule of Law. Causes of action are not recognized for children who have injuries which were caused by a preconception tort committed against the mother. Facts. Plaintiff's grandmother took a prescription pill called DES intended to prevent miscarriage during pregnancy. Plaintiff's grandmother gave birth to Patricia Enright, who alleges she developed abnormalities of her reproductive system due to exposure to DES. These abnormalities allegedly resulted in the premature birth of Plaintiff, who suffers from cerebral palsy and other disabilities attributed to her premature birth. Plaintiff's claims were dismissed by the trial court. The appellate court affirmed the dismissal of the negligence, breach of warranty, and fraud causes of action, but reinstated the strict liability count. Issue. Can a plaintiff recover under a strict liability theory for injuries sustained during birth that were the result of abnormalities in her mother's reproductive system caused by the mother's in utero exposure to DES? Held. No. Judgment reversed. 1 Due to the widespread tragic effects of DES, the legislature has removed legal barriers to tort recovery. Instead of the usual tolling of the statute of limitations for exposure to toxic substances when the exposure occurs, the legislature changed the law to allow the limitations period to begin to run upon discovery of the injury. Additionally, the legislature has allowed for liability to be imposed upon DES manufacturers in proportion to their share of the national DES market when plaintiffs find it impossible to identify the manufacturer of the drug that caused her injuries. In the present case, the Court is asked to recognize a cause of action not available in other contexts simply because this is a DES case. Previous cases have determined that causes of action do not lie in favor of children for injuries suffered as a result of a preconception tort committed against the mother [Albala v. New York, 54 N.Y.2d 269, 429 N.E.2d 786]. This Court does not believe that the public interest in providing a remedy for those injured by DES is stronger than the public interest in providing remedies for those injured by other means.

135 Enright v. Eli Lilly & Co. 1 Plaintiff also argues that previous decisions involved negligence cases and that a different result might be obtained under a strict products liability theory. This Court finds that public policy considerations counsel against allowing such causes of action. First, these causes of action could not be confined without drawing artificial boundaries, as the effects of DES exposure may extend for generations. More importantly, such extensive liability might hinder the creation and availability of important prescription drugs. Discussion. Part of the reasoning for not allowing tort actions through multiple generations is the issue of foreseeability. While a reasonable person could foresee that injuries would occur to those directly exposed to DES, it is more difficult to foresee that injuries would occur to multiple later generations.

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s o r s

137 Bierczynski v. Rogers

Bierczynski v. Rogers
Citation. 239 A.2d 218 (Del.1968). Brief Fact Summary. Bierczynski and Race were involved in an automobile race. Race crashed his car into a vehicle driven by Cecil and Susan Rogers. Susan Rogers sued both Bierczynski and Race under a negligence theory. The jury found both liable. Bierczynski appealed based on the fact that he was not involved in the accident. Synopsis of Rule of Law. When two or more individuals are wrongdoers acting in concert and their actions injure a third party, all may be liable for concurrent negligence, regardless of which of the individuals directly caused the injury. Facts. The Plaintiffs, Cecil and Susan Rogers (Plaintiffs), brought a negligence action against the Defendants, Race and Bierczynski (Defendants), for a car accident caused by a high speed race Bierczynski and Race were involved in. The evidence showed that Bierczynski and Race came down a hill side by side-by-side at twice the legal limit when they approached Plaintiffs' car. Race tried to get his car back into the eastbound lane, but lost control and careened into Plaintiffs' car. Bierczynski remained in the proper lane at all times, and his car never came into contact with the Plaintiff's vehicle. The jury found that Race and Bierczynski were each negligent and that the negligence of each was a proximate cause of the accident. The defendant Bierczynski appealed the verdict. Race joined with Plaintiffs in upholding the judgment below. Issue. Can a participant in a street race be found liable for negligence when his vehicle did not come into contact with the injured non-participant? Held. Yes. Judgment affirmed. 1 In many states, the violation of statutes prohibiting automobile racing is negligence per se. Although Delaware has no such statute, automobile racing constitutes a negligent act because a reasonably prudent person would not engage in such conduct. All parties engaged in automobile racing on the highway are "wrongdoers acting in concert." Each participant is liable for injuries caused because he has induced and encouraged the tort. This Court holds that participation in a motor vehicle race on a public highway is an act of concurrent negligence, with each participant being liable for any injuries to non-participants.

Discussion. Because both Defendants are at fault and they have concert of action, Bierczynski is negligent even though his car did not come into contact with the Plaintiffs.

138 Coney v. J.L.G. Industries, Inc.

Coney v. J.L.G. Industries, Inc.

Citation. 97 Ill.2d 104, 454 N.E.2d 197, 73 Ill.Dec. 337 (1983). Brief Fact Summary. A wrongful death action based on strict products liability was brought against the Defendant, J.L.G. Industries (Defendant). Defendant claims that the deceased committed contributory negligence, the deceased's employer was also negligent and that the adoption of comparative negligence should eliminate joint and several liability. Synopsis of Rule of Law. Joint and several liability is still applicable when contributory negligence is replaced by comparative negligence. Facts. A wrongful death action was brought by the Plaintiff, Coney on behalf of Clifford Jasper (Plaintiff). Jasper died operating a hydraulic aerial work platform manufactured by the Defendant. The action was based on strict products liability. Defendant argued that Jasper had committed contributory negligence and that his employer had also contributed to Plaintiff's injuries through negligence. Issue. Does the doctrine of comparative negligence or fault eliminate joint and several liability? Held. No. Judgment affirmed and remanded with directions. 1 Joint and several liability holds each tortfeasor responsible for the Plaintiff's entire injury. Defendant argues that joint and several liability was a corollary to contributory negligence and is no longer necessary with the adoption of comparative negligence. Most jurisdictions have retained joint and several liability with the adoption of comparative negligence. There are several reasons for this approach. The ability to apportion fault on a comparable basis does not cause an indivisible injury to become divisible. When a plaintiff is not guilty of any negligence, he would be forced to bear a portion of the loss if one of the tortfeasors is unable to pay his share of damages. When a plaintiff is partially negligent, his negligence relates only to a lack of due care for his own safety in comparison to the defendant's lack of due care for the safety of others. Only the defendant's action is tortuous. Finally, elimination of joint and several liability would have a deleterious effect on the ability of a plaintiff to obtain adequate compensation. Based on these observations, the Court concludes that comparative fault does not eliminate joint and several liability.

Discussion. Joint and several liability allows a plaintiff to pursue all, some, or only one of his tortfeasors for the full amount of damages. Contributory negligence bans recovery

139 Coney v. J.L.G. Industries, Inc. for a plaintiff if he is at all at fault for the injuries he sustains, while comparative negligence only reduces the plaintiff's recovery by his own percentage of negligence.

140

Bartlett v. New Mexico Welding Supply, Inc.

Bartlett v. New Mexico Welding Supply, Inc.

Citation. 98 N.M. 336, 648 P.2d 794 (N.M. App.1982). Brief Fact Summary. The Plaintiff, Jean Bartlett (Plaintiff), sued the Defendant, new Mexico Welding Supply, Inc. (Defendant), for damages that occurred during a car accident. The jury found that Defendant was 30% responsible for the damages, with another unknown driver being 70% responsible. Plaintiff moved that the full judgment should be entered against Defendant. Defendant applied for an interlocutory appeal. Synopsis of Rule of Law. Under New Mexico comparative negligence law, joint and several liability is not applicable to force one concurrent tortfeasor to pay the entire amount of damages. Facts. This case revolves around an automobile accident involving three vehicles. The lead car signaled a right turn, then turned into and pulled out of a service station in a quick motion. Plaintiff slammed on her brakes to avoid hitting the lead car. The Defendant's truck was behind Plaintiff. Defendant applied his brakes, but skidded into Plaintiff's car. The driver of the lead car was unknown. Plaintiff sued Defendant on a negligence theory and Defendant claimed that the negligence of the lead car caused or contributed to the damage. The jury, in response to special questions, determined that Plaintiff's damages were $100,000 and that Defendant's negligence contributed to the damages to the extent of 30%. Plaintiff moved that judgment be entered in their favor for $100,000. The trial court denied the motion and ordered a new trial. The appellate court granted Defendant's application for an interlocutory appeal. Issue. In a New Mexico comparative negligence case, is a concurrent tortfeasor liable for the entire damage caused by concurrent tortfeasors under a joint and several liability theory? Held. No. Judgment reversed. Case remanded with instructions to enter judgment against Defendant for 30% of Plaintiff's damages. 1 The retention of joint and several liability for concurrent tortfeasors has been retained in most pure negligence states. This retention rests on two grounds, neither of which is defensible. The first ground is the concept that a plaintiff's injury is "indivisible" in the sense that there was, but one wrong and each defendant's negligence is a proximate cause of the entire indivisible injury. This court finds that this theory is obsolete and based merely on common law technicalities. The second ground is that joint and several liability must be retained because a plaintiff should not be forced to bear the risk of being unable to collect his judgment. The Court points out that when only one defendant is involved, the plaintiff bears the risk of this defendant being insolvent.

141

Bartlett v. New Mexico Welding Supply, Inc.

Therefore, there is no reason to shift the risk when multiple defendants are involved.

Discussion. This case represents a different approach to determining damages in a comparative negligence case involving multiple tortfeasors. In jurisdictions that retain joint and several liability, defendants that pay more than their fair portion may recover from other joint tortfeasors on either a pro-rata or comparative-fault basis.

142

Bundt v. Embro

Bundt v. Embro
Citation. 48 Misc.2d 802, N.Y.S.2d 872 (1965). Brief Fact Summary. The Plaintiffs, five passengers injured in a two car accident (Plaintiffs), brought a negligence action against Defendants for an automobile accident. The Defendants were the drivers of the two cars and a contractor repairing the highway obstructing a stop sign (Defendants). Defendants moved to amend their answers to add the defense of discharge and satisfaction because Plaintiffs recovered a judgment against the state for the same injuries. Synopsis of Rule of Law. The defense of discharge and satisfaction provides that multiple judgments cannot be satisfied against multiple defendants for the same tort. Facts. This case involves an action by five plaintiffs, who were passengers in one of two automobiles that collided. Actions were brought against the drivers, as well as a contractor repairing the highway who negligently obstructed a stop sign. Defendants moved to amend their answers to add the defense of discharge and satisfaction because Plaintiffs recovered a judgment for the same injuries against the State of New York. Issue. Is the defense of discharge and satisfaction applicable to prevent multiple judgments from being satisfied against different tortfeasors when one judgment has already been satisfied? Held. Yes. Leave to amend granted to Defendants. 1 Joint and several liability allows for one who has been injured by the joint wrong of several parties to recover against any or all of the parties. However, while there may be several suits and recoveries, there can only be one satisfaction. This is based on the fact that the consequences of the wrongful act are indivisible, limiting injured individuals to a single satisfaction. This court does not agree with Plaintiff's argument that this rule is not applicable to a Court of Claims judgment. A New York Act provides that by waiving sovereign immunity, the state is in the same position as a private individual. Therefore, if the state and the Defendants are joint tortfeasors and the judgment has been satisfied by the state, the defense of discharge and satisfaction is applicable.

Discussion. The defense of discharge and satisfaction prevents double recovery from a single injury. While states are immune as sovereign at common law, states are free to waive this immunity and grant courts jurisdiction to determine claims against it.

143

Cox v. Pearl Investment Co.

Cox v. Pearl Investment Co.

Citation. 168 Colo. 67, 450 P.2d 60 (1969). Brief Fact Summary. The Plaintiffs, Mr. and Mrs. Fox (Plaintiffs) sued the Defendant, Pearl Investment Company, (Defendant) for injuries sustained when Mrs. Cox fell on property owned by Defendant. At trial, it was shown that the tenant of the property had paid the Plaintiffs in exchange for a covenant not to sue. The trial court found in favor of the Defendant on a summary judgment motion based on the covenant not to sue. Synopsis of Rule of Law. The court will look to the intent of the parties to the contract when determining if a covenant not to sue releases all tortfeasors who may have liability. Facts. Plaintiffs sought recover for injuries sustained when Mrs. Cox fell on property owned by the Defendant. At trial, it was shown that the tenant, Goodwill Industries, had previously paid Plaintiffs $2,500 in consideration of plaintiffs' execution of a Covenant Not to Proceed with Suit. The trial court found in favor of Defendant on a motion for summary judgment based on the common law rule that the release of one tortfeasor releases all others who may have liability. Issue. Does a covenant not to sue release all other tortfeasors who may have liability, regardless of the wording of the covenant? Held. No. Judgment reversed and cause remanded. 1 The covenant that Plaintiffs executed expressly reserved the right of Plaintiffs to sue any other person against whom they may assert a claim. Under previous Colorado case law [Price v. Baker, 143 Colo. 264, 352 P.2d 90] covenant's not to sue were rigidly ruled to bar suit against all tortfeasors regardless of the wording of the covenant. This Court determines that this rule is harsh and illogical, depriving litigants of full compensation for injuries caused by wrongdoers. Under traditional contract law, the manifest intent of the parties to a contract should be given effect. A covenant that releases one party from suit, but expressly reserves the right to sue others should not be treated otherwise. The danger of double compensation should not be an excuse for barring claims against joint tortfeasors.

Discussion. Under a covenant not to sue the right to sue is retained, but there is an agreement not to enforce it. If the plaintiff sues, the defendant has a counterclaim for breach of covenant.

144

Elbaor v. Smith

Elbaor v. Smith
Citation. 845 S.W.2d 240 (Tex.1992). Brief Fact Summary. The Plaintiff, Ms. Smith (Plaintiff), brought claims against multiple defendants for medical malpractice. Plaintiff entered into Mary Carter agreements with several defendants, in which the defendants effectively settled before trial, then participated in the trial as defendants assisting the plaintiff in her suit against the remaining defendant. The remaining defendant challenged the validity of the Mary Carter agreements. Synopsis of Rule of Law. The Texas Supreme Court has voided the validity of Mary Carter agreements based on public policy considerations. Facts. The Plaintiff suffered serious injuries as a result of an automobile accident and required significant medical attention. She was treated at various times by Dr. Syrquin, Dr. Elbaor, Dr. Stephens and Dr. Gatmaitan. Plaintiff filed medical malpractice claims against the Defendants, all four above doctors, D/FW Medical Center, and Arlington Community Hospital (ACH), (Defendants) due to a fused ankle that resulted from treatment. Prior to trial, Plaintiff settled and dismissed her claim against D/FW Medical Center and non-suited her claim against Dr. Gatmaitan. She also entered into "Mary Carter" settlement agreements with Dr. Syrquin, Dr. Stephens and ACH. The agreements provided that they would pay plaintiff a total of $425,010, remain as defendants, participate in the trial, and be paid back all or a portion of the settlement money out of the recovery against Dr. Elbaor. Dr. Elbaor requested the agreements be voided, or the settling Defendants be dismissed from trial. The trial court denied the requests and proceeded with trial. The jury awarded Plaintiff damages in the amount of $2,253,237, allocating responsibility between Dr. Elbaor (88%) and Dr. Syrquin (12%). The trial court entered judgment against Dr. Elbaor for $1,872,848. The Court of Appeals affirmed. Issue. Are Mary Carter agreements void as against public policy? Held. Yes. Judgment reversed and remanded for new trial. 1 Mary Carter agreements are agreements where a plaintiff enters into a settlement agreement with one defendant and goes to trial against the remaining defendants. The settling defendant remains a party and guarantees the plaintiff a minimum payment, which may later be offset by an excess judgment recovered at trial. These agreements create an incentive for the settling defendant to assist the plaintiff in receiving a sizably recovery. The trial court recognized this incentive and took remedial measures to mitigate the effects of the agreement. These measures included reapportioning preemptory challenges, changing the order of proceedings

145

Elbaor v. Smith

1 2

to favor the adverse Defendant, allowing counsel to explain the agreements to the jury and instructing the jury regarding the agreements. Throughout the trial the settling Defendant's attorneys sat with Dr. Elbaor's attorneys, but vigorously assisted the plaintiff in placing the majority of the blame on Dr. Elbaor. This Court believes that Mary Carter agreements do not accomplish what most court approved agreements do, help to promote settlement. Although allowing for partial settlement, Mary Carter agreements nearly always ensure a trial will occur. Many jurisdictions have chosen to tolerate these agreements, some with protective measures such as those taken by the trial court. This Court believes that the negative effects of Mary Carter agreements outweigh any potential benefits. They create a false sense of adversity between plaintiff and one co-defendant, with the parties actually being allied. They also pressure the settling defendant to contribute discovery material, peremptory challenges, trial tactics and supportive witness examination. Remedial measures cannot overcome these effects. Because the public policy favoring fair trials outweighs that of favoring partial settlements, the Court declared Mary Carter agreements void as violative of sound public policy.

Dissent. The trial court went to great lengths to ensure that the agreements were not hidden from the jury and did not unduly favor the Plaintiff. As long as two parties to the trial remain antagonistic, the adversarial process should still effectively result in discovery of the truth. Discussion. The dissent's opinion represents the majority view in the United States, with most jurisdictions allowing for Mary Carter agreements.

146

Knell v. Feltman

Knell v. Feltman
Citation. 85 U.S.App.D.C. 22, 174 F.2d 662 (U.S.App.D.C. 1949). Brief Fact Summary. Plaintiffs were passengers in a car driven by Knell, when the car collided with a taxicab owned by Feltman. Plaintiffs sued Feltman, who filed a third-party complaint against Knell for contributory negligence. The court ordered contribution by Knell to Feltman. Knell claims that contribution is not warranted because joint liability was not established. Synopsis of Rule of Law. As long as concurrent tortfeasors are not intentional wrongdoers, contribution will be enforced regardless of whether or not a joint judgment is entered against them. Facts. This case involves a car accident. The Plaintiffs, Evelyn Langland (Mrs. Langland) and her husband (Plaintiffs), were guest passengers in a car driven by Kenneth Knell. The car they were riding in collided with a taxicab owned by the Defendant, Ralph Feltman (Feltman) and operated by his employee. Mrs. Langland was seriously injured in the accident. The Plaintiffs sued the Defendant to recover damages. The Defendant filed a third-party complaint against Knell, claiming the accident was caused by his sole or contributing negligence. The jury found both the Defendant and Knell negligent. The court awarded judgment in favor of Plaintiffs against the Defendant for $11,500, and upon payment, judgment in favor of Defendant against Knell for $5,750. Knell appeals, claiming that the right of contribution exists only between tortfeasors liable in common to the plaintiff and his liability to the Plaintiffs was not established by the judgment because the Plaintiffs did not include him in the suit. Issue. Is a joint judgment against tortfeasors who commit a tort through concurrent negligence a prerequisite for enforcement of contribution? Held. No. Judgment affirmed. 1 Knell's argument that contribution can only be enforced if both tortfeasors are judgment debtors to the plaintiff fails for two reasons. First, it is at odds with the Rule 14(a) of the Federal Rules of Civil Procedure (FRCP), which allows a defendant to bring into the action any person who may be liable to him for damages regardless of if the plaintiff seeks judgment against him. Second, it is illogical, as the right to contribution cannot be based upon a selection of defendants by the plaintiff. Based on the Merryweather holding [Merryweather v. Nixan, 8 term Rep. 186, 101 Eng.Rep. 1337 (K.B.1799)], a majority of American courts have held that there can be no contribution between joint or concurrent tortfeasors. However, this Court feels that this is a misinterpretation of

Merryweather, differentiating between intentional wrongdoers and those whose unpurposed negligence results in a tort. This Court holds that so

147

Knell v. Feltman

long as the concurrent tortfeasors are not intentional wrongdoers, contribution will be enforced regardless of whether or not a joint judgment is entered against them.

Discussion. A substantial majority of states now permit contribution among joint tortfeasors, either by statute or judicial decision.

148

Yellow Cab Co. of D.C., Inc. v. Dreslin

Yellow Cab Co. of D.C., Inc. v. Dreslin

Citation. 86 U.S.App.D.C. 327, 181 F.2d 626 (U.S.App.D.C.1950). Brief Fact Summary. A negligence claim combined with a cross-claim for contribution arose out of a car accident between the Appellee, Dreslin (Appellee) and the Appellant, Yellow Cab Co. (Appellant). A declaratory judgment allowed Appellant to receive contribution for several judgments against Appellee, except for contribution for injuries sustained by Appellee's wife, Mrs. Dreslin. Synopsis of Rule of Law. In order to receive contribution, joint liability must be present. Facts. A taxicab owned by the Appellant and an automobile driven by the Appellee collided. Appellee's wife and others in his car were injured. They sued Appellant for the resulting damages. Appellee joined in the suit, claiming loss of consortium and medical expenses for Mrs. Dreslin and damages to his automobile. Appellant claimed contributory negligence against Appellee and cross-claimed against him for damages to the taxicab and contribution for sums recovered by other plaintiffs. The jury determined that the collision was caused by concurrent negligence, with judgments being entered in favor of all plaintiffs except Appellee. A declaratory judgment was also entered allowing Appellant contribution against Appellee for several judgments except for that of his wife. Yellow cab appealed this decision. Issue. Is contribution disallowed from a husband for damages claimed by his wife due to a lack of joint liability between the husband and the other tortfeasor as to the wife? Held. Yes. Judgment affirmed. 1 Based on common law, neither husband nor wife is liable for tortious acts by one against the other. The right of contribution arises out of a common liability. In order to obtain contribution, the injured plaintiff from which the right of contribution develops, must have a valid cause of action against the party from whom contribution is sought. Because the plaintiff could not bring a valid cause of action against her husband, no joint liability occurs and the Appellant has no right to contribution.

Discussion. The common law rule that husband and wife cannot bring tortious claims against one another is based on public policy considerations of preserving "domestic peace and felicity."

149

Slocum v. Donahue

Slocum v. Donahue
Citation. 44 Mass.App.Ct. 957, 693 N.E.2d 179 (Mass.App.Ct. 1998). Brief Fact Summary. The Plaintiffs, the Slocums (Plaintiffs) filed a civil action against the Defendants, Robert F. Donahue and Dolores J. Donahue (Defendants), for negligence resulting in the vehicular death of their son. The Donahues filed a third-party complaint against Ford Motor Company (Ford) claiming Ford was negligent in the car design and requesting contribution or indemnification. The trial court denied the third-party complaint on summary judgment. Synopsis of Rule of Law. Indemnification is only allowed when the defendant is vicariously or derivatively liable for the wrongful act of another. Contribution is not allowed under this statute when a settlement agreement is reached in good faith. Facts. Robert Donahue pled guilty to a motor vehicle homicide resulting in the death of the Plaintiff's eighteen-month-old son. The Plaintiffs filed a civil action against the Defendants claiming negligence and gross negligence. The Defendants filed a third-party complaint against Ford, denying negligence and seeking contribution and indemnification based on Ford's negligence. The Defendants' expert was prepared to testify that the driver's side floor mat was defective, allowing it to interfere with the vacuum booster, which caused the power breaks to fail. Prior to trial, Ford and the Plaintiffs signed a settlement agreement releasing Ford from any claim. Ford then moved for summary judgment asserting that all claims for contribution were extinguished by the settlement agreement and that there is no basis for the Defendants' claims for indemnity. The trial court dismissed the third-party complaint and the Defendants appealed. Issue. Was it appropriate for the trial court to dismiss the third-party complaint for contribution and indemnification on a motion for summary judgment? Held. Yes. Judgment affirmed. 1 Pursuant to G.L. c. 231B, 4, a release given in good faith to one of two or more persons liable in tort for the same injury, discharges the tortfeasor from liability for contribution to any other torfeasor. The Defendants claim that the settlement was not made in good faith because the amount of the settlement was for less than the value of the case and because Ford allegedly told the Plaintiffs it would allow them to use its experts. The Court believes there were facts to allow the trial court to determine the settlement was fair and reasonable. Even if the settlement was low, it was reasonable to think a jury might find no liability on the part of Ford, given the facts that Robert Donahue pleaded guilty in the criminal case and admitted to drinking from a bottle of vodka in the car prior to the accident.

This Court also states that the Defendants' contention that the Plaintiffs' use of experts originally retained by Ford is evidence of

150 Slocum v. Donahue 1 collusion is invalid because it is equally evidence that the Plaintiffs settled with Ford because they believe it was not responsible for their son's death. 2 The right to indemnity allows someone without fault who is compelled by law to defend himself to recover from the wrongdoer the entire amount of loss. The right to indemnity is allowed only when the indemnitee is vicariously or derivatively liable for the wrongful act of another. Robert Donahue was found negligent in this case and his liability is not vicarious. Therefore, he is not entitled to indemnification by Ford.

Discussion. This case demonstrates the difference between contribution and indemnification. Indemnification is only available when the defendant is not directly at fault, such as in a respondeat superior case.

151 Bruckman v. Pena

Bruckman v. Pena
Citation. 29 Colo.App. 357, 487 P.2d 566 (Colo.App.1971). Brief Fact Summary. The Plaintiff, Mr. Pena (Plaintiff), was injured in a car collision, aggravating injuries caused in an earlier collision with the Defendant, Mr. Bruckman (Defendant). The trial court instructed the jury that Defendant would be liable for all damages if the jury was unable to apportion the injuries between the two collisions. Defendant seeks a reversal based on the instruction. Synopsis of Rule of Law. The plaintiff retains the burden of proof when claiming that a second accident aggravated previous injuries sustained in an original accident. Facts. On July 21, 1964 the Plaintiff was injured when the car he was riding in collided with a truck driven by the Defendant. On June 11, 1965 Plaintiff was injured in a second collision, aggravating injuries sustained in the first collision. The only Defendants named in this suit were the driver and owner of the truck involved in the first collision. The jury returned a verdict in favor of Plaintiff. The Defendant seeks a reversal claiming error on one of the jury instructions. Issue. Did the trial court err by instructing the jury that the defendant is liable for the entire disability if the jury is unable to apportion the injuries between the two collisions? Held. Yes. Judgment reversed and remanded. 1 The trial court instructed the jury that it is their duty to apportion the injuries aggravated by the second collision from those caused by the second collision. Additionally, the court instructed that if apportionment was not possible, the Defendants are liable for the entire disability. While the first instruction is a correct statement of law, the second is not. The burden of proof is on the Plaintiff to establish that damages were proximately caused by the negligence of the Defendant. The court's instruction would place the burden on the defense to prove that damages could be apportioned. This is an incorrect application of the law.

Discussion. The Defendant is still liable for aggravation of injuries caused in the first collision, in addition to those original injuries.

152 Michie v. Great Lakes Steel Division, Nat'l Steel Corp.

Michie v. Great Lakes Steel Division, Nat'l Steel Corp.

Citation. 495 F.2d 213 (U.S.Ct.Appl.1974). Brief Fact Summary. Multiple people filed a complaint against three corporations claiming a nuisance for pollution. There was no assertion of joint action or conspiracy. The corporation filed a motion to dismiss, claiming each appellee individually failed to meet the $10,000 amount in controversy requirement for federal jurisdiction. Synopsis of Rule of Law. Under Michigan law, multiple defendants may be found jointly and severally liable when injuries cannot effectively be apportioned between defendants. Facts. The Appellees, thirty-seven people (Appellees), filed a complaint against the Appellants, three corporations (Appellants), claiming that pollutants emitted by Appellants represent a nuisance. Each Appellee individually claims damages ranging from $11,000 to $35,000 from all three corporations jointly and severally. However, there is no assertion of joint action or conspiracy against the Appellants. Appellants appealed a denied motion to dismiss based on the claim that each Appellee individually failed to meet the $10,000 amount in controversy requirement set forth in 28 U.S.C.A 1332 (1970). Issue. Under Michigan State law, may multiple defendants be jointly and severally liable to multiple plaintiffs for individual injuries sustained from the action of all defendants when the separate effects of defendants' actions are impossible to differentiate between. Held. Yes. Judgment affirmed. 1 Previous Michigan case law has stated that it is unfair to place the burden on the injured party to prove the specific shares of harm done by each tortfeasor [Maddux v. Donaldson, 362 Mich. 425, 108 N.W.2d 33 (1961)]. This Court believes that Michigan courts would follow the Maddux holding, allowing the trier of fact to determine if liability is joint or several. If the injury is indivisible and it is not practicable to apportion the harm, the entire liability may be imposed on one or several tortfeasors. The tortfeasor or tortfeasors who have liability imposed on them have the right of contribution against other tortfeasors. The present case is one in which there is not concerted action, but the independent acts of multiple actors combine to produce indivisible harmful consequences. If the Appellees are able to prove injury and liability as to the Appellants, Michigan law effectively shifts the burden of proof as to which was responsible and to what degree. Therefore, each Appellees complaint should be read as alleging $11,000 or more in damages against each Appellant.

153 Michie v. Great Lakes Steel Division, Nat'l Steel Corp. Discussion. Compare the decision in this case to that in Bruckman v. Pena, 29 Colo.App. 357, 487 P.2d 566 (Colo.App.1971). These cases represent different approaches to identifying different tortfeasors and apportioning responsibility.

154 Dillon v. Twin State Gas & Electric Co.

Dillon v. Twin State Gas & Electric Co.

Citation. 85 N.H. 449, 163 A. 111 (1932). Brief Fact Summary. The Plaintiff, Dillon (Plaintiff), sued as the administrator of decedent's estate. Decedent was electrocuted when he lost his balance on a bridge and grabbed a live wire maintained by the Defendant, Twin State Gas & Electric Co. Defendant claims exception for a denial of its motion for a directed verdict based on a lack of damages. Synopsis of Rule of Law. A jury must determine if damages are available when a decedent is killed by the negligence of defendant, but decedent would have died or been seriously injured regardless of the negligence. Facts. This action is for negligently causing the death of Plaintiff's intestate, a 14 year old boy. The Defendant maintained electrical wires over a public bridge. The decedent and friends often played on the bridge during the day. On one such occasion, the decedent lost his balance while sitting on a horizontal girder and instinctively grabbed a hanging wire. The wire was not insulated against contact and electrocuted the decedent. The Defendant claims exception for a denial of its motion for a directed verdict based on damages. Issue. Should a motion for directed verdict based on failure to claim damages be upheld when the injury caused by defendant in all likelihood only shortened decedent's life by a matter of moments? Held. No. Exception overruled. 1 Defendant had no duty to protect decedent from falling. Its only liability was in exposing decedent to the danger of the exposed wires. It is beyond a doubt that if decedent had not touched the wires, he would have either been killed or seriously injured. If decedent would have died from the fall, Defendant deprived him of a life expectancy too short to be given pecuniary damages. The Defendant would have been liable only for any conscious suffering found to have been the result of the shock. If decedent would have been seriously injured from the fall, Defendant would be liable only for the limited earning capacity available to decedent as a result of his injuries. This determination is an issue of fact that must be determined by the jury.

Discussion. The Court also held that the Defendant owed a duty to exercise reasonable care to the decedent and that the question of the Defendant's negligence was for the jury.

155

C H A P T E R V I I I . D u t y O f C a r

156 Winterbottom v. Wright

Winterbottom v. Wright
Citation. 10 M. & W. 109, 152 Eng.Rep. 402 (Exchequer of Pleas, 1842). Brief Fact Summary. The Defendant, Mr. Wright (Defendant), contracted with the Postmaster General to keep coaches in working order. The Defendant failed to uphold his duty and the Plaintiff, Mr. Winterbottom (Plaintiff), was injured as a result. Synopsis of Rule of Law. A plaintiff cannot bring tort claims against a defendant for nonfeasance that resulted from a contract which plaintiff was not privy to. Facts. Plaintiff, a mail coach driver, was seriously injured when a vehicle broke down due to lack of repair. Defendant had contracted with the Postmaster General to keep the coach in safe and secure condition. Defendant failed to comply with this promise, resulting in Plaintiff's injuries. Issue. Does Defendant owe a duty of care to Plaintiff, such that he is liable for injuries caused to Plaintiff caused by Defendant's negligence? Held. No. Judgment for the Defendant. 1 Lord Abinger, C.B. The plaintiff is not privy to the contract entered into between the Defendant and the Postmaster General. Just as the Plaintiff cannot sue on the contract, he cannot sue in tort claiming that Defendant owes a duty to him. Lord Alderson, B. Not containing the right to recover to those who enter into the contract would open up an endless and unstoppable allowance for suit. Lord Rolfe, B. Although the Defendant took on a duty to maintain the carriages, he undertook no duty towards the Plaintiff. The Plaintiff may be without remedy, but this cannot influence the decision.

Discussion. This case was universally interpreted as applying to any negligence, including misfeasance. It was later pointed out that the case actually only involved nonfeasance.

157 MacPherson v. Buick Motor Co.

MacPherson v. Buick Motor Co.

Citation. 217 N.Y. 382, 111 N.E. 150 (N.Y.App.1916). Brief Fact Summary. The Plaintiff, MacPherson (Plaintiff), bought a car from a retail dealer, and was injured when a defective wheel collapsed. Plaintiff sued the Defendant, Buick Motor Co. (Defendant), the original manufacturer of the car, on an action for negligence. Defendant had purchased the faulty wheel from another manufacturer and Defendant failed to inspect the wheel. Synopsis of Rule of Law. If a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists. Facts. The Plaintiff brought a negligence suit against the Defendant for injuries sustained after he was thrown from his car when the wheel collapsed. Defendant had sold the automobile to a retail dealer, who in turn sold it to Plaintiff. The wheel, which was sold to Defendant by another manufacturer, was made of defective wood. Evidence suggested that the defect could have been discovered through reasonable inspection, but no inspection occurred. Issue. Does Defendant owe a duty of care to anyone besides the immediate purchaser in this case the retailer? Held. Yes. Judgment affirmed. 1 One line of cases has suggested that manufacturers owe a duty of care to ultimate purchasers only when the product is inherently dangerous. Other cases have suggested a duty of care is owed to foreseeable users if the product is likely to cause injury if negligently made. In order for a duty of care to arise in relation to ultimate purchasers, two criteria are necessary. First, the nature of the product must be such that it is likely to place life and limb in danger if negligently made. This knowledge of danger must be probable, not merely possible. Second, there must be knowledge that in the usual course of events, the danger will be shared by people other than the buyer. This may be inferred from the nature of the transaction and the proximity or remoteness of the relation. In the present case, the manufacturer of a finished product placed this product on the market to be used without inspection by its customers. If the manufacturer was negligent and the danger could be foreseen, a liability will follow.

Discussion. Judge Cardozo, writing for the majority, also stated that the need for caution increases with the probability of danger.

158 H.R. Moch Co. v. Rensselaer Water Co.

H.R. Moch Co. v. Rensselaer Water Co.

Citation. 247 N.Y. 160, 159 N.E. 896 (N.Y.App.1928). Brief Fact Summary. The Plaintiff, H.R. Moch Co.'s (Plaintiff) warehouse was damaged by a fire. Plaintiff sued the Defendant, Rensselaer Water Co. (Defendant), for failing to provide sufficient water to extinguish the fire, as Defendant had contracted to do with the city. Defendant filed a demurrer to dismiss the complaint. Synopsis of Rule of Law. A defendant's failure to act is not actionable under tort law unless the defendant has a duty to act as to the plaintiff. Facts. The Defendant entered into a contract with the city of Rensselaer to supply water for a number of years. While the contract was in force Plaintiff's warehouse caught fire. The Defendant was notified of the fire, but according to the complaint, failed to supply a sufficient quantity of water with adequate pressure to extinguish the fire. It was also claimed that Defendant was equipped to do so and had agreed in contract with the city that it would. The Plaintiff brought suit as one for the breach of a statutory duty. The Defendant made a motion in the nature of a demurrer to dismiss the complaint, which was denied at Special Term. The Appellate Division reversed by a divided court. Issue. Is the Defendant liable for damages to the Plaintiff for failing to supply sufficient water during a fire as required by a contract with a separate entity? Held. No. Judgment affirmed. 1 If the Defendant had gone forward to a point at which inaction would result in actively working an injury, a duty would arise to go forward. However, in the present case, the Defendant's action at most can be described as a refusal to "become an instrument for good." Any other analysis would allow all citizens who might benefit from the supply of water to hydrants to claim an action in tort any time water was negligently withheld. The Plaintiff would have the court hold that the Defendant entered into a duty of care relationship with everyone who could benefit from the relationship. Such a holding would provide for an indefinite number of potential beneficiaries once performance has begun. This court holds that the action is not maintainable as one for a common-law tort.

Discussion. The Court's discussion hinges on the difference between an act and an omission in tort law. An act of negligence is generally actionable so long as a duty of care is present and damages occur. A failure to act, or an omission, is rarely actionable in tort law.

159 Clagett v. Dacy

Clagett v. Dacy
Citation. 47 Md.App. 23, 420 A.2d 1285 (Md.App.1980). Brief Fact Summary. The Appellants, were high bidders on a piece of property (Appellants). However, the sale of the property failed due to improper procedures by the Appellees, two attorneys (Appellees). The debtor regained the property and Appellants sued the Appellees for losses incurred due to the Appellees' failure to exercise care and diligence in the sale. The trial court sustained a demurrer by the Appellees, finding that no such duty existed. Synopsis of Rule of Law. A plaintiff must be in privity with an attorney or be a third-party beneficiary to a contract in order to maintain an action for professional negligence. Facts. The Appellants were the high bidders for property at a foreclosure sale, but both times the Appellees conducting the sale failed to follow proper procedure. Due to this, the sale was set aside. The debtor eventually discharged the loan and Appellants lost the opportunity to acquire the property. They sued the Appellees to recover the loss that resulted from their inability to resell the property at a profit. The action claimed that the Appellees owed the Appellants a duty to use care and diligence and to conduct the sale properly and carefully. The trial court sustained the Appellees' demurrer without leave, concluding that no such duty existed. Issue. Do the attorneys owe the bidders a duty of care when the attorneys were employed by the mortgagee, and not the bidders? Held. No. Judgment affirmed. 1 There is an exception to the strict privity requirement for maintaining an action against an attorney. This exception allows a true third party beneficiary to sue an attorney for negligence regarding a contract made to the beneficiary's benefit. This exception is of limited application, most often being based on the drafting of wills or other documents that have a long or delayed effect. These actions appear to be based solely on contract and do not permit third parties to sue attorneys on a pure negligence theory. One reason is the judicially imposed limitations upon who attorneys may represent. Taking into account the fact that attorneys generally may not represent adverse parties, it would be illogical to assume that duties or obligations inherent in the attorney-client relationship are extended to third parties who an attorney would be unable or unlikely to represent. In the present case, the Appellees could not lawfully represent both the mortgagee and the bidders. Therefore, a duty of care will not be extended to the bidders. This court holds that no

duty of care and diligence exists from which an action for damages may be maintained.

160 Clagett v. Dacy Discussion. The privity limitation on negligence suits is still strictly applied for attorneys in most jurisdictions.

161

Hegel v. Langsam

Hegel v. Langsam
Citation. 29 Ohio Misc. 147, 55 Ohio Ops.2d 476, 273 N.E.2d 351 (OH.C.C.P.1971). Brief Fact Summary. A Chicago University (the University) failed to look after one of its students and the student began using drugs and associating with criminals. The parents sued the university for failing to maintain order on campus and contributing to the delinquency of a minor. Synopsis of Rule of Law. A university is under no duty to act in order to ensure that its students are behaving appropriately. Facts. The Defendants, Langsham and other school officials (Defendants), made a motion for judgment on the pleadings. The Plaintiffs, Mr. and Mrs. Hegel (Plaintiffs), claim that their seventeen-year-old daughter was enrolled at the University, where she was allowed to associate with criminals, be seduced, become a drug user, be absent from her dormitory and was not returned to her parents' custody on demand. Plaintiffs cite O.R.C. 3345.21 requiring a university to maintain law and order on campus and O.R.C. 2151.41 making it a crime to contribute to the delinquency of a minor in support of their cause. Issue. Is a University liable for the failure to effectively monitor and control its students? Held. No. Defendants' motion for judgment on the pleadings granted. 1 In this court's opinion, the Plaintiffs have completely misconstrued the duties of a university. No one is required to attend, but rather attendance is granted to those who meet specific requirements and are presumed to be sufficiently mature to conduct themselves appropriately. Neither statute cited by the Plaintiffs has any bearing on the facts in this case. The Plaintiffs have failed to state a cause of action.

Discussion. This is another example of the common law's approach to a failure to act. Only when a special relationship exists between the defendant and the injured party, is a failure to act by the defendant considered an actionable tort.

162

L.S. Ayres & Co. v. Hicks

L.S. Ayres & Co. v. Hicks

Citation. 220 Ind. 86, 40 N.E.2d 334 (1942). Brief Fact Summary. The Plaintiff, (Hicks), a six-year-old boy, fell and got his fingers caught in an escalator at the Defendant, L.S. Ayres & Co.'s (Defendant) store. Defendant unreasonably delayed in stopping the escalator, aggravating the injury. Synopsis of Rule of Law. Under the common law, certain special relationships give rise to a duty to assist or rescue injured individuals. Facts. Plaintiff, a six-year-old boy was with his mother at the Defendant's department store (defendant) when he fell and got his fingers caught in Defendant's escalator. The court found that Defendant unreasonably delayed stopping the escalator, aggravating the Plaintiff's injuries. Judgment was for the Plaintiff, with a new trial denied. The Defendant appeals, requesting a new trial. Issue. Is a department store under a duty to assist an invitee who is in peril? Held. Yes. Judgment reversed with directions to sustain Defendant's motion for a new trial. 1 It is clear that there is no general duty to go to the rescue of someone who is in peril. However, certain relationships between parties may impose duties to rescue that would not otherwise exist. In some jurisdictions, a duty to rescue has been held to apply where one party is so injured as to render him helpless and the injury occurred due to the instrumentality under the control of another. The present case does not require this court to go so far. Based on previous holdings, it is clear that a duty to rescue arises in certain situations. These include when the person proceeded against is a master or invitor, or when the injury resulted from the use of an instrumentality under the control of the defendant. These situations give rise to a duty to rescue even if the original injury was not the fault of the defendant. In this case, the Plaintiff was an invitee and he received the initial injury using an instrumentality under the control of the Defendant. This is a sufficient relationship to place a duty upon the Defendant. The duty did not arise, however, until after the original injury occurred. Therefore, Defendant cannot be charged with its prevention, but only its failure to exercise reasonable care to avoid aggravation of the injury. The jury should have been limited in assessing damages to the injuries that were the proximate result of the Defendant's actionable negligence.

163 L.S. Ayres & Co. v. Hicks Discussion. Other special relationships imposing a duty to rescue are well recognized besides those mentioned by this court. Some include common carriers and passengers, innkeepers and guests and temporary legal custodians and their charge.

164

J.S. and M.S. v. R.T.H.

J.S. and M.S. v. R.T.H.

Citation. 155 N.J. 330, 714 A.2d 924 (1998). Brief Fact Summary. A neighbor sexually abused two young girls and admitted to the abuse. As part of a tort action, the parents of the girls brought suit against the wife of the abuser, claiming that her negligence was a cause of the abuse. The wife answered by claiming that she owed no duty to the girls and if she did her actions were not a proximate cause of their injuries. Synopsis of Rule of Law. A spouse owes a duty to prevent sexual abuse by his or her spouse if they have actual knowledge or a special reason to know that the spouse is likely to abuse or is abusing an identifiable victim. Failure to act on this duty is a proximate cause of the minor's injuries. Facts. Two young girls, ages twelve and fifteen, spent considerable amounts of time with their neighbor at his horse barn. The neighbor sexually abused both girls for more than a year. After the neighbor's conviction and imprisonment, the Plaintiffs, the girls, along with their parents (Plaintiffs), brought this action against the Defendants, the neighbor and his wife (Defendants), for damages. Plaintiffs claimed that the wife's negligence rendered her liable for the girls' injuries. The husband conceded liability. The wife denied she could be found negligent. The wife claimed she owed no duty to the Plaintiffs and that any negligence on her part was not the proximate cause of injuries sustained by the Plaintiffs. The trial court entered summary judgment on behalf of the Defendants. On appeal, the Appellate Division reversed the order and remanded, granting the Plaintiffs extended discovery. The Supreme Court of New Jersey granted Defendants' petition for certification. Issue. Did the wife owe Plaintiffs a duty to ensure they were not sexually abused by her husband, and if so, can her negligence be considered a proximate cause of their injuries? Held. Yes. Judgment of the Appellate Division affirmed. 1 The imposition of a duty is a question of fairness and public policy. The court must balance several related factors, including the foreseeability and severity of the underlying risk of harm, the opportunity and ability to exercise care to prevent the harm, the relationships among the parties and the societal interest in the proposed solution. Foreseeability is based on defendant's knowledge of the risk of injury, and may be either actual or constructive. Foreseeability of the risk of harm is the foundational element in the determination of whether a duty exists. 2 Sexual abuse is a type of conduct that is difficult to identify, anticipate or predict. Whether or not sexual abuse committed by a husband is foreseeable to the wife depends on many factors, including previous committed offenses and age-inappropriate comments or behavior. These considerations call for

a particularized foreseeability standard, examining empirical evidence and common knowledge to determine if a wife had actual knowledge or special reason to know her husband was abusing or likely to abuse an identifiable victim. 1 The Court must also take into consideration the defendants' interest in a stable marital relationship, supported in the common law doctrine of interspousal immunity. Even granting this consideration, it is clear that society and the Legislature have mandated that the protection of children from sexual abuse outweighs any marital interest. The Legislature's imposition of N.J.S.A. 9:6-8.10, requiring any person who has cause to believe that a child has been subject to abuse to report such abuse; and "Megan's Law," N.J.S.A. 2C:7-1 to -11, requiring notification and registration requirements for sex offenders, exemplify this mandate. Based on these considerations, the Court finds that there is a compelling basis for the imposition of a duty on a wife whose husband poses a threat of sexually abusing children A second, related issue to consider is that of proximate causation. Proximate causation requires that liability only be applied when causes are so closely connected with the result and are significant enough to justify legal responsibility. In the present case, it seems clear that a wife's failure to prevent or warn of her husband's sexual abuse or propensity therefore, would result in the occurrence or continuation of the abuse. The Court holds that if a spouse has actual knowledge or special reason to know of a likelihood of her spouse engaging in sexual abuse against a particular person, this spouse has a duty to take reasonable steps to prevent or warn of the harm. Additionally, a breach of this duty constitutes a proximate cause of the resulting injury.

Discussion. Issues involving foreseeability and proximate causation are often closely entwined with similar facts being used to prove or disprove each.

166

Tarasoff v. Regents of University of California

Tarasoff v. Regents of University of California

Citation. 17 Cal.3d 425, 551 P.2d 334, 131 Cal.Rptr. 14 (1976). Brief Fact Summary. Posenjit Poddar (Mr. Poddar), the patient of the Defendants, four psychiatrists (Defendants), threatened to kill the Plaintiffs, Mr. and Mrs. Tarasoff's (Plaintiffs) daughter, Tatiana Tarasoff (Tatiana). Mr. Poddar was briefly detained, but then released. Mr. Poddar did in fact kill Tatiana. The Plaintiffs filed suit claiming that Defendants should be liable for Tatiana's death because they failed to warn her or them about the patient's threat. Synopsis of Rule of Law. Once a therapist determines or should have determined that the patient poses a serious danger of violence, he bears a duty to exercise reasonable care to protect the foreseeable victim of the danger. Facts. Mr. Poddar was a patient of Dr. Lawrence Moore (Dr. Moore), at Cowell Memorial Hospital of the University of California. Dr. Moore was one of the four Defendants. During one of their sessions, Mr. Poddar informed Dr. Moore that he intended to kill Tatiana because she turned down his romantic advances. Dr. Moore had the campus police detain Mr. Poddar, but he was released shortly thereafter. Despite a disagreement between the psychiatrists at the hospital, no further action was taken to detain Mr. Poddar. Two months later, Mr. Poddar shot and repeatedly stabbed Tatiana, killing her. The Plaintiffs brought a wrongful death suit against the Defendants who failed to detain Mr. Poddar. The court rejected the contention that Defendants could be liable for this inaction because California Government Code Section 856 provided tort immunity with regard to these decisions. Plaintiffs also claimed Defendants should be liable for Tatiana's death because they failed to warn her or them about Mr. Poddar's threat. Issue. Are Defendants liable if it is found that their negligent failure to warn Tatiana or others proximately situated, resulted in the death of Tatiana? Held. Yes. Leave to amend complaint to state a cause of action against Defendants for breach of duty to exercise reasonable care to protect Tatiana. 1 Defendants contend that they owed no duty of care to Tatiana or her parents and were free to act in careless disregard of Tatiana's life and safety. Although well established in common law that one person has no duty to control the conduct of another or to warn those endangered by this conduct, certain exceptions are judicially made for defendants that stand in some special relationship to either person. Plaintiffs' pleadings assert a special relation between Mr. Poddar and Defendants, that which arises between a patient and his doctor or psychiatrist. California decisions have previously recognized a duty in such cases when the doctor stood in a special relationship to both the patient and the victim.

However, based on this court's view and other jurisdictions, there is no reason to limit the duty to such situations. 1 Defendants contend that the imposition of a duty to third persons is unfair because therapists cannot accurately predict whether or not a patient will resort to violence. The Court states that a therapist need not have perfect performance, but rather only needs to exercise the "reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of that professional specialty under similar circumstances." Based on this, the Court's view is that once a therapist does determine or should have determined the patient poses a serious danger of violence, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger. Defendants also argue that such a duty would impede the free and open communication essential to psychotherapy. They claim that the giving of a warning would constitute a breach of trust. However, the public interest of safety from violent assault must be weighed against this. The Legislature in Evidence Code section 1024 has held there is no doctor-client privilege if the doctor believes the patient is dangerous to the person or property of another. This Court agrees with this balancing test.

Discussion. The "reasonable degree of skill, knowledge and care ordinarily possessed" standard is the same as that generally applied to malpractice cases for professionals.

168

State of Louisiana ex rel. Guste v. M/V Testbank

State of Louisiana ex rel. Guste v. M/V Testbank

Citation. 752 F.2d 1019, cert. denied, 477 U.S. 903 (5th Cir.1985). Brief Fact Summary. Two ships collided, causing toxic chemicals to be released into the environment and causing the United States Coast Guard (Coast Guard) to close a Mississippi River outlet. Numerous lawsuits were filed by those affected by the closing of the outlet. The district court granted a motion for summary judgment on all claims for economic loss unaccompanied by physical damage to property. Synopsis of Rule of Law. The majority rule does not allow recovery for economic loss, unless physical damage to property occurs. Facts. On the evening of July 22, 1980, the M/V Sea Daniel, an inbound bulk carrier, and the M/V Testbank, an outbound container ship, collided on the Mississippi River. Containers aboard the Testbank were damaged and lost overboard. During the wreck, hydrobromic acid and pentachlorophenol (PCP), were released into the environment. The Coast Guard closed the outlet until August 10, 1980 and all fishing, shrimping and related activities were temporarily suspended. Numerous lawsuits representing the affected parties were filed and consolidated before the same judge in the Eastern District of Louisiana. Defendants moved for summary judgment on all claims for economic loss unaccompanied by physical damage to property. The district court granted the summary judgment and on appeal a panel of this court affirmed. Judge Wisdom specially concurred urging reexamination en banc, with which the court agreed. Issue. Is physical damage to a proprietary interest still a prerequisite to recovery for economic loss in cases of unintentional maritime tort? Held. Yes. Decision of district court granting summary judgment to defendants on all claims for economic losses unaccompanied by physical damage is affirmed. 1 The well settled present rule is demonstrated in Robins [Robins Dry Dock v. Flint, 275 U.S. 303 (1927)]. This case, stated broadly, denied a plaintiff recovery for economic loss if that loss resulted from physical damage to property in which he had no proprietary interest. The reason for this rule is strictly pragmatic, otherwise liability would be virtually open-ended. Plaintiff tries to confine Robins to losses suffered from the inability to perform contracts between a plaintiff and others. However, if a plaintiff connected to the damage by contract is denied recovery, it is indisputable that others more remotely situated cannot recover. Plaintiffs further urge that the present rule is arbitrary and unfair and should be replaced by a rule allowing the trier of fact to determine questions of remoteness. The court feels that doing away with the present bright line rule would create a situation where there is no determinable

169

State of Louisiana ex rel. Guste v. M/V Testbank

1 2

measure on the limit of foreseeability, forcing the trier of fact to make an arbitrary judgment. Although the present bright line rule may result in unjust decisions for some plaintiffs, this court feels that it is justified when compared to other options. The bright line rule allows for extensive losses, such as the losses in the present case to be spread over first party or loss insurance. If liability were to be spread by a new rule, the change would create a shift to more costly third party insurance to protect defendants. Plaintiff's final contention is that the damages that occurred can be characterized as damages caused by a public nuisance. To do so, would create a nearly impossible task of determining who in the community suffered a pecuniary loss so great to justify distinguishing his losses from similar losses suffered by others. Based on these conclusions, the pragmatic approach of not allowing claims for economic loss unaccompanied by physical damage to property is affirmed.

Dissent. Circuit Judge Wisdom, with whom Rubin, Politz, Tate and Johnson, Circuit Judges, join: 1 Robins is out of step with modern tort doctrine and works injustice on innocent victims. The dissenters would analyze the plaintiff's claims under conventional tort principles of foreseeability and proximate cause. This would cause a case-by-case analysis, but would be worth the extra costs and time for an increase in justice In the Robins case, the court prevented plaintiffs who were neither proximately nor foreseeably injured by a tortious act from recovery. These facts are not applicable to the present case. I would confine Robins to its facts and apply the principles of negligence, foreseeability, and proximate causation to the present case and require that the claimant prove particular damages.

Circuit Judge Rubin, with whom Wisdom, Politz and Tate, Cricuit Judges, join: 1 Robins should not be extended beyond its actual holding and is not applicable to the present case

Concurrence. The dispute resolution system of the courts is not equipped to manage disasters of the magnitude of this case. To allow unnumbered claimants under plaintiff's suggestion may visit destruction on multiple enterprises.

Discussion. This case represents the clear American majority rule, but disagreement persists.

170 Daley v. LaCroix

Daley v. LaCroix
Citation. 384 Mich. 4, 179 N.W.2d 390 (1970). Brief Fact Summary. The Defendant, LaCroix (Defendant), wrecked his car shearing off a utility pole and creating an electrical explosion at the Plaintiffs, the Daleys' house (Plaintiffs). Plaintiffs claimed, in addition to property damage, that two family members suffered severe emotional disturbance as a result of the accident. The trial court granted a directed verdict on the ground that Michigan law denies recovery for emotional disturbance without a showing of physical impact. Synopsis of Rule of Law. Michigan courts now recognize an action for negligently caused emotional disturbance regardless of a showing of physical impact. Facts. On July 16, 1963 the Defendant was driving near the Plaintiffs' farm when his vehicle left the highway, traveled 63 feet in the air, and sheared off a utility pole. Several high voltage lines snapped, striking the electrical lines leading into Plaintiffs' house and causing a great electrical explosion. The Plaintiffs claimed, in addition to property damage, that Estelle Daley suffered traumatic neurosis, emotional disturbance and nervous upset and that Timothy Daley suffered emotional disturbance and nervousness as a result of the explosion. The Court of Appeals affirmed the trial court's grant of a directed verdict on the ground that Michigan law denies recovery for negligently caused emotional disturbance absent a showing of physical impact. Issue. Should Michigan continue to require some impact upon the person in order to recover for negligently caused emotional disturbance? Held. No. Reversed and remanded. 1 Michigan courts have routinely denied recovery for negligently caused emotional disturbance without accompanying physical injury or physical consequences, except in rare circumstances. This rule is based on the fear of plaintiffs inventing injuries, creating endless litigation. This Court believes that based on changed circumstances and factual and scientific information available today the common law "impact" requirement should no longer apply in Michigan. The court held that when defendant's negligence creates a definite and objective physical injury as a result of emotional distress, the plaintiff may recover damages without any physical contact upon the plaintiff at the time of the mental shock. Several limitations are applicable to this new holding. First, defendant's standard of conduct is measured by reactions to be expected of normal persons. Second, plaintiff has the burden of proof that the physical harm complained of is a natural consequence of the alleged emotional disturbance, proximately caused by defendant's conduct.

171 Daley v. LaCroix 1 In the present case, it is necessary to determine if there is sufficient evidence to create a jury question, considering the evidence in the light most favorable to plaintiffs. Although only lay testimony was offered for Timothy Daley, a jury could reasonably infer a causal relation between Defendant's negligence and the injuries alleged. Estelle Daly's claim was supported by expert testimony, and again presents a question for the jury. Dissent. This is not a case where it is appropriate to adopt a new rule of law. Plaintiffs in this case suffered, if anything, an indefinite and subjective injury. The dissenting judge would affirm the trial court's grant of directed verdict. Concurrence. Judge Kelly concurred with Judge Brennan's dissent. Discussion. In the past, compensation had been allowed for emotional disturbance without physical impact in limited circumstances, such as the negligent mishandling of corpses.

172 Thing v. La Chusa

Thing v. La Chusa
Citation. 48 Cal.2d 644, 771 P.2d 814, 257 Cal.Rptr. 865 (1989). Brief Fact Summary. The Plaintiff, Maria Thing's (Plaintiff) son was struck by an automobile and injured. Plaintiff did not witness the accident, but arrived at the scene shortly thereafter. Plaintiff sued the Defendant, James La Chusa (Defendant), for negligent infliction of emotional distress. Synopsis of Rule of Law. The California Supreme Court has ruled that a plaintiff must be present when an injury occurs and be closely related to the injured party to recover damages for a claim of negligent infliction of emotional distress. Facts. On December 8, 1980, John Thing, a minor, was struck by an automobile operated by the Defendant. The Plaintiff, John Thing's mother was nearby, but neither saw nor heard the accident. Plaintiff's daughter informed her of the injury to her son. Plaintiff rushed to the scene, where she found her son bloody and unconscious. Plaintiff sued the Defendant, alleging she suffered great emotional disturbance, shock and injury to her nervous system as a result of the emotional stress she suffered. Plaintiff also alleged that these injuries were proximately caused by the Defendant's negligence. The court granted Defendant's motion for summary judgment ruling as a matter of law that Plaintiff could not establish a claim for negligent infliction of emotional distress because she did not contemporaneously and sensorily perceive the accident. The Court of Appeals overruled the trial court's grant of summary judgment. Issue. Did the Court of Appeal correctly hold that a mother who did not witness a car accident in which her son was injured could recover damages for the emotional distress she suffered when she arrived at the accident scene? Held. No. The Judgment of the Court of Appeal is reversed. 1 Originally in California, the right to recovery for emotional distress was allowed only if the victim himself was injured or if the plaintiff was in the "zone of danger" of the accident. This was overruled in Dillon, [Dillon v. Legg, 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 F.2d 912 (1968)] when the court established a test based on whether the defendant should have reasonably foreseen the injury to plaintiff. This test takes into account whether the plaintiff was located near the scene of the accident, if the shock resulted from a direct emotional impact upon the plaintiff from the sensory observance of the accident and if the plaintiff and victim were closely related. Future cases went on to distinguish between direct victim cases and bystander cases, with direct victims being individuals whose emotional distress is reasonably foreseeable as a consequence of the conduct of the

173 Thing v. La Chusa 1 defendant. The courts have had difficulty applying the Dillon and direct victim standards, however. 2 This court concludes that a clear-cut rule would be more effective in this area. Therefore a plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person only if: (1) the plaintiff is closely related to the victim; (2) the plaintiff is present at the scene at the time the injury occurs and is then aware of the injury being caused to the victim; (3) as a result suffers serious emotional distress beyond which would be expected of a disinterested witness. In the present case, Plaintiff was not present at the scene of the accident, therefore, she cannot establish a right to recover for her emotional distress.

Concurrence. Chief Justice Lucas and Justices Panelli and Arguelles concur. Justice Kaufman concurred, but thought that Dillon should be overruled and liability confined to those in the zone of danger and put in fear of their own safety. Discussion. A similar cause of action, intentional infliction of emotional distress, is punitive in nature rather than negligent infliction of emotional distress, which is compensatory.

174 Endresz v. Friedberg

Endresz v. Friedberg
Citation. 24 N.Y.2d 478, 248 N.E.2d 901, 301 N.Y.S.2d 65 (N.Y.App.1969). Brief Fact Summary. Mrs. Endresz was seven months pregnant when she was injured in an automobile accident with Friedberg, causing her twins to be delivered stillborn. The Plaintiffs, members of the Endresz family (Plaintiff), sued the Defendant, Friedberg (Defendant), for among other things, the wrongful death of each child. Synopsis of Rule of Law. New York does not allow a cause of action for the wrongful death of unborn children. Facts. Janice Endresz was seven months pregnant when she was injured in an automobile accident. Two days later she delivered stillborn twins. Four actions in negligence were brought by the Plaintiffs against the Defendant, the first two for the wrongful death of each child. Plaintiffs claimed damages for loss of anticipated care, comfort and support during the minority and majority of each infant and medical, hospital, and funeral expenses for the children. The court at Special Term dismissed the first two suits for wrongful death. Issue. May a wrongful death suit be brought in New York for causing the negligent death of a yet unborn child? Held. No. Judgment affirmed. 1 This Court has already decided that wrongful death actions cannot be maintained for the death of an unborn child. Legislative Acts regarding wrongful death suits refer to decedents and one must have been born before they can be a decedent. This court's decision in Woods v. Lancet, 303 N.Y. 349, 353, 102 N.E.2d 691, 693, 27 A.L.R.2d 1250 recognized a cause of action for a viable child in utero who is injured by a tort and later born with injury. This decision does not require the Court to reinterpret wrongful death to provide compensation for distributees of a stillborn fetus. In wrongful death suits for unborn children, the proof of pecuniary injury is extremely vague. To allow for such recovery would permit a windfall because the mother may sue for her suffering as a result of the stillbirth and the father may sue for loss of her services and consortium.

Dissent. If no right of action is permitted, there is a wrong inflicted for which there is no remedy. Allowing a right of action when a fetus is injured and later born, but not allowing one when the injury leads to stillbirth, leads to incongruous results. Concurrence. Justice Keating concurred.

175 Endresz v. Friedberg Discussion. Today a majority of states allow a civil claim for the wrongful death of an unborn child.

176 Procanik by Procanik v. Cillo

Procanik by Procanik v. Cillo

Citation. 97 N.J. 339, 478 A.2d 755 (1984). Brief Fact Summary. The Plaintiff, Peter Procanik (Plaintiff), was born with multiple birth defects, the result of his mother's German Measles that the Defendants, Dr. Cillo and other doctors (Defendants), negligently failed to diagnose. Plaintiff sued Defendants claiming general damages for emotional distress and for an impaired childhood because the Defendants negligently deprived his parents of the choice of terminating the pregnancy. Plaintiff also claims special damages for the extraordinary medical expenses he will incur. Synopsis of Rule of Law. An infant plaintiff may recover special damages for the extraordinary medical expenses he will incur, but may not recover general damages for emotional distress or for an impaired childhood. Facts. During the first trimester of Mrs. Procanik's pregnancy with the Plaintiff, she consulted the Defendants who informed her that she had been recently been diagnosed with measles. He ordered a test for German measles and the resulted were indicative of a past infection of Rubella. The Defendants negligently interpreted these results and told Mrs. Procanik that she had become immune to German Measles as a child. Actually, the past infection disclosed by the test was the German Measles that caused Mrs. Procanik to consult Defendants. Mrs. Procanik allowed her pregnancy to continue, not realizing that an accurate diagnosis of German Measles during pregnancy was likely to result in congenital rubella syndrome for her unborn child. Plaintiff was born with multiple birth defects. Plaintiff brought suit, claiming that the doctors negligently deprived his parents of the choice of terminating the pregnancy. He requested general damages for his pain and suffering and for his parents' impaired capacity to cope with his problems. Plaintiff also seeks special damages for the extraordinary expenses he will incur due to his condition. The Law Division granted Defendants' motion to dismiss, and the Appellate Division affirmed. The Supreme Court of New Jersey granted certification. Issue. May an infant recover general damages for emotional distress or for an impaired childhood caused by a doctor's negligent deprivation of his parent's choice of terminating the pregnancy? 1 May an infant plaintiff recover as special damages for the extraordinary medical expenses attributable to his affliction?

Held. No. Yes. Judgment of the Appellate Division is affirmed in part, reversed in part, and the matter is remanded. 1 Originally, a doctor's negligence in diagnosing a condition that might cause her to give birth to an impaired child was not actionable by either the

parent or the child. This was due to the court's inability to reach damages when attempting to value life with impairments against the

177 Procanik by Procanik v. Cillo 1 nonexistence of life itself. Another factor in early decisions was a reluctance to recognize the availability of abortions. 2 Later cases addressed these issues. In Berman [Berman v. Allan, 80 N.J. 421, 404 A.2d 8 (1979)] the court refused to allow a parent's claim for medical expenses to be incurred during the childrearing under the theory that such an allowance would permit the parents to reap all the benefits of childhood while the defendant paid all of the expenses. More recent cases allowed for the parents' right to compensation for the extraordinary expenses of raising an impaired child. In the present case, analysis of the action begins with whether the Defendants owed a duty to the Plaintiff. The Defendants do not deny such a duty and the Court finds that one exists. The Court also assumes the Defendants were negligent in treating the mother and that the negligence deprived the parents of the choice of terminating the pregnancy. Policy considerations have led this court to decline to recognize any cause of action for an infant's wrongful life. The problem is that the Plaintiff claims not that he should not have been born with defects, but rather that he should not have been born at all. This Court finds that there is no rational way to compare a lack of existence with the pain and suffering of Plaintiff's impaired existence in order to all recovery for his emotional distress or diminished childhood. However, this Court does find that recovery of the cost of extraordinary medical expenses is recoverable by either the parents or the infant, but not both. The infant can wait until his majority to recover medical expenses.

Discussion. Unlike wrongful death suits for unborn child, few jurisdictions allow actions for wrongful life.

178

CHAPTER IX. Owners And Occupiers Of Land

179 Taylor v. Olsen

Taylor v. Olsen
Citation. 282 Or. 343, 578 P.2d 779 (1978). Brief Fact Summary. The Plaintiff, Mrs. Taylor (Plaintiff), was injured when her car collided with a tree that had fallen across the road. The tree had fallen from the property of the Defendant, Marion Olsen (Defendant). The trial court directed a verdict for Defendant. Synopsis of Rule of Law. The standard of care a landowner owes in relation to roadside trees is reasonable care to prevent an unreasonable risk of harm. Facts. Plaintiff brought an action against the Defendant for damages she sustained when her car struck a tree, which had recently splintered and fallen across the road. Defendant was alleged to be in possession of the location from where the tree fell. Plaintiff appeals from a judgment entered on the directed verdict from Defendant. Issue. Is a landowner liable for damages caused when a tree on her property falls into a public roadway, when there was no previous evidence to suggest that the tree is not structurally sound? Held. No. Judgment affirmed. 1 Except in extreme circumstances, the Court holds that the standard of care a landowner owes in relation to roadside trees is reasonable care to prevent an unreasonable risk of harm. In the present case, Defendant was using the land for logging purposes and had logged trees adjacent to the tree in question. There was no surface evidence on the tree to suggest that it was decayed. There was no evidence to suggest that chopping or drilling into the trunk would have been an expected way to examine a standing tree. Therefore, it was not error for the court to direct a verdict for the Defendant.

Discussion. Most courts hold that there is no duty on the landowner to protect persons outside the property in regard to most land conditions that arise in the state of nature.

180 Salevan v. Wilmington Park, Inc.

Salevan v. Wilmington Park, Inc.

Citation. 45 Del. (6 Terry) 290, 72 A.2d 239 (1950). Brief Fact Summary. The Plaintiff, Salevan (Plaintiff), was injured when a foul ball hit out of the Defendant, Wilmington Park, Inc.'s (Defendant) ballpark, struck Plaintiff in the back. Plaintiff brought suit against Defendant for personal injuries. Synopsis of Rule of Law. Landowners who use their land in an artificial way must take reasonable precautions to protect the public traveling adjacent to the land. Facts. The Defendant owned land, which was rented as a ballpark and facilities. The Plaintiff brought suit against Defendant for personal injuries he sustained when struck in the back by a baseball while walking past the Defendant's ballpark. Issue. Does defendant, as landowner, have the duty to exercise reasonable care in the use of his land so as to prevent injury to travelers using the adjacent sidewalk? Held. Yes. Judgment entered for Plaintiff. 1 The Plaintiff does not claim that Defendant is an insurer of persons using the sidewalk adjacent to his ballpark. Rather, Plaintiff contends that Defendant's failure to take reasonable precautions to safeguard the public was negligence. Because of the inherent nature of baseball, a landowner must take reasonable precautions to protect the traveling public, with reasonableness depending on the facts and circumstances of each particular case. The Defendant in this case did take some precautions, such as erecting a ten-foot fence to keep balls within the park. Nonetheless, two or three balls per game on average left the park and entered the area where Plaintiff was walking when he was injured. It seems clear from the evidence that the Defendant's precautions were insufficient and that the Defendant knew or should have known that the precautions were insufficient.

Discussion. When a landowner alters the condition of his land, it becomes artificial and the owner must exercise reasonable care for the protection of those outside the premises.

181 Sheehan v. St. Paul & Duluth Ry. Co.

Sheehan v. St. Paul & Duluth Ry. Co.

Citation. 76 Fed. 201 (7th Cir.1896). Brief Fact Summary. The Plaintiff, Sheehan (Plaintiff), was trespassing upon the Defendant, St. Paul & Duluth Ry. Co.'s (Defendant) railway, when Plaintiff's foot became stuck. Defendant's train crew did not see Plaintiff until it was too late to stop the train and Plaintiff was injured. Synopsis of Rule of Law. Railroad companies are under a constant and strict duty of care to individuals at railway crossings, but are not bound to any act or service in anticipation of trespassers at other points along the track. Facts. The Plaintiff was walking on the Defendant's railroad track when his foot slipped and became caught on the rail. As Defendant's train approached, Plaintiff was unable to extricate his foot. Defendant's train crew did not see Plaintiff until it was too late to stop the train and therefore Defendant's train ran over Plaintiff's foot. The trial court entered a directed verdict for Defendant and Plaintiff appeals. Issue. Is a railroad company under a duty to anticipate trespassers upon its tracks, such that it will be liable for injuries that occur thereon? Held. No. Judgment affirmed. 1 Defendant was neither a passenger on the train nor crossing at a public crossway at the time of his injury. Therefore, Defendant was a trespasser. The railroad company is obligated to exercise some degree of care for trespassers upon its property and will be liable if the trespasser is wantonly injured in the operation of the railroad. Because of the hazardous nature of railroad operation, railroad companies are held to a duty of constant and strict care in relation to individuals at a street crossings or other places where the railroad is on notice that individuals cross. However, at all other points along a railroad track the railroad company has a right to a free track and is not bound to anticipate trespassers. Trespassers at these points assume all risks of condition that may be found there. The obligation of the railroad company to a trespasser arises at the moment of the trespasser's discovery and is a duty to make all reasonable efforts to avert injury. The Defendant's train crew made sufficient efforts to avert injury in the present case.

Discussion. The constant and strict care standard that arises at railroad crossings is described as a positive duty, while the duty to avert injury to discovered trespassers is a negative duty.

182 Barmore v. Elmore

Barmore v. Elmore
Citation. 83 Ill.App.3d 1056, 403 N.E.2d 1355, 38 Ill.Dec. 751 (Ill.App.1980). Brief Fact Summary. The Plaintiff, Barmore (Plaintiff), visited the home of the Defendants, Thomas Elmore Sr. (Thomas Sr.), Esther Elmore and Thomas Elmore Jr. (Thomas Jr.) (Defendants), to discuss business of the Masonic Lodge. During the visit, Plaintiff was attacked and stabbed by Thomas Elmore Jr. Plaintiff filed suit against the Defendants, claiming they were negligent in failing to protect him from a dangerous condition on their premises. Synopsis of Rule of Law. Social guests are considered licensees. Premises owners have a duty to warn licensees of hidden dangers unknown to the licensee, but known to the owner. Facts. Plaintiff visited the home of Thomas Sr. and Esther Elmore to discuss the business of the Masonic Lodge. Both Plaintiff and Thomas Elmore Sr. were officers of the lodge. During the visit, Thomas Jr., Thomas Sr.'s 47 year old son, advanced towards Plaintiff with a steak knife. Thomas Sr. tried to restrain his son while Plaintiff left the house, but Thomas Jr. got away from his father and stabbed the Plaintiff several times in the chest. Plaintiff filed suit against the Defendants claiming that they were negligent in failing to protect him from a dangerous condition on their premises. Plaintiff appeals from an order of the Circuit Court directing a verdict in favor of the Defendants. Issue. Are Defendants entitled to a directed verdict based on Plaintiff's status as a licensee? Held. Yes. Judgment is affirmed. 1 The duty that Defendants owed to Plaintiff depends largely on his classification as either an invitee or a licensee. A social guest is a licensee, and generally must take the premises as he finds them. The owner of the premises has the duty to warn a licensee of any hidden dangers unknown to the guest, of which the owner has knowledge. Also, the owner must refrain from injuring his guest willfully or wantonly. To be classified as an invitee, the person must go onto the owner's land in furtherance of the owner's business. As to an invitee, the owner has a duty to exercise reasonable care in keeping the premises reasonably safe for use by an invitee. Plaintiff claims that because he was conducting the business of a fraternal organization during his visit, he attained the status of an invitee. In this case, the evidence suggests that the primary benefit of Plaintiff's visit was to the fraternal organization of which both were members, rather than to the Defendants. Therefore the Plaintiff is best categorized as a licensee.

183 Barmore v. Elmore 1 Because Plaintiff is a licensee, Defendants' only duty was to warn him of hidden dangers unknown to Plaintiff of which Defendants had knowledge. Although Defendants knew that their son had a prior history of mental problems, he had committed no violent acts in ten years. Based on the evidence, it is clear that Thomas Sr. and Esther Elmore did not know or have reason to know of the possibility that Thomas Jr. would commit a criminal act toward Plaintiff. Discussion. The court in this case affirmed the directed verdict, believing that the evidence, viewed in favor of the Plaintiff, so overwhelmingly favored the Defendants that no contrary verdict could ever stand.

184 Campbell v. Weathers

Campbell v. Weathers
Citation. 153 Kan. 316, 111 P.2d 72 (1941). Brief Fact Summary. The Plaintiff, Campbell (Plaintiff), entered the business of the Defendant, Weathers (Defendant) and without purchasing any items, used the restroom. Plaintiff was injured when he stepped into an open trap door on the way to the restroom. Plaintiff sues for negligence. Synopsis of Rule of Law. If an individual enters a store with the intention of then, or at some other time, doing business with that store, he is an invitee. Facts. The Defendant operated a lunch counter and cigar stand. The Plaintiff entered Defendant's business, stood by the front counter without making any purchases, then went to the back of the building to use the toilet. Plaintiff stepped into an open trap door in a dark hallway and was injured. Plaintiff sued for negligence and the trial court sustained Defendant's demurrer to the evidence. Plaintiff appeals. Issue. Was the trial court correct in determining that the plaintiff was not an invitee and that defendant was entitled to judgment? Held. No. The order sustaining the demurrer of the Defendant is reversed. 1 The first issue is to determine if Plaintiff was a trespasser, a licensee, or an invitee. It was conceded that Defendant was the operator of a business open to the public. Plaintiff had been a customer of the Defendant for a number of years. He had used the hallway and toilet on numerous occasions and had never been told that it was not for public use. This Court refuses to advance the theory that a regular customer is not an invitee simply because the customer has not made a purchase on the particular occasion on which he is injured. Based on the facts of this case Plaintiff is an invitee.

Discussion. The Court was quick to point out that if an individual were to enter a place of business solely on a personal errand or to advance his own interests he would not be considered an invitee.

185 Whelan v. Van Natta

Whelan v. Van Natta

Citation. 382 S.W.2d 205 (Ky.App.1964). Brief Fact Summary. The Plaintiff, Whelan (Plaintiff), entered the Defendant, Van Natta's (Defendant) store, made a purchase and then asked if he could have a box. Defendant told Plaintiff to enter a back room to get the box. Plaintiff was injured when he fell into an unseen stair well in the unlit back room. Synopsis of Rule of Law. A land possessor is only subject to the liability of another as an invitee for harm sustained while he is on the land within the scope of his invitation. Facts. The Plaintiff entered Defendant's grocery store and purchased some cigarettes. Plaintiff then asked Defendant if he could have a box for his son. Defendant, busy at the counter, told Plaintiff to go into the backroom to retrieve a box for himself. Plaintiff went into the backroom, which was unlit at the time. While searching for a box, Plaintiff fell into an unseen stair well and was injured. The trial court gave judgment for the Defendant and Plaintiff appeals. Issue. Was the trial court correct in its determination that the status of the Plaintiff changed from invitee to licensee after he went into the storage room to obtain a box? Held. Yes. Judgment affirmed. 1 The Court bases its decision solely on the Torts Restatement [Torts, Restatement of the Law, Second, Chapter 13, Section 332, page 67]. The Restatement provides that a visitor retains his status of an invitee only while he is on the part of the land to which his invitation extends. Therefore, the visitor's status changes to a licensee if the shopkeeper invites him to visit an area outside of the part of the shop where business is conducted.

Discussion. An invitee can also become a trespasser if the owner of the land does not consent to the individual remaining on the land, or if the individual enters a part of the property that he was not permitted to enter upon.

186 Rowland v. Christian

Rowland v. Christian
Citation. 69 Cal.2d 108, 443 P.2d 561, 70 Cal.Rptr. 97 (1968). Brief Fact Summary. The Plaintiff, Rowland (Plaintiff), was injured when a cracked handle on a water faucet broke while Plaintiff was using the Defendant, Christian's (Defendant) bathroom. Defendant knew of the faulty handle, but failed to inform Plaintiff. Plaintiff filed suit for injuries. Synopsis of Rule of Law. California abolishes the traditional classifications of trespassers, licensees and invitees and instead applies ordinary principles of negligence in these cases. Facts. Plaintiff was a social guest at Defendant's apartment. Plaintiff used Defendant's bathroom, where he was injured when a cracked handle on the water faucet broke and severed tendons and nerves in his right hand. Evidence showed that Defendant had known the handle was cracked for two weeks, but failed to inform Plaintiff of its condition. Plaintiff appeals from a summary judgment for the Defendant. Issue. Was the trial court correct in granting summary judgment for the Defendant based on Plaintiff's status as a licensee? Held. No. Judgment reversed. 1 Based on historical considerations placing land ownership in a disproportionately high place, this and other courts have generally departed from the concept that an individual is liable for injuries caused by his carelessness. The categorization of injured parties as trespassers, licensees, and invitees produces confusion and conflict and are not justified in our modern society. The traditional classifications do not reflect the major factors, which should determine when immunity should be conferred. Some of these factors include the closeness of the connection between the injury and the defendant's conduct, the moral blame attached to defendant's conduct, the policy of preventing future harm, and prevalence and availability of insurance. The Court overturns these traditional classifications and instead will apply ordinary principles of negligence in cases such as the one at hand. In the present case, viewing the facts in a light most favorable to Plaintiff, a trier of fact could reasonably have concluded that a failure to warn or repair the condition constituted negligence.

Dissent. In the dissenters view, it was not proper for the majority to overturn a long standing, well supported rule without the instruction of the Legislature. The previous rules provided stability and predictability and supplied a reasonable and workable

187 Rowland v. Christian approach. The new approach will require decisions on a case-by-case basis and could open the door to potentially unlimited liability. Discussion. There is considerable agreement amongst modern courts that the general negligence standard should be applied to all persons invited or permitted on the premises. However, there is less agreement regarding the treatment of trespassers.

188 Borders v. Roseberry

Borders v. Roseberry
Citation. 216 Kan. 486, 532 P.2d 1366 (1975). Brief Fact Summary. The Plaintiff, Gary Borders (Plaintiff), was injured when he slipped and fell on icy steps while visiting a tenant at the Defendant, Roseberry's (Defendant), house. Defendant knew of a condition that caused water to drip onto the steps and freeze there. Plaintiff sued Defendant for injuries sustained. Synopsis of Rule of Law. A landlord has no duty to social guests of his tenant to repair a known condition at the tenant's residence, unless one of six exceptions is present. Facts. The Defendant was the landlord of a single-family house. At this house, water dripped from the roof onto the front steps of the house, where the water froze on the front steps. The Plaintiff was a social guest at the house when he slipped and fell on the accumulated ice, injuring himself. Defendant knew of the condition in question, but had failed to remedy it. The trial court found for the Defendant as a matter of law. Plaintiff appeals. Issue. Did the trial court commit reversible error in concluding as a matter of law that a landlord is under no obligation or duty to a social guest of his tenant to repair a known condition at the tenant's residence? Held. No. Judgment affirmed. 1 Traditionally, the law has placed the burden of maintaining the premises on the lessee tenant. This rule has resulted from the view that when land is leased to a tenant, the lessee acquires an estate in the land and the lessor retains only a reversionary interest. Therefore, a landlord generally has no liability in regard to either the tenant or to others entering the land for defective conditions thereon. This general rule of non-liability is subject to the following six exceptions: (1) Undisclosed dangerous conditions known to lessor and unknown to lessee; (2) Conditions dangerous to persons outside the premises; (3) Premises leased for admission to the public; (4) Parts of land retained in lessor's control which lessee is entitled to use; (5) Where the lessor contracts to repair; (6) Negligence by the lessor in making repairs. This Court finds that none of the above cited exceptions existed in the present case. Plaintiff contends that the law should be changed to make the landlord liable for injuries resulting from a defective condition on the leased premises where the landlord has knowledge of that condition. This Court does not believe that a departure from the established rules of law is justified.

189 Borders v. Roseberry Discussion. The Court's description of landlord non-liability and the exceptions thereto represents an accurate picture of the law in most states.

190

Pagelsdorf v. Safeco Ins. Co. of America

Pagelsdorf v. Safeco Ins. Co. of America

Citation. 91 Wis.2d 734, 284 N.W.2d 55 (1979). Brief Fact Summary. Plaintiff was injured when tenant's balcony rail collapsed while she was helping tenant move. Plaintiff sued landlord for landlord's failure to repair the balcony. Judgment was entered for defendant landlord based on a landlord's general immunity to liability from tenants and visitors. Synopsis of Rule of Law. Under Wisconsin law, a landlord owes to his tenant or anyone on the premises with the tenant's consent a duty to exercise ordinary care. Facts. The Defendant, Richard Mahnke (Defendant), owned a two-story duplex with four balcony porches. Defendant rented the upper unit to the John Blatnner and Mary Katherine Blatnner (Mrs. Blatnner). The Plaintiffs in this matter were Carol Pagelsdorf (Mrs. Pagelsdorf) and James Pagelsdorf (Plaintiffs). Mrs. Pagelsdorf was assisting Mrs. Blattner to move some furniture. Mrs. Pagelsdorf leaned against the railing of the second floor balcony and it collapsed, injuring her. The railing had a dry rot condition and should have been replaced. Judgment was entered on the verdict, dismissing the complaint. Plaintiffs appeal. Issue. Did the trial court err in failing to instruct the jury that Defendant owed Mrs. Pagelsdorf a duty to exercise ordinary care in maintaining the premises? Held. Yes. Judgment reversed and cause remanded. 1 This court previously abolished the distinction between licensees and invitees [Antoniewicz v. Reszcynski, 70 Wis.2d 836, 854-55, 236 N.W.2d 1, 10 (1975)]. However, the landlord is generally not liable to tenants unless one of the exceptions applies and no exception applies in this case. Following the traditional rule, the Plaintiff would not be entitled to an instruction that Defendant owed Mrs. Pagelsdorf a duty of ordinary care. The Court believes that public policy calls for abandonment of the previous rule and adoption of a standard that landlords are under a duty to exercise ordinary care in the maintenance of the premises. The policies discussed in Antoniewicz support, in the present case, the Court's decision to abandon the landlord's cloak of immunity to tenants and visitors. The modern day apartment lease is viewed as a contract rather than a conveyance. The Court has implied a warranty of habitability in such contracts. It would be anomalous to apply a warranty of habitability to landlords, yet immunize them from liability from injuries resulting from a failure to comply with such a warranty.

191 Pagelsdorf v. Safeco Ins. Co. of America Discussion. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable condition. Generally, the only recourse for a landlord's failure to comply with this warranty is a right to withhold rent until repairs are made.

192

Kline v. 1500 Massachusetts Ave. Apartment Corp.

Kline v. 1500 Massachusetts Ave. Apartment Corp.

Citation. 141 U.S.App.D.C. 370, 439 F.2d 477 (U.S.App.D.C. 1970). Brief Fact Summary. The Plaintiff, Kline (Plaintiff) a lessee of Defendant, 1500 Massachusetts Ave. Apartment Corp. (Defendant), was assaulted and robbed in a common hallway of Defendant's apartment. Defendant was on notice that assaults were occurring in the hallway, but nonetheless stopped employing a doorman. Plaintiff sued for injuries sustained. Synopsis of Rule of Law. Landlords have a duty to take steps to protect tenants from foreseeable criminal acts committed by third parties in common areas of landlord's property. Facts. Plaintiff was a lessee of Defendant. While in the common hallway of Defendant's apartment, Plaintiff was assaulted and robbed, sustaining serious injuries. A doorman had been employed in the past, but the entrances were unguarded at the time of Plaintiff's assault. Defendant was on notice of an increasing number of assaults and robberies being perpetrated against tenants in the common hallways of the building. Plaintiff sued for the injuries she sustained. The District Court found in favor of the Defendant. Plaintiff appeals. Issue. Was the District Court correct in ruling that there is no duty for a landlord to take steps to protect tenants from foreseeable criminal acts committed by third parties? Held. No. Judgment reversed and remanded. 1 As a general rule, private individuals do not have a duty to protect others from criminal attacks. This standard has sometimes been applied in the past to landlord-tenant law. However, in this jurisdiction certain duties have been assigned to the landlord because of his control of common areas used by all tenants. Although these duties have traditionally been applied to physical defects, the duty also applies in the present case because he is the only party who has the power to make the necessary repairs or to provide the necessary protection. Other relationships between parties such as innkeeper-guests and carrierpassenger have resulted in similar rules. The common theme amongst these relationships is that the ability of one of the parties to provide for their own protection has been limited in some way by his submission to control of the other. Where, as in the present case, the landlord is on notice that crimes have occurred in a common area exclusively within his control, the crimes are likely to happen again and he has the exclusive power to take preventive action, the landlord is under a duty to take steps to protect tenants from foreseeable criminal acts.

193 Kline v. 1500 Massachusetts Ave. Apartment Corp. Dissent. Justice MacKinnon's dissent omitted. Discussion. The Court was quick to point out that the landlord is not the insurer of the safety of his tenants, but only has the duty to take those measures within his power, which can reasonably expected to mitigate the risk of intruders.

194

C H A P T E R X . D a m a g e s

195

Anderson v. Sears, Roebuck & Co.

Anderson v. Sears, Roebuck & Co.

Citation. 377 F.Supp. 136 (U.S.Dist.Ct.Louis. 1974). Brief Fact Summary. Plaintiff, a young child, was severely burned during a house fire caused by the Defendants' negligent manufacture of a heater. The jury awarded plaintiff $2,000,000 in compensatory damages and the defendants moved for remittitur. Synopsis of Rule of Law. Under the maximum recovery rule, a court will overrule a jury's determination of damages only if the damages exceed the maximum amount the jury could reasonably find based upon all of the evidence. Facts. The Plaintiff, Helen Britian (Plaintiff), was severely burned as a young child when her home was destroyed by a fire. The blaze was caused by a heater negligently manufactured by the Defendants, Sears and Controls Company of America (Defendants). The jury awarded plaintiff $2,000,000 in compensatory damages. Defendants moved for remittitur. Issue. Was the trial court correct in determining that the verdict of the jury did not exceed the maximum amount which the jury could reasonably find based on the maximum recovery rule? Held. Yes. Defendant's motions for a remittitur are denied. 1 The maximum recovery rule is intended to protect the role of the jury as finder of facts. Judges must determine only the maximum award that the jury could reasonably have reached, based on all of the evidence as to each element of damages. In the present case, five elements of damages are applicable: (i) past physical and mental pain; (ii) future physical and mental pain; (iii) future medical expenses; (iv) loss of earning capacity and permanent disability and (v) disfigurement. This Court examines each of these elements individually, determining the maximum amount of damages available under each based on the evidence available. Considering each of these elements in unison, this Court determines that the maximum jury award supported by the evidence is $2,980,000. Therefore, the jury's damage award is valid. The Defendants also argue that the introduction of photographs of the Plaintiff was inflammatory and that the presence of the child in the courtroom inflamed or prejudiced the jury. The photographs were allowable because part of Plaintiff's claim for damages was for disfigurement and humiliation. Also, the presence of Plaintiff was not inappropriate because Plaintiff was well behaved and quiet during all courtroom proceedings.

196 Anderson v. Sears, Roebuck & Co. Discussion. A motion for remittitur is a request for the court to lower the damages levied against a defendant. If granted, the plaintiff may generally either accept the remittitur or request a new trial.

197

Richardson v. Chapman

Richardson v. Chapman
Citation. 175 Ill. 2d 98, 676 N.E.2d 621 (1997). Brief Fact Summary. The Plaintiffs were the driver of a car, Keva Richardson (Richardson) and the passenger, Ann McGregor (McGregor)(Plaintiffs). The car was stuck by a semi-trailer driven by the Defendant, Chapman, an employee of Tandem/Carrier (Defendants). A directed verdict was entered on behalf of Plaintiffs in regard to liability. Defendants appeal the jury's assessment of damages. Synopsis of Rule of Law. Courts may order a remittitur of damages when a jury's assessment of damages is excessive based on the evidence. Facts. While the Plaintiffs were stopped at a traffic light, their car was struck by a semitrailer driven by Chapman, an employee of Tandem/Carrier. Plaintiff Keva Richardson suffered incomplete quadriplegia as a result of the accident. Plaintiff Ann McGregor suffered a laceration on her forehead which left a slight scar. The trial court directed a verdict in favor of the Plaintiffs on the question of liability. The jury returned verdicts in favor of Richardson and McGregor in the amounts of $22,358,814 and $102,215 respectively. The intermediate court rejected Defendants' challenges to the amounts of damages. Issue. Was the intermediate appellate court incorrect in determining that the damages awarded by the jury were excessive? Held. Yes. Judgment of the appellate court is affirmed in part, reversed in part, and vacated in part. 1 Defendants first challenge testimony introduced by Richardson concerning the calculation of the present value of her future economic losses. Defendants claim that the expert, Professor Linke, used non-neutral, actual figures in his description of present cash value. Professor Linke used a differential between two rates, computing an upper bound and a lower bound. The Court concluded that Professor Linke's computations did not undercompensate or overcompensate Richardson. Defendants also argue that the sum of the future medical costs found by the jury, is not supported by the evidence because it exceeded the larger of the two figures provided by Professor Linke. Richardson argues in response that the larger award may be attributable to expenses not specifically included in Professor Linke's calculations. The Court found that the award of $1.5 million, more than the higher of the two figures, was excessive and that it is appropriate to reduce this amount by $1 million by way of remittitur. The court did not agree with Defendants that the remainder of the

award of damages shocks the conscious such as to force this Court to reduce said amount.

198

Richardson v. Chapman

1 Defendants also contend that the jury's award of damages to Mrs. McGregor is excessive. Mrs. McGregor was not seriously injured in the accident, incurring only a laceration on her forehead that left a slight scar. The Court believes that an award for $100,000 is excessive based on these facts, and reduces said amount to $50,000. 2 Dissent. The dissenting judge concurs with the general opinion of the majority, disagreeing only with the majority's remittitur of Mrs. Richardson's and Mrs. McGregor's damages. In regard to Mrs. Richardson, Professor Linke's calculations represented only Mrs. Richardson's minimum care needs. The jury should have been allowed to arrive at a higher value based on the evidence. In regard to Mrs. McGregor, the majority's remittitur of her pain and suffering award is arbitrary. In both instances the majority substituted its own subjective judgment for the jury's evaluation of the evidence.

Discussion. The majority is hesitant to substitute its' opinion for that of the trier of fact in determining damages. Because the determination of damages is a question for the trier of fact, the court will only issue a remittitur if the damages shock the judicial conscious.

199

Montgomery Ward & Co., Inc. v. Anderson

Montgomery Ward & Co., Inc. v. Anderson

Citation. 334 Ark. 561, 976 S.W.2d 382 (1998). Brief Fact Summary. The Appellee, Anderson (Appellee), was sent by the Appellant, Montgomery Ward & Co., Inc. (Appellant), to the University of Arkansas for Medical Sciences (UAMS) hospital for treatment, after she fell at Appellant's store. Appellee reached an agreement with UAMS, discounting her bill by fifty percent. Appellant moved to prohibit Appellee from presenting her total UAMS bill as proof of her medical expenses, Appellee claimed that the collateral source rule would prohibit Appellant from introducing evidence of the discount. Synopsis of Rule of Law. The collateral source rule prevents the introduction of evidence of payments received by an injured party from sources collateral to the wrongdoer. Facts. The Appellee was injured while shopping at the Appellant's store. Appellee was sent by Appellant to the UAMS hospital to be treated. Appellee had reached an agreement with UAMS that UAMS would discount her bill by fifty percent. Appellant moved in limine to prohibit appellee from presenting the total amount billed by UAMS as proof of her medical expenses, asking that her evidence be limited to the actual amount that she was responsible to pay. Appellee claimed that the collateral source rule would prohibit Appellant from introducing evidence of the discount. The trial court denied the motion in limine. Issue. Was the trial court correct in determining that the forgiveness of a debt for medical services is a collateral source to be sheltered by the rule? Held. Yes. Judgment affirmed. 1 A trial court must apply the collateral source rule to exclude evidence of payments received by an injured party from sources collateral to the wrongdoer. This rule applies unless the evidence of the benefits from the collateral source is relevant for a purpose other than the mitigation of damages. In a previous case [Bell v. Estate of Bell, 318 Ark. at 490, 885 S.W.2d at 880 (1994)], this same Court found that although the defendant argued that the collateral source rule is inequitable because it results in double recovery for the plaintiff, public policy supports the rule because the plaintiff, rather than the alleged torfeasor, should be entitled to the benefit of the collateral source. This is especially true due to the fact that the claimant has usually incurred the detriment of the collateral source, in the form of things such as paid insurance premiums or lost sick leave. The Court finds that the policy allowing for the collateral source rule is equally applicable in the present case.

200 Montgomery Ward & Co., Inc. v. Anderson Discussion. The Court pointed out four situations in which the collateral source rule is inapplicable: (1) to rebut plaintiff's testimony that he was compelled by financial necessity to return to work prematurely or forego additional medical care; (2) to show that the plaintiff had attributed his condition to some other cause, such as sickness; (3) to impeach plaintiff's testimony that he had paid his medical expenses himself; (4) to show that the plaintiff actually continued to work instead of being out of work.

201 Zimmerman v. Ausland

Zimmerman v. Ausland
Citation. 266 Or. 427, 513 P.2d 1167 (1973). Brief Fact Summary. The Plaintiff, Zimmerman (Plaintiff), obtained a $7,500 jury verdict for damages incurred during an automobile accident caused by the Defendant, Ausland (Defendant). These damages included a permanent injury based on torn cartilage, preventing Plaintiff from engaging in strenuous physical education activities. Synopsis of Rule of Law. In order to recover for permanent injuries, a plaintiff has a duty to mitigate those damages by submitting to treatment that would cure the damages if a reasonable person would do so under the same circumstances. Facts. Plaintiff was injured during an automobile accident caused by the negligence of Defendant. Plaintiff obtained a jury verdict for $7,500, including damages for permanent injury based on torn semilunar cartilage in her knee. The jury found that she would no longer be able to engage in the strenuous physical education activities she had previously engaged in during her work as a substitute teacher. Issue. Did the trial court err by submitting to the jury the issue of whether plaintiff sustained a permanent injury and in instructing the jury on plaintiff's life expectancy based on Standard Mortality Tables? Held. No. Judgment affirmed. 1 It is well established that a plaintiff in a personal injury case cannot claim permanent injury damages if the permanent injury could have been avoided by submitting to treatment by a physician when a reasonable person would do so under the same circumstances. The standard applied is whether an ordinary, prudent person would have submitted to a surgical operation. Several factors are considered in this analysis, including the risk involved, the probability of success and the expenditure of money or effort required. In the present case defendant did not request an instruction on mitigation of damages. Nonetheless, if the facts are such that the Plaintiff failed to mitigate her damages as a matter of law, the Plaintiff would not be entitled to claim damages for permanent injury. The Court concludes that the evidence supporting Defendant's contention that Plaintiff was required to submit to surgery were not so clear and convincing to make it proper for this Court to decide those questions as a matter of law.

Discussion. The duty to mitigate is not a true duty, but actually a rule that does not allow recovery of damages the plaintiff could have avoided.

202 Cheatham v. Pohle

Cheatham v. Pohle
Citation. 789 NE.2d 467 (Ind. 2003) Brief Fact Summary. After a divorce, an ex-husband circulated certain nude pictures of his ex-wife to various people. The ex-wife was awarded compensatory and punitive damages after bringing suit. Synopsis of Rule of Law. The portion of the punitive damage statute, requiring 75% of a punitive damage award be placed in a fund, does not work a taking. Facts. The Appellant, Doris Cheatham (the "Appellant"), and the Appellee, Michael Pohle (the "Appellee"), were divorced in 1994. After the divorce, the Appellee retained certain nude pictures of the Appellant and other pictures of the two parties engaged in a consensual sexual act. The Appellee distributed certain of the nude photographs to 60 persons in the small community in which they both lived and worked. The Appellee added certain personal information about the Appellant on the pictures. The Appellant brought suit alleging invasion of privacy and intentional infliction of emotional distress. A jury awarded the Appellant $100,000 in compensatory damages and $100,000 in punitive damages. Indiana's statute authorizing an award of punitive damages was Indiana Code section 3451-3-6. One provision of the statute required 75% of any punitive damage award be paid to the Indiana state treasury, to be deposited in a fund for violent crime victims. The Appellant argued that the portion of section 34-51-3-6 requiring 75% of punitive damages be paid to the treasurer, violated the Takings Clause in the United States Constitution ("Constitution") and the Indiana State Constitution. Issue. Whether section 34-51-3-6's provision requiring 75% of any punitive damage award be paid to the state treasury, violates the Constitution and the Indiana State Constitution? Held. The court first observed that the purpose of a punitive damage award is "not to make the plaintiff whole or to attempt to value the injuries of the plaintiff. Rather, punitive damages, sometimes designated 'private fines' or 'exemplary damages,' have historically been viewed as designed to deter and punish wrongful activity. As such, they are quasicriminal in nature." Pursuant to [BMW of N. Am. Inc. v. Gore], state legislatures are granted "broad discretion in authorizing and limiting the award of punitive damages, just as they do in fashioning criminal sanctions." Along these lines, it has been held civil plaintiffs, like victims in a criminal case, have no right to receive punitive damages. The court observed, "[f]or our purposes, the essential point is that because punitive damages do not compensate the plaintiff, the plaintiff has no right or entitlement to an award of punitive damages in any amount. Unlike a claim for compensatory damages, the trier of fact is not required to award punitive damages even if the facts that might justify an award are found." 1 The court observed, "any interest the plaintiff has in a punitive damages award is a creation of state law. The plaintiff has no property to be taken except to

203 Cheatham v. Pohle 1 the extent state law creates a property right." The state of Indiana chose "to define the plaintiff's interest in a punitive damages award as only twenty-five percent of any award, and the remainder is to go to the Violent Crime Victims' Compensation Fund." Accordingly, "there is no taking of any property by the statutory directive that the clerk transfer a percentage of the punitive damages award to the Fund." Discussion. This case makes it clear that punitive damages are not the property of whom they are awarded, unless the state legislature makes such a determination.

204 State Farm Mutual Automobile Insurance Co. v. Campbell

State Farm Mutual Automobile Insurance Co. v. Campbell

Citation. 123 S.Ct. 1513 (2003) Brief Fact Summary. A car accident occurred resulting in the death of one individual, and the incapacitation of another. The insurance company of the driver at fault, who was not injured, acted inappropriately, and the driver sued the company and was awarded a substantial amount of compensatory and punitive damages. Synopsis of Rule of Law. When analyzing the validity of a punitive damage award, the three guideposts from [BMW v. Gore] must be applied. Those include: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." Facts. While driving with his wife, Curtis Campbell ("Mr. Campbell") (collectively referred to as the "Campbells") attempted to pass six vans on a two-lane highway. By doing so, however, Mr. Campbell was driving on the wrong side of the highway. An accident ensued, and one individual was killed and another permanently disabled. Mr. Campbell and his wife were unscathed. It was determined that Mr. Campbell's unsafe pass caused the accident. Nonetheless, the Petitioner, Mr. Campbell's insurer, State Farm Mutual Automobile Insurance Co. (the "Petitioner"), contested liability and declined offers to settle with the estate of the deceased and with the permanently injured individual. The Campbells' policy limit was $50,000. The Petitioner assured the Campbells that "their assets were safe, that they had no liability for the accident, that [State Farm] would represent their interests, and that they did not need to procure separate counsel." The case eventually went to trial, and a jury found that Mr. Campbell was 100% at fault and a judgment of $185,849 was entered against him. Initially, the Petitioner refused to pay the excess $135,849 above the policy limits. Additionally, State Farm would not post a bond to allow Mr. Campbell to appeal the verdict. The Campbells retained their own counsel for the appeal. The estate of the deceased and the individual that was incapacitated, agreed not to satisfy their claims against Mr. Campbell, it he were to bring a "bad faith action against State Farm and to be represented by Slusher's and Ospital's attorneys." Slusher and Ospital were the representatives of the deceased and the incapacitated victims of the accident. In 1989, the Utah Supreme Court denied Mr. Campbell and his wife's appeal, and State Farm satisfied the entire judgment. Despite the outcome of the appeal, Mr. Campbell and his wife filed suit against the Petitioner, alleging "bad faith, fraud, and intentional infliction of emotional distress." The jury awarded the Campbell's $2.6 million in compensatory damages and $145 million in punitive damages. The trial court reduced the compensatory award to $1 million and the punitive award to $25 million. The Utah Supreme court reinstated the punitive award. Issue. "[W]hether, [based on the circumstances], an award of $145 million in punitive damages, where full compensatory damages are $1 million, is excessive and in violation

205 State Farm Mutual Automobile Insurance Co. v. Campbell of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States"? Held. Yes, the reinstatement of the $145 million dollar punitive damage award was excessive. The court first recognized there are procedural and substantive constitutional limitations on compensatory and punitive damages awards. Specifically "[t]he Due Process Clause of the Fourteenth Amendment prohibits the imposition of grossly excessive or arbitrary punishments on a tortfeasor." Based on [BMW v. Gore], courts are instructed to examine three "guideposts" when construing the validity of a punitive damage award: "(1) the degree of reprehensibility of the defendant's misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases." The court discussed each in turn. 1 The court first discussed the "reprehensibility of the defendant's misconduct," which it says is the most important of the guideposts. Reprehensibility is judged "by considering whether: the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident." The court then criticized the Utah Supreme Court's condemning of the Petitioner "for its nationwide policies rather than for the conduct directed toward the Campbells." Further, the majority recognized the Utah Supreme court "awarded punitive damages to punish and deter conduct that bore no relation to the Campbells' harm." The court also found that the punitive damage award could not be upheld under the guise that State Farm was a recidivist. 2 The court then construed the second guidepost and refused to "impose a bright-line ratio, which a punitive damages award cannot exceed." However, the majority recognized "[o]ur jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." Moreover, "[i]n the context of this case, we have no doubt that there is a presumption against an award that has a 145- to-1 ratio." The court recognized that the $1 million compensatory award was complete compensation, especially since the damages in the case before itwere entirely economic and not physical. The third and final guidepost concerned the "the disparity between the punitive damages award and the 'civil penalties authorized or imposed in comparable cases. ' " The court observed, "[t]he most relevant civil sanction under Utah state law for the wrong done to the Campbells appears to be a $10,000 fine for an act of fraud, [ ] an amount dwarfed by the $145 million

206 State Farm Mutual Automobile Insurance Co. v. Campbell 1 punitive damages award." The court refused to look at criminal penalties in making their assessment. Dissent. Justice Antonin Scalia ("J. Scalia") filed a dissenting opinion adhering to his view expressed in his "dissenting opinion in [BMW of North America, Inc. v. Gore], that the Due Process Clause provides no substantive protections against 'excessive' or 'unreasonable' awards of punitive damages." 1 2 Justice Clarence Thomas ("J. Thomas") also filed a dissenting opinion arguing "the Constitution does not constrain the size of punitive damage awards." Justice Ruth Bader Ginsburg ("J. Ginsburg") entered a dissenting opinion arguing that punitive damages awards are the prerogative of the states. J. Ginsburg recognized that "[w]hen the Court first ventured to override statecourt punitive damages awards, it did so moderately." However, she argued "[t]oday's decision exhibits no such respect and restraint. No longer content to accord state-court judgments 'a strong presumption of validity,' [ ] the Court announces that 'few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.' " As such, "I would not join the Court's swift conversion of those guides into instructions that begin to resemble marching orders."

Discussion. This case offers a good example of how the [BMW v. Gore] factors should be applied.

207

CHAPTE R XI. Wrongful Death And Survival

208 Moragne v. States Marine Lines, Inc.

Moragne v. States Marine Lines, Inc.

Citation. 398 U.S. 375, 90 S.Ct. 1772, 26 L.Ed.2d 339 (1970). Brief Fact Summary. Petitioner brought a wrongful death claim on behalf of her dead husband. Previous case law had determined that maritime law does not afford a cause of action for wrongful death. The United States Supreme Court (Supreme Court) took the case to determine if the previous case law was still applicable. Synopsis of Rule of Law. The Supreme Court overturns it's previous holding in The Harrisburg and allows for a wrongful death action in maritime law. Facts. Edward Moragne, a longshoreman, was killed while working on a vessel in navigable waters. The Petitioner, the deceased's widow (Petitioner), brought a wrongful death suit in state court against the Respondent, States Marine Lines, Inc., (Respondent), the owner of the vessel. The Supreme Court took this case to determine if it's decision in The Harrisburg, 119 U.S. 199 (1886), that maritime law does not afford a cause of action for wrongful death, is still acceptable law. Issue. Should the Supreme Court continue to apply the holding of The Harrisburg, that maritime law does not afford a cause of action for wrongful death? Held. No. Judgment reversed and remanded. 1 The holding of The Harrisburg has little justification except in primitive legal history. The historical reason for the rule was the felony-merger doctrine, where in England civil recovery was not allowed in felony cases because the tort and felony merged as an offense against the Crown. This rule never existed in America, but the American courts adopted the common law rule that wrongful death actions were not actionable. Legislatures both here and in England began to show disapproval for the rule, with every State here eventually enacting wrongful-death statutes. These statutes make it clear that there is no public policy against allowing recovery for wrongful deaths. Based on these facts, this Court overrules the holding in The Harrisburg. The law applied in personal-injury cases will govern questions that arise in death cases. This Court will not determine whether the beneficiaries are entitled to recover at this time.

Discussion. At common law, a personal cause of action in tort did not survive the death of its possessor. However, this applied only to a victim's own personal claims and did not include a dependant's injuries that he suffered from the victim's death.

209 Selders v. Armentrout

Selders v. Armentrout
Citation. 190 Neb. 275, 207 N.W.2d 686 (1973). Brief Fact Summary. Plaintiffs sued for the wrongful death of their three children. Defendants asserted that damages are limited to pecuniary loss, while plaintiffs asserted that loss of society, comfort, and companionship of the children are compensable. Synopsis of Rule of Law. Under Nebraska law, the loss of society, comfort and companionship are recoverable for a child's death in a wrongful death suit. Facts. Three children, aged 15, 13, and 9, were killed in an automobile accident due to the negligent conduct of the defendants. The defendants contended that the measure of damages is limited to pecuniary loss, while plaintiffs asserted that the loss of society, comfort, and companionship of the children are compensable elements of damage, along with evidence of amounts invested in nurture, education, and maintenance. The trial court instructed the jury that the damages allowed included only the monetary value of the contributions and services, which the parents could reasonably have expected to receive from the children less the reasonable cost to the parents of supporting the children. Issue. Was the trial court proper in limiting the wrongful death award for plaintiffs to their pecuniary loss? Held. No. Judgment of trial court as to liability is confirmed, judgment as to damages is reversed and remanded. 1 The original pecuniary loss concept arose from a historical tradition when children during minority were regarded as an economic asset to parents. This resulted from the early age at when children would go to work. Today, damages in wrongful death cases deal with a speculative future life, based on a fictitious future that will never happen. To literally limit wrongful death damages for a child to the monetary value of the services the next of kin could have reasonably expect to receive would result in the average child being of negative worth. In this state, statutes do not limit damages for wrongful death to pecuniary loss, but this Court has imposed such a restriction. However, the Court imposes no such limit for injuries to the marital relationship. We see no reason for this discrepancy. Thus, the court held that the measure of damages in a child's wrongful death suit shall include the loss of society, comfort, and companionship of the child.

Dissent. The majority's opinion arbitrarily overrules 50 years of settled law for no clear purpose.

Discussion. Pecuniary loss statutes that have the trier of fact determine the monetary contribution that the decedent would have made during his lifetime to plaintiff are known

210 Selders v. Armentrout as loss-to-survivors statutes. However, a growing number of states have followed the principle case, allowing recovery for loss of companionship or consortium.

211 Murphy v. Martin Oil Co.

Murphy v. Martin Oil Co.

Citation. 56 Ill.2d 423, 308 N.E.2d 583. Brief Fact Summary. The Plaintiff, Mrs. Murphy (Plaintiff), sued under both the Wrongful Death Statute and the Survival Statute for injuries sustained by her husband during a fire at the Defendant, Martin Oil Co.'s (Defendant) premises. Plaintiff's husband survived for nine days, then died from his injuries. Synopsis of Rule of Law. Damages for loss of property, loss of wages and the pain and suffering of a decedent are allowed under survival statutes when the decedent later dies from injuries which created the cause of action. Facts. The Plaintiff's husband was injured in a fire on the Defendant's premises. Plaintiff's husband survived for nine days, then died from his injuries. Plaintiff brought suit under both the Wrongful Death Statute and the Survival Statute. The trial court dismissed the Survival Statute Claim. The appellate court allowed the claim in part. Both parties appealed to the State Supreme Court. Issue. Can a plaintiff maintain an action under the Survival Statute for loss of property, loss of wages and the pain and suffering of decedent when decedent died from the injuries, which created the cause of action? Held. Yes. Judgment affirmed insofar as it held that an action may be maintained for loss of property and wages incurred during the interval between injury and death. Judgment reversed insofar as it held that Plaintiff could not maintain an action for decedent's pain and suffering. 1 The Survival Statute [Illinois Survival Statute, Ill.Rev.Stat.1971, ch. 3, par. 339 (1934)] is cited in support of Plaintiff's claim for damages for the decedent's physical and mental suffering and loss of wages for the nine day period following his injury and for the loss of his clothing worn at the time of his injury. Previously, this Court has held that the Survival Statute was intended to allow the survival of a cause of action only when a the injured party died from something other than that which caused the injuries which gave rise to the original cause of action. Actions under the Illinois Wrongful Death Act are limited to recovery of pecuniary losses from loss of support to the surviving spouse or next of kin. Professor Prosser has noted that the majority of jurisdictions now allow an action for personal injuries in addition to an action under wrongful death statutes [Prosser, Handbook of the Law of Torts 4th ed. at 901 (1971)]. This Court believes that decisions that allow an action for fatal injuries in addition to wrongful death are preferable to the Court's previous holdings. Therefore, previous holdings are overruled and actions

212 Murphy v. Martin Oil Co. 1 under both the Survival Statute and the Wrongful Death Statute will be allowed. Discussion. Under English common law personal tort actions died with the decedent, but today survival statutes have modified these rules in almost every jurisdiction.

213

C H A P T E R X I I . D e f e n s e s

214 Butterfield v. Forrester

Butterfield v. Forrester
Citation. 11 East 60, 103 Eng.Rep. 926 (K.B. 1809). Brief Fact Summary. The Plaintiff, Butterfield (Plaintiff), was injured when he rode his horse into an obstruction placed into the road by the Defendant, Forrester (Defendant). A witness said that if Plaintiff had not been riding hard, he would have been able to see and avoid the obstruction. Synopsis of Rule of Law. The plaintiff's failure to exercise reasonable and ordinary care in this case is a complete bar to recovery from the defendant, initializing the concept of contributory negligence. Facts. The Defendant had put up a pole across a public road for the purpose of making some repairs to his house. The Plaintiff, riding violently, did not see the pole and was thrown from his horse by the pole, injuring himself. A witness stated that if the Plaintiff had not been riding violently, he would have been able to see and avoid the pole. The judge directed the jury that if they found that a person riding with reasonable and ordinary care could have avoided the obstruction and if Plaintiff was not riding with ordinary care, the jury should find a verdict for the Defendant. The jury found for Defendant. Issue. 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. Rule refused. 1 2 Justice Bayley: If the Plaintiff had used ordinary care, he would have seen the obstruction, so the accident happened entirely at his own fault. Chief Justice Lord Ellenborough: One person being in fault will not dispense with another's using ordinary care for himself. The Plaintiff cannot recover for casting himself on an obstruction made by the fault of another if he did not use common and ordinary caution to be in the right.

Discussion. The Court's holding in this case is demonstrative of common law contributory negligence, which completely bars recovery if plaintiff's negligence contributed to the happening of the accident.

215 Davies v. Mann

Davies v. Mann
Citation. 10 M. & W. 547, 152 Eng.Rep. 588 (Exchequer 1842). Brief Fact Summary. The Plaintiff, Davies (Plaintiff), had his ass illegally tethered along a public highway. The Defendant, Mann (Defendant), came along the path at a quick pace and ran down the ass, killing it. The judge instructed the jury that if the proximate cause of the injury was due to the lack of proper conduct of the Defendant, an action is maintainable. Synopsis of Rule of Law. If the defendant had an opportunity to avoid the accident after the plaintiff no longer had such an opportunity, and the defendant improperly did not avoid the accident, he is liable. This initiated the last clear chance doctrine. Facts. The Plaintiff had an ass grazing on the side of a public highway. The ass was fettered, and the Plaintiff was some distance away. The Defendant's wagon came down the path at "a smartish pace" and knocked down the ass, killing it. The judge instructed the jury that even if leaving the ass fettered in the highway was an illegal act, if the proximate cause of the injury was attributable to the lack of proper conduct on the part of the Defendant, an action was maintainable for the Defendant. The jury found their verdict for the Plaintiff. Issue. Is a defendant liable for injuries caused by his negligence when the plaintiff's negligence was also a cause of the injury? Held. Yes. 1 Chief Bench Lord Abinger: Even if the animal was unlawfully in the road, if the Defendant could have avoided injuring the animal through proper care, but failed to do so, he is liable for the consequences of his negligence. Bench Parke: Defendant was bound to go along the road at a pace likely to prevent mischief.

Discussion. The holding in this case has developed into the doctrine of last clear chance, where if the defendant had the opportunity to avoid the accident after the opportunity was no longer available to the plaintiff, the defendant has a duty to do so or else he will bear the loss.

216 McIntyre v. Balentine

McIntyre v. Balentine
Citation. 833 S.W.2d 52 (Tenn.1992). Brief Fact Summary. The Plaintiff, Harry McIntyre (Plaintiff) and the Defendant, Clifford Balentine (Defendant), were involved in a car accident, with both parties being partially responsible. The jury found for the Defendant based on the contributory negligence doctrine. Plaintiff appealed and requested that the court adopt comparative negligence. Synopsis of Rule of Law. Tennessee adopts modified comparative negligence, allowing plaintiffs to recover so long as their negligence does not exceed the negligence of the defendant. Facts. The Plaintiff and Defendant were involved in a motor vehicle accident, with severe injuries resulting to Plaintiff. As Defendant traveled south on Highway 69 in Savannah, Tennessee, Plaintiff pulled out of a truck stop. Shortly thereafter, Plaintiff's truck struck Defendant's tractor. Both men had consumed alcohol the evening of the accident. Plaintiff's blood alcohol content was measured at .17 and testimony suggested that Defendant was speeding. Plaintiff brought a negligence action against Defendant and the lessee of the truck. Defendant answered that Plaintiff was contributorially negligent, in part due to operating his vehicle while intoxicated. The jury found the Plaintiff and Defendant equally at fault, therefore, they ruled in favor of the Defendant. Plaintiff appealed, alleging the trial court erred by refusing to instruct the jury regarding the doctrine of comparative negligence. The Court of Appeals affirmed. Issue. Should Tennessee adopt the doctrine of comparative negligence? Held. Yes. Judgment reversed in part and affirmed in part (on a separate issue) and remanded. 1 The common law doctrine of contributory negligence has been traced to Butterfield v. Forrester, [11 East 60, 103 Eng.Rep. 926 (1809)]. The contributory negligence bar to recovery may have developed as on outgrowth of issue pleading, where questions posed had to be answered yes or no, leaving common law courts to award all or nothing. Tennessee has followed the general rule of barring recovery for contributory negligence, allowing for exceptions for intentional conduct, gross negligence, actions falling under the last clear chance doctrine, or when plaintiff's negligence is remote. Based on the general acceptance of comparative fault throughout the nation, the Court abandoned the unjust doctrine of contributory negligence and adopts a system of comparative fault.

217 McIntyre v. Balentine 1 Two basic forms of comparative fault are used throughout the nation, pure and modified comparative fault. Under the pure form, damages are reduced in proportion to the amount of negligence attributed to the plaintiff. The modified form is the same as pure, except plaintiffs recover only if plaintiff's negligence either does not exceed does not exceed 50%, or is less than 49% of defendant's negligence. 2 This Court adopts the modified form of comparative fault in an effort not to fully abandon the state's fault-based tort system. Therefore, so long as plaintiff's negligence remains less than defendant's the plaintiff may recover. To provide guidance to the trial courts, the court also held that the doctrines of remote and contributory negligence are obsolete, as well as the doctrine of joint and several liability. Also, in the case of multiple tortfeasors, plaintiffs may recover as long as plaintiff's fault is less than the combined fault of tortfeasors. The Uniform Contribution Among Tortfeasors Act [T.C.A. 29-11-101 to 106 (1980)] will no longer determine the apportionment liability between co-defendants. Finally, defendants answering allegations in negligence will be permitted to allege that a non-party contributed to or caused the injury as an affirmative defense and the trial court shall instruct the jury to assign a percentage of the total negligence to this nonparty.

Discussion. Only four states continue to apply the common law doctrine that contributory negligence as a complete bar to recovery.

218 Seigneur v. National Fitness Institute, Inc.

Seigneur v. National Fitness Institute, Inc.

Citation. 132 M.D. App. 271, 752 A.2d 631 (Md. App. 2000) Brief Fact Summary. A member of a health club was injured during a consultation with a trainer. The health club contract included an exculpatory clause. Synopsis of Rule of Law. "In Maryland, unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary." Facts. Gerilynne Seigneur ("Ms. Seigneur") was injured at a health club owned by National Fitness Institute, Inc. ("National"). Ms. Seigneur was injured during an initial evaluation. Ms. Seigneur chose National because they were recommended by her chiropractor. Ms. Seigneur reported on her membership contract that she had a very bad lower back, including a herniated disc and that she was generally in poor physical condition. Ms. Seigneur filled out and signed a "Participation Agreement", which included the following provision: "Important Information: I, the undersigned applicant, agree and understand that I must report any and all injuries immediately to NFI, Inc. staff. It is further agreed that all exercises shall be undertaken by me at my sole risk and that NFI, Inc. shall not be liable to me for any claims, demands, injuries, damages, actions, or courses of action whatsoever, to my person or property arising out of or connecting with the use of the services and facilities of NFI, Inc., by me, or to the premises of NFI, Inc. Further, I do expressly hereby forever release and discharge NFI, Inc. from all claims, demands, injuries, damages, actions, or courses of action, and from all acts of active or passive negligence on the part of NFI, Inc., its servants, agents or employees." 1 During her initial evaluation, Ms. Seigneur felt a tear or a rip in her right shoulder. Subsequent to the incident, Ms. Seigneur needed to have surgery on her shoulder. Ms. Seigneur and her husband brought suit against National based on a theory of vicarious liability. They alleged that National's employee working with Ms. Seigneur when she hurt her shoulder was negligent. National filed a motion to dismiss, which the court treated as a summary judgment motion. National argued that the exculpatory clause in the contract was valid and binding. Ms. Seigneur argued that it was a contract of adhesion and the exculpatory clause void as against public policy.

Issue. Is the exculpatory clause in the fitness club's contract enforceable? Held. Yes. The court first observed "there is no suggestion that the agreement between NFI and Ms. Seigneur was the product of fraud, mistake, undue influence, overreaching, or the like." Based on the language of the clause, the court held "that this contract provision expresses a clear intention by the parties to release NFI from liability for all acts of negligence."

The court observed "[i]n Maryland, unambiguous exculpatory clauses are generally held to be valid in the absence of legislation to the contrary." The

219 Seigneur v. National Fitness Institute, Inc. 1 court then discussed three exceptions to the general rule that exculpatory clauses are enforceable. They include "(1) when the party protected by the clause intentionally causes harm or engages in acts of reckless, wanton, or gross negligence; (2) when the bargaining power of one party to the contract is so grossly unequal so as to put that party at the mercy of the other's negligence; and (3) when the transaction involves the public interest." The court recognized that only the second and third exceptions are applicable here. 2 As to the second, the court observed that the contract at issue was one of adhesion. The court also observed that this fact alone, however, does not demonstrate grossly unequal bargaining power. To illustrate its point, the court recognized National had various competitors that provided the same nonessential health club services that National provided. The court also argued, Ms. Seigneur could have went to another health club, purchased her own fitness equipment or exercised at home without fitness equipment. Additionally, the exculpatory clause was prominently displayed and Ms. Seigneur did not allege she was not aware of it. As to the third, the appropriate inquiry was to assess "whether the party seeking exoneration offered services of great importance to the public, which were a practical necessity for some members of the public." The court observed that "courts have found generally that the furnishing of gymnasium or health spa services is not an activity of great public importance nor of a practical necessity." The court concluded that "there is no special legal relationship and no overriding public interest which demand that this contract provision, voluntarily entered into by competent parties, should be rendered ineffectual." This conclusion was based on the observation that "[h]ealth clubs are a good idea and no doubt contribute to the health of the individual participants and the community at large. But ultimately, they are not essential to the state or its citizens. And any analogy to schools, hospitals, housing (public or private) and public utilities therefore fails. Health clubs do not provide essential services." In assessing public policy, "[t]he ultimate determination of what constitutes the public interest must be made considering the totality of the circumstances of any given case against the backdrop of current societal expectations." The court also recognized public policy "includes those transactions, not readily susceptible to definition or broad categorization, that are so important to the public good that an exculpatory clause would be 'patently offensive,' such that 'the common sense of the entire community would pronounce it' invalid." Based on this definition of public policy, the court concluded "[National] does not provide an essential public service such that an exculpatory clause would be patently offensive to the citizens of Maryland."

220 Seigneur v. National Fitness Institute, Inc. Discussion. The court also relies on certain factors enunciated by [Tunkl v. Regents of the Univ. of California] to determine what effects the public interest. The court recognizes, however, that due to the fluidity of the notion of public policy, reliance on only six factors may be arbitrary. The [Tunkl] court stated: "It concerns a business of a type generally thought suitable for public regulation. The party seeking exculpation is engaged in performing a service of great importance to the public, which is often a matter of practical necessity for some members of the public. The party holds himself out as willing to perform this service for any member of the public who seeks it, or at least for any member coming within certain established standards. As a result of the essential nature of the service, in the economic setting of the transaction, the party invoking exculpation possesses a decisive advantage of bargaining strength against any member of the public who seeks his services. In exercising a superior bargaining power the party confronts the public with a standardized adhesion contract of exculpation, and makes no provision whereby a purchaser may pay additional reasonable fees and obtain protection against negligence. Finally, as a result of the transaction, the person or property of the purchaser is placed under the control of the seller, subject to the risk of carelessness by the seller or his agents."

221 Rush v. Commercial Realty Co.

Rush v. Commercial Realty Co.

Citation. 7 N.J.Misc. 337, 145 A. 476 (1929). Brief Fact Summary. The Plaintiff, tenant Rush (Plaintiff), was injured when she fell through the floor of a detached privy. Plaintiff won a suit against the Defendant landlord, Commercial Realty Co. (Defendant). The Defendant appealed. Synopsis of Rule of Law. Implied assumption of the risk is applicable only when a plaintiff voluntarily encounters a known risk. Facts. Plaintiff was a tenant of the Defendant. The rented premises had a detached privy for the use of two houses. Plaintiff went to the privy and fell through the floor or through a trap door therein. Plaintiff fell nine feet into the accumulation at the bottom and had to be removed with the use of a ladder. Defendant appeals the trial court verdict, claiming that it erred in refusing a nonsuit and erred in refusing to direct a verdict for the Defendant. Issue. Did the trial court err by not directing a verdict in favor of the Defendant based on Plaintiff's contributory negligence or assumption of the risk? Held. No. Judgment affirmed. 1 The building was under the control of the Defendant and it had a duty of care for maintenance. The jury could reasonably find that the accident was the result of Defendant's negligence. Therefore, the only applicable questions are if Plaintiff assumed the risk or was contributorily negligent. Plaintiff had no choice, but to use the bathroom and had no duty to go elsewhere to do so. Therefore, using the facilities placed at her disposal was not assumption of the risk. Whether it was contributory negligence to step on the badly maintained floor was a question for the jury.

Discussion. Assumption of the risk requires actual knowledge of a particular risk, appreciation of its magnitude and voluntarily encountering the risk.

222 Blackburn v. Dorta

Blackburn v. Dorta
Citation. 348 So.2d 287 (Fla.1977). Brief Fact Summary. Three cases where consolidated by the Supreme Court of Florida to determine if the doctrine of implied assumption of the risk was viable as an absolute bar to recovery subsequent to adoption of comparative negligence. Synopsis of Rule of Law. The concept of comparative negligence eliminates the need for the affirmative defense of implied assumption of the risk. Facts. Three cases where consolidated by the Supreme Court of Florida to determine if the doctrine of implied assumption of the risk was viable as an absolute bar to recovery subsequent to adoption of comparative negligence. Issue. Is the doctrine of implied assumption of the risk still viable as an absolute bar to recovery subsequent to adoption of comparative negligence? Held. No. The affirmative defense of implied assumption of the risk is merged into the defense of comparative negligence. 1 In Hoffman v. Jones, 280 So.2d 431 (Fla1973), this Court held that contributory negligence would no longer be a complete bar to negligence, but rather would be considered in apportioning damages. However, in that case the court left the viability of assumption of the risk for a future day. The court notes that assumption of the risk is not a favored defense and that it generally serves no purpose not covered by the doctrine of contributory negligence or common law duty. Several categories of assumption of the risk have developed, including (i) distinctions between express and implied; (ii) between primary and secondary and (iii) between strict and implied. This Court's determination deals with implied assumption of the risk. Primary assumption of the risk occurs when the defendant is not negligent, either because he owed no duty to the defendant or because he did not breach a duty owed. The concept grew out of the master-servant relationship. This terminology is subsumed in the principle of negligence itself. Thus there is no useful purpose in retaining it. Secondary assumption of the risk is an affirmative defense to an established breach of duty owed by the defendant to the plaintiff. This defense can be further divided into strict and qualified assumption of the risk. Strict secondary assumption of the risk involves conduct, which is reasonable, but nonetheless bars recovery. The court found nothing in

223 Blackburn v. Dorta 1 either case law or justice to validate this rule under the modern comparative negligence scheme. 2 Qualified secondary assumption of the risk is conduct that is unreasonable and bars recovery. Such conduct can just as easily be characterized as contributory negligence. This Court holds that the principles of comparative negligence will be applied in any case where the defense of implied assumption of the risk is asserted.

Discussion. Express assumption of the risk is a contractual obligation such as a release signed by a plaintiff. This Court expressed no opinions on the subject.

224 Teeters v. Currey

Teeters v. Currey
Citation. 518 S.W.2d 512 (Tenn.1974). Brief Fact Summary. The Defendant, Currey (Defendant), negligently performed a surgery on the Plaintiff, Teeters (Plaintiff) that was intended to prevent future pregnancy. Plaintiff did not discover the negligence until three years later when she gave birth. Plaintiff sued and Defendant answered claiming the statute of limitations as a bar to recovery. Synopsis of Rule of Law. Under Tennessee law, the statute of limitations in medical malpractice actions begins to run when the plaintiff discovers, or reasonably should have discovered the negligent injury. Facts. On June 6, 1970 the Plaintiff underwent surgery at the advice of her doctor to prevent future pregnancy. On March 9, 1973, Plaintiff delivered a premature child, with severe complications. Plaintiff initiated a malpractice suit, alleging that the Defendant's previous surgery was negligently performed. This suit was initiated over three years after the operation, but approximately eleven months after discovering the pregnancy. The Defendant pleaded the statute of limitations in his answer. Issue. Was the trial court correct in holding that the cause of action accrues when the injury occurs, so as to begin the running of the statute of limitations? Held. No. Judgment reversed and remanded. 1 In Bodne v. Austin, [156 Tenn. 366, 2 S.W.2d 104 (1928)], the Court held that the failure to discover the existence of a cause of action did not prevent the running of the statute of limitations. However, this decision was outdated and the court felt it was time to re-examine its past holdings. The purpose of statutes of limitations is to promote stability and to avoid the burdens of defending stale claims. In recognition of these goals, the courts have traditionally held that an action begins to accrue immediately upon the infliction or occurrence of injury, regardless of a failure by the plaintiff to discover his cause of action. In response to the results of this harsh rule, a majority of American states have adopted the discovery doctrine. Under this doctrine, the statute does not begin to run until the negligent injury is, or should have been discovered. The court adopts the discovery rule for cases involving the negligent performance of surgical procedures, so that the statute of limitations commences to run when the patient discovers, or in the exercise of reasonable care and diligence for his own health and welfare, should have discovered the resulting injury.

Concurrence. Justice Harbison's concurrence is omitted.

225 Teeters v. Currey Discussion. The statute of limitations is a complete bar to actions. The time period by which to bring an action varies in length, with most states imposing a two or three year limitation for actions sounding in tort.

226 Freehe v. Freehe

Freehe v. Freehe
Citation. 81 Wash.2d 183, 500 P.2d 771 (1972). Brief Fact Summary. The Plaintiff, Clifford Freehe (Plaintiff), was injured on a negligently maintained tractor owned by the Defendant, Hazel Knoblauch (Defendant), his wife. Plaintiff had no interest in the tractor or the farming operation. Plaintiff brought suit, Defendant claimed interspousal immunity. Synopsis of Rule of Law. The Supreme Court of Washington abandoned the interspousal immunity rule, allowing spouses to bring suit against one another in tort. Facts. Plaintiff was injured on a tractor and sued for personal injuries. The tractor was the separate property of his wife, the Defendant, along with all of the assets and income of the farm on which the accident took place. Plaintiff has no interest in the farming operation, nor is he employed by the Defendant. Plaintiff brought suit, claiming negligent maintenance of the tractor and failure to warn of the tractor's unsafe condition. The trial court granted Defendant's motion for summary judgment based on interspousal tort immunity. Issue. Was the trial court correct to grant defendant summary judgment based on interspousal tort immunity? Held. No. Judgment reversed and remanded. 1 Interspousal immunity is a common law rule. It is based on the unity of husband and wife, whereby a wife essentially became the chattel of her husband upon marriage. This does not comport with modern reality and therefore is not a valid premise to continue to allow interspousal tort immunity. A second reason for interspousal immunity is the theory that tort suits would destroy the peace and tranquility of the home. However, this court believes that if a state of peace and tranquility exists, either no action will be commenced or the spouses will allow the action to continue only as long as their personal harmony is not in jeopardy. A third reason is that the injured spouse can resort to criminal and divorce laws. However, these alternatives fail to compensate for the damage done. It has also been argued that allowing such litigation would flood the courts with matrimonial disputes. This has not proved to be true in other States disallowing interspousal immunity. Defendant also argues that disallowing interspousal immunity would encourage collusion and fraud due to liability insurance. However, the

227 Freehe v. Freehe 1 courts will not immunize tortfeasors from liability in a whole class of cases due to the possibility of fraud. 2 Finally, defendant argues that any change in interspousal immunity is a matter for the legislature. Since the rule was not made or sanctioned by the legislature, this Court feels free to intervene in the matter. Therefore, the rule of interspousal immunity is abandoned.

Discussion. Interspousal immunity has been abandoned in a majority of states today.

228 Renko v. McLean

Renko v. McLean
Citation. 346 Md. 464, 697 A.2d 468 (Md.App.1997). Brief Fact Summary. The Plaintiff, Natasha Renko (Plaintiff), was seriously injured while a minor, when the Defendant, her mother Teresa McLean (Defendant) drove their car into the back of another vehicle. Plaintiff sued Defendant requesting that the court recognize an exception to the parent-child immunity doctrine. Synopsis of Rule of Law. The parent-child immunity doctrine disallows suits between children and parents for torts occurring during the child's minority. Facts. The Plaintiff suffered serious injuries when her biological mother, the Defendant drove the car both women were in into the back of another car. Plaintiff was seventeen at the time. Plaintiff filed suit for negligent operation of a motor vehicle after her eighteenth birthday. Her mother filed a motion to dismiss based on parent-child immunity and the trial court entered judgment in favor of Defendant. Issue. Should the court recognize an exception to the parent-child immunity doctrine, allowing emancipated children to file actions against their parents for injuries occurring in minority between fifteen and eighteen years of age? Held. No. Judgment affirmed. 1 The parent-child immunity doctrine serves to preserve the internal harmony and integrity of the family unit, to prevent fraud and collusion among family members and to prevent the threat that intra-familial litigation will deplete family resources. Plaintiff launches a three-pronged attack on the doctrine claiming that (1) adult children should be allowed to maintain actions against their parents for injuries occurring in their minority; (2) no contemporary justification exists to apply the doctrine to these facts based on the availability of compulsory motor vehicle liability insurance and (3) application of the doctrine violates Articles 19 and 24 of the Maryland Declaration of Rights and the Fourteenth Amendment to the United States Constitution (Constitution). In support of her first argument, Plaintiff points out that this Court has permitted suits between parents and minor children in limited circumstances, including suits by a minor child against a father's business partner and suits where the parent is guilty of acts which show complete abandonment of the parental relation. Plaintiff further contends that since this Court has already permitted children to maintain actions against their parents for acts occurring after the child reaches majority, the logical step is to permit actions for acts that occur during minority. This Court does not

agree, believing that to do so would result in de facto abrogation of the valuable parent-child immunity doctrine.

229 Renko v. McLean 1 Plaintiff also contends that the presence of mandatory automobile insurance causes there to be no rational objection to recovery by an emancipated child in these circumstances. A majority trend agrees with Plaintiff, finding that in these cases the action is not truly adversarial because both parties seek recovery from the insurance carrier. However, this Court notes that these suits create court situations that are not truly adversarial because the insured has every incentive to lose. Additionally, because of family medical insurance that would necessarily compensate the injured child, families may be saddled with judgments they cannot afford to pay. 2 This Court finds no merit in Plaintiff's contention that the parent-child immunity doctrine as applied to motor vehicle torts violates Articles 19 and 24 of the Maryland Declaration of Rights, along with the Fourteenth Amendment of the Constitution.

Discussion. Although the parent-child immunity doctrine has not been abolished to the same extent as the interspousal immunity doctrine, many courts allow for exceptions when the policies supporting it are inapplicable.

230 Abernathy v. Sisters of St. Mary's

Abernathy v. Sisters of St. Mary's

Citation. 446 S.W.2d 599 (Mis.1969). Brief Fact Summary. The Plaintiff, Abernathy (Plaintiff), allegedly sustained injuries when the Defendant, Sisters of St Mary's (Defendant), employee negligently failed to assist him as he moved from his bed to the bathroom. Plaintiff brought suit and the trial court granted Defendant's motion for summary judgment based on the doctrine of immunity for charitable organizations. Synopsis of Rule of Law. The reasons for the common law rule of immunity for nongovernmental charitable organizations are no longer applicable, therefore the Supreme Court of Missouri abolished the rule. Facts. The Plaintiff, Abernathy (Plaintiff), alleged that the Defendant's employee negligently failed to assist him as he moved from his bed to the bathroom. This negligence resulted in Plaintiff falling and sustaining multiple injuries. Defendant moved for summary judgment, claiming that its status as a charitable institution provided it with immunity for its torts. The motion was sustained and judgment was entered for the Defendant. Issue. Should nongovernmental charitable institutions be provided with immunity for actions resulting from their negligence and the negligence of their employees? Held. No. Judgment reversed and cause remanded. 1 The doctrine of immunity for charitable organizations arose from the belief that it was better for the individual to suffer than for society to be deprived of the benefits of the charity. But today charities are big business, with most carrying insurance to pay for torts. To continue to allow immunity is not only unjust to the injured, but tends to breed neglect and irresponsibility. Under the implied waiver theory, a person who accepts the benefit of a charity impliedly agrees not to assert any actions against the charity. However, this theory cannot be applied equally to all persons, especially considering that those admitted to a charitable hospital may be unconscious or under the age of consent. Under the trust fund theory because a charitable institution's funds are given and held for charitable purposes, they cannot be used to pay judgments resulting from tort claims. However, this theory deals only with the right to satisfaction of a judgment, therefore is not applicable to justify immunity from suit.

Concurrence. Justice Donnelly's concurrence is omitted.

231 Abernathy v. Sisters of St. Mary's Discussion. A substantial majority of states have now abolished the charitable immunity doctrine.

232 Ayala v. Philadelphia Board of Public Education

Ayala v. Philadelphia Board of Public Education

Citation. 453 Pa. 584, 305 A.2d 877 (1973). Brief Fact Summary. The Appellants, William Ayala and William Ayala Jr. (William Jr.) (Appellants), brought suit to recover damages after William Jr.'s arm was injured in a shredding machine during class. The Appellee, Philadelphia Board of Education (Appellee), asserted governmental immunity, and the Superior Court affirmed the defense. Synopsis of Rule of Law. The defense of governmental immunity is no longer applicable in Pennsylvania. Facts. The Appellants brought suit to recover damages for injuries sustained by William Jr. when his arm was caught in a shredding machine in the upholstery class of the Carrol School in Philadelphia. As a result of the injuries, William Jr.'s arm was amputated. The Appellee asserted the defense of governmental immunity. The Superior Court affirmed the defense, finding for Appellee. Issue. Should Pennsylvania continue to apply the doctrine of governmental immunity? Held. No. Judgment reversed and remanded. 1 The doctrine of governmental immunity has its historical roots in English law. The theory of respondeat superior created problems with government employees, as the courts routinely denied relief because the King, as employer, could commit no torts. This rule is unjust as applied to modern American law, applying the burden of damages on the single individual who suffers the injury, rather than distributing the damages among the entire community constituting the government. This Court also rejects the fear of excessive litigation as justification for the doctrine, as there is little empirical evidence to support the fear. Equally unpersuasive is the argument that governmental units lack the funds from which claims can be paid, as the availability of public insurance disavows such concerns. Additionally, allowing causes of action against governmental units should increase the concern for the welfare of those who might be injured by its actions.

Dissent. Chief Justice Jones's and Justice Eagen's and O'Brien's dissents are omitted. Concurrence. Justice Manderino's concurrence is omitted. Discussion. In jurisdictions where governmental immunity is still applicable, a number of courts have held that the state's authorization of a municipal corporation to purchase liability insurance serves as an implied waiver of immunity.

233 Riss v. New York

Riss v. New York

Citation. 22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897 (N.Y.appell.1968). Brief Fact Summary. The Plaintiff, Linda Riss (Plaintiff), was continuously harassed by a jilted lover, who eventually paid someone to throw lye in Plaintiff's face, seriously injuring her. Plaintiff asked for protection from the police on multiple occasions, but received little or no help. Synopsis of Rule of Law. Police authorities are not liable for failing to provide special protection to individuals threatened with harm. Facts. Plaintiff was continuously terrorized by an attorney, Burton Pugach (Pugach), who was in love with her. Pugach repeatedly threatened to kill or maim plaintiff. Plaintiff informed the police, but received little or no help. After Plaintiff became engaged to another man, she received a phone call telling her it was her last chance. Plaintiff again contacted police, but was again refused help. The next day a criminal hired by Pugach threw lye in Plaintiff's face, blinding her in one eye and permanently scarring her face. After the assault, Plaintiff received constant police protection for the next three and one half years. Plaintiff sued the Defendant, New York (Defendant), as a municipality for faailure to provide her with special protection due to her circumstances. A divided Appellate Division dismissed the complaint. Issue. Was the Appellate Division correct in determining that a municipality is not liable for failure to provide special protection when an individual is threatened with physical harm, and the individual does eventually suffer harm due to the lack of protection? Held. Yes. Judgment affirmed. 1 To allow Plaintiff's cause of action based on these facts would require this court to create a new and general duty of protection in the law of tort. This would have the effect of determining how limited police resources should be allocated without predictable limits. If any tort liabilities are imposed in this area, it should be the decision of the legislature.

Dissent. Judge Keating state that the city's argument is that since we owe a duty to everybody, we owe it to no one. The justification for not allowing a cause of action in this case is that it would expose the state and municipality to limitless liability. There is no empirical support for this claim. Indirectly, courts review administrative practices in almost every tort case against the State or a municipality and can do the same in the present case. Discussion. Unlike the present case, if police authorities undertake responsibilities to specific individuals and expose them to risks without adequate protection, tort actions are allowed.

234 DeLong v. Erie County

DeLong v. Erie County

Citation. 89 A.D.2d 376, 455 N.Y.S.2d 887 (1982). Brief Fact Summary. Emilia DeLong (Ms. DeLong) called 911 and in response to her report of an intruder was assured that help was on the way. Police were directed to an incorrect address and Ms. DeLong was stabbed to death. After Ms. Delong's death, the Respondents, Dennis S. DeLong, Individually and as Administrator of the Estate of DeLong (Respondents), brought suit. Synopsis of Rule of Law. When a municipality voluntarily assumes a duty and negligently performs the duty, the municipality may be held liable if its conduct somehow increased the risk to defendant. Facts. Ms. DeLong called 911 and reported an intruder attempting to break into her house. The person taking her call assured her that help was on the way, but incorrectly recorded Ms. DeLong's address. Ms. DeLong was stabbed to death by the intruder. Evidence suggested that her life may have been saved if police had not been misdirected. Respondents brought suit against the Appellants, including Erie County (Appellants). Issue. When a municipality assumes a duty to a particular person, is the municipality liable if it fails to perform in a non-negligent manner? Held. Yes. Judgment affirmed. 1 In addition to incorrectly recording Ms. DeLong's address, the call taker failed to follow several instructions. Including (i) not asking for the name of the caller; (ii) not determining the exact location of the call; (iii) not addressing the caller by name and (iv) not repeating the address. Additionally, in violation of operating procedures, no follow up action was taken when the report came back as no such address. The establishment of the emergency call system does not create a duty. However, the holding out of the 911 number as one to be called by those in need, Ms. DeLong's placing of the call in reliance on this and her further reliance when she was assured that help was on the way, does create a duty. The voluntary assumption of a duty to act in this case creates an obligation to act with reasonable care. Respondents remind this Court that failing to provide police protection does not result in liability unless the police conduct in some way increased the risk. While this is true, circumstantial evidence suggests that Ms. DeLong waited in her house for a response to the 911 call, rather than taken other protective measures.

Discussion. In contrast to the facts in Riss v. City of New York, [22 N.Y.2d 579, 240 N.E.2d 860, 293 N.Y.S.2d 897 (N.Y.appell.1968)] in the present case Respondent

235 DeLong v. Erie County voluntarily assumed a duty and its failure to act with reasonable care increased the risk to Ms. Delong.

236 Deuser v. Vecera

Deuser v. Vecera
Citation. 139 F.3d 1190 (8th Cir.1998). Brief Fact Summary. Albert Deuser (Mr. Deuser), found to be drunk and obnoxious at a fair, was arrested and then released by National Park Rangers. After being released, Mr. Deuser wandered into a street and was killed. The Appellants, Mr. Deuser's survivors (Appellants), brought a claim against the Appellees, the United States and certain individuals including David Vecera (Mr. Vecera)(Appellees), under the Federal Tort Claims Act (FTCA). Synopsis of Rule of Law. The discretionary function exception to the FTCA disallows civil suit against the United States when the conduct complained of was based upon the exercise of a discretionary function or duty. Facts. National Park Rangers were working a fair held on the grounds of the Jefferson National Expansion Memorial in St. Louis. Rangers Mr. Vecera and Edward Bridges observed Mr. Deuser grabbing women on the buttocks. The rangers warned Mr. Deuser and then arrested him when he urinated in public. The rangers attempted to turn Mr. Deuser over to the St. Louis police, but they were unable to process Mr. Deuser's arrest due to their workload. The rangers decided to release Mr. Deuser away from the fair in a parking lot. Mr. Deuser was left without money or transportation. At some time he was killed by a motorist after wandering onto an interstate highway. At the time of Ms. Deuser's death, his blood alcohol content was 0.214. The Appellants brought this wrongful death action against the Appellees under the FTCA based on the allegedly negligent acts of the park rangers. The trial court judge dismissed the case. Issue. Did the action of the park rangers fall under the discretionary function exception to the FTCA, so as to disallow a civil suit against the United States? Held. Yes. Judgment affirmed. 1 In enacting the FTCA, Congress chose to waive the sovereign immunity enjoyed by the United States and give consent to be sued for damages caused by the negligent or wrongful act or omission of any employee of the United States acting within the scope of their employment. However, under the discretionary function exception, the government is shielded from civil liability for claims based on the exercise of a discretionary function whether or not the discretion involved is abused. The Court first considered if the actions taken by the rangers were discretionary, or, a matter of choice. For their guidance, the rangers had a written Standard Operating Procedure (SOP) for arrests and the VP Fair Operations Handbook (Handbook). The Handbook made it clear that the rangers had wide latitude in making enforcement decisions and that arrests

237 Deuser v. Vecera 1 would be made only on a last resort basis due to the limited manpower available. 2 Under the SOP, the process for arrests is precise and mandatory. When the rangers first arrested Mr. Deuser, the SOP was followed. After that it was not followed, but releasing Mr. Deuser terminated the arrest. The court concluded that terminating an arrest is similar to the decision involved in making an arrest. Due to the infinite number of possible scenarios, decisions of this kind must be within the discretion and judgment of officers. The Court then determined if the judgment involved in terminating Mr. Deuser's arrest was of the kind the discretionary function exception was designed to shield. Based on the Handbook and the SOP, the court held that the officer's conduct was grounded in social, economic, and political policies and is a classic example of permissible exercise of policy judgment.

Discussion. Claims in tort against the Federal Government are a major source of litigation today.

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239 Bussard v. Minimed, Inc.

Bussard v. Minimed, Inc.

Citation. 129 Cal.Rptr.2d 675, 105 Cal. App. 4th 798 Brief Fact Summary. After being exposed to a pesticide, an employee of a company left work early, complaining of dizziness and lightheadedness. On her way home, the employee was involved in a car accident. Synopsis of Rule of Law. The 'going-and-coming rule' refers to how courts have not construed the scope of the respondeat superior doctrine to reach an employee's daily commute. Facts. The Defendant, Minimed, Inc. (the "Defendant"), hired a pest control company to rid its facility of fleas. The pest control company came one night. The next morning, one of the Defendant's employees, Irma Hernandez ("Ms. Hernandez"), felt ill and left work early. Prior to leaving, Ms. Hernandez told one of her supervisors she felt ok to drive. Nine other workers went home early that day after complaining they felt ill. On the way home, Ms. Hernandez rear ended the Plaintiff, Barbara Bussard (the "Plaintiff"). When the police arrived, Ms Hernandez complained she felt dizzy and lightheaded before the accident. The Plaintiff brought suit against Ms. Hernandez, alleging negligent driving, and against the Defendant, alleging vicarious liability pursuant to the respondeat superior doctrine. As to the vicarious liability cause of action, the Plaintiff alleged that Ms. Hernandez was acting within the scope of her employment when driving home with pesticide exposure. The trial court granted the Defendant summary judgment according to the "going-and-coming" rule. Issue. Did the 'going-and-coming' rule apply to the facts in this case? Held. No. "Under the doctrine of respondeat superior, an employer is ordinarily liable for the injuries its employees cause others in the course of their work. Respondeat superior imposes liability whether or not the employer was itself negligent, and whether or not the employer had control of the employee. The doctrine's animating principle is that a business should absorb the costs its undertakings impose on others." The respondeat superior doctrine "requires that the employee be acting within the course of her employment, which case law defines expansively." Accordingly, "acts necessary to the comfort, convenience, health, and welfare of the employee while at work, though strictly personal and not acts of service, do not take the employee outside the scope of employment." Additionally, "where the employee is combining his own business with that of his employer, or attending to both at substantially the same time, no nice inquiry will be made as to which business he was actually engaged in at the time of injury, unless it clearly appears that neither directly nor indirectly could he have been serving his employer." ' An employer can be found liable for both its employees negligence and willful and malicious torts. 1 Courts have not construed the scope of the respondeat superior doctrine to reach an employee's daily commute. This is referred to as the 'going-and-

240

Bussard v. Minimed, Inc.

coming rule'. This rule is not absolute and has various exceptions. One of which applies when "an employee endangers others with a risk arising from or related to work." The applicable standard to determine whether this rule applies, is a foreseeability standard. "'[F]oreseeability' as a test for respondeat superior merely means that in the context of the particular enterprise an employee's conduct is not so unusual or startling that it would seem unfair to include the loss resulting from it among other costs of the employer's business." Based on these principles, the court observed that a car accident stemming from the "breathing [of] lingering pesticide fumes for several hours" is foreseeable. In other words, an employee may not be in a position to drive after being exposed to such fumes. As such, the trial court's decision was incorrect. Further, "[a]lthough [Ms.] Hernandez's decision to drive home gave [the Defendant] an opening to raise the going-and-coming rule, the rule did not apply because her decision was a fortuity that must not obscure [the Plaintiff's] central claim that [Ms.] Hernandez's job had contributed to the accident."

Discussion. This case illustrates how courts apply the 'going-and-coming rule' when an employee is driving.

241

O'Shea v. Welch

O'Shea v. Welch
Citation. 350 F.3d 1101 (10th Cir. 2003) Brief Fact Summary. A store's employee got into an accident while driving to a district office to deliver football tickets. Synopsis of Rule of Law. The factors courts examine when "determining whether an employee has embarked on a slight or substantial deviation" include "(1) the employee's intent; (2) the nature, time, and place of the deviation; (3) the time consumed in the deviation; (4) the work for which the employee was hired; (5) the incidental acts reasonably expected by the employer; and (6) the freedom allowed the employee in performing his job responsibilities." Facts. The Defendant, John Welch (the "Defendant"), managed an Osco store. The Defendant was driving to the Osco District office to deliver football tickets obtained from a vendor, for distribution to Osco managers. While driving to the District office, the Defendant made a decision to pull over to a service station, and while turning into the service station, he hit the Plaintiff, O'Shea (the "Plaintiff"). The Plaintiff sued the Defendant for negligence and Osco for vicarious liability. The District Court found that no jury could conclude that the Defendant was acting within the scope of his employment. Issue. Whether the Defendant's conduct evidences a slight or substantial deviation? Held. According to "Kansas law, an employer is only liable for injuries caused by an employee acting within the scope of his employment." The court relied upon a jury instruction to illustrate Kansas's vicarious liability law. The instruction stated "An employee is acting within the scope of [his employment] when [he] is performing services for which [he] has been [employed], or when [he] is doing anything which is reasonably incidental to [his employment]. The test is not necessarily whether this specific conduct was expressly authorized or forbidden by the employer[ ], but whether such conduct should have been fairly foreseen from the nature of the [employment] and the duties relating to it." The Plaintiff argued that the court should adopt the "slight deviation" rule which it had previously done in workers compensation matters. This analysis requires the deciding authority to determine "whether the employee was on a frolic or a detour; the latter is a deviation that is sufficiently related to the employment to fall within its scope, while the former is the pursuit of the employee's personal business as a substantial deviation from or an abandonment of the employment." Further, "If an employee wholly abandons, even temporarily, the employer's business for personal reasons, the act is not within the scope of employment, and the employer is not liable under respondeat superior for the employee's conduct during that lapse. A diversion from the strict performance of a task is not an abandonment of responsibility and service to an employer, unless the very character of the diversion severs the employment relationship. Acts that are necessary to the comfort, convenience, health, and welfare of the employee

242 O'Shea v. Welch while at work are not outside the scope of employment, if the conduct is not a substantial deviation from the duties of employment." 1 The court adopted a "slight deviation analysis" for this class of cases and determined that it was a jury question. Courts have identified several factors to be examined when conducting a "slight or substantial deviation" analysis. The factors include: "(1) the employee's intent; (2) the nature, time, and place of the deviation; (3) the time consumed in the deviation; (4) the work for which the employee was hired; (5) the incidental acts reasonably expected by the employer; and (6) the freedom allowed the employee in performing his job responsibilities." The court observed that the purpose for the Defendant's stop on the side of the road was to "get an estimate for non-emergency maintenance on a car used for business." The court concluded that "[w]hile his stop was not for emergency maintenance for his car, his stop for routine maintenance on a car used for business purposes could be considered enough of a mixed purpose by a jury to keep him within the scope of his employment with Osco." Additionally, the court observed "[i]n terms of time and place, the accident occurred minutes and feet from the direct route to Osco's District Office." Further, "[b]ecause the accident occurred on this road, not at the service station, a jury could decide that Mr. Welch had not yet abandoned his employment for a personal errand at the time of the accident." Moreover, "[a] jury could find that an employee in a managerial position was given some freedom to attend to certain personal needs throughout the day." The court held "that a reasonable jury could conclude that [the Defendant] was acting within the scope of his employment when he attempted to turn into the service station."

Discussion. This case illustrates how difficult it is to determine the scope of an individual's employment.

243

Murrell v. Goertz

Murrell v. Goertz
Citation. 597 P.2d 1223 (Okla.Appell.1979). Brief Fact Summary. The Appellant, Murrell (Appellant) and Bruce Goertz (Goertz) had an altercation that resulted in Goertz striking Appellant. The Appellant sued Goertz and the Appellee, his employer Oklahoma Publishing Company (Appellee), claiming that Appellee was liable under respondeat superior. Appellee and Goertz claim that Goertz was an independent contractor. Synopsis of Rule of Law. Those who employ independent contractors are not liable under the doctrine of respondeat superior. Facts. Goertz made a monthly collection for the delivery of Appellee's newspaper at the Appellant's home. Appellant questioned Goertz regarding damage done to his screen caused by the carrier throwing the newspaper into it. An argument began and Appellant slapped Goertz, who then struck the Appellant, injuring him. Appellant claimed that Goertz was a servant of Appellee either by agreement between the co-defendants or by Appellee creating that belief in Appellant. Both Appellee and Goertz denied that Goertz was Appellee's servant. Issue. Was Goertz an independent contractor rather than a servant, thus removing Appellee from liability under respondeat superior? Held. Yes. Judgment affirmed. 1 An independent contractor performs a certain service for another according to his own methods and manner, with no control from his employer except as to the result of the services. The decisive test for differentiating between an independent contractor and a servant is the right to control the physical details of the work. Appellant cites several policies that Goertz had to abide by in support of his argument that he was the servant of Appellee. Appellee points out that Goertz had no contact with Appellee and Westbrook, an independent newspaper distributor for Appellee, stated that Goertz was responsible only to him. This court finds that Goertz was hired as an independent carrier salesman by Westbrook, who was also an independent contractor. The policies of Appellee do not rise to the level of supervision to make Goertz Appellee's servant.

Discussion. Independent contractors do their work on their own time, under no one's direction, but their own.

244

Maloney v. Rath

Maloney v. Rath
Citation. 69 Cal.2d 442, 445 P.2d 513, 71 Cal Rptr. 897 (1968). Brief Fact Summary. The Defendant, Ramona M. Rath's (Defendant) collision with the Plaintiff, Kathleen Maloney (Plaintiff) was caused by a mechanic's negligent effort to repair her brakes. The trial court rendered judgment in favor of the Defendant and the Plaintiff appealed, claiming that the brake repair was a nondelegable duty. Synopsis of Rule of Law. Generally when an activity carries the risk of death or serious bodily injury on cannot avoid liability for negligent maintenance by delegating the maintenance to an independent contractor. Facts. The Defendant collided with the car of the Plaintiff. The accident was caused by brake failure. Three months earlier the Defendant had her brakes overhauled by Peter Evanchik (Mr. Evanchik), a mechanic. The trial court determined that Mr. Evanchik's negligent repair effort was the cause of the accident and rendered judgment if favor of Defendant. Plaintiff appealed. Issue. Can a Defendant car owner delegate the responsibility of making a brake repair to an independent contractor? Held. No. Judgment reversed and remanded. 1 Under strict liability, nondelegable duties exist to assure that injured parties will be compensated by the person who caused the harm and may be held liable for the negligence of his agent, regardless of whether the agent was an employee or independent contractor. The Restatement of Torts 423 and 424 provide that individuals who employ independent contractors to maintain instrumentalities that carry a risk of serious bodily harm or death or who employ contractors to provide for safeguards that the individual was under a statutory or regulatory duty to provide, are subject to liability for the negligence of the contractor. These sections suggest that a nondelegable duty is appropriate in this case. The responsibility for minimizing the risk in this case falls on the car owner. The owner was primarily benefited by the use of the car. The owner chooses the contractor and can insist on one that is financially responsible so the owner can demand indemnity. The owner's liability insurance properly distributes the costs.

Discussion. Another common duty that is generally considered nondelegable is a hospital's duty to provide emergency room care.

245

Popejoy v. Steinle

Popejoy v. Steinle
Citation. 820 P.2d 545 (Wym.1991). Brief Fact Summary. Connie Steinle (Ms. Steinle) and her daughter, while they were on the way to buy a calf, were involved in a car wreck with Richard Popejoy (Mr. Popejoy). Ms. Steinle was killed in the accident. The Plaintiffs, Mr. Popejoy and Doris Popejoy (Plaintiffs) brought a suit against the Defendants, personal representatives of Ms. Steinle's husband's estate (Defendants), under a joint venture theory. Synopsis of Rule of Law. An interest in profit is necessary in order to impose vicarious liability on a party based on a joint venture theory. Facts. Ms. Steinle, accompanied by her daughter and niece, were traveling to Douglas, Wyoming to buy a calf for the daughter to raise on their ranch. During the trip, the truck Ms. Steinle was driving collided with a vehicle driven by Mr. Popejoy. Ms. Steinle was killed in the accident and Mr. Popejoy suffered injuries diagnosed as a muscle strain. Approximately fifteen months later, Mr. Popejoy underwent two neurosurgeries to fuse cervical vertebrae in response to continued pain in his neck and back. Mr. Popejoy unsuccessfully tried to reopen Ms. Steinle's estate, which had been probated and closed a year earlier. Plaintiffs then filed a creditor's claim against the estate of Ms. Steinle's husband, William Steinle (Mr. Steinle), whom had died in the interim. After this claim was rejected, Plaintiffs filed a claim against the Defendants, claiming that Mr. and Mrs. Steinle were engaged in a joint venture when Ms. Steinle embarked on her business trip to pick up the daughter's calf. Issue. Can the trip to pick up Ms. Steinle's daughter's calf be characterized as a joint venture with her husband, so as to impose vicarious liability on the Defendant's representatives? Held. No. Judgment affirmed. 1 The terms joint venture and joint enterprise may be used interchangeably in situations such as the facts at hand. The burden of establishing the existence of a joint venture is upon the party asserting that the relationship exists. The Restatement of Torts [Restatement (Second) of Torts 491 comment c at 548 (1965)] establishes four elements of a joint venture as: "(1) an agreement, express or implied, among the members of the group; (2) a common purpose to be carried out by the group; (3) a community or pecuniary interest in that purpose, among the members; and (4) an equal right to voice in the direction of the enterprise, which gives a right of equal control."

Based on this statement and previous case law, an element of business, commercial or profit motive, is a requisite for a joint venture. Evidence in support of the Defendant's motion for summary judgment suggests that

246

Popejoy v. Steinle

Mr. Steinle did not ordinarily have any ownership interest in the cattle that his daughters and wife raised and owned. Also, that the sales proceeds from other livestock raised by the Steinle daughters in the past went directly to the children. This evidence satisfied the requirement of establishing the nonexistence of any genuine issue of material fact as to whether Mr. and Mrs. Steinle were engaged in a joint venture. The burden then shifts to the party opposing summary judgment. Plaintiff submitted evidence from a certified public accountant convinced that Mr. and Mrs. Steinle were engaged in a joint venture. However, the judge believed that only a pecuniary interest and not an interest in profit was needed to show the existence of a joint venture. No testimony suggested that anyone, but the daughter, had any pecuniary or financial interest in the calf the mother and daughter were on the way to purchase the day of the accident. The record shows that this trip was a family undertaking. This holding avoids the imposition of a commercial concept upon relationships not having these characteristics.

Discussion. A joint enterprise or venture allows for vicarious liability to imposed on parties to the venture based upon theories of agency.

247

Shuck v. Means

Shuck v. Means
Citation. 302 Minn. 93, 226 N.W.2d 285 (1974). Brief Fact Summary. An automobile owned by Hertz, leased to George A. Codling (Codling) and driven by David Lynn Means (Means) struck an automobile in which Shuck was a passenger. Means was uninsured and the parties stipulated he had been negligent. Synopsis of Rule of Law. Under the Minnesota Safety Responsibility Act (the Act), when an owner gives permission to another to drive his car, who in turn gives permission to a third party, the owner will be liable for accidents caused by the third person. Facts. An automobile owned by Hertz, leased to Codling and driven by Means, struck an automobile in which the Shuck was a passenger. Means was uninsured and the parties stipulated that he had been negligent. Issue. Is a car rental agency liable under the Act when one of its cars is leased to one person, but operated by another in violation of the rental agreement? Held. Yes. Judgment affirmed. 1 Under the Act [Minn.St.1965, 170.54], an owner-consent statute was enacted establishing liability in the owner of a vehicle for accidents caused by another driving the vehicle with the owners' express or implied consent. The purpose of the Act was to give injured persons more assurance of recovery and to encourage owners to purchase appropriate liability insurance. In Foster v. Bock, 229 Minn. 428, 39 N.W.2d 862 (1949), this Court held that it would not read into the statute that the particular driver must be known by and his driving consented to by the owner. Proving a lack of consent when a permittee allows a subpermittee to drive requires a showing either that the car was being used by a permittee without the owner's knowledge and contrary to his explicit instructions, or that the subpermittee was driving without the permission of the permittee under conditions that approach conversion or theft. Neither of these situations is apparent under the present facts.

Discussion. The need for owner-consent statutes has lessened because of "omnibus clauses" in standard automobile liability insurance clauses, providing that the insurance applies to anyone using the automobile with the permission of the owner.

248

Smalich v. Westfall

Smalich v. Westfall
Citation. 440 Pa. 409, 269 A.2d 476 (1970). Brief Fact Summary. A car driven by the Defendant, Felix Rush Westfall (Defendant), was involved in an accident. The owner of and a passenger in the vehicle driven by Defendant was killed in the accident. The Plaintiffs, Marco Smalich, Executor of the Estate of Julia Smalich (Plaintiff), the deceased and other family members brought suit. The trial court determined that recovery could not be allowed because the contributory negligence of the Defendant must be imputed to the owner. Synopsis of Rule of Law. This Court determines that contributory negligence will not be imputed to the owner-passenger of a car, when the owner-passenger is the plaintiff. Facts. A vehicle, owned by Julia Smalich and operated by the Defendant collided with another vehicle driven by Stephanna Louis Blank (Blank). Julia Smalich died as a result of the accident. The Plaintiffs brought suit against both the Defendant and Blank. The trial jury found that Defendant's negligent operation of the automobile was a proximate cause of the accident. The court en banc ruled that the contributory negligence of the Defendant must be imputed to the owner of the vehicle, Julia Smalich as a matter of law and that this precluded recovery. Issue. Should a driver's negligence be imputed to a passenger, so as to bar the passenger from recovery? Held. No. Judgment vacated and record remanded. 1 Only a master-servant or joint enterprise relationship should justify the imputation of contributory negligence on a car passenger. In the ordinary situation, it is clear that the passenger has no control over the physical acts of the driver. It seems more reasonable to assume that a mutual understanding exists between an owner-passenger and driver that driver will use ordinary care and skill in driving, while remaining subject to the commands of the owner-passenger in regard to things such as destination.

Concurrence. Justice Roberts said I am pleased that the Court partially repudiated the imputed contributory negligence doctrine. However, courts have often failed to discern the difference between imputing negligence when the owner-passenger is the defendant and using it to impute contributory negligence when the owner-passenger is the plaintiff. There is no justification for imputing contributory negligence in the second scenario. Discussion. The discussion in the opinion refers to the so called "both-ways test", whereby courts found that if negligence can be imputed, contributory negligence will also be imputed. This test has been under a slow, but steady attack.

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250 Rylands v. Fletcher

Rylands v. Fletcher
Citation. In the Exchequer Chamber, L.R. 1 Ex. 265, (1886). Brief Fact Summary. Defendants constructed a reservoir to supply their mill. The reservoir flooded a mine worked by plaintiff, through no fault of defendant. Synopsis of Rule of Law. When a non-natural use of land is made, the defendant is absolutely responsible for damages occurring to others due to the non-natural use. Facts. Defendants were the owners of a mill. They constructed a reservoir on the land of Lord Wilton nearby. Plaintiff was under lease from Lord Wilton to work coal mines on land close to, but not adjoining the reservoir. The defendants employed a competent engineer and contractors to plan and construct the reservoir. Old mine workings laid beneath the reservoir, but defendants were under no personal fault in its construction. Within a few days of final construction, one of the old mine shafts gave way and burst downward, letting water into the plaintiff's mine. Issue. Does the defendant owe an absolute duty to plaintiff for injuries that occur from the non-natural use of defendant's land? Held. Yes. Judgment affirmed. 1 Justice Blackburn stated the plaintiff, though free from all blame, must bear the loss in this case unless he can establish it was somehow the fault of defendants. When a person brings something on his land that is harmless as long as it remains there, but will naturally do mischief if it escapes, he is liable for all natural consequences if it does escape. This is true unless he can show the escape was plaintiff's fault, or perhaps the consequence of vis major or an act of God. Lord Chancellor Cairns stated that if there had been a natural accumulation of water on the defendant's land that escaped and did mischief, plaintiff could not complain. Rather, it would be plaintiff's duty to stop the flow of water from defendant's to plaintiff's land if he needed to do so. However, when the use is a non-natural one, as in the present case, the defendants act at their own peril and are absolutely responsible for the result of their actions.

Concurrence. Lord Cranworth's concurrence is omitted. Discussion. The non-natural use of land determination looks not only to the activity in question, but also to the place and manner where it is maintained.

251 Miller v. Civil Constructors, Inc.

Miller v. Civil Constructors, Inc.

Citation. 272 Ill. App. 3d 263, 651 N.E.2d 239 (Ill. App. 2 Dist. 1995) Brief Fact Summary. An individual was injured after being struck by a bullet near a firing range. Synopsis of Rule of Law. The factors courts examine when analyzing whether an activity is ultrahazardous include: the "(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes." Facts. The Plaintiff, Gerald Miller (the "Plaintiff"), was shot during firearm practice by a stray bullet. The Plaintiff alleged that the Defendants, Civil Constructors, Inc. (the "Defendants"), "were strictly liable for injuries to plaintiff arising from purportedly 'ultrahazardous' activity for which defendants were legally responsible either because of their control of the premises or their discharge of firearms." Issue. "[W]hether the use of firearms ought to be classified as an ultrahazardous activity"? Held. The court observed, "[o]ur review of the authorities thus discloses that the discharge of firearms resulting in injury ordinarily presents a question of negligence and that the standard of care is ordinary care--one which may be equated to a high degree of care because of the particular circumstances presented." The court then expressly "adopt[ed] the use of the Restatement principles and factors as an aid in deciding this type of question." Section 519 of the Restatement read "[o]ne who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm." Section 520 of the Restatement lists several factors, which must be considered in determining whether an activity is ultrahazardous. Those factors include the "(a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes." All the factors do not have to be present for an activity to be deemed ultrahazardous, but more than one must be. "The essential question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability even though the activity is carried on with all reasonable care." Public policy considerations must also be considered.

252 Miller v. Civil Constructors, Inc. 1 The court observed "[t]he use of guns or firearms, even though frequently classified as dangerous or even highly dangerous, is not the type of activity that must be deemed ultrahazardous when the above-stated criteria are taken into consideration." The court then stressed four reasons for this conclusion. First, "the risk of harm to persons or property, even though great, can be virtually eliminated by the exercise of reasonable or even 'utmost' care under the circumstances". Second, "the use of firearms is a matter of common usage and the harm posed comes from their misuse rather than from their inherent nature alone." Third "the activity in this case was carried on at a firing range in a quarry located somewhere near the City of Freeport." Fourth and finally, "the target practice is of some social utility to the community; this weighs against declaring it ultrahazardous where the activity was alleged to have been performed by law enforcement officers apparently to improve their skills in the handling of weapons." Discussion. If an activity is deemed ultrahazardous, strict liability is imposed and the elements of negligence need not be proven.

253 Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.

Indiana Harbor Belt R.R. Co. v. American Cyanamid Co.

Citation. 916 F.2d 1174 (7th Cir. 1990). Brief Fact Summary. The Defendant, American Cyanamid Co. (Defendant) manufactured a dangerous chemical, which was spilled during transportation. The Plaintiff, Indiana Harbor Belt R.R. Co. (Plaintiff) sued the Defendant, claiming that the transportation of the chemical was an abnormally dangerous activity. Synopsis of Rule of Law. The determination of whether an activity is abnormally dangerous depends on the application of several factors, including if accidents cannot be prevented by the exercise of ordinary due care. Facts. Defendant was a major manufacturer of chemicals, including acrylonitrile. Acrylonitrile is flammable at temperatures above 30 degrees Fahrenheit, is highly toxic, and possibly carcinogenic. Defendant leased railroad cars to transport acrylonitrile to purchasers. When one of these cars arrived at the Blue Island yard just south of Chicago, it was noticed that acrylonitrile was gushing out of a bottom outlet on the car. Although only about of a quarter of the acrylonitrile escaped, the Illinois Department of Environmental Protection ordered the Plaintiff switching line to take decontamination measures costing $981,022.75. One count of the complaint asserted that the transportation of acrylonitrile in bulk through the Chicago metropolitan area is an abnormally dangerous activity. The trial court found that strict liability applied and granting summary judgment in favor of Plaintiff on that count. Issue. Is the shipper of a hazardous chemical by rail strictly liable for the consequences of a spill or other accident to the shipment? Held. No. Judgment reversed and remanded. 1 The question addressed here is a question of law, so no special deference is granted to the trial court conclusion. Under the Restatement [Restatement (Second) of Torts 520 (1977)] six factors are considered in deciding if an activity is abnormally dangerous: (1) is the probability of the harm great; (2) is the harm that would ensue if the risk materializes great; (3) can such accidents not be prevented by the exercise of due care; (4) is the activity not a matter of common usage; (5) was the activity inappropriate to the location where it took place; (6) is the value of the activity to the community high. According to the evidence, acrylonitrile is the fifty-third most hazardous chemical transported in high volume on the nation's railroads. Therefore, the trial court's opinion would effectively dictate strict liability for all fiftytwo materials that rank higher.

254 Indiana Harbor Belt R.R. Co. v. American Cyanamid Co. 1 Additionally, this Court has been given no reason for believing that a negligence standard is not adequate to remedy accidental spillage. In this case, it seems clear that the leak was caused by carelessness. Plaintiff also makes much of the fact that the spill occurred in a densely inhabited area. However, the hubs of the railroad network are generally located in metropolitan areas. Even if rerouting were feasible, it would be more appropriate to place such a burden on the carriers rather than the shippers. 2 Unlike storage cases dealing with abnormally dangerous activities, in this case it is the manufacturers, rather than the actors, who are sought to be held strictly liable. Abnormally dangerous activities are a property of activities rather than substances in the contemplation of the law.

Discussion. Courts have ruled numerous activities abnormally dangerous in various cases, including: pile driving, crop dusting, rocket testing, fireworks displays, hazardous waste disposal, and oil wells.

255 Foster v. Preston Mill Co.

Foster v. Preston Mill Co.

Citation. 44 Wash.2d 440, 268 P.2d 645 (1954). Brief Fact Summary. Vibrations from the Defendant, Preston Mill Co's (Defendant), blasting operations caused the Plaintiff, B.W. Foster's (Plaintiff) mother mink to kill her kittens. Plaintiff brought an action against Defendant claiming absolute liability. Synopsis of Rule of Law. When strict liability is applicable, it will be confined to the consequences, which lie within the extraordinary risk created by the abnormally dangerous activity. Facts. The Defendant conducted blasting operations that frightened a mother mink owned by the Plaintiff and caused the mink to kill her kittens. Plaintiff brought an action against Defendant claiming that Defendant was absolutely liable. The trial court found for Plaintiff on the theory that once Defendant received notice of the effect its blasting operations were having on the mink, it was absolutely liable for all damages thereafter sustained. Issue. Is Defendant liable for the death of the kittens under a theory of absolute liability? Held. No. Judgment reversed. 1 Strict liability is often imposed in blasting cases. However, the strict liability should be confined to consequences lying within the extraordinary risk of the abnormally dangerous activity. The extraordinary risk in this case is not a risk that vibrations from the blast will cause wild animals to kill their young. In fact, it was found by the trial court that Defendant's blasting was not a nuisance to anyone except for Plaintiff's mink ranch. Therefore, the exceedingly nervous disposition of the mink must be the responsibility of the loss sustained.

Discussion. Although blasting is generally considered an abnormally dangerous activity, courts generally will not apply strict liability to hypersensitive reactions to these activities.

256 Golden v. Amory

Golden v. Amory
Citation. 329 Mass. 484, 109 N.E.2d 131 (1952). Brief Fact Summary. The Plaintiffs, Golden and others (Plaintiffs), claim that Defendant, Amory's (Defendants), negligence in maintaining a dike caused them real estate damage after a hurricane resulted in a flood. Synopsis of Rule of Law. Plaintiffs are not responsible under strict liability theories when the damage caused was an unanticipated act of God. Facts. The Defendants owned a hydroelectric plant. A hurricane caused the river on which the plant was located to overflow and damage the real estate of the several Plaintiffs. Plaintiffs brought suit claiming that negligence in the maintenance of the Alden Street dike on the part of Defendants resulted in the damage to plaintiff's real estate. Issue. Are Defendants liable for maintaining a non-natural land use and the resulting damage that occurred from this use? Held. No. Exceptions overruled. 1 Plaintiffs rely on the rule stated in Rylands v. Fletcher, In the Exchequer Chamber, L.R. 1 Ex. 265, (1886), stating that a person is prima facie liable for the escape of things that he collects on his lands. However, Rylands clearly states that the rule does not apply to injury resulting from the act of God. The hurricane and resulting flood in this case was clearly an act of God.

Discussion. Because Plaintiffs were unable to anticipate the damages, it would be against policy to hold them liable even under strict liability because nothing could have further prevented the damages.

257 Sandy v. Bushey

Sandy v. Bushey
Citation. 124 Me. 320, 128 A. 513 (1925). Brief Fact Summary. The Plaintiff, Sandy (Plaintiff), was injured when he was kicked by the Defendant, Bushey's (Defendant), horse. Defendant knew that the horse had vicious propensities. Synopsis of Rule of Law. Contributory negligence is not a bar to recovery for an action in strict liability. Facts. The Plaintiff turned his mare and colt out in the pasture of a neighbor, which was occupied by other horses, including the Defendant's three-year old colt. Plaintiff went to the pasture to grain his mare and was kicked by defendant's horse, seriously injuring him. Plaintiff brought this action to recover damages. Issue. Is Defendant liable for Plaintiff's injuries even if Plaintiff displayed contributory negligence? Held. Yes. Motion overruled. 1 Under the common law, the owners of domestic animals are not responsible for injury done by them in a place they have a right to be unless the owner knew of the animal had a vicious disposition. However, if plaintiff proves the keeping of an animal, the animal's vicious propensities and scienter on the part of the owner, the owner is strictly liable for injuries that occur. The evidence in this case suggests that Defendant's horse had exhibited a vicious and ugly disposition and that Defendant was on notice of this disposition. The Defendant in response claims that Plaintiff cannot recover because he is guilty of contributory negligence. In this state, contributory negligence is not a defense to an action for strict liability. Because negligence is unnecessary to find liability, something more than slight negligence or want of due care on the part of the injured party is required to bar recovery. The facts must establish that the injury was caused by the injured party unnecessarily and voluntarily placing himself in the way of harm knowing the probable consequences of his act, rather than by the keeping of the vicious animal. The facts in this case do not allow for such a conclusion.

Discussion. Statutory sanction of a defendant's conduct often is held to confer immunity from strict liability, such as in the case of injuries caused by dangerous animals at a zoo.

258

C H A P T E R X V . P r o d u c t s L i a b i

l i t y

259 MacPherson v. Buick Motor Co.

MacPherson v. Buick Motor Co.

Citation. 217 N.Y. 382, 111 N.E. 150 (N.Y.App.1916). Brief Fact Summary. The Plaintiff, Donald MacPherson (Plaintiff), bought a car from a retail dealer and was injured when a defective wheel collapsed. The Plaintiff sued the Defendant, Buick Motor Co. (Defendant), the original manufacturer of the car, on an action for negligence. Defendant had purchased the faulty wheel from another manufacturer and Defendant failed to inspect the wheel. Synopsis of Rule of Law. If a product is reasonably expected to be dangerous if negligently made and the product is known to be used by those other than the original purchaser in the normal course of business, a duty of care exists. Facts. Plaintiff brought a negligence suit against the Defendant for injuries sustained after he was thrown from his car when the wheel collapsed. Defendant had sold the automobile to a retail dealer, who in turn sold it to Plaintiff. The wheel, which was sold to Defendant by another manufacturer, was made of defective wood. Evidence suggested that the defect could have been discovered through reasonable inspection, but no inspection occurred. Issue. Does Defendant owe a duty of care to anyone besides the immediate purchaser (retailer)? Held. Yes. Judgment affirmed. 1 One line of cases has suggested that manufacturers owe a duty of care to ultimate purchasers only when the product is inherently dangerous. Other cases have suggested a duty of care to foreseeable users if the product is likely to cause injury if negligently made. In order for a duty of care to arise in relation to ultimate purchasers, two criteria must be satisfied. First, the nature of the product must be such that it is likely to place life and limb in danger if negligently made. This knowledge of danger must be probable, not merely possible. Second, there must be knowledge that in the usual course of events the danger will be shared by people other than the buyer. This may be inferred from the nature of the transaction and the proximity or remoteness of the relation. In the present case, the manufacturer of a finished product placed this product on the market to be used without inspection by its customers. If the manufacturer was negligent and the danger could be foreseen, a liability will follow.

Discussion. This case was an early basis for the establishment of products liability.

260

Baxter v. Ford Motor Co.

Baxter v. Ford Motor Co.

Citation. 168 Wash. 456, 12 P.2d 409 (1932). Brief Fact Summary. The Appellant, Baxter's (Appellant), eye was injured when the windshield of his car shattered. Appellant claimed that the trial court improperly excluded evidence in printed materials produced by the Respondent, Ford Motor Company (Respondent), claiming that the windshield was shatterproof. Synopsis of Rule of Law. Representations set forth by a manufacturer whose falsehood cannot be readily detected by a buyer may be relied on by the buyer regardless of an absence of privity of contract. Facts. The Appellant purchased a model A Ford form St. John Motors, a Ford dealer, who had purchased the automobile from the Respondent. Appellant claims that representations were made to him by both the dealer and the manufacturer that the windshield of the automobile was made of glass that would not shatter. Respondent's windshield was struck by a pebble, causing small pieces of glass to fly into his eye, resulting in the loss of his left eye and injuries to the sight of his right eye. The court took the case from the jury and entered judgment in favor of the dealer and the Defendant. Issue. Did the trial court correctly refuse to admit evidence against Respondent of catalogues and printed materials regarding the quality of glass used in the windshield of Appellant's car? Held. No. Judgment reversed. 1 Appellant was provided with materials created by Respondent that claimed the windshield was made of shatter-proof glass. Respondent claims there can be no implied or express warranty derived from these materials because there is no privity of contract between Respondent and Appellant. This case is similar to cases where plaintiffs have prevailed in suits for being supplied with wrongly labeled drugs. In both cases, the injured party would be unable to discover the inherent problem with the product. The advent of radio and other marketing materials have rendered the rule of caveat emptor unfair in many instances. To permit a manufacturer to create demand for its product by representing they possess qualities that they in fact do not, while barring recovery due to a lack of privity is unjust. The court held that the printed matters were improperly excluded and that Appellant had a right to rely upon these representations even without privity of contract between Appellant and Respondent.

261 Baxter v. Ford Motor Co. Discussion. The advent of modern advertising methods have made the traditional rule of caveat emptor (let the buyer beware) unjust because of the unequal position of manufacturers and buyers.

262

Henningsen v. Bloomfield Motors, Inc.

Henningsen v. Bloomfield Motors, Inc.

Citation. 32 N.J. 358, 161 A.2d 69 (1960). Brief Fact Summary. The Plaintiff, Henningsen (Plaintiff), was injured when the steering gear in her car failed. Plaintiff brought suit claiming negligence, but the case was dismissed by the trial court due to a disclaimer contained in the sales contract for the car. Synopsis of Rule of Law. Manufacturers cannot unjustly disclaim the implied warranty of merchantability when such disclaimers are clearly not the result of just bargaining. Facts. Plaintiff was injured when the steering gear in her car failed, causing the car to turn sharply into a wall. The automobile had been manufactured by Chrysler Corporation and sold by it to the Defendant, a retail dealer, Bloomfield Motors (Defendant). Plaintiff's husband Mr. Henningsen purchased the car for Plaintiff. When he purchased the car, Mr. Henningsen signed a contract containing 8 inches of fine print on its back. This fine print included a warranty clause, providing that neither manufacturer nor dealer gave any warranties, express or implied, except for replacement of defective parts for a short period. Negligence claims were dismissed by the trial court against both the manufacturer and the dealer. Issue. Can a manufacturer effectively disclaim an implied warranty of merchantability on cars it places into commerce? Held. No. Judgment reversed and remanded. 1 An implied warranty of merchantability means that a thing sold is reasonably fit for the general purpose for which it was manufactured and sold. The codification of the Uniform Sales Act supports the use of implied warranties as an operation of law. When such a warranty is breached, strict liability is imposed and recovery does not depend on proof of negligence or knowledge of a defect. Societal interests have eliminated the requirement of privity of contract between a manufacturer and the ultimate consumer when products are inherently dangerous to life and limb. Thus, the burden of losses is upon those who are in a position to either control the danger or allocate the losses when they occur. Contract law has long held that an individual who fails to read a contract before signing it cannot relieve himself of the contract's burdens. However, today standardized mass contracts have appeared. In the car industry, all manufacturers have begun to produce disclaimers for their cars, effectively eliminating any bargaining power for consumers who wish to purchase such products. Such control and limitations are detrimental to the public welfare and shall not be allowed. Therefore, the

263

Henningsen v. Bloomfield Motors, Inc.

Court adjudicated Chrysler's attempted disclaimer of an implied warranty of merchantability to be invalid.

Discussion. Many codes and statutes protect consumers from unjust disclaimers today, including the Uniform Commercial Code, the Magnuson-Moss Act and the Consumer Product Safety Act.

264

Greenman v. Yuba Power Products, Inc.

Greenman v. Yuba Power Products, Inc.

Citation. 59 Cal.2d 57, 377 P.2d 897, 27 Cal.Rptr. 697 (1963). Brief Fact Summary. The Plaintiff, William Greenman (Plaintiff), was injured when his Shopsmith combination power tool threw a piece of wood, striking him in the head. Plaintiff sued and the Defendant, Yuba Power Products, Inc. (Defendant) the manufacturer, defended claiming that Plaintiff's breach of warranty claim was barred due to his failure to give timely notice. Synopsis of Rule of Law. Individuals injured by products with design or manufacturing defects may bring suit under strict liability regardless of a failure to give timely notice to the manufacturer for a breach of warranty. Facts. The Plaintiff saw a Shopsmith combination power tool demonstrated by a retailer and he studied a brochure prepared by the manufacturer. His wife bought him a Shopsmith, and Plaintiff bought necessary attachments to use the Shopsmith as a lathe. After working with the lathe several times without difficulty, it suddenly threw the piece of wood he was working with out of the machine, striking him in the head inflicting serious injuries. Approximately ten and one-half months later, Plaintiff gave the retailer and the manufacturer written notice of claimed breaches of warranties and filed a complaint alleging said breaches and negligence. Issue. Is Plaintiff's action based on representations contained in the brochure barred against the manufacturer due to a failure to give timely notice? Held. No. Judgment affirmed. 1 Plaintiff introduced substantial evidence from which to conclude that his injuries were the result of defective design and construction of the Shopsmith. However, the Defendant contends that Plaintiff did not give it notice of a breach of warranty within a reasonable time. The Civil Code provides that failure of the buyer to give the seller notice of a breach of warranty within a reasonable time precludes liability [Civ.Code 1769]. However, this notice requirement is inappropriate for this Court to adopt in an action by injured consumers against manufacturers with whom they have not dealt. Because the injured party is generally unaware of the business practice justifying the rule, it would simply be an unfair "booby-trap" for the unwary. Even if Plaintiff's claim for breach of warranty were barred, the imposition of strict liability is appropriate in this case. From the evidence, it can be shown (i) that the manufacturer placed a product on the market; (ii) knowing that it is to be used without inspection for defects; (iii) that proved

to have a defect and (iv) that caused an injury. To establish liability, it is sufficient that Plaintiff was injured while using the

265

Greenman v. Yuba Power Products, Inc.

Shopsmith in a way it was intended to be used, as a result of a defect in design and manufacture.

Discussion. The Court in this case finds that an apparently applicable statute will not bar recovery. Many of the products liability decisions tend to insure the protection of the consumer over that of manufacturers.

266

Rix v. General Motors Corp.

Rix v. General Motors Corp.

Citation. 723 P.2d 195 (Mont. 1986). Brief Fact Summary. Plaintiff was injured when the truck he was driving was rear-ended by a 1978 GMC two-ton chasis-cab. Plaintiff brought suit against General Motors Corp. (Defendant) on a theory of strict liability, as the manufacturer of the truck. Synopsis of Rule of Law. A manufacturer cannot be held strictly liable for the danger caused by one of its products, if it does not cause the defect in the product. Facts. Plaintiff was injured when his pickup was hit from behind by a chasis-cab that had been equipped with a water tank, after sale, by the Defendant dealership. Plaintiff brought suit against Defendant under a theory of strict liability, and products liability, maintaining that the product, which had been placed into the stream of commerce, was unreasonably dangerous because of both manufacturing and design defects. At the trial in this matter, the jury reached a verdict for Defendant, and Plaintiff appealed. Issue. Whether strict liability is a proper manufacturing defect theory? Held. Reversed and remanded. 1 While this case was reversed and remanded, the court held, in line with the jury instructions, that a manufacturer could not be held to strict liability for manufacturing defect, when the product was not defective when it left the manufacturer's assembly line. In this case, the truck was not altered by the manufacturer, but by the dealer after sale. Thus, the manufacturer could not be held strictly liable for a defect that was not caused at its hands.

Discussion. This case goes into the theory of strict liability, in the context of products liability. 1 2 As a rule, when a manufacturer sends a product into commerce, he will be held liable for any harm caused to the ultimate user or consumer. This rule does not apply, if the product is altered after it leaves the care of the manufacturer, and it is fundamentally unfair to hold a manufacturer liable on those grounds.

267

Prentis v. Yale Mfg. Co.

Prentis v. Yale Mfg. Co.

Citation. 421 Mich. 670, 365 N.W.2d 176 (1984). Brief Fact Summary. The Plaintiff, Prentis (Plaintiff), was injured when the forklift he was operating experienced a power surge, causing Plaintiff to fall to the ground. Plaintiff sued the Defendant, Yale Mfg. Co. (Defendant), claiming a defect in design because the forklift did not provide a seat or platform for the operator. Synopsis of Rule of Law. In an action against the manufacturer of a product based upon an alleged design defect, breach of implied warranty and negligence require proof of the same elements and use of identical evidence. Facts. Plaintiff was operating a forklift manufactured by the Defendant. The forklift was a stand-up type, rather than a traditional sit down model. The forklift was equipped with a "dead-man" switch, intended to prevent it from moving if the operator let go of the controls. Plaintiff testified that he was aware that the battery was running low on the forklift when the accident occurred. Plaintiff attempted to start the machine on an incline and when the machine experienced a power surge it caused Defendant to fall to the ground. The fall fractured Plaintiff's hip. Plaintiff brought suit, alleging a defect in design of the forklift because it did not provide a seat or platform for the operator. Issue. Did the trial court err by not instructing the jury on a breach of warranty theory in addition to a negligent design theory? Held. No. Judgment of the Court of Appeals is reversed and judgment of the trial court is reinstated. 1 Theories of products liability should never be confused with the imposition of absolute liability. Regardless of whether a plaintiff is suing on a theory of negligence or implied warranty, the plaintiff must prove that something is wrong with the product itself that makes it dangerous. Actions claiming defects in product design do not provide for a simple test. Four approaches have been popularized in determining a defect in product design cases. Negligent risk-utility analysis focuses on if the manufacturer would be judged negligent if it had known of the dangerous condition when the product was marketed. A second analysis compares the risk and utility of the product at the time of trial. A third analysis focuses on the consumer expectations for a product. The final analysis combines the risk-utility and the consumer expectation analyses. The risk-utility balancing test is essentially a negligence standard, analyzing if the manufacturer exposed the consumer to a greater risk than he should have in choosing a particular design. This approach is supported

268

Prentis v. Yale Mfg. Co.

by the Model Uniform Product Liability Act (UPLA), published by the Department of Commerce in 1979. This approach has much support for design defects. First, design defects, unlike manufacturing defects, result from documentable decisions by manufacturers that plaintiffs should be able to learn of through discovery. Second, a negligence standard in these cases encourages the design of safer products. Third, a verdict for the plaintiff in a design defect case is essentially a ruling that the entire product line is defective, depriving the public of the product. Finally, the court believes that such a fault system provides for greater intrinsic fairness. Because the standards for a breach of warranty claim and a design defect claim are interchangeable, it would have only confused the jury to provide an instruction on each, therefore, the trial court did not commit reversible error by providing only a unified theory of negligent design.

Concurrence. Chief Justice Williams and Justices Brickley and Ryan concur. Justice Cavanagh concurs in the result. Discussion. The pure negligence, risk-utility standard adopted by the Court in this case is applicable only to defective design cases and does not apply to defective manufacture cases.

269

O'Brien v. Muskin Corp.

O'Brien v. Muskin Corp.

Citation. 94 N.J.169, 463 A.2d 298 (1983). Brief Fact Summary. The Plaintiff, Gary O'Brien (Plaintiff), was injured when he dove into an above ground pool designed and manufactured by the Defendant, Muskin Corp. (Defendant). Plaintiff brought suit claiming that Defendant was strictly liable for the defectively designed pool. Synopsis of Rule of Law. Based on risk utility analysis, a defendant may be liable for a design defect even if his product complied with the existing level of technological advances at the time of design. Facts. Plaintiff arrived uninvited at the home of Arthur and Jean Henry and dove into their above ground pool made by Defendant. As Plaintiff's hands hit the vinyl lined pool bottom, they slid apart and Plaintiff sustained injuries when his head hit the bottom. The water in the pool was filled to a depth of approximately three and one-half feet and a warning decal saying Do Not Dive appeared beneath the manufacturer's logo in letters approximately onehalf inch high. Plaintiff claimed that Defendant was strictly liable for manufacturing and marketing a defectively designed pool, specifically because of the slippery quality of the lining and inadequate warnings. The trial court limited the jury's consideration to the adequacy of the warning. Issue. Did the trial court err by not permitting the jury to determine if the risks of injury associated with the pool so outweighed the utility of the product as to constitute a defect? Held. Yes. Judgment reversed and remanded. 1 At trial, Plaintiff produced a witness that testified that the wet vinyl used in the pool was twice as slippery as the rubber latex used in in-ground pools. The witness admitted that he knew of no above ground pool that used any material for liner except for latex, but nonetheless contended that vinyl should not be used even if no other material was available. Defendant's witness testified that vinyl was the best material because it allowed outstretched arms to glide, thus preventing the diver's head from striking bottom. In contrast to manufacturing defects, the standard measure for design defects is a comparison of the utility of the product with the risk of injury that it poses to the public. Factors relevant to this decision include: (1) The usefulness and desirability of the product; (2) The safety aspects of the product; (3) The availability of a safer substitute product; (4) The ability of the manufacturer to eliminate the unsafe character of the product; (5) The user's ability to avoid danger; (6) The anticipated awareness of the user of

the inherent dangers of the product and their avoidability and (7) The feasibility of the manufacturer spreading the loss.

270 O'Brien v. Muskin Corp. 1 These factors also include the "state-of-the-art", or the scientific knowledge available in the industry at the time the product was designed. However, complying with the state-of-the-art does not provide an absolute defense, as the burden is on the Defendant to prove that compliance with this justifies placing a product on the market. Other considerations, such as the relative need for the product, or if the product was an essential or a luxury, might lead to the determination that the risk involved with the product still outweighed its utility. Dissent. Justice Schreiber's concurring and dissenting opinion omitted. Concurrence. Justice Clifford concurring in the result. Discussion. The majority of jurisdictions today use some form of risk utility analysis in design defect cases.

271 Anderson v. Owens-Corning Fiberglass Corp.

Anderson v. Owens-Corning Fiberglass Corp.

Citation. 53 Cal.3d 987, 810 P.2d 549, 281 Cal.Rptr. 528 (1991). Brief Fact Summary. The Plaintiff, Anderson (Plaintiff), was allegedly injured from exposure to asbestos materials manufactured by the Defendant, Owens-Corning Fiberglass Corp. (Defendant). Defendant answered by claiming it did not warn of potential dangers because there was no scientific knowledge at the time of manufacture that the product was potentially dangerous. Synopsis of Rule of Law. Knowledge or knowability is a component of strict liability for failure to warn. Facts. The Plaintiff worked as an electrician at the Long Beach Naval Shipyard for 35 years. During this work, Plaintiff allegedly was exposed to asbestos while working near others who were removing and installing insulation products aboard ships. Plaintiff filed suit against Defendant alleging that Plaintiff's exposure to Defendant's asbestos products resulted in his asbestosis and other lung ailments. Issue. Is a Defendant in a products liability action based on a failure to warn of a risk of harm allowed to present state of the art evidence that the Defendant had no knowledge of the harm that could occur? Held. Yes. Judgment of the Court of Appeals is affirmed. 1 Defendant contends that if knowledge is irrelevant in a failure to warn case, then a manufacturer's liability is absolute. Plaintiff claims that imposing a knowledge requirement effectively adds a negligence standard to a strict liability case. The strict liability doctrine has incorporated several other well-settled rules from negligence law. A manufacturer defendant cannot effectively warn against something that is unknowable. Differences are still apparent between the strict liability standard applied in failure to warn cases and a negligence standard. Specifically, the reasonableness of a defendant's failure to warn is immaterial.

Dissent. Omitted. Concurrence. Omitted. Discussion. The majority in this case found that a manufacturer must provide warnings if it is or should be aware of potential dangers, but to impose liability for failure to warn when the manufacturer had no way of knowing of the potential danger is unjust.

272 Friedman v. General Motors Corp.

Friedman v. General Motors Corp.

Citation. 43 Ohio St.2d 209, 72 Ohio Ops.2d 119, 331 N.E.2d 702 (1975). Brief Fact Summary. The Plaintiffs, Morton Friedman (Mr. Friedman) and his family (Plaintiffs), were injured when their car, manufactured by the Defendant, General Motors Corp. (Defendant), started with the transmission in the drive position and lurched forward, causing an accident. Defendant claimed that Plaintiffs failed to introduce sufficient evidence to overcome a motion for summary judgment. Synopsis of Rule of Law. Plaintiffs may prove a manufacturing defect through the use of circumstantial evidence, so long as a preponderance of the evidence establishes that the accident was caused by the defect rather than other possibilities. Facts. Mr. Friedman alleged that he turned the ignition on his seventeen month old Oldsmobile while it was in drive, not expecting it to start. The car did start and leaped forward, and Mr. Friedman was unable to control the car before it crashed. Mr. Friedman and three members of his family were injured in the crash. Plaintiffs brought a claim against the Defendant and the trial court granted Defendant's motion for summary judgment, finding that Plaintiffs had not proved the car was defective. The appellate court reversed the trial court's decision and Defendant appealed. Issue. Did the Plaintiffs' introduce evidence of a sufficient quality to overcome Defendant's motion for a directed verdict? Held. Yes. Judgment of the Court of Appeals is affirmed. 1 In Defendant's motion for summary judgment the court must construe the evidence in favor of the Plaintiffs. For Plaintiff to prevail, they must prove that the car manufactured by Defendant was defective, that the defect existed when the car left the factory and that the defect was the proximate cause of the injuries. A defect may be proven by circumstantial evidence. From the evidence presented, a jury could have found that the defect was created by the manufacturer, rather than a third party after delivery. Additionally, the testimony could demonstrate that the car always started in park, so that the Plaintiffs had no opportunity to discover the defect. Testimony of witnesses could demonstrate that the car accelerated immediately when it was started, resulting in the accident. Finally, the possibility that the contacts in the neutral start switch were in the neutral or park position even though the transmission was in drive was established. This would allow the car to start in the drive position. Therefore, Plaintiffs established a prima facie case of defect.

273 Friedman v. General Motors Corp. Dissent. Justice Stern stated that the total evidence in this case only demonstrates that something unusual happened and that a possible explanation is that the car had a defect. Plaintiffs failed to submit sufficient evidence to infer that a defect existed at the time the car left the defendant manufacturer. Discussion. In a proper case, the principles behind res ipsa loquitur may be applicable to satisfy the requirements of strict liability. However, as the dissent pointed out, the present facts are not appropriate for such an application because other explanations for the accident are available.

274 Daly v. General Motors Corp.

Daly v. General Motors Corp.

Citation. 20 Cal.3d 725, 575 P.2d 1162, 144 Cal.Rptr. 380 (1978). Brief Fact Summary. Kirk Daly (the Decedent) was killed when he was thrown from his car, which allegedly had a defective door latch. The Decedent was not using the shoulder harness, did not have the door locked and was intoxicated at the time. The Plaintiffs, Decedent's family members (Plaintiffs) brought suit. Synopsis of Rule of Law. The principle of comparative negligence can be applied in strict products liability cases to reduce a plaintiff's recovery. Facts. The Decedent was thrown from his automobile because of an alleged defect of the door latch, resulting in his death. Evidence suggested the driver did not use the shoulder harness system, did not lock the door and that he was intoxicated. The jury found for the Defendant, General Motors Corp. (Defendant). Issue. Does the principle of comparative negligence apply to actions founded on strict products liability? Held. Yes. Judgment reversed. 1 Strict liability has never been intended to be absolute liability, causing the manufacturer to become the insurer of the safety of the product's user. The Court previously determined that a plaintiff's negligence is a complete defense when it comprises assumption of the risk. Here, the Plaintiffs argue that recognition of comparative fault principles in strict products liability cases is an impossible merging of concepts because strict liability is not founded on negligence or fault principles. However, the Court refuses to resolve this issue based solely on linguistic labels. The imposition of strict liability was intended to relieve injured consumers from inherent problems of proof and to place the burden on manufacturers rather than those who are powerless to protect themselves. The Court believes that these goals will not be frustrated by the imposition of comparative principles. Plaintiffs' recovery will be lessened only to the extent that his own negligence contributed to the injury. Plaintiffs also argue that comparative principles will lessen a manufacturer's incentive to produce safe products. This Court does not believe this to be true, as exposure to liability will be lessened only by the extent to which the plaintiff contributed to his injury and the manufacturer cannot assume that the plaintiff will always be blameworthy. A further benefit will be that the imposition of comparative principles will allow for only a partial limit on recovery, where previously the only plaintiffnegligence defense was assumption of the risk, which was a complete bar

275 Daly v. General Motors Corp. 1 to recovery. This unfair rule caused a contributorily negligent plaintiff to be in a better position when claiming negligence than strict liability. 2 A further objection to the imposition of strict liability is that jurors cannot compare plaintiff's negligence with defendant's strict liability. However, the court is convinced jurors are capable of such a task. The court found final support for the adoption of comparative negligence in strict liability cases in the provisions of the proposed Uniform Comparative Fault Act [adopted by the Conference of Commissioners on Uniform State laws (1997)].

Dissent. Omitted. Concurrence. Omitted. Discussion. The majority of jurisdictions today have applied comparative fault principles to strict products liability cases.

276 Ford Motor Co. v. Matthews

Ford Motor Co. v. Matthews

Citation. 291 So.2d 169 (Miss.1974). Brief Fact Summary. Earnest Matthews (Mr. Mathews) was dragged under a tractor and killed when he started the tractor while standing next to it. The tractor started while in gear, but was equipped with a safety switch designed to prevent this from occurring. Synopsis of Rule of Law. A manufacturer is not liable for injuries caused by abnormal or unintended use of its product, only if such use is not reasonably foreseeable. Facts. Mr. Matthews was standing beside his tractor when he started it and the tractor was in gear at the time. The tractor, manufactured by the Appellant, Ford Motor Company (Appellant), was equipped with a starter safety switch designed to prevent the tractor from being started while in gear. When the tractor started, Mr. Matthews was dragged underneath a disc attachment, killing him. The Appellee, the administratrix (Appellee) brought suit, claiming that the plunger connected with the safety switch was defective, allowing the tractor to be started in gear. The trial court found for the Appellee and Appellant appealed. Issue. Was Mr. Matthews' act of standing on the ground and starting the tractor a misuse of the product so as to be an absolute limitation on Appellant's liability? Held. No. Judgment affirmed. 1 Appellant relies on the Restatement [Restatement (Second) of Torts 402A], which states in part that a seller is not liable for injury that results from abnormal handling. Several cases are also cited by Appellant, but in each case the accident was caused by misuse, with the court finding either no defect or that the defect played no part in the accident. The injury in question was not caused by Mr. Matthews negligently standing beside the tractor when he started it. Rather, if any negligence occurred on Mr. Matthews' part, it was not checking to make sure the tractor was in gear. In the present case, even if Mr. Matthews were guilty of negligence for this failure, the negligence was foreseeable by Appellant and this is not a bar to an action based on strict liability for a manufacturing defect.

Discussion. If the deceased had used the tractor in an unforeseeable and abnormal way, the manufacturer would not be subject to liability. In this case, the Court found that not checking to make sure the tractor was not in gear was foreseeable.

277 Medtronic, Inc. v. Lohr

Medtronic, Inc. v. Lohr

Citation. 518 U.S. 470, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996). Brief Fact Summary. The Plaintiff, Lora Lohr (Plaintiff), required emergency surgery when a pacemaker manufactured by the Defendant, Medtronic, Inc. (Defendant), failed. Plaintiff sued under state laws alleging negligence and strict liability. Defendant answered by moving the case to federal court and claiming preemption of state law by a federal act. Synopsis of Rule of Law. A federal law enacted by Congress will not be held to preempt existing state law unless is the clear intent of Congress to legislate exclusively in the area. Facts. The Plaintiff was equipped with a pacemaker made by the Defendant. Three years later, the pacemaker failed due to a defect in the lead, requiring emergency surgery. Plaintiff filed suit in a Florida State Court, alleging negligence and strict liability. Defendant removed the case to federal court and filed a motion for summary judgment, claiming that 21 U.S.C. 360k(a) preempted the state common law claims. The trial court dismissed the entire complaint. The 11th Circuit affirmed in part and reversed in part. Both parties sought review by the United States Supreme Court (Supreme Court). Issue. Does the Medical Device Amendments of 1976 (the Act) [90 Stat. 539 (1976)] preempt a state common law negligence action against the manufacturer of an allegedly defective medical device? Held. No. Affirmed in part and reversed in part. 1 The states have traditionally exercised their police powers to protect the health of their citizens. However, the Federal Government has increasingly played a role in health protection. The Act requires rigorous pre-market approval for products such as the pacemaker in question. However, the Act grandfathered in devices on the market before 1976 and permitted devices that are substantially equivalent to pre-existing devices to avoid approval. The pacemaker at issue in this case was a device deemed substantially equivalent. This Supreme Court is presented with the task of interpreting a statutory provision that preempts state law. In doing so, we follow two presumptions. First, when Congress is preempting a law in a field generally governed by the states, the Supreme Court assumes that the powers of the state are not to be preempted unless that was the clear purpose of Congress. Second, the scope of the preemption statute must reflect a clear understanding of congressional purpose.

278 Medtronic, Inc. v. Lohr 1 Defendant's argument that Congress intended to bar all common law claims based on medical devices with the Act is implausible. This interpretation would provide complete immunity for design defect liability for the entire industry. The legislative history of the Act in no way supports this argument. 2 Plaintiff claims that the Act does not preempt her negligent design claim because the Act imposes no requirement on the design of Defendant's pacemaker. In the alternative, Plaintiff claims that even if the Act does provide requirements, it does not preempt state rules that duplicate these federal requirements. The Plaintiff's common law claims are not preempted by the Act. These claims are general state common-law requirements that every manufacturer use due care to avoid foreseeable dangers in its products and inform users of potentially dangerous risks involved in their use. These general requirements in no way reflect the concerns Congress expressed regarding regulation of specific devices in the Act.

Discussion. If Congress had clearly intended to preempt state law, the Supreme Court would have no choice and the manufacturer would only have to abide by the federal law. In this case, the Supreme Court determined that Congress had not expressed a clear intention to preempt these state common laws.

279 Peterson v. Lou Bachrodt Chevrolet Co.

Peterson v. Lou Bachrodt Chevrolet Co.

Citation. 61 Ill.2d 17, 329 N.E.2d 785 (1975). Brief Fact Summary. The Plaintiff, James Peterson's (Plaintiff) children were injured when they were struck by a used car. The Plaintiff sued the Defendant, Lou Bachrodt Chevrolet Co. (Defendant), alleging that the used car was defective when it left the Defendant's lot. Synopsis of Rule of Law. Strict products liability will not be applied to the seller of previously used products. Facts. Maradean Peterson (Maradean) and her brother, Mark Peterson (Mark) where struck by a car while walking home from school. Maradean died as a result of the accident and Mark suffered severe injuries, including amputation of a leg. The automobile that struck the Maradean and Mark was purchased used from the Defendant Lou Bachrodt Chevrolet Co. (defendant). The Plaintiff, father of the children, brought suit against the driver of the car, its owners, and the Defendant. Issue. Can the strict products liability applied to a retailer also be imposed on a defendant who is outside the original producing and marketing chain? Held. No. Judgment of the Appellate Court is reversed. 1 Plaintiff claims that at the time the automobile in question left Defendant's control it was not reasonably safe for driving and that these defective conditions were a proximate cause of the injuries that occurred. Strict liability has previously been applied to retailers, justified on the ground that their position in the market allows them to place pressure on the manufacturer to enhance the product's safety. In the present case there is no claim that the defects existed when the product left the manufacturer or that the defects were created by the used car dealer. Under these facts, the court saw no justification in effectively causing used car dealers to become the insurers against defects.

Dissent. Justice Goldenhers stated that the application of strict liability is intended to place the burden of losses on those who have created the risk and reaped profit by placing the product into the stream of commerce. There is no justification for not applying the same standard to used car dealers. Discussion. The majority of courts have declined to place the burdens of strict liability on the sellers of used products.

280 Hector v. Cedars-Sinai Medical Ctr.

Hector v. Cedars-Sinai Medical Ctr.

Citation. 180 Cal.App.3d 493, 225 Cal.Rptr. 595 (Cal.Appell.1986). Brief Fact Summary. The Plaintiff, Frances Hector (Plaintiff), claimed that strict product liability was applicable to the Defendant, Cedar-Sinai Medical Ctr. (Defendant) in relation to the implantation of a defective pacemaker. Synopsis of Rule of Law. Hospitals are not subject to strict liability for a defective product provided to a patient during treatment when the hospital is a provider of services rather than a seller of a product. Facts. The Plaintiff filed a complaint against the Defendant alleging personal injury from the implantation of a defective pacemaker. The complaint contained three causes of action: negligence, strict liability and breach of warranty. All three causes were dismissed in favor of Defendant. Plaintiff appealed. Issue. Did the trial court err in finding that Defendant was exempt from the application of the strict products liability doctrine? Held. No. Judgment affirmed. 1 The imposition of strict products liability has been expanded from manufacturers to include retailers. However, retailers play an integral part in the production or marketing enterprise, or at least enable the product to get from the manufacturer to the consumer. Plaintiff maintains this appeal on the theory that the hospital is a supplier of pacemakers and this should be subject to the same strict liability standard as other suppliers. The difference between those to whom strict liability has been applied and hospitals is that the former are simply conduits in distribution, while the latter provides services as a healer of illnesses. The main function of the hospital is to furnish trained personnel and specialized facilities, while the items used are simply instruments to accomplish the objective of treatment. Additionally, policy considerations counsel against imposition of strict products liability in such areas. Unlike manufacturers and retailers, the Defendant does not select the pacemaker and is in a poor position to test it or inquire about its function. Also, increased liability in this area would result in higher costs for health care. Because the hospital is not a seller, it cannot be held strictly liable for injuries to the Plaintiff because of defects in the pacemaker.

Discussion. Strict liability is generally not applicable to services. In cases that involve characteristics of both a sale and a service, the courts will not apply strict liability if the transaction is predominately a service.

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282 Philadelphia Electric Company v. Hercules, Inc.

Philadelphia Electric Company v. Hercules, Inc.

Citation. 762 F.2d 303 (3rd Cir.1985). Brief Fact Summary. The Plaintiff, Philadelphia Electric Company (Plaintiff), purchased land that was originally owned by Pennsylvania Industrial Chemical Corporation (PICCO) and subsequently the Defendant, Hercules, Inc. (Defendant), assumed all liabilities of PICCO. Plaintiff brought suit against Defendant for public nuisance and private nuisance resulting from pollutants on the land left from PICCO. Synopsis of Rule of Law. A subsequent bona fide purchaser of land cannot claim private nuisance against a previous owner for damage done to the land. A Plaintiff cannot claim a tort action for public nuisance against a Defendant unless the Plaintiff can claim particular damages suffered due to an interference with a public right. Facts. The Plaintiff purchased property from Gould that was originally owned by PICCO. Plaintiff owned land adjacent to the PICCO land and had ample opportunity to examine the land it purchased. Subsequently, Defendant became the successor to PICCO and expressly assumed all obligations and liabilities of PICCO. The Pennsylvania Department of Environmental Resources (DER) discovered pollutant materials similar to those once produced by PICCO seeping into the Delaware River and ordered Plaintiff to eliminate the situation. Plaintiff brought suit against Defendant for damages and an injunction to abate any further pollution. The district court granted both. The suit was based on private nuisance, public nuisance and indemnity. The relationship between Plaintiff and Defendant was treated by the court as one of vendor and remote vendee of land. The sale of the site was subject to the rule of caveat emptor, being between two commercial corporations with no misrepresentation or concealment and full opportunity to inspect. Issue. Does the Plaintiff have a cause of action against Defendant for private nuisance, public nuisance, or common law indemnity? Held. No. Judgment reversed. 1 The Restatement [Restatement (Second) of Torts, 821D] defines a private nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." For this case, the court assumes that Defendant is liable for a private nuisance, with the crucial question being to whom they are liable. The parties cite no case that permits a purchaser of real property to recover from a seller on a private nuisance theory for conditions that existed on the land transferred. To recover on a private nuisance theory, plaintiff must show there was a breach of duty. In this case, the duty Defendant owed was to neighbors, not the Plaintiff purchaser. To allow Plaintiff to recover on a private nuisance theory would circumvent the rule of caveat emptor.

283 Philadelphia Electric Company v. Hercules, Inc. 1 The Restatement [Restatement (Second) of Torts, 821B(1)] defines a public nuisance as "an unreasonable interference with a right common to the general public." A public nuisance is a criminal offense, consisting of an interference with the rights of the community at large. However, courts have allowed tort actions for a public nuisance when the plaintiff suffers a particular damage. Plaintiff argues that the expense it incurred in cleaning up the pollutants is a particular damage. However, the harm common to the general public in this case was the public right to clean water. Therefore, Plaintiff lacks standing to claim indemnity or injunctive relief for a public nuisance. Discussion. Defendant would still be liable for a private nuisance to neighboring landowners or a public nuisance for users of the Delaware River waters.

284 Morgan v. High Penn Oil Co. Synopsis of Rule of Law. An intentional private nuisance occurs when a person either acts for the purpose of unreasonably interfering with another person's enjoyment of their land or knows that such interference is resulting from his conduct.

Morgan v. High Penn Oil Co.

Citation. 238 N.C. 185, 77 S.E.2d 682 (1953). Brief Fact Summary. The use of the Plaintiff, Morgan's (Plaintiff) land, was allegedly being interfered with by the Defendant, High Penn Oil Co.'s (Defendant), emission of noxious gases. Plaintiff brought suit for private nuisance, requesting temporary damages and an injunction. Facts. Plaintiff owned a tract of land on which he had a dwelling, a restaurant, and accommodations for thirty-two trailers. The Defendant owned the adjoining tract of land on which it operated an oil refinery. Plaintiff claimed that for some hours, on two to three days a week, the refinery emitted nauseating gases and odors that rendered persons of ordinary sensitivities on his land uncomfortable and sick. Plaintiff put Defendant on notice of the situation and demanded that he abate it, but Defendant failed to do so. Issue. Did the trial court err by not granting Defendant's motion for a compulsory nonsuit on the claim that the refinery was so maintained and operated as to create a nuisance? Held. No. Judgment affirmed. A new trial was ordered because of an error in instructions to the jury. 1 Defendant argues that the evidence is insufficient to establish either an actionable or an abatable private nuisance. Plaintiff asserts that private nuisances are classified either as nuisances per se or at law, or nuisances per accidens or in fact. The Defendant claims correctly that that an oil refinery is a lawful enterprise and therefore cannot be a nuisance at law. However, the Defendant incorrectly asserts that an oil refinery cannot become a nuisance in fact unless it is constructed or operated in a negligent manner. A nuisance in fact may be created or maintained without negligence. A person may be subject to liability for an intentional invasion of one's use and enjoyment of their land if his conduct is unreasonable under the circumstances. A person may be liable for an unintentional invasion when his conduct is negligent, reckless, or ultrahazardous. An intentional invasion occurs when the person knows that the nuisance is resulting from his conduct, regardless of the care or skill exercised to prevent the injury. Interpreting the evidence in the light most favorable to the Plaintiff, it supports a finding that the Defendant intentionally and

285 Morgan v. High Penn Oil Co. 1 unreasonably caused noxious gases to escape onto Plaintiff's property so as to impair in a substantial manner his use and enjoyment of the land. This entitles Plaintiff to recover temporary damages. Additionally, using the same standard, the evidence is sufficient to show that Defendant intends to operate its oil refinery in the same manner and thus the issuance of an injunction is appropriate. Discussion. Unlike in the present case, when the Defendant has committed an unintentional interference, negligence is the basis of liability.

286 Carpenter v. The Double R Cattle Company, Inc.

Carpenter v. The Double R Cattle Company, Inc.

Citation. 108 Idaho 602, 701 P.2d 222. Brief Fact Summary. The Plaintiffs-Appellants, Adrian Carpenter, Ruth Carpenter and others (Plaintiffs), brought suit against the Defendants-Respondents, the Double R. Cattle Company, Inc. and others (Defendants), claiming that the operation of its cattle feedlot constituted a nuisance. Defendants prevailed at the trial level and the Appellate Court reversed based on a new subsection of the Restatement allowing for damages when the harm is serious and payment is feasible. Synopsis of Rule of Law. Idaho law does not follow subsection b of the Restatement allowing for the payment of damages when the gravity of the harm is outweighed by the utility of the conduct, yet the harm is serious and the payment is feasible without forcing discontinuation of the business. Facts. The Plaintiffs were homeowners living near the Defendants' cattle feedlot. The Plaintiffs contend that the feedlot had been expanded to accommodate the feeding of 9,000 cattle and that the accumulation of manure, water pollution, odor, insect infestation, dust and noise caused by the feedlot constituted a nuisance. The jury and trial court made findings, concluding that the feedlot did not constitute a nuisance. The Court of Appeals reversed, based on a new subsection of the Restatement [Restatement (Second) of Torts, Section 826(b)] allowing for a nuisance even when the gravity of harm is outweighed by the utility of the conduct, so long as the harm is serious and the payment of damages is feasible, without forcing the business to discontinue. Issue. Did the trial court err by not giving a jury instruction based on the new subsection of the Restatement? Held. No. Judgment of the District Court is affirmed. 1 The new subsection of the Restatement does not represent the law in Idaho. The Appellate Court's decision was based on language in our decision in Koseris v. J.R. Simplot Co., 82 Idaho 263, 352 P.2d 235 (1960). However, this language was clearly dictum. Idaho's economy depends on the benefits of agriculture, lumber, mining, and industrial development. To do away with the utility of conduct and other factors would place an unreasonable burden on these industries.

Dissent. Justice Bistline wrote that the Court of Appeals was correct in attempting to modernize the law of nuisance in Idaho. While it is desirable to allow a serious nuisance to continue when the utility of the operation causing the nuisance is great, those directly effected deserve some compensation. The new subsection of the Restatement adds a method of compensating those who suffer without discontinuing the beneficial business.

The majority forgets that the cost of a product includes external costs, including damages done to the environment.

287 Carpenter v. The Double R Cattle Company, Inc. Discussion. In order to create a nuisance, the harm must be the kind that would be suffered by a normal person in the community. A hypersensitive individual cannot claim a nuisance when the harm done to him would not affect an average person.

288 Winget v. Winn-Dixie Stores, Inc.

Winget v. Winn-Dixie Stores, Inc.

Citation. 242 S.C. 152, 130 S.E.2d 363 (1963). Brief Fact Summary. The Plaintiffs, Winget and others (Plaintiffs), brought suit alleging that the operation of the Defendant, Winn-Dixie Stores, Inc's (Defendant), adjoining grocery supermarket constituted a nuisance due to its location and the manner of its operation. Synopsis of Rule of Law. A business that meets all municipal requirements regarding the establishment of the business and is not constructed in such a manner as to interfere with the rights of others, cannot constitute a nuisance based on its location. Facts. The Plaintiffs brought an action for damages sustained from the location and operation of the Defendant's grocery supermarket. The Plaintiffs claimed that Defendant's store operation constituted a nuisance and in addition to damages, requested an order restraining Defendant from using the property for a grocery business or for any other business purpose. The trial court gave judgment for the Plaintiffs in the sum of $5,000, and denied the request for injunctive relief. Defendant appealed. Issue. Did the trial judge properly refuse Defendant's motions for a directed verdict and a new trial? Held. The trial court properly refused Defendant's motion for a directed verdict and improperly refused its motion for a new trial. 1 Plaintiffs claim that Defendant's supermarket was a nuisance because of its location and the manner of its operation. The Defendant's grocery supermarket met every requirement of the municipal authorities and under the facts it cannot be held that the location of the business constituted a nuisance. However, a lawful business may constitute a nuisance if the business is conducted in an unreasonable manner so as to unreasonably interfere with the lawful use and enjoyment of others' property. In the present case, Plaintiffs contend that the influx of traffic and the trash trucks and street sweepers operated at late night hours constitutes a nuisance. The traffic influx occurs during reasonable hours and the operation of the trash removal is the usual operation of the city. These activities do not constitute a nuisance when the relative rights of the parties are examined. Other allegations by Plaintiffs did require submission to the jury, such as the operation of fans blowing on Plaintiffs' property, floodlights shining on Plaintiffs' property and trash that was allowed to escape onto Plaintiffs' property. These activities were properly submitted to the jury and Defendant's motion for a direct verdict on these facts was properly denied.

289 Winget v. Winn-Dixie Stores, Inc. 1 Defendant also contends that a new trial should be granted based on the improper admission of testimony relating to depreciation in Plaintiffs' property value. If there is no public or private nuisance created by the use of property, no damage recovery can be allowed for diminution in property value. The testimony regarding property value should have been stricken and Defendant's should be granted a new trial based on this error. Discussion. A business that is lawfully operated still may constitute a nuisance if it unreasonably interferes with the use and enjoyment of the property of others.

290

Boomer v. Atlantic Cement Co., Inc.

Boomer v. Atlantic Cement Co., Inc.

Citation. 26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (N.Y.Appell.1970). Brief Fact Summary. The Plaintiffs, Boomer and other neighboring land owners (Plaintiffs), brought a nuisance action against the Defendant, Atlantic Cement Co., Inc.'s (Defendant) neighboring cement plaint, claiming damages and an injunction due to dirt, smoke, and vibrations interfering with their property rights. Synopsis of Rule of Law. This court balances the equities between the two parties, refusing to close down a large cement plant even though it creates a nuisance, but allowing neighbors to recover present and future damages created by the nuisance. Facts. Defendant operated a large cement plant. Plaintiffs brought an action for an injunction and damages, alleging injury to their property from dirt, smoke, and vibrations created by the plant. At trial a nuisance was found, temporary damages were allowed, but an injunction was denied. Issue. Was the trial court correct in denying Plaintiffs an injunction when Defendant's activities are found to create a nuisance, but the value of Defendant's operation exceeds the nuisance created? Held. No. Order reversed and case remanded. 1 There is a growing public concern for the control of air pollution. The threshold question in this case is if the Court should resolve the litigation between the parties now, or attempt to use this private litigation to define broad public objectives. This court finds that an effective policy for the elimination of air pollution is beyond the scope of this court's jurisdiction. The doctrine applied in New York has been that when a nuisance is found and there has been substantial damage demonstrated by the complaining party, an injunction will be granted regardless of a marked disparity between economic consequences. Following the doctrine in this case would have the effect of closing Defendant's large plant immediately. One alternative would be to issue an injunction, but postpone it until a future date, allowing Defendant the opportunity to develop technical advance to eliminate the nuisance. However, the rate of research is beyond the control of the Defendant and a court would be hard pressed based on equitable principles to close this plant based if it is unable to develop such technology.

Dissent. Judge Jasen stated that he did not agree with the majority's new doctrine of permanent damages rather than an injunction when substantial property rights have been impaired. The majority effectively licenses a continuing wrong, with little incentive for

291 Boomer v. Atlantic Cement Co., Inc. the wrong to be eliminated. Additionally, the imposed servitude on Plaintiffs' land for a private use rather than a public use is unconstitutional. Discussion. Most courts take an approach similar to the majority's in nuisance cases where an injunction is requested, balancing the equities on a case by case basis.

292

Spur Industries, Inc. v. Del E. Webb Development Co.

Spur Industries, Inc. v. Del E. Webb Development Co.

Citation. 108 Ariz. 178, 494 P.2d 700 (1972). Brief Fact Summary. The Plaintiff, Del E. Webb Development Co. (Plaintiff), brought suit for an injunction of the Defendant, Spur Industries, Inc.'s (Defendant), feedlot based on a public nuisance claim. Defendant had been established in the area long before Plaintiff built residential property nearby. Synopsis of Rule of Law. When a developer has brought into a previously agricultural or industrial area the population, which makes the granting of an injunction necessary, the developer must indemnify the enjoined business if the impending injunction was foreseeable by the developer. Facts. The Defendant had operated a cattle feedlot in an urban area outside of Phoenix since before 1950. In 1959 the Plaintiff began to develop Sun City, a residential community, some distance from Defendant. The development expanded, until 1967, when Sun City was with 500 feet of Defendant. Plaintiff brought suit requesting a permanent injunction of Defendant's operations, claiming that remaining lots were unfit for residential development because of the operation Defendant's feedlot. The trial court granted Plaintiff's injunction request. Defendant appealed and Plaintiff cross-appealed. Issue. When the operation of a business is lawful in the first instance, but becomes a nuisance because of a nearby residential area, may the business be enjoined by an action brought by the developer of the residential area? 1 If the nuisance may be enjoined, may the developer be required to indemnify the operated of the business, which must move or cease operation?

Held. Yes. Judgment affirmed in part, reversed in part, and remanded. 1 Plaintiff's suit alleged that Defendant's feedlot was a public nuisance because of flies and odor created by the feedlot. Some courts have held that in balancing of the conveniences cases such as this, damages are the only remedy. However, this Court has no difficulty in finding that the operation of Defendant's feedlot is an enjoinable public nuisance. If Plaintiff were the only party injured, his claim would be barred by the doctrine of coming to the nuisance. However, Defendant's operation is both a public and private nuisance for the citizen's of Sun City. Therefore, the trial court was correct in permanently enjoining operation of Defendant's feedlot. It follows neither equitably or legally that Plaintiff is free of liability if he is the cause of the damage that Defendant will sustain from the permanent injunction. Because Plaintiff brought people to the nuisance to the

293

Spur Industries, Inc. v. Del E. Webb Development Co.

foreseeable detriment to Defendant, Plaintiff must indemnify Defendant for the reasonable cost of either moving the business or shutting down.

Discussion. The majority rule is that a plaintiff is not barred from recovery in either public or private nuisance law because he comes to the nuisance. However, this is not an absolute law when other factors are more or less balanced.

294

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295

Belli v. Orlando Daily Newspapers, Inc.

Belli v. Orlando Daily Newspapers, Inc.

Citation. 389 F.2d 579, cert. denied 393 U.S. 825, 89 S.Ct. 88, 21 L.Ed.2d 96 (1968) (5th Cir. 1967). Brief Fact Summary. The Defendant, Orlando Daily Newspapers, Inc. (Defendant), published an article claiming that the Plaintiff, Belli (Plaintiff), an attorney, took advantage of an agreement with the Florida Bar Association (the Association), charging a large clothing bill to the Association. The article was false, and Plaintiff brought a defamation suit. Synopsis of Rule of Law. If the meaning of an article is capable of two interpretations, one being defamatory and the other not, it is for the jury to determine the meaning of the article based on all of the evidence. Facts. The Plaintiff was a nationally prominent attorney. Another attorney, Mr. Handley, had a conversation with a columnist for the Defendant in which he related a story he had heard regarding Plaintiff. The story was that Plaintiff and his wife ran up a large clothing bill at a Florida hotel, at the expense of the Association. The columnist published the story with embellishments and the story turned out to be false. The Plaintiff brought an action for libel and slander. The District Court dismissed Plaintiff's complaint for failure to state a claim. Issue. Was the District Court correct that the determination of whether a statement is a libel or slander per se is solely for the court? Held. No. Judgment reversed and remanded. 1 When a publication is false and not privileged and is such that its natural and proximate consequence necessarily causes an injury to a person in his personal, social, official, or business relations or life, wrong and injury are assumed and the publication is actionable per se. If the meaning is so unambiguous as to only reasonably bear one interpretation, it is for the judge to say if the meaning is defamatory or not. If the meaning is capable of multiple interpretations, it is for the jury to determine the meaning, considering al the circumstances. Defendant's claimed that the article did not hurt Plaintiff in his profession because the article only showed that the agreement was more favorable to Plaintiff than to the Association. Based on this argument, Defendant is barely able to make a case that the article could be interpreted as nondefamatory. Plaintiff contends that the article portrays him as having committed trickery and deception against the Association. This portrayal has negative implications toward Plaintiff's profession. This Court agrees that the

296

Belli v. Orlando Daily Newspapers, Inc.

article had the capability of carrying a defamatory meaning. Regardless, First Amendment constitutional rights of free press impel the Court to not place itself in the role of the jury. Therefore, the final determination should have been made by the jury.

Discussion. The Court in this case felt that the facts strongly suggested the article was defamatory, but refused to exercise the role of the jury due to First Amendment constitutional considerations.

297

Grant v. Reader's Digest Ass'n

Grant v. Reader's Digest Ass'n

Citation. 151 F.2d 733 (2nd Cir. 1945). Brief Fact Summary. An article was published by the Defendant, Reader's Digest Ass'n (Defendant), claiming that the Plaintiff, Grant (Plaintiff), represented the Communist party. Plaintiff brought a libel suit. The trial court dismissed the suit for insufficiency in law on the face of the claim. Synopsis of Rule of Law. It is not necessary that the majority of people would find an article to be damaging to Plaintiff's reputation so long as some people would reasonably find in damaging. Facts. The Defendant published an article alleging that Plaintiff represented the Communist Party in Massachusetts. Plaintiff brought a libel suit claiming that the article was untrue and malicious. The trial court dismissed the complaint for insufficiency in law upon its face. Issue. Was the trial court correct to determine as a matter of law that it is not libelous in New York to write that a lawyer has acted as an agent of the communist party and is a believer of its aims? Held. No. Judgment reversed and remanded. 1 The interest at stake is that of the person assailed. This person may value his reputation amongst those who do not embrace the prevailing moral standards. It is not enough to say that "right-thinking" people would not believe this article to be damaging to plaintiff's reputation. So long as some people feel so, it is sufficient to consider the cause of action, even if these people may be "wrong-thinking."

Discussion. Even if the thinking is that of a small part of the community, there must be an element of discredit or disgrace in order for the cause to be actionable.

298

Kilian v. Doubleday & Co., Inc.

Kilian v. Doubleday & Co., Inc.

Citation. 367 Pa. 117, 79 A.2d 657 (1951). Brief Fact Summary. An article written in the first person described acts of cruelty committed by the Plaintiff, Killian (Plaintiff) an army Colonel. The events were actually witnessed by other individuals and relayed to the author. Plaintiff brought a libel action, and the Defendant, Doubleday & Co., Inc. (Defendant), answered claiming truth. Synopsis of Rule of Law. Specific charges cannot be defended through a claim of truth by a showing of Plaintiff's general bad character. Facts. A book was created from the writings of disabled veterans taking an English course. One of the veterans, O'Connell, wrote a story in the first person that was actually based on stories that were described to him by other soldiers who allegedly witnessed them. The story described acts of cruelty and unauthorized punishments administered by Plaintiff. At the end of the story, Dr. Wolfe, the professor of the course, added a footnote claiming that Plaintiff was convicted of permitting cruel and unusual punishment and received a reprimand and a small fine for his crime. Plaintiff brought suit for libel and Defendant answered by claiming truth as a defense. Issue. Did the trial court err by submitting to the jury the question of whether the publication was substantially true? Held. Yes. Judgment reversed and a new trial awarded. 1 Plaintiff was acquitted of knowingly permitting the imposition of cruel and unusual punishments and was convicted only of permitting these punishments negligently. Defendant argued that the article is a true account of the events as observed by the author. In support of this claim, Defendant presented three witnesses that had been under Plaintiff's command. However, the author admitted that he was never under Plaintiff's command at Lichfield. In order to support a defense of truth, it is only necessary to prove that the article was substantially true. However, a Plaintiff's general bad character can not justify specific charges. None of the evidence was capable of proving that any of the events narrated by O'Connell actually occurred.

Discussion. Truth is an absolute defense to charges of defamation.

299

Neiman-Marcus v. Lait

Neiman-Marcus v. Lait
Citation. 13 F.R.D. 311 (N.Y.Dist.Ct.1952). Brief Fact Summary. The Defendants, Lait and others (Defendants), wrote an article making accusations about three groups of employees at the Plaintiff, Neiman-Marcus's (Plaintiff), department store. Plaintiff and representatives of each of these groups brought a libel suit. Synopsis of Rule of Law. A large group of individuals cannot bring a libel claim unless the allegedly libelous statement makes specific defamatory statements against an individual member of the group. Facts. The Defendants were the authors of a book entitled U.S.A. Confidential. The book made claims against Plaintiff who operated a department store in Texas. Plaintiff alleges that the article libeled and defamed three groups of its employees. Plaintiff sued in the following groups: (1) Nine individual models that constitute the entire group of models; (2) Fifteen salesmen suing on behalf of twenty-five salesman; and (3) Thirty saleswomen suing on behalf of 382 saleswomen. Issue. Can a designated group of individuals sue for libel when less than all of the designated group are libeled? Held. No. Complaint dismissed with leave to file separate complaints. 1 It was alleged that most of Plaintiff's salesmen were gay. This is not a cause of action in New York, and Defendants' motion to dismiss as to this claim is denied. The allegations against Plaintiff saleswomen were general allegations against an extremely large group. No specific individual is named in the statement. No case has been cited that that would support a cause of action by a member of any group of such magnitude. This Court holds as a matter of law that no reasonable man would take the writer seriously and conclude that the publication references any individual saleswoman. This court grants the two other groups leave to file separate complaints.

Discussion. If a single member of a large group presents particular circumstances that point to that member as the person defamed, that individual may have a cause of action.

300 Bindrim v. Mitchell

Bindrim v. Mitchell
Citation. 444 U.S. 1040, 100 S.Ct. 713, 62 L.Ed.2d 675 (Cal.Appell.1979). Brief Fact Summary. The Defendants were Gwen Mitchell (Ms. Mitchell) and Doubleday Publishing (Defendants). Ms. Mitchell wrote a novel allegedly based on the Plaintiff, Dr. Paul Bindrim's (Plaintiff), psychological techniques, including a nude marathon. Plaintiff brought an action for libel. Defendants claimed the novel was a work of fiction and the character could not reasonably be identified as Plaintiff. Synopsis of Rule of Law. The issue of whether or not a character is a representation of the Plaintiff in question is if a reader with knowledge of the surrounding circumstances could reasonably understand that the words referred to the plaintiff. Facts. The Plaintiff, a licensed psychologist, used a "nude marathon group therapy" technique to help rid individuals of their psychological inhibitions. Ms. Mitchell, a successful novelist, registered in this program, signing a contract with Plaintiff to not disclose what occurred at the workshop. Ms. Mitchell contracted with Doubleday for a novel based on the nude-therapy technique. Plaintiff brought a libel action against the Defendants, claiming he was defamed by the depiction. The jury found for Plaintiff at trial and the court granted a motion for a new trial conditioned on Plaintiff accepting a remittitur. Both Plaintiff and Defendants appealed. Issue. Was there sufficient evidence to show that the Plaintiff was identified as the main character in the novel? Held. Yes. Judgment affirmed. 1 The only real differences between Plaintiff and the novel characterization were physical appearance and the fact that the main character was a psychiatrist rather than a psychologist. There is overwhelming evidence that the main character could be identified as the Plaintiff. Defendants contend that the labeling of the book as a novel bars any claim that the characters are representations of actual, nonfictional persons. However, the test is whether a reasonable person reading the book would understand that a fictional character therein is a description of the Plaintiff. Defendants also question if there is publication for libel when the communication is only to one person or a small group of people. This is based on the limited recognition of Plaintiff by readers who know him. However, it is clear that publication is sufficient for defamation even when the publication is to only one person other than the person defamed.

Dissent. Presiding Judge Files wrote that the fictional therapist in Ms. Mitchell's book is conspicuously different from the Plaintiff. The only similarity is the nude encounter

301 Bindrim v. Mitchell therapy. Only three witnesses testified they recognized Plaintiff and the only characteristic they recognized was the therapy practiced. Concurrence. The fictional setting does not insure immunity when a reasonable person would find the fictional character to be a portrayal of the Plaintiff. Discussion. The reference to the plaintiff, known as the colloquium, need not address the plaintiff by name if it is reasonably understood as referring to him.

302 Shor v. Billingsley

Shor v. Billingsley
Citation. 4Misc.2d 857, 158 N.Y.S.2d 476 (1956). Brief Fact Summary. The Defendant, Billingsley (Defendant), ad-libbed a defamatory statement about the Plaintiff, Shor (Plaintiff) on a radio broadcast. Plaintiff brought a defamation suit. Synopsis of Rule of Law. Defamation broadcast on the radio is actionable as either libel or slander, regardless of whether it is read from a script or ad-libbed. Facts. The Plaintiff sued the Defendant for an ad-libbed remark on a nationwide radio telecast. Defendant said that he wished he had as much money as Plaintiff owes. Issue. Can an action based on a telecast not read from a prepared script be actionable as libel or slander? Held. Yes. Motion to dismiss is denied. 1 Considering the large audience reached by radio today, the broadcast of defamatory utterances is as potentially harmful as a publication by writing. The element of damage is historically the basis for common law defamation. Therefore, both logic and policy support the conclusion that defamation by radio should be actionable per se. Delivery of the same statement over a microphone at a stadium would still be treated as slander because of a history of past decisions. But the Court was not equally powerless to address defamation in the new media of radio and television.

Discussion. This matter is generally regulated by statute today, with most statutes providing that any defamation broadcasted is to be treated as slander.

303 Terwilliger v. Wands

Terwilliger v. Wands
Citation. 17 N.Y. 54, 72 Am.Dec. 420 (N.Y.Appell.1858). Brief Fact Summary. The Plaintiff, Wands (Plaintiff), brought a slander action against the Defendant, Terwilliger (Defendant), claiming the Defendant made statements accusing the Plaintiff of having intercourse with a married woman and trying to keep this woman's husband in jail. Synopsis of Rule of Law. Special damages must be claimed in a slander suit that is not slander per se. Only pecuniary injuries affecting one's character will suffice. Facts. The Plaintiff proved at trial that the Defendant suggested that the Plaintiff was going to a Mrs. Fuller's house to have intercourse, that this woman was a bad woman, and that the Plaintiff was doing everything in his power to keep Mrs. Fuller's husband in the penitentiary so that he could have free access to Mrs. Fuller. The Plaintiff brought an action for slander. A motion for nonsuit was sustained by the trial court. Issue. Did the Plaintiff prove special damages, as is required when a slander cause of action is not slander per se? Held. No. Judgment affirmed. 1 The Plaintiff claims that he suffered poor health and was unable to attend to business after hearing of the Defendant's reports. Special damages must have been the natural, immediate and legal consequences of the slander in question. It is said that special damages in general are whenever a person is prevented by the slander from receiving what would otherwise be conferred on him, even if it would have been gratuitous. In the present case, there is no proof that the Plaintiff's character was injured. A sickness caused by fear of harm to character does not suffice, therefore the special damages relied on in this case do not support an action.

Discussion. Four types of slander are actionable without proof of special damages under the common law. These are imputations (i) of a major crime; (ii) of a loathsome disease; (iii) affecting one's business trade, profession, or office; (iv) of serious sexual misconduct.

304 Economopoulos v. A.G. Pollard Co.

Economopoulos v. A.G. Pollard Co.

Citation. 218 Mass. 294, 105 N.E. 896. Brief Fact Summary. The Plaintiff, Economopoulos (Plaintiff), sued the Defendant, A.G. Pollard Co. (Defendant) because its clerks falsely accused him of stealing. No one was present who spoke the language that the accusation took place in except for the Plaintiff and the clerk. Synopsis of Rule of Law. To maintain a defamation cause, publication of the defamatory statement must occur to some one other than the person defamed. Facts. A clerk of the Defendant told the Plaintiff in English that the Plaintiff had stolen a handkerchief. The Plaintiff spoke Greek, so a Greek clerk told the Plaintiff the same thing in Greek. No evidence showed that any third person heard the charge except the floor walker. The Plaintiff brought a tort charge for maliciously accusing him of larceny by words spoken. Issue. Can publication occur when no third person hears the slanderous statement except persons who do not speak the same language? Held. No. Exceptions overruled. 1 There was no evidence that anyone, but the Plaintiff was present when the first clerk spoke to the Plaintiff in English. There was no evidence that anyone present except the Plaintiff understood the words spoken by the second clerk. Therefore, no publication was made.

Discussion. Publication in defamation cases does not refer to any sort of writing, but rather means communication of the words to some other person than the person defamed.

305 Carafano v. Metrosplash.Com, Inc.

Carafano v. Metrosplash.Com, Inc.

Citation. 339 F.3d 1119 (9th Cir. 2003) Brief Fact Summary. An unidentified individual posted a profile of an actress on a dating service website. The actress did not know about the posting. The profile included vulgar and embarrassing information. Synopsis of Rule of Law. 47 U.S.C. 230(c)(1) provided the dating service in this matter immunity from suit. Facts. Matchmaker.com ("Matchmaker") was a for profit, internet dating service. Individuals that participated in the service posted anonymous profiles and were allowed to contact other individuals with postings via electronic mail. Each profile contained personal information, plus one or more pictures of the member. Members were also required to fill out detailed questionnaires that included both essay and multiple choice questions. Matchmaker reviewed the pictures for impropriety, but did not review the profiles. On October 23, 1999, an unknown individual posted a "trial" personal profile for the Plaintiff, Christianne Carafano a/k/a Chase Masterson (the "Plaintiff"), in the Los Angeles section of Matchmaker. A "trial" profile could be posted without a fee for a weeks. The Plaintiff did not authorize or initially know about a posting under her name. The Plaintiff was a successful actress, and various pictures of her were available on the internet. Several of those pictures were posted on the profile. Certain embarrassing and inappropriate information was included in the profile. First, that the Plaintiff read "Playboy/Playgirl" to learn about current events. Second, that she was looking for a one night stand. Third, that the Plaintiff "was looking for a 'hard and dominant' man with 'a strong sexual appetite' and that she 'liked sort of be [ ]ing controlled by a man, in and out of bed.' " An e-mail address was also provided in the profile. An automatic reply to that e-mail provided anyone that responded to the Plaintiff's profile with the Plaintiff's home telephone number and address. Beginning on October 31, 1999, the Plaintiff, unaware that the profile was on the internet, began receiving sexually explicit messages by all mediums of communication, in response to the profile. As a result of these messages, the Plaintiff and her son felt unsafe, and stayed away from Los Angeles for a long period of time. On November 6, 1999, an assistant of the Plaintiff Siouxzan Perry ("Ms. Perry"), learned about the website and the Plaintiff instructed her to contact Matchmaker to remove the profile. The profile was blocked on November 8, 1999 and removed the following morning. 1 The Plaintiff filed suit against Matchmaker and another Defendant, its corporate successor Metrosplash.Com, Inc. (the "Defendants"), in California. The suit was brought in state court alleging various causes of action including "invasion of privacy, misappropriation of the right of publicity, defamation, and negligence." The case was removed to federal court and the district court granted the Defendants' motion for summary judgment. Although summary judgment was granted, the Defendant's contention that it was immune under 47 U.S.C. 230(c)(1) was rejected by the district court.

306 Carafano v. Metrosplash.Com, Inc. Issue. Whether the Plaintiff's claims are barred by 47 U.S.C. 230(c)(1)? Held. Yes. 47 U.S.C. 230(c)(1) stated "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." The result of this provision was to grant "most Internet services immunity from liability for publishing false or defamatory material so long as the information was provided by another party." This provision resulted in internet publishers being treated differently from print, television and radio publishers. There were two purposes for this immunity: "to promote the free exchange of information and ideas over the Internet and to encourage voluntary monitoring for offensive or obscene material." Courts have defined "interactive computer service" very broadly and "information content provider" very narrowly, in order to further these two goals. Accordingly, an " 'interactive computer service' qualifies for immunity so long as it does not also function as an 'information content provider' for the portion of the statement or publication at issue." 1 The court relied upon [Batzel], which "provided immunity to the operator of an electronic newsletter who selected and published an allegedly defamatory email over the Internet." The court observed that "the Batzel decision joined the consensus developing across other courts of appeals that 230(c) provides broad immunity for publishing content provided primarily by third parties." The majority found that although certain of the content on the individual members' profiles was formulated based on the members' responses to the questionnaire, the Defendants immunity was not breached. The selection of the content was left entirely to the member. The court observed, "Matchmaker cannot be considered an 'information content provider' under the statute because no profile has any content until a user actively creates it." Accordingly, the majority found that Matchmaker's role was analogous to "the customer rating system" involved in [Gentry v. eBay, Inc.]. The court in [Gentry] found that eBay was not transformed into an "information content provider" solely because it "compil[ed] false and/or misleading content created by the individual defendants and other coconspirators." On the same note, "the fact that Matchmaker classifies user characteristics into discrete categories and collects responses to specific essay questions does not transform Matchmaker into a 'developer' of the 'underlying misinformation.' " 2 The court in [Gentry] observed, "[T]he fact appellants allege eBay is an information content provider is irrelevant if eBay did not itself create or develop the content for which appellants seek to hold it liable. It is not inconsistent for eBay to be an interactive service provider and also an information content provider; the categories are not mutually exclusive. The critical issue is whether eBay acted as an information content provider with respect to the information that appellants claim is false or misleading." Relying on [Gentry], the court recognized "critical information about Carafano's home address, movie credits, and the e-mail address that revealed her phone number were transmitted unaltered to profile viewers. Similarly, the profile directly reproduced the most sexually suggestive comments in the

307 Carafano v. Metrosplash.Com, Inc. 1 essay section, none of which bore more than a tenuous relationship to the actual questions asked. Thus Matchmaker did not play a significant role in creating, developing or 'transforming' the relevant information." Discussion. This case illustrates how internet publishers are treated differently from publishers in print television and radio.

308 Ogden v. Association of the United States Army

Ogden v. Association of the United States Army

Citation. 177 F.Supp. 498 (D.C.1959). Brief Fact Summary. Plaintiff brought suit for an allegedly libelous book that was originally published at a time that would have caused the statute of limitation to have accrued, but more copies had been published since then. Synopsis of Rule of Law. Under the single publication rule, written material containing defamatory matter gives rise to only one cause of action for libel. This cause accrues at the time of the original publication, and the statute of limitation runs from that date. Facts. A book containing allegedly libelous material was published in November, 1955. This suit was filed on June 25, 1959. The District of Columbia has a 1-year statute of limitations for defamation. Issue. Does the District of Colombia apply the single publication rule? Held. Yes. Defendant's motion for summary judgment granted 1 Under the common law, every sale or delivery of libelous matter was a new publication, allowing a new cause of action to accrue. Under modern conditions, this would allow for an unnecessary multiplicity of suits. The number of copies of the offending publication that are published will be a factor in determining the amount of recoverable damages. However, the original publication of the defamatory material causes the statute of limitations to run.

Discussion. This case reflects the majority rule in American jurisdictions today.

309 New York Times v. Sullivan

New York Times v. Sullivan

Citation. 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). Brief Fact Summary. The Petitioner, the New York Times (Petitioner), printed an advertisement that included false statements relating to the Respondent, L.B. Sullivan, an elected official's (Respondent) conduct. The Respondent brought suit for defamation and the trial court found in his favor. Synopsis of Rule of Law. The First Amendment of the United States Constitution (Constitution) requires proof of actual malice for libel actions brought by public officials against critics of their official conduct. Facts. The Respondent was one of three elected Commissioners of Montgomery, Alabama. His duties included supervision of the police department. The Respondent brought suit against the Petitioner, alleging that he was libeled by statements made in a full-page advertisement carried by the Petitioner. The advertisement included allegations that armed police in Montgomery surrounded the State Capitol when students gathered there to protest and that Dr. Martin Luther King has repeatedly been harassed by police in the south. The Plaintiff was not mentioned by name, but claimed that the statements attributed misconduct to him as supervisor of the Montgomery Police Department. A jury at Circuit Court awarded respondent damages of $500,000 and the Supreme Court of Alabama affirmed. Issue. Are States limited in their power to award damages in a libel action brought by a public official against critics of his official conduct? Held. Yes. Judgment reversed and remanded. 1 It is clear from the facts that some of the statements made in the advertisement were not accurate. However, an important purpose behind the First Amendment of the Constitution is to allow for uninhibited debate of public issues. It has been established that States or the federal government may not hinder debate of public issues through criminal statutes. This First Amendment constitutional protection is also applicable to civil libel actions. Safeguards are particularly important in this area because of the lack of indictment requirements and the lower burden of proof in civil cases. Because of these constitutional concerns, the Supreme Court of the United States (Supreme Court) holds that a public official may not recover for defamatory falsehood relating to his official conduct unless he proves the statement was made with actual malice. Actual malice is defined as knowledge that the statement was false or acting with reckless disregard as to whether it was false or not. This privilege includes matters of public concern, public men, and candidates for office.

310 New York Times v. Sullivan 1 In the present case, there is no evidence that the statement printed by the Petitioner indicated malice at the time of publication. Further, the Petitioner's failure to retract the statement in this case is not adequate evidence of malice for constitutional purposes. Concurrence. Omitted. Discussion. The majority of courts that have considered the implications of this case have determined that the privilege is limited to expressions of opinion and does not include misstatements of fact.

311 St. Amant v. Thompson

St. Amant v. Thompson

Citation. 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). Brief Fact Summary. During a televised speech, the Defendant, St. Amant (Defendant), quoted material from a third person that falsely accused the Plaintiff, Thompson (Plaintiff), of criminal activities. The trial court found in favor of the Plaintiff. The appellate court reversed. The Louisiana Supreme Court affirmed the trial court's decision. Synopsis of Rule of Law. In order to prove reckless disregard for the truth, there must be sufficient evidence to show that the defendant entertained serious doubts as to the truth of his publication. Facts. The Defendant made a televised political speech during which he read questions and answers he had previously asked a union member. The answers falsely charged the Plaintiff, a deputy sheriff, with criminal conduct. The trial judge awarded damages for defamation. The intermediate appellate court reversed, finding that the Defendant had not acted with actual malice. The Louisiana Supreme Court reversed, finding sufficient evidence that the Defendant acted with reckless disregard for the truth. The United States Supreme Court (Supreme Court) granted certiorari. Issue. Was the Supreme Court of Louisiana correct in its determination that defendant acted with reckless disregard for the truth? Held. No. Judgment reversed and remanded. 1 The Supreme Court accepts the Louisiana courts determinations that the material published was false and that the Plaintiff was a public official for the purpose of this case. Therefore, the actual malice standard is applicable. It is clear that the Defendant had no personal knowledge of the Plaintiff's activities, but rather relied only on the union member's affidavit. He failed to verify the information, mistakenly believing that he had no responsibility for the broadcast because he was quoting someone else's words. In order to meet the actual malice standard, the Defendant must have a high degree of awareness of the statements probable falsity. This standard is not measured by whether a reasonably prudent man would have published the material or would have investigated before publishing. Rather, there must be sufficient evidence to show that the Defendant entertained serious doubts as to the truth of his publication. A defendant cannot insure a favorable verdict by simply stating that he published with a belief that the statement was true. The jury must instead determine if the publication was made in good faith. However, in this case

312 St. Amant v. Thompson 1 the evidence against the Defendant was insufficient to meet the reckless disregard requirement for actual malice. Dissent. Justice Abe Fortas (J. Fortas) argued that the Defendant has a duty to check the reliability of a statement. Concurrence. Justices Hugo Black (J. Black) and Justice William Douglas (J. Douglass) stated there should be an absolute privilege in defamation cases involving public figures. Discussion. In support of its decision, the Supreme Court points out that it is essential to protect some erroneous publications in order to ensure that the First Amendment of the Constitution is upheld.

313 Harte-Hanks Communications, Inc. v. Connaughton

Harte-Hanks Communications, Inc. v. Connaughton

Citation. 491 U.S. 657 (1989) Brief Fact Summary. A newspaper story about a bribery scandal surrounding an incumbent candidate for a municipal judgeship, accused another candidate for the same judgeship, of influencing the grand jury investigating the alleged bribes. Synopsis of Rule of Law. Although a precise definition of actual malice cannot be fashioned, it is clear that the publisher must have a " 'high degree of awareness of ... probable falsity,' or must have 'entertained serious doubts as to the truth of his publication.' " Facts. The Respondent, Daniel Connaughton (the "Respondent"), was an unsuccessful candidate for a municipal judgeship in Hamilton, Ohio. The Petitioner, Harte-Hanks Communications, Inc. (the "Petitioner"), was the publisher of the Journal News, a newspaper that supported the reelection of the incumbent municipal judge, James Dolan ("Mr. Dolan"). A month before the election, which took place on November 8, 1983, Mr. Dolan's Director of Court Services resigned and was arrested for bribery. On November 1, 1983, a grand jury was investigating the bribery charges. On the same date, the Journal News ran a story quoting one of the grand jury witnesses who said the Respondent "used 'dirty tricks' and offered her and her sister jobs and a trip to Florida 'in appreciation' for their help in the investigation.' " The Respondent brought suit and the jury found that the November 1, 1983 story was both defamatory and false. Additionally, it was determined that the story was published with actual malice. The jury awarded the Respondent $5000 in compensatory damages and $195,000 in punitive damages. The Court of Appeals affirmed, and concluded after considering the "evidence supporting each of the jury's special verdicts" that "neither the finding that the story was defamatory nor the finding that it was false was clearly erroneous." Issue. Did the Court of Appeals appropriately follow [Bose Corp. v. Consumers Union of the United States, Inc.] and "exercise independent judgment and determine whether the record establishes actual malice with convincing clarity" in the case before it? Held. Justice John Paul Stevens ("J. Stevens"), writing for the majority, first discussed whether the Court of Appeals "actually applied a less severe standard [than the actual malice standard] that merely required a showing of " 'highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.' " The majority found certain evidence that the Court of Appeals did apply a lesser standard. It also recognized that "Petitioner is plainly correct in recognizing that a public figure plaintiff must prove more than an extreme departure from professional standards and that a newspaper's motive in publishing a story-- whether to promote an opponent's candidacy or to increase its circulation-- cannot provide a sufficient basis for finding actual malice." To satisfy the actual malice standard,

at a minimum, the statements must have been made with a reckless disregard of the truth. Although a precise definition cannot be fashioned, it is

314 Harte-Hanks Communications, Inc. v. Connaughton clear that the publisher must have a " 'high degree of awareness of ... probable falsity,' or must have 'entertained serious doubts as to the truth of his publication.' " J. Stevens observed "it is clear that the conclusion concerning the newspaper's departure from accepted standards and the evidence of motive were merely supportive of the court's ultimate conclusion that the record 'demonstrated a reckless disregard as to the truth or falsity of Thompson's allegations and thus provided clear and convincing proof of 'actual malice' as found by the jury.' " As such, J. Stevens concluded the Court of Appeals applied the correct substantive standard. 1 The court next considered whether the Court of Appeals considered the factual record in full. This expansive review is necessary because as the majority observed "[t]here is little doubt that 'public discussion of the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule' ". Accordingly, the "reviewing court must 'examine for [itself] the statements in issue and the circumstances under which they were made to see ... whether they are of a character which the principles of the First Amendment ... protect'". The majority "agree[d] with the Court of Appeals that the evidence did in fact support a finding of actual malice," but reached the conclusion in a different manner. 2 The court concluded "the evidence in the record in this case, when reviewed in its entirety, is 'unmistakably' sufficient to support a finding of actual malice."

Discussion. This court offers in interesting discussion about the function of a reviewing court when faced with a defamation matter.

315 Gertz v. Robert Welsh, Inc.

Gertz v. Robert Welsh, Inc.

Citation. 418 U.S. 323 (1974). Brief Fact Summary. The Defendant, Robert Welsh, Inc. (Defendant), published an article that charged that the Plaintiff, Gertz (Plaintiff), an attorney, framed a police officer and was a communist. The Defendant sued the Plaintiff for libel. Synopsis of Rule of Law. The New York Times rationale does not extend to private individuals. Facts. The Plaintiff, a reputable attorney, was retained by the Nelson family to bring a civil suit against Richard Nuccio (Nuccio), a policeman who had previously been convicted of second-degree murder for the death of young Nelson. The Defendant published an article entitled "Frame-Up: Richard Nuccio and the War On Police" that purported to show that Nuccio was innocent, that his prosecution was a communist frame-up and that the Plaintiff was an architect of the frame-up. The article also falsely charged that the Plaintiff was a communist and had engaged in communist activities. The editor of the article did not do an independent investigation, but had relied on its author's extensive research. The Plaintiff filed a libel action and won a jury verdict for $50,000. The court refused to enter judgment on the verdict on the ground that the New York Times standard protects discussion of any public issue without regard to the stature of the person defamed. The decision was affirmed on appeal because the Plaintiff failed to show that the Defendant acted with actual malice as defined by New York Times. The Plaintiff appealed. Issue. May a newspaper or broadcaster publish defamatory falsehoods about an individual who is neither a public official nor a public figure and claim a constitutional privilege against liability for the injury inflicted by those statements? Held. No. Judgment reversed. 1 The First Amendment of the United States Constitution (Constitution) requires that we protect some falsehoods in order to protect speech that matters. The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, the Supreme Court of the United States (Supreme Court) would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. In Supreme Court's continuing effort to define the proper accommodation between these competing concerns, the Supreme Court have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise.

316 Gertz v. Robert Welsh, Inc. 1 The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. Despite the substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation, the Supreme Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. 2 In the tort of defamation, public figures are different than private individuals. There is a need for the balancing of interests: the need to avoid self-censorship by the media and the interest in allowing compensation for harm resulting from defamation. A public figure or official has greater access to the media to counteract false statements than private individuals normally enjoy. A private individual is more vulnerable to injury and needs greater protection. Therefore, the New York Times rationale does not extend to private individuals.

Dissent. Justice Byron White (J. White) argued that the law of defamation and the right of the ordinary citizen to recover for false publication injurious to his reputation have been almost exclusively the business of state courts and legislatures. J. White further argued that the Supreme Court has federalized major aspects of libel law by declaring unconstitutional in important respects the prevailing defamation law in all or most of the 50 States. Punitive damages may not be recovered by showing malice in the traditional sense of ill will; knowing falsehood or reckless disregard of the truth will now be required. In these circumstances, the law has heretofore put the risk of falsehood on the publisher where the victim is a private citizen and no grounds of special privilege are invoked. The Supreme Court would now shift this risk to the victim, even though he has done nothing to invite the calumny, is wholly innocent of fault and is helpless to avoid his injury. The press today is vigorous and robust. To J. White it is quite incredible to suggest that threats of libel suits from private citizens are causing the press to refrain from publishing the truth. Concurrence. Justice Harry Blackman (J. Blackmun) argues that the Supreme Court today refuses to apply New York Times to the private individual, as contrasted with the public official and the public figure. It thereby fixes the outer boundary of the New York Times doctrine, and says that, beyond that boundary, a State is free to define for itself the appropriate standard of media liability so long as it does not impose liability without fault. Discussion. In this case, the Supreme Court limits the application of the New York Times standard to public officials and figures only. A private individual need not show that a defendant acted with actual malice.

317 Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc.

Citation. 472 U.S. 749 (1985). Brief Fact Summary. Dun & Bradstreet, Inc. (Petitioner) sent a report to five subscribers, regarding the credit rating of Greenmoss Builders, Inc. (Respondent). The report was proven false, and Defendant brought suit for libel, based on the harm it incurred as a result of the erroneous report. Synopsis of Rule of Law. The First Amendment does not protect the speech of a nonmedia party, when its actions create slander and/or libel against another private party. Facts. Petitioner sent a credit report to five subscribers, indicating that Respondent had filed a voluntary petition for bankruptcy. The report was false, the result of the Petitioner's use of a 17-year-old high school student to review the bankruptcy proceedings. Respondent was actually in good credit standing, but one of its employees had, indeed, filed bankruptcy. When respondent learned of the error, it called Petitioner, explained the error, and asked for a correction. Petitioner sent out a notice of the mistake, but refused to disclose its subscribers, and Respondent brought suit for liable. Respondent was awarded $50,000.00 in damages, and $300,000.00 in punitive damages. The trial court granted a new trial, but Respondent appealed to the Supreme Court of Vermont, which reinstated the verdict, maintaining that the constitutional requirements for a suit for libel did not apply to a non-media defendant. The Supreme Court of the United States granted certiorari. Issue. Whether the first amendment rights of the maker of an expression, concerning public issue, preclude it from being sued for libel, when it is not a media defendant? Held. Affirmed. 1 In reaching its conclusion, the Court focused on content, form, and context, in considering whether the Defendant's speech was protected by the First Amendment. In this case, the Court found that the Defendant, a private subscription service, was not reporting on an issue of public concern when it made its report regarding the Plaintiff, and as such, it could not seek protection under the First Amendment.

Dissent. Justice Brennan dissented, noting that although this type of speech is not central to the meaning of the First Amendment, punitive damage awards should be restrained. Discussion. While the First Amendment affords media defendants great protection, when they are reporting on issues of "public concern", non-media defendants cannot use that same protection when their actions cause damages to private parties.

318 Philadelphia Newspapers, Inc. v. Hepps

Philadelphia Newspapers, Inc. v. Hepps

Citation. 475 U.S. 767 (1986). Brief Fact Summary. Hepps (Plaintiff) brought suit against Philadelphia Newspapers, Inc. (Defendant), after it published a series of articles alleging that Plaintiff had links to organized crime, and had used their position to exercise influence over the government. Synopsis of Rule of Law. A private party cannot bring suit against a newspaper for slander or libel, without bearing the burden of showing falsity and fault, before recovering damages. Facts. Plaintiff was the principal stockholder of General Programming, Inc. (GPI), a corporation engaged in franchising convenience stores. Defendant published a series of articles, alleging that Plaintiff had exercised undue influence over the governmental using its ties to organized crime. Plaintiff brought suit based on slander. At the jury trial of the matter, a verdict was found for the Defendant. The Supreme Court of Pennsylvania remanded the case, holding that it was not unconstitutional to hold that the Defendant must bear the burden of showing the truth of the statements. The Supreme Court granted certiorari. Issue. This case considers whether a media defendant must bear the burden of proving the truth of statements it publishes, when they are attacked as libel by a private Plaintiff. Held. Reversed. 1 The court held that the Plaintiff must prove the truth or, actually, the falsity of the statements alleged as slanderous, to recover damages. While the Plaintiff is a private figure, the Defendant is protected by its First Amendment freedom of press rights against a suit for slander, Dhen a plaintiff cannot prove that it published false statements and, thereby showing that it was at fault.

Dissent. The dissent held that a private-party plaintiff should not have to bear the burden of showing certain statements to be false, in order to recover damages based in slander. According to Justice Stevens, "deliberate, malicious character assassination is not protected by the First Amendment to the United States Constitution." The First Amendment does not require the target of defamation to prove his assailant was at fault. Discussion. The First Amendment affords a newspaper great leniency in what it publishes. In this case, the Plaintiff could not prove that the Defendant had knowingly printed false statements, and thus, the Defendant could not be held liable for slander.

319 Milkovich v. Lorain Journal Co.

Milkovich v. Lorain Journal Co.

Citation. 497 U.S. 1 (1990). Brief Fact Summary. Milkovich (Petitioner) brought suit against Lorain Journal Co. (Respondent), when it published an article, which implied Petitioner had lied under oath in a judicial proceeding. Synopsis of Rule of Law. The First Amendment does not preclude a newspaper from being sued for libel, when a plaintiff can show that statements published were an attack on reputation. Facts. Milkovich was the wrestling coach at Maple Heights High School in Ohio. During the 1974 season, the team was involved in an altercation at a home match, during which several people were injured. After the altercation, the Ohio High School Athletic Association (OSHAA) placed the team on probation. Then, several parents and students sued the OSHAA, in the Court of Common Pleas, seeking a restraining order of the probation, on the grounds that due process had not been afforded to the members of the team. The court overturned the conviction and, the next day, Respondent published an article alleging that Petitioner had lied so the probation would be overturned. Petitioner brought suit, alleging defamation. Issue. Whether a newspaper can be held liable for defamation, when it publishes an article about a private figure which, albeit opinion, was designed as a character attack? Held. Reversed. 1 The Court reversed the lower court ruling that the article constituted a constitutionally protected opinion, and held that while the First Amendment does guarantee uninhibited speech, the important social values underlying the law of defamation recognize a strong interest in preventing and redressing character attacks.

Discussion. The First Amendment gives great leniency to newspapers and their journalists; however, the constitution also recognizes that defamation can exist, when an article is published specifically to attack another's character.

320 Sindorf v. Jacron Sales Co., Inc.

Sindorf v. Jacron Sales Co., Inc.

Citation. 341 A.2d 856 (Md. App. 1975). Brief Fact Summary. Sindorf (Plaintiff) brought suit against his former employer, Defendant, for defamation, after he learned that Defendant had made derogatory remarks about him to his new employer. Synopsis of Rule of Law. While a conditional privilege may exist, when two parties are discussing another party they have in common, and there is truth to the discussion, the question of whether the communication was made out of malice is still a proper question for a jury. Facts. Plaintiff, Defendant's former employee, resigned after a dispute as to his sales practice. After Plaintiff sought employment with a competitor, Defendant's Vice President called Plaintiff's new employer and made derogatory insinuations regarding Plaintiff's honesty. Plaintiff brought suit for defamation. The trial court held that the conversation between Plaintiff's current and former employers was privileged, and directed verdict for Defendant. Plaintiff appealed. Issue. This case considers whether a conditional privilege exists in defamation suits where the Plaintiff is a former employee of the Defendant. Held. Reversed. 1 The court reversed the judgment, holding that a privilege may exist where the truth is in question. The question of malice must be for a jury, and Plaintiff may be afforded the opportunity to bring suit.

Discussion. When considering whether a communication was made with malice, the question will be presented to a jury for determination.

321

C H A P T E R X V I I I . P r i v a c y

322 Joe Dickerson & Associates, LLC v. Dittmar

Joe Dickerson & Associates, LLC v. Dittmar

Citation. 34 P.3d 995 (Colo. 2001) Brief Fact Summary. A private investigator published an article in a newsletter about an alleged fraud perpetrated by someone he was investigating. The alleged perpetrator of the fraud sued, charging that the private investigator profited off her likeness. Synopsis of Rule of Law. The elements of the tort of invasion of privacy by appropriation of another's name or likeness are: "(1) the defendant used the plaintiff's name or likeness; (2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit, commercially or otherwise; (3) the plaintiff suffered damages; and (4) the defendant caused the damages incurred." Facts. The Defendants, Joe Dickerson & Associates, LLC and Joe Dickerson ("Mr. Dickerson") (the "Defendants"), were hired to investigate the Plaintiff, Rosanne Marie (Brock) Dittmar (the "Plaintiff"), during a custody dispute. While conducting his investigation into the custody issue, Mr. Dittmar noticed something improper in the way the Plaintiff came to possess certain bearer bonds. Mr. Dittmar provided the authorities with what he learned during his investigation. As a result, the Plaintiff was charged with, and convicted of, theft of the bearer bonds. Mr. Dickerson published a newsletter called "The Dickerson Report", in which he discussed various aspects of financial fraud. The article at issue here was entitled "Fraud-DuJour Five Cases, 100%+ Recovery". In this article, Mr. Dickerson discussed among other instances of fraud, how the Plaintiff came to fraudulently be in possession of the bearer bonds. Mr. Dickerson discussed his investigation of the Plaintiff, and included the Plaintiff's name and photograph. The Plaintiff sued the Defendants on various tort theories, including "defamation, outrageous conduct, and invasion of privacy by appropriation of another's name or likeness." The trial court granted the Defendants summary judgment on all claims. The trial court specifically recognized Colorado had not explicitly adopted invasion of privacy by appropriation of another's name or likeness. Additionally, "even assuming the tort was cognizable under Colorado law, Dittmar 'present[ed] no evidence that her name or likeness had any value.' " The Court of Appeals agreed with the trial court, and found that "this tort requires the defendant to appropriate certain values associated with the plaintiff's name or likeness: 'In order for liability to exist, the defendant must have appropriated to his or her own use or benefit the reputation, prestige, social or commercial standing, public interest or other values of the plaintiff's name or likeness.' " Issue. "[W]hether the tort of invasion of privacy based on appropriation of another's name or likeness is cognizable under Colorado law"? 1 2 "[I]f yes, whether an appropriation claim requires evidence that the plaintiff's name has an exploitable value"? "[W]hether the article constituted constitutionally protected speech"?

323 Joe Dickerson & Associates, LLC v. Dittmar Held. Yes. "[T]he tort of invasion of privacy by appropriation of another's name or likeness is cognizable under Colorado law." This tort's elements are "(1) the defendant used the plaintiff's name or likeness; (2) the use of the plaintiff's name or likeness was for the defendant's own purposes or benefit, commercially or otherwise; (3) the plaintiff suffered damages; and (4) the defendant caused the damages incurred." 1 Mr. Dickerson argued that the Plaintiff "presented no evidence that her name and likeness had any value." The court observed, quoting [Motschenbacher v R.J. Reynolds Tobacco Co.], that "[i]t is true that the injury suffered from an appropriation of the attributes of one's identity may be 'mental and subjective'-in the nature of humiliation, embarrassment and outrage. However, where the identity appropriated has a commercial value, the injury may be largely, or even wholly, of an economic or material nature." Accordingly, the court refused to require a Plaintiff to prove that their name or likeness had any value, when only seeking personal damages. 2 The Defendants additionally argued that since the article at issue related to an issue of public concern, it was constitutionally protected speech. The court observed, "[i]n the context of invasion of privacy by appropriation of name and likeness, there is a First Amendment privilege that permits the use of a plaintiff's name or likeness when that use is made in the context of, and reasonably relates to, a publication concerning a matter that is newsworthy or of legitimate public concern." The court also recognized that, "[i]n many situations, however, it is not altogether clear whether a particular use of a person's name or likeness is made for the purpose of communicating news or for the purpose of marketing a product or service." To determine whether the use of ones likeness was commercial in nature "courts must determine whether the character of the publication is primarily noncommercial, in which case the privilege will apply, or primarily commercial, in which case the privilege will not apply." Pursuant to this test, "an article that has commercial undertones may still be protected if it concerns a legitimate matter of public concern." The court observed they had "found no precedent where a convicted felon has brought a tort claim of wrongful appropriation of her identity based upon the defendant's republication of truthful information about her conviction." The court then defined commercial speech as "speech that proposes a commercial transaction". Further, it recognized that a "profit motive does not transform a publication regarding a legitimate matter of public concern into commercial speech." The court concluded "that the defendant's publication was primarily noncommercial because it related to a matter of public concern, namely the facts of the plaintiff's crime and felony conviction." Additionally, "[i]n the context of a discussion of the plaintiff's crime and felony conviction, which are legitimate matters of public concern, the use of her name and picture cannot be described as a primarily commercial usage of her identity." It was also irrelevant that the article in question did not appear in a traditional newspaper. The court then held "the publication of a plaintiff's name and

324 Joe Dickerson & Associates, LLC v. Dittmar 1 likeness in connection with a truthful article regarding the plaintiff's felony conviction is privileged." Discussion. "In a seminal law review article, William Prosser described invasion of privacy as a complex of four related torts: (1) unreasonable intrusion upon the seclusion of another; (2) publicity that places another in a false light before the public; (3) public disclosure of embarrassing private facts about another; and (4) appropriation of another's name or likeness."

325 Sanders v. American Broadcasting Companies, Inc., et al.

Sanders v. American Broadcasting Companies, Inc., et al.

Citation. 20 Cal. 4th 907, 978 P.2d 67, 85 Cal. Rptr.2d 909 (Cal. 1999) Brief Fact Summary. An undercover reporter obtained a job at a "telespsychic" company. The undercover reporter audio and video taped certain interactions she had with an employee of the "telepsychic company". Synopsis of Rule of Law. The court held "where the other elements of the intrusion tort are proven, the cause of action is not defeated as a matter of law simply because the events or conversations upon which the defendant allegedly intruded were not completely private from all other eyes and ears." Facts. The Defendants, were Stacy Lescht ("Ms. Lescht"), a reporter and her employer American Broadcasting Companies, Inc. (the "Defendants"). Ms. Lescht obtained employment as a "telepsychic" with the Psychic Marketing Group (PMG). The Plaintiff, Mark Sanders (the "Plaintiff") was also employed by PMG. Ms. Lescht wore a wire while working in one of PMG's offices and videotaped, with a hat cam, various conversations between herself, and other coworkers, including the Plaintiff. The Plaintiff brought suit alleging various causes of action including "the tort of invasion of privacy by intrusion." The jury found for the Plaintiff on the invasion of privacy by intrusion action, but the Court of Appeal reversed finding that a defense to another cause of action, a violation of Penal Code section 632, established that the Plaintiff had no reasonable expectation of privacy in his workplace conversation because they could be overheard by others in the office. Issue. "May a person who lacks a reasonable expectation of complete privacy in a conversation because it could be seen and overheard by coworkers (but not the general public) nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation?" Held. Yes. The court relied upon [Shulman v. Group W Productions, Inc.] and "adhere[d] to the view suggested in Shulman: privacy, for purposes of the intrusion tort, is not a binary, all-or-nothing characteristic. There are degrees and nuances to societal recognition of our expectations of privacy: the fact that the privacy one expects in a given setting is not complete or absolute does not render the expectation unreasonable as a matter of law." The court observed that seclusion is not an absolute construct and "[l]ike 'privacy,' the concept of 'seclusion' is relative. The mere fact that a person can be seen by someone does not automatically mean that he or she can legally be forced to be subject to being seen by everyone." Further, "[p]rivacy for purposes of the intrusion tort must be evaluated with respect to the identity of the alleged intruder and the nature of the intrusion." 1 "[D]ecisions on the common law and statutory protection of workplace privacy show that the same analysis applies in the workplace as in other settings; consequently, an employee may, under some circumstances, have a

326 Sanders v. American Broadcasting Companies, Inc., et al. 1 reasonable expectation of visual or aural privacy against electronic intrusion by a stranger to the workplace, despite the possibility that the conversations and interactions at issue could be witnessed by coworkers or the employer." 2 The court concluded "that in the workplace, as elsewhere, the reasonableness of a person's expectation of visual and aural privacy depends not only on who might have been able to observe the subject interaction, but on the identity of the claimed intruder and the means of intrusion." Accordingly, "a person who lacks a reasonable expectation of complete privacy in a conversation, because it could be seen and overheard by coworkers (but not the general public), may nevertheless have a claim for invasion of privacy by intrusion based on a television reporter's covert videotaping of that conversation." "In an office or other workplace to which the general public does not have unfettered access, employees may enjoy a limited, but legitimate, expectation that their conversations and other interactions will not be secretly videotaped by undercover television reporters, even though those conversations may not have been completely private from the participants' coworkers." Instead, the court says that any analysis of a legitimate expectation of privacy must be done on a case by case basis. Further, "liability under the intrusion tort requires that the invasion be highly offensive to a reasonable person, considering, among other factors, the motive of the alleged intruder."

Discussion. It is important to recognize the court refused to hold that "investigative journalists necessarily commit a tort by secretly recording events and conversations in offices, stores or other workplaces."

327 Hall v. Post

Hall v. Post
Citation. 323 N.C. 259, 372 S.E.2d 711 Brief Fact Summary. Certain true and accurate facts about the adoption of a child were published in two newspaper articles. The publication of the stories allegedly caused certain persons emotional distress. Synopsis of Rule of Law. "[C]laims for invasions of privacy by publication of true but 'private' facts are not cognizable at law in this State." Facts. The Plaintiffs, Susie Hall and her adoptive mother Mary Hall (the "Plaintiffs"), brought an action against the Defendant, Rose Post (the "Defendant"), a reporter for the Salisbury Post. The Defendant authored a story published in the July 18, 1984 edition of the Salisbury Post, concerning the abandonment of a baby. The individuals who abandoned the baby, Aledith Gottschalk ("Mrs. Gottschalk") and Clarence Maxson ("Mr. Maxson"), allegedly made arrangements for a babysitter named Mary Hall to keep the baby for a few weeks. After those few weeks, Mr. Maxon told Mrs. Gottschalk that adoption papers were signed. The alleged abandonment took place in September of 1967. Mrs. Gottschalk was married to Lee Gottschalk ("Mr. Gottschalk") in 1984, and they wished to find Mrs. Gottschalk's adopted child. The July 18, 1984 article discussed the details of their unsuccessful search for the baby, and informed the paper's readers about the hotel where Mr. Gottschalk and Mrs. Gottschalk were staying. Somebody called Mr. Gottschalk and Mrs. Gottschalk at the hotel referenced in the first article, and informed them about the whereabouts of the missing child. A second article, dated July 20, 1984, authored by the Defendant, talked about how Mr. Gottschalk and Mrs. Gottschalk found the child and documented the Plaintiffs' involvement in the child's life. The Plaintiffs alleged that they fled there home in order to avoid public attention resulting from the articles and that each experienced substantial amounts of emotional and mental distress. Issue. "[W]hether claims for tortious invasion of privacy by truthful public disclosure of 'private' facts concerning the plaintiffs are cognizable at law in North Carolina"? Held. No. For the purposes of this decision, the court only concerned itself with the "private facts branch of the invasion of privacy tort." In other words, the branch of the invasion of privacy tort referred to as "the public disclosure of public facts." This was an issue of first impression for the court. The court recognized that all the facts published in the two articles were true and accurate in every respect. According to the Restatement, liability under this tort attached "where the matter publicized is of a kind that (a) would be highly offensive to a reasonable person, and (b) is not of legitimate concern to the public." Four elements must be proven to recover under this cause of action including: "(1) publicity; (2) private facts; (3) offensiveness; and (4) absence of legitimate public concern." As to the fourth, the court observed "[i]n determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community

328 Hall v. Post mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he has no concern." 1 The court first observed "decisions of the Supreme Court of the United States, scholarly articles and the Restatement make it clear that the private facts branch of the invasion of privacy tort is, at the very best, constitutionally suspect." Second, "the constitutionally suspect private facts branch of the invasion of privacy tort will almost never provide a plaintiff with any advantage not duplicated or overlapped by the tort of intentional infliction of emotional distress and possibly by other torts such as trespass or intrusive invasion of privacy." Based on these two observations, the court concluded "that any possible benefits which might accrue to plaintiffs are entirely insufficient to justify adoption of the constitutionally suspect private facts invasion of privacy tort which punishes defendants for the typically American act of broadly proclaiming the truth by speech or writing."

Concurrence. The concurring justice agreed with the majority, and felt that summary judgment was appropriately entered against the Plaintiffs. However, the justice did "not concur in the reasoning of the majority which leads it to 'reject the notion of a claim for relief for invasion of privacy by public disclosure of true but 'private' facts.' " The concurring justice agreed with the Court of Appeals, which found that the "the resolution of the conflicting rights [freedom of the press, secured by the First Amendment, and an individual's right to be left alone] lies in the "application of a 'newsworthiness' or 'public interest' standard in determining what publications are constitutionally privileged and what publications are actionable." " In determining whether something was of legitimate public concern, the concurrence advocated the adoption of the Restatement standard set forth above. The justice would have concluded the article did not constitute "morbid and sensational prying into private lives for its own sake." Instead, the stories were of a public interest and concern because Mrs. Gottschalk "returned to Salisbury in search of her daughter, whom she had abandoned seventeen years earlier." Discussion. "A review of the current tort law of all American jurisdictions reveals cases identifying at least four types of invasion of four different interests in privacy: (1) appropriation, for the defendant's advantage, of the plaintiff's name or likeness; (2) intrusion upon the plaintiff's seclusion or solitude or into his private affairs; (3) public disclosure of private facts about the plaintiff; and (4) publicity which places the plaintiff in a false light in the public eye."

329 Cantrell v. Forest City Publishing Co.

Cantrell v. Forest City Publishing Co.

Citation. 419 U.S. 245 (1974). Brief Fact Summary. Mrs. Cantrell and her children (Plaintiffs) brought suit against Forest City Publishing Co. (Defendant), when its publication, The Plain Dealer, published a feature story stressing Plaintiffs' poverty. Synopsis of Rule of Law. The First Amendment does not preclude a plaintiff from recovering against a media defendant who uses falsehoods in reporting on a matter of public concern. Facts. In 1967, Mrs. Cantrell's husband was killed during a collapse of a bridge. The Plain Dealer covered the story, focusing on the death of Mr. Cantrell and its impact on his family. Several months thereafter, the Plain Dealer returned to write a follow-up on the family. They went to Plaintiffs' residence, spoke with the children, and took pictures. Mrs. Cantrell was not home when the reporters appeared. Later, an article was published, stressing the family's poverty and the impact of the bridge disaster. The article also alluded to Mrs. Cantrell's presence and attributed characteristics to her expression that did not take place. Mrs. Cantrell and her children brought suit, claiming they had been depicted in a false light, under the theory of invasion of privacy. After trial, the district court denied Plaintiffs' demand for punitive damages, but allowed some damages for Mrs. Cantrell. The court of appeals found that the district court should not have allowed recovery, and reversed maintaining that verdict should have been directed. The Supreme Court of the United States granted certiorari. Issue. Whether the court of appeals acted appropriately when it set aside a jury verdict on an invasion of privacy claim, when the Defendant was a media publisher? Held. Reversed. 1 The Supreme Court held that the paper did publish falsehoods, and as such, was liable for the actions of its reporters, for damages sustained by the Plaintiffs.

Discussion. While reporters can claim First Amendment privilege when they report on issues of public concern, they may not hide behind this privilege when their stories knowingly represent Plaintiffs in a false light.

330 Hustler Magazine v. Falwell

Hustler Magazine v. Falwell

Citation. 485 U.S. 46 (1988). Brief Fact Summary. After Hustler Magazine and Larry Flynt (Petitioners) published an advertisement, depicting Jerry Falwell (Respondent) as having his "first time" in an outhouse with his month, the reverend brought suit based on invasion of privacy, libel and intentional infliction of emotional distress. Synopsis of Rule of Law. When an advertisement parodying a public figure depicts facts which no reasonable person could take as true, that figure cannot prevail under a theory of emotional distress. Facts. The November 1983 issue of Hustler Magazine featured a parody of an advertisement for Campari Liqueur that had the name and picture of Respondent, and was entitled "Jerry Falwell talks about his first time." The parody was designed to mimic other Campari ads, which pointed to the idea of the "first time" someone tasted Campari Liqueur. The parody depicted Respondent's first time as a drunken, incestuous encounter with his mother in an outhouse. Respondent brought suit against Petitioners, alleging invasion of privacy, libel and intentional infliction of emotional distress. The district court and the United States Court of Appeals for the Fourth Circuit found for Petitioner on the defamation and invasion of privacy claims, on the basis that no reasonable person would consider the parody as true. The same courts held for Respondent on the issue of intentional infliction of emotional distress. The Supreme Court of the United States granted certiorari. Issue. This case considers whether an award of damages for intentional infliction of emotional distress to the victim of a parody is consistent with the First Amendment freedom of the press. Held. Reversed. 1 The Court found that to uphold the judgment of the lower courts would affect all political satire. Public officials and public figures were held unable to recover in emotional distress, when they could not prove that the publication was made knowingly, with actual malice. A parody, while admittedly in bad taste, is not considered malicious.

Discussion. The important rule to understand here is how the court's decision turned on Respondent's status. If Respondent had been a private individual, arguably, his right of privacy would have allowed him to recover for emotional distress. Because Respondent was a public figure, he could not prevail in defamation, nor could he claim emotional distress.

331

C H A P T E R X I X . C i v i l R i g h t s

332 Ashby v. White

Ashby v. White
Citation. 92 Eng.Rep. 126 (Court of King's Bench, 1702). Brief Fact Summary. After a free burgess of a corporation was precluded from voting, he brought suit to recover as to the injuries he suffered. Synopsis of Rule of Law. When the actions of one party hinder the rights of another, that party may be found liable. Facts. Ashby (Plaintiff) a free burgess, was precluded from being able to exercise his right to vote, by the actions of another, and he brought suit when he sustained injury. Issue. This question presents among the first issues grounded in civil rights. 1 The issue of this case is whether one party may recover damages when one of his civil rights is hindered by the action of another.

Held. Chief Justice Holt held that a plaintiff ought to be allowed to recover, because the right to vote is a common law right and thus, an obstruction of that right should give rise to a cause of action. Dissent. The majority in the Court of King's Bench actually held that the verdict for the Plaintiff should be reversed. Discussion. When the actions of one person serve to hinder the rights of another, a cause of action may arise.

333 Camp v. Gregory

Camp v. Gregory
Citation. 67 F.3d 1286 (7th Cir. 1995). Brief Fact Summary. After a child, Anthony Young (Young), had been placed under the guardianship of the Department of Children and Family Services (DCFS), was killed, his aunt, Elnora Camp, (Plaintiff) brought suit, contending the child was denied substantive due process, when the DCFS failed to place him in a safe environment. Synopsis of Rule of Law. A state may be held liable for the deprivation of a child's rights, but state officials may not be held liable when they are acting in their capacity. Facts. Plaintiff assumed guardianship of Young after his mother's medical condition rendered her unable to care for her child. Plaintiff realized she could not provide the supervision that Young needed and petitioned the state to allow DCFS to assume guardianship of the boy. After Young was assigned a social worker, Gregory, he was returned to his aunt's care. Thereafter, Plaintiff wrote to Gregory, requesting that better supervision be provided. Her requests went unanswered and, within three months, Young was killed. Plaintiff brought suit, alleging that Young had been denied substantive due process when Gregory ignored the court's order of supervision. The district court dismissed the suit, believing Gregory was shielded form liability for his decision on Young's placement. Plaintiff appealed. Issue. Whether the state and its social worker had a duty to protect their charge when they assumed guardianship of a child? Held. Affirmed. 1 The Seventh Circuit affirmed the decision of the district court, however, its grounds were different. The Seventh Circuit found there was a positive duty to protect Young, which had been breached. However, the court also found that Gregory was acting as a state official and was due qualified immunity for his actions.

Discussion. The important consideration arising from this case is that a state may be held liable for the deprivation of a child's rights, but state officials may not be held liable when they are acting in their capacity.

334 Memphis Community School Dist. v. Stachura

Memphis Community School Dist. v. Stachura

Citation. 477 U.S. 299 (1986). Brief Fact Summary. After a seventh grade teacher (Respondent) was suspended for showing sexually explicit materials in his life-science course, he brought suit alleging he was deprived of liberty and property without due process. Synopsis of Rule of Law. When dealing with the violation of constitutional rights, compensatory damages are available for measurable harms suffered. Facts. Respondent was a seventh grade teacher in Petitioner's school. After several parents complained about his teaching methods, Respondent was suspended. Although he was later reinstated, Respondent brought suit alleging deprivation of his civil rights. The district court and court of appeals found the Petitioner liable and awarded Respondent compensatory and punitive damages. Petitioner appealed, and the Supreme Court of the United States granted certiorari to consider whether damages were appropriate when they were awarded for the "deprivation of any constitutional right." Issue. Whether damages are appropriate whenever a constitutional right is violated? Held. Reversed and Remanded. 1 The Supreme Court reversed and remanded for a new trial, strictly to deal with the issue of compensatory damages. The Court found that compensatory damages may include pecuniary losses, as well as injuries such as impairment of reputation, but they could not necessarily be for the "deprivation of a constitutional right," without a showing that harm was suffered for that deprivation.

Concurrence. Justice Marshall concurred, noting that in some cases, the violation of a constitutional right may cause harm sufficient to allow reparation. Discussion. Compensatory damages are available when a civil right, such as life, liberty or property, has been violated. However, without showing that an injury has occurred, the deprivation of a constitutional right, alone, may not lead to a separate class of damages.

335

CHAP TER XX. Misus e Of Legal Proce dure

336 Texas Skaggs, Inc. v. Graves

Texas Skaggs, Inc. v. Graves

Citation. 582 S.W.2d 863 (Tex. Civ. App. 1979). Brief Fact Summary. Sharon Graves (Plaintiff) brought suit against Texas Skaggs, Inc. (Defendant), her former employer, after they prosecuted her on two checks she had already paid. Synopsis of Rule of Law. When a defendant determines to prosecute another individual, without probable cause, and that person can prove malice, an action for malicious prosecution may be upheld. Facts. Plaintiff worked for Defendant, a grocery, until she was fired. Thereafter, she continued to buy groceries at the store. After she and her husband separated, Plaintiff was unaware he had cleaned out her checking account, and she wrote two checks, totaling $34.70, to the store, which were returned insufficient. As soon as she realized the mistake, she made a deal to pay the checks, "as soon as she could get the money," and she did this in a reasonable time. After the checks were paid, the store manager filed an incident report and had Plaintiff arrested under the state's hot check law. Plaintiff then filed suit, based on misuse of legal process. At trial, the jury found that Defendant did not have probable cause in prosecuting Plaintiff, and awarded her damages. Defendant appealed. Issue. Whether a plaintiff has a viable cause of action based on malicious prosecution, when that plaintiff has written and acknowledged checks for which there were insufficient funds? Held. Affirmed. In affirming the judgment of the lower court, the Texas Court of Civil Appeals looked at the elements for a cause of action for malicious prosecution: 1 a criminal prosecution must be instituted by the defendant against the plaintiff. In this case, Defendant instituted prosecution on bad checks, against Plaintiff; the proceedings must be terminated in favor of the plaintiff. Defendant's prosecution of Plaintiff was terminated, because she had paid the checks, and they could not produce them; there should be an absence of probable cause for the proceeding. Defendant did not have probable cause in prosecuting Plaintiff. She was well-known to the employees of the store, the checks she wrote were small, and she immediately made restitution for them; Malice. Defendant's manager was determined to prosecute Plaintiff, regardless of the fact that she had made payment on the checks; and

337 Texas Skaggs, Inc. v. Graves 1 Damages. Plaintiff sustained damage to her reputation as she was arrested and paraded through the store as a thief, in front of friends and former coworkers. Discussion. All of the above-enumerated damages must be taken into consideration when considering whether a cause of action for malicious prosecution will stand.

338 Friedman v. Dozorc

Friedman v. Dozorc
Citation. 312 N.W.2d 585 (Mich. 1981). Brief Fact Summary. After Dozorc (Defendant) sued Dr. Friedman (Plaintiff) for medical malpractice and lost, Plaintiff counter-sued for misuse of legal process. Synopsis of Rule of Law. Just because a defendant prevails in a personal injury action, it does not necessarily lend to a claim against plaintiff's council for misuse of process. Facts. Leona Serafin entered Outer Drive Hospital, where she was referred to Plaintiff for urological consultation. Plaintiff recommended kidney-stone surgery, after which Mrs. Serafin died from a rare blood disease. Defendant, an attorney, filed a malpractice action on behalf of the deceased's husband. After the posture of the case, the judge entered a directed verdict because the blood disease was the cause of death. Then, Plaintiff brought suit against Defendant, based on misuse of process. The trial court granted summary judgment for Defendant, which was affirmed, in part, and reversed in part by the court of appeals. Issue. Whether an attorney owes a duty to a potential defendant, to properly research a claim before bringing suit, a breach of which duty would lead to a cause for misuse of process? Held. The judgment of the trial court was reinstated. 1 In reaching its conclusion, the Supreme Court of Michigan held that an attorney is not an insurer to his client's adversary that his client will win litigation. An attorney has a duty to represent his client zealously; and he may, without being guilty of malicious prosecution, pursue litigation, the outcome of which he unsure.

Discussion. While malicious prosecution may be a proper claim to bring for frivolous law suits, the Plaintiff must still show actual malice. If an attorney brings a suit, on behalf of his client, that he does not know the outcome of, without malice, he cannot be guilty of malicious prosecution.

339 Grainger v. Hill

Grainger v. Hill
Citation. 132 Eng.Rep. 769 (Court of Common Pleas, 1838). Brief Fact Summary. Plaintiff brought suit after Defendant had him arrested when Defendant accelerated payments on a mortgage that he had due to them. Synopsis of Rule of Law. Abuse of process in order to extort an outcome from another party is actionable. Facts. Plaintiff mortgaged his vessel to Defendant, with an agreement to repay within a certain time period. Defendant sought to compel Plaintiff to give up title to the vessel, without which he could not work, and threatened him with prison if he did not comply or pay the mortgage in full. When Plaintiff refused, Defendant had him arrested, and Plaintiff brought suit. Issue. This case is among the first cases, which considers whether abuse of legal process is actionable in a court of law. Held. The Court of Common Please held that Plaintiff did have a cause of action, and thus denied nonsuit. Additionally, the court held this cause was an action for abusing the process of law, by applying it to extort property. Discussion. Abuse of process, in order to extort property, or apply duress is actionable.

340

C H A P T E R X X I . M i s r e p r e s e n t a

t i o n

341

Swinton v. Whitinsville Savings Bank

Swinton v. Whitinsville Savings Bank

Citation. 42 N.E.2d 808 (Mass. 1942). Brief Fact Summary. Plaintiff brought suit after he bought a house from Defendant, which was later found to be infested by termites. Synopsis of Rule of Law. This case fails to extend tort liability for nondisclosure in a contract situation. Facts. Plaintiff bought a house from Defendant, which he intended to occupy with his family. After learning the house was infested by termites, Plaintiff brought suit based on nondisclosure, claiming that Defendant breached its duty to Plaintiff when it knowingly failed to disclose the condition of the property. Plaintiff sought damages in tort, based on a duty-breach negligence standard. The lower court demurred Plaintiff's declaration, and Plaintiff appealed. Issue. This case considers whether nondisclosure in a contractual situation can also lead to tort damages. Held. Affirmed. 1 The court found the Defendant was not liable for failure to disclose a nonapparent defect, when it may not have known of the defect. The demurrer of Plaintiff's declaration that Defendant knowingly failed to disclose the condition of the property was proper.

Discussion. While a seller is contractually obligated to disclose non-apparent defects, he may not be held liable, in tort, for nondisclosure, without a showing of malice.

342

Griffith v. Byers Constr. Co. of Kansas, Inc.

Griffith v. Byers Constr. Co. of Kansas, Inc.

Citation. 510 P.2d 198 (Kan. 1973). Brief Fact Summary. After Plaintiffs learned that the soil of their properties had a saline condition, they brought suit against Byers Construction Co. of Kansas, Inc. (Defendant), based on breach of implied warranty of fitness and fraud in concealment of a material matter. Synopsis of Rule of Law. When a defendant is aware of a material condition that will affect a plaintiff's buying condition, and he conceals that condition, he may be guilty of fraudulent concealment, in tort, as well as breach of implied warranty of fitness. Facts. Defendant developed and advertised a subdivision as a residential area. Prior to development of the subdivision, the land was a part of an abandoned oil field, which contained saltwater disposal areas. Despite the saline content of the soil, Defendant marketed and developed the land in such a manner that a purchaser could not discover the presence of the areas of salt. After houses were constructed, attempts to landscape the land failed, and the homeowners brought suit based on the fact that Defendant knew or should have known of the content of the soil and fraudulently concealed that fact. The district court entered summary judgment for Defendant, and Plaintiffs appealed. Issue. This case explores whether concealment of the condition of land, which was known by Defendant, was fraudulent concealment in tort. Held. The Supreme Court of Kansas affirmed the summary judgment regarding the implied warranty of fitness, and reversed the summary judgment as to the claim of fraud in concealment. 1 In reaching its conclusions, the court held that the implied warranty of fitness was not breached, because the land could still be used for its purpose, which was to house residential dwellings. However, the court found, because Defendant knew or should have known of the condition of the soil, it fraudulently concealed that fact.

Discussion. The implied warranty of fitness can only be breached if the vendor knows of the particular use the vendee plans for the property. Because the vendee did not specify that they would landscape, the warranty was not breached. However, because the vendor was aware of a material defect of the land, which caused it to be unfit for ordinarily use, their failure to disclose that defect was actionable under fraudulent concealment.

343

Derry v. Peek

Derry v. Peek
Citation. 14 App.Cas. 337 (House of Lords, 1889). Brief Fact Summary. Plaintiff brought suit after it bought shares in Defendant's company, under the belief that Defendant would have the right to use steam power, as opposed to other companies, which would not. Synopsis of Rule of Law. Misrepresentation, alone, is not sufficient to prove deceit. Facts. Plaintiff received a prospectus regarding the incorporation of Defendant's company, which highlighted that the company would have the right to use steam or mechanical power. After receiving the prospectus, Plaintiff bought shares of the company, relying on the allegations of the prospectus, and believing that the company had the absolute right to use steam or mechanical power. The board of trade refused to allow steam or mechanical power, and the company was wound up, unable to complete its work. Thereafter, Plaintiff brought suit against Defendant for fraudulent misrepresentations. The trial judge dismissed the action, after coming to the conclusion that the directors knew that the use of steam or mechanical power was contingent on the board of trade and it was not unreasonable or deceitful for them to rely on the board. On appeal, the dismissal was reversed, because the court found that the Defendants may have reasonably believed the prospectus and, because they did not have reasonable grounds for what they wrote in the prospectus, they should be held liable for Plaintiff's reliance. Defendant appealed. Issue. Whether it is deceit when a company forms a prospectus to solicit investors, which later proves to be wrong? Held. Reversed. 1 The House of Lords reversed the judgment of the court of appeals, and reinstated the judgment of the lower court. The court found this to be an action of deceit, under which the establishment of misrepresentation alone is not enough to prove liability. In this case, Plaintiff relied on the prospectus, which may have been misrepresentation, but Defendants reasonably believed they could glean approval of the board of trade and should not be held liable for their later failure to do so.

Discussion. An action of deceit will only stand in a court when a plaintiff can show not only misrepresentation, but also that defendants knew they would be unable to follow through with their representations.

344

International Products Co. v. Erie R.R. Co.

International Products Co. v. Erie R.R. Co.

Citation. 155 N.E. 662 (N.Y. 1927). Brief Fact Summary. Erie R.R. Co. (Plaintiff) bought insurance when it was assured by International Products Co. (Defendant) that its goods were stored at a certain location, and it later learned that the goods had been stored at another location, where they were ultimately destroyed. Synopsis of Rule of Law. A cause of action for negligent statements may be upheld when a plaintiff is harmed by relying on a defendant's words. Facts. Plaintiff entered into a deal with Defendant to receive and store its goods until they could be shipped. According to the terms of their arrangement, once the goods were stored, Plaintiff was to buy insurance for the goods. After Plaintiff inquired about the location of the goods, and was told where they were by Defendant, Plaintiff obtained insurance for that location. The goods actually arrived later, and were stored at a different location, where they were destroyed by fire. Plaintiff brought suit for restitution in the amount they would have received had the goods been properly insured. The trial court and appellate divisions directed verdict for the Plaintiff, and Defendant appealed. Issue. This case considers whether liability stems from negligent language. Held. Affirmed. 1 While previous law (see Derry v. Peek) held that no cause of action for a mere statement would be maintainable, the court in this case found that the denial of such a cause of action undermines notions of fairness. The court found that the Defendant had a duty to speak with care, when it knew that Plaintiff was acting in reliance of its statement, which from the terms of the agreement was apparent in this case.

Discussion. This case overrules Derry v. Peek, and says that a cause of action for misrepresentation may be upheld when a defendant can be reasonably assured that a plaintiff is acting in reliance of his words.

345

Winter v. G.P. Putnam's Sons

Winter v. G.P. Putnam's Sons

Citation. 938 F.2d 1033 (9th Cir. 1991). Brief Fact Summary. After becoming critically ill from eating mushrooms designated as safe in The Encyclopedia of Mushrooms, published by G.P. Putnam's Sons (Defendant), Plaintiffs brought suit for misrepresentation, alleging that the book contained erroneous and misleading information. Synopsis of Rule of Law. A publisher will not be held liable for misrepresentation when it publishes a book of another's work. Facts. Plaintiffs bought a copy of The Encyclopedia of Mushrooms to help them collect and eat wild mushrooms. After relying on the descriptions in the books, Plaintiffs ate some mushrooms, which rendered them critically ill, and they both required liver transplants. Plaintiffs brought suit based on misrepresentation against Defendant, as publishers of the book. The district court granted summary judgment, and Plaintiffs appealed. Issue. Whether liability for misrepresentation extends to a publisher of a book? Held. Affirmed. 1 In affirming the judgment of the district court, the United States Court of Appeals for the Ninth Circuit held that a publisher does not have a duty to act as a guarantor for the contents of all books that it publishes.

Discussion. Summary judgment was proper in this case, because holding defendant liable for the actions of an author would create an implicit guarantorship among all publishers of all books.

346

Hanberry v. Hearst Corp.

Hanberry v. Hearst Corp.

Citation. 276 Cal.App.2d 680 (Cal. App. 1969). Brief Fact Summary. After Plaintiff slipped and sustained several injuries from a "slippery and unsafe" pair of shoes, she brought suit against Defendant, who had awarded the shoes the "Good Housekeeping's Consumers' Guaranty Seal." Synopsis of Rule of Law. While a publisher may not be held liable for misrepresentations by an author, an advertiser who gives a consumer guarantee may be held liable when a product does not live up to that guarantee. Facts. Plaintiff bought a pair of shoes, relying on the Good Housekeeping Seal of Approval, that the shoes were certified good and that the advertising claims for them were truthful. After purchasing the shoes, Plaintiff slipped and fell and sustained several physical injuries. She brought suit against Defendant that had awarded the consumer guaranty. The district court dismissed Plaintiff's case and she appealed. Issue. Whether a magazine that gives a consumer guaranty to a product will later be held liable when a product does not live up to that guaranty? Held. Reversed. 1 The appellate court reversed the dismissal, because a consumer guaranty seal purposefully induces consumers, such as Plaintiff, to rely on it in buying a product.

Discussion. The important consideration in this case is the consumer guaranty. While a publisher or advertiser of a product cannot usually be held liable for its defects, if it gives a consumer guaranty which induces members of the public to buy its products, it will generally be held to the terms of that guaranty, because it has extended a duty to the public by making said guaranty.

347

Richard v. A. Waldman and Sons, Inc.

Richard v. A. Waldman and Sons, Inc.

Citation. 232 A.2d 307 (Conn. 1967). Brief Fact Summary. After a Plaintiff bought land relying on a survey from Waldman and Sons, Inc. (Defendant), he brought suit when he realized the survey lines were incomplete and that his house was too close to the boundary line of the property. Synopsis of Rule of Law. In a contract for sale, a defendant may be held liable, in tort, for representations upon which a plaintiff is induced to rely. Facts. Plaintiff bought a lot according to a plan prepared by Defendant, which showed a side yard of 20 feet, in accordance with the minimum requirements for the lot according to the local zoning regulations. After Plaintiff received delivery of the deeds, he discovered that that the house was only 1.8 feet from the boundary, instead of the required 20 feet. Plaintiff brought suit, based on allegations of false representation in connection with the sale of the land. Plaintiff obtained a judgment for damages and Defendant appealed. Issue. Whether a Defendant is liable for misrepresentation, when it did not realize of the mistake of fact until after it completed a sale to Plaintiff. Held. Affirmed. 1 The court affirmed the judgment of the lower court, maintaining that Plaintiffs purchased the land because he relied on Defendant's representations, and Defendant had a duty to insure that their representations were correct.

Discussion. A defendant seller has an affirmative duty to insure that its representations, which may induce a plaintiff to make a purchase, are correct. When a plaintiff is injured by his reliance on defendant's representations, a cause of action for those damages may be upheld.

348

Credit Alliance Corporation v. Arthur Andersen & Co.

Credit Alliance Corporation v. Arthur Andersen & Co.

Citation. 483 N.E.2d 110 (N.Y. 1985). Brief Fact Summary. This is an appeal to the Court of Appeals of New York from two cases which both took on the issue of accountant liability to third parties for disclosures made in financial reporting. Synopsis of Rule of Law. Accountants will not be held liable to third parties who rely on their financial statements absent privity, or a showing that the accounting firm knew or should have known that the party would rely on their statements in extending credit. Facts. The facts of both cases are as follows: 1 In Credit Alliance Corp. v. Arthur Anderson & Co., Plaintiffs brought suit against Arthur Anderson & Co. (Defendant) for failure to conduct investigations in accordance with proper auditing standards, when Plaintiffs relied on Defendant's financial reports in lending money to another party. The lower courts denied Defendant's Motion to Dismiss and certified a question to the court of appeals, regarding whether their order was correct. In European Am. Bank & Trust Co. v. Strahs & Kaye, the bank brought suit against Defendant for exaggeration of another company's assets, which Plaintiff relied on in lending money to an insolvent company. In that case, the appellate division reversed a dismissal of Plaintiff's complaint on the grounds that Defendant knew or should have known that Plaintiff was relying on their statements. A similar question was certified to the court of appeals for decision.

Issue. Whether an accountant may be held liable, absent privity, to a third party who relies to his detriment on a negligently prepared financial statement? Held. The holdings of the two cases differ: 1 In Credit Alliance, the court held that there was no privity and that Defendant could not have known that a form report, which it presented to its client would eventually be relied upon by Plaintiff. In European Am., the court held that under its facts, the Defendant knew it was preparing reports that would be used to obtain credit, and they were liable to Plaintiff to the extent of their reliance.

Discussion. In analyzing the holding of these cases, it is important to see the distinction. The Defendant in European Am. was aware that their financial statements would be used by outside creditors. In Credit Alliance, Defendant prepared form reports, which it gave

349 Credit Alliance Corporation v. Arthur Andersen & Co. to its clients. It did not reasonably know that those reports would be given to another party.

350 Citizens State Bank v. Timm, Schmidt & Co.

Citizens State Bank v. Timm, Schmidt & Co.

Citation. 335 N.W.2d 361 (Wis. 1983). Brief Fact Summary. Plaintiff brought suit against Defendant after it relied on Defendant's financial statements in extending cash to a company, which later went bankrupt. Synopsis of Rule of Law. Accountants may be held liable to third parties when it is foreseeable that they will rely on the accountant's reporting. Facts. Defendant prepared the financial statements of Clintonville Fire Apparatus, Inc. (CFA), and certified that it prepared its statements in accordance with generally accepted accounting principals. CFA obtained loans from Plaintiff, relying on Defendant's statements. Defendant later discovered mistakes, totaling $400,000.00, in Plaintiff's statements and notified creditors that called all of their loans due. CFA went into receivership and was later liquidated and dissolved. Plaintiff brought suit against Defendant for amounts still owed on loans they made in reliance of their statements. The trial court granted summary judgment and the court of appeals affirmed. Issue. Whether an accountant can be held liable to a creditor when that creditor relies on the accountant's financial reporting in extending credit to a company that is later found to be insolvent? Held. Reversed and remanded. 1 In coming to its holding, the Supreme Court of Wisconsin considered prior case law which held that an accountant could not be held liable to a party not in privity. The Court decided to overrule prior case law, holding that absent a showing that public policy was to the contrary, it was not unfair to hold an account liable for another party's damages sustained in reliance on the accountant's reports.

Discussion. The holding in this case is in line with other case law. While an accountant may not be held liable when damages are unforeseen to another party, he may be held liable when it is foreseeable that another party will rely on his reports.

351 Ultramares Corporation v. Touche

Ultramares Corporation v. Touche

Citation. 174 N.E. 441 (N.Y. 1931). Brief Fact Summary. Ultramares (Plaintiff) made loans to accountant's (Defendant's) clients after relying on Defendant's financial statements. Defendant's client went bankrupt and plaintiff brought suit seeking to extend liability to the accountant for negligence in financial reporting and, alternatively, seeking recovery on a fraud theory. Synopsis of Rule of Law. An accountant may be liable to a third party who relies on his financial reporting, if that third party can prove that the reports were confected by fraudulent means. Facts. Defendant prepared certified balance sheets for its clients that disbursed them to several companies, including the Plaintiff. Relying on the certification of the financial statements, Plaintiff extended credit to Defendant's client that went bankrupt one month later. Plaintiff brought suit based on a third party theory of liability, which was struck down by the Court of Appeals of New York, which noted that under such circumstances, permitting recovery by parties such as the Plaintiff would have been to impose a duty upon accountants that would be enforceable by an indeterminate class of potential plaintiffs. The court of appeals determined whether the defendant was liable, in tort, for fraudulent misrepresentation. Issue. Whether fraud in inducement or misrepresentation can be extended to an accountant by a third party who relies on the accountant's reporting to extend credit. Held. Reversed. 1 On this theory of liability the court of appeals reversed and recommended new trial. The court found that the Defendant could be held liable for fraud, if Plaintiff could prove Defendant did not fulfill its duty of inspection when it certified its client's financial reports.

Discussion. This case presents the seminal opinion regarding accountant liability. A third party, not in privity, may not sue an accountant for damages sustained by negligent reporting, but it may bring suit for damages, if it can prove fraudulent reporting.

352 Williams v. Rank & Son Buick, Inc.

Williams v. Rank & Son Buick, Inc.

Citation. 170 N.W.2d 807 (Wis. 1969). Brief Fact Summary. Plaintiff brought suit against Rank & Son Buick, Inc. (Defendant), for misrepresentation, when Plaintiff bought a car, purported to have air-conditioning, but did not. Synopsis of Rule of Law. A plaintiff's reliance will be considered when determining whether he sustained damages from a misrepresentation. Facts. Plaintiff bought a car from Defendant, and the salesperson told him the car was airconditioned. Several days after he bought the car, Plaintiff realized the knobs that were marked "air" were for ventilation, not air-conditioning. Plaintiff brought suit for fraudulent misrepresentation and received a judgment for $150.00 in damages. Defendant appealed. Issue. This case considers the issue of reliance in oral misrepresentation. Held. Reversed. 1 The court reversed the judgment of the lower court, maintaining while the oral misrepresentation was made, Plaintiff failed to mitigate his damages, by not examining the car himself, to determine the presence of air condition. In such a case, the Plaintiff could not claim reliance on the misrepresentation, especially when a reasonable man would have inspected the vehicle before purchase.

Dissent. Justice Wilkie dissented, holding that the fraudulent misrepresentation, in itself, gave the Plaintiff a cause, regardless of reliance. Discussion. While, in misrepresentation cases, a plaintiff who is fraudulently induced may recover damages, the court will also consider the role of the plaintiff's reliance, in comparison to the reliance made by a reasonable man.

353 Saxby v. Southern Land Co.

Saxby v. Southern Land Co.

Citation. 63 S.E. 423 (Va. 1909). Brief Fact Summary. Plaintiff brought suit against Defendant after he bought a farm, based on defendant's representations that the farm had more timberland than it actually did. Synopsis of Rule of Law. When a representation is actually an opinion, a plaintiff cannot claim to rely on it in seeking damages, if plaintiff later learns that defendant's estimate was not exact. Facts. Plaintiff contracted to purchase the Winslow farm, under the representation that the far contained at least 150 acres of pine timber, of which 20 acres had been burned. After acquiring the farm, Plaintiff learned there were about 120 acres in timber, of which 60 acres had been burned over. Plaintiff brought suit for fraudulent representations, which was dismissed. Plaintiff appealed. Issue. This case considers whether a statement of opinion will hold a defendant liable when a plaintiff relies on it in acquiring land. Held. Affirmed. 1 The court, considering the facts of the agreement between Plaintiff and Defendant, found that no fraudulent misrepresentations were made. Defendant opined as to the acreage of timber and burned land, as well as to soil quality. These statements were opinion, and the court found it unfair to hold defendant to the exact value of the land, when the future quality of the land could not be determined at the time of the sale.

Discussion. Statements of opinion are not fraudulent representations in the sense that a plaintiff can recover if an opinion does not meet expectations.

354 Vulcan Metals Co. v. Simmons Mfg. Co.

Vulcan Metals Co. v. Simmons Mfg. Co.

Citation. 248 Fed. 853 (2nd Cir. 1918). Brief Fact Summary. Simmons Mfg. Co. (Plaintiff) brought suit against Vulcan Metals Co. (Defendant) after it relied on Defendant's representations as to the quality of machinery purchased, as well as representations that the machinery had not been put on the market for sale. Synopsis of Rule of Law. While a plaintiff cannot bring an action for misrepresentation based on an opinion, the line becomes blurred when representations as to the status of the product are also made. Facts. Defendant marketed machinery to be used for the manufacture of vacuum cleaners. When dealing with Plaintiff, Defendant made representations of the quality of the machinery, as well as the fact that the cleaners had never been put on the market or offered for sale. After the cleaners proved not to be what Plaintiff had bargained for, they brought suit based on misrepresentations. The trial court directed verdict for Plaintiff and Defendant appealed. Issue. Whether a plaintiff can recover, in misrepresentation, for statements beyond the quality of a product? Held. New trial ordered. 1 In considering the facts of this case, the court held that Plaintiff could not prevail against Defendant, in misrepresentation, for the claims it made about the quality of the cleaners, but Plaintiff may be able to prevail in its claims against Defendant for its representations that the product had not been put on the market. Those claims were not opinion, but fact, and could be considered misrepresentations.

Discussion. When considering misrepresentation, it is important to distinguish between statements of opinion and fact, in determining whether a defendant can be held liable.

355 Sorenson v. Gardner

Sorenson v. Gardner
Citation. 334 P. 2d 471. Brief Fact Summary. The Defendants, Mr. and Mrs. Gardner (Defendants), sold the Plaintiffs, Mr. and Mrs. Sorenson (Plaintiffs), a piece of property. The Plaintiffs sued the Defendants for deceit, alleging they misrepresented the value of the property. Synopsis of Rule of Law. The tort of deceit is committed if one makes a representation of law that would lead a reasonable person to a set of factual assumptions that would lead to the legal conclusion. Facts. The Defendants sold the Plaintiffs a house. They told the Defendants that the house was constructed in a workmanlike manner and met all code requirements and that the pump could deliver 950 gallons of water per hour. 1 2 The Plaintiffs sued the Defendants and were awarded, by the jury, a judgment of $2,000. The court instructed the jury to find that damages were the difference between the value of the house as represented to the Plaintiffs by the Defendants and the actual value of the house. In determining the value of the house as represented, the jury was instructed to use, only statements made by the Defendants. The Defendants appealed, alleging that the jury received the wrong instructions on how to award damages and that they were not liable for the misrepresentations as they were legal conclusions or statements of opinion, and that they were third parties to the transaction and made no representations to the Plaintiffs.

Issue. Are the Defendant's liable for the statements in question? 1 Did the court err in instructing the jury how to award damages?

Held. Yes, on both counts. 1 The rule is that misstatements of law do not make the speaker liable for the misrepresentation because people are presumed to know the law. This is not a defense to the Defendant's statements about the construction of the house because they are not, so much, making a legal conclusion as making a statement that would lead a reasonable person to believe certain facts - that the house was constructed in a workmanlike manner. As for the statement

about the well, there is no question, given that the Defendant's gave an exact figure that was a statement of fact, not an opinion.

356 Sorenson v. Gardner 1 The Court did not consider the question of the Defendants being third parties because their counsel did not raid this objection during trial. 2 As for the instructions, the correct instructions were the difference between the fair market value of the property if it were as it was represented and the price paid. The jury did not get the information it needed to determine if the Plaintiffs had any losses at all, therefore, this case shall be reversed and remanded.

Discussion. The court ponders the problem of representations of fact and representations of law. They acknowledged the basic, though perhaps unreasonable, assumption, that all people are presumed to know the law and thus, there can be no action for misrepresentation of the law. Their reasoning allows for persons who were deceived by statements concerning the law to recover if those statements induced the persons to believe certain facts that were incorrect.

357 McElrath v. Electric Investment Co.

McElrath v. Electric Investment Co.

Citation. 141 N.W. 380. Brief Fact Summary. The Plaintiff, McElrath (Plaintiff), and the Defendant, Electrical Investment Co. (Defendant), made a contract for the Plaintiff to lease, for a term of years, a summer house the Defendant owned. The Defendant stated that over the next year, an electric railroad would be built to the area near the summer house. No electric rail road was built and the Plaintiff sued. Synopsis of Rule of Law. False representations, known to be false, that certain events will occur, if they were designed to induce some action in the hearer, may be the basis for a case of deceit. Facts. The Plaintiff sued the Defendant for fraud and deceit based on a statement that the Defendant made during negotiations for a contract to lease a summer house. 1 The Defendant stated that during the next summer, the Minneapolis, St. Paul, Rochester & Debuque Electric Traction Company would build an electric rail road to the area where the summer house was located. They stated that this would make the area a major attraction for the area and the Plaintiffs would turn a profit on renting the summer house. No railroad was built. The Plaintiff sued the Defendant, alleging, they knew no railroad would be built and made the statement to induce the Plaintiff to lease the summer house.

Issue. Can the statements made by the Defendant, concerning the construction of the railroad be the basis for a case of deceit? Held. Yes. 1 The Defendant contends that the statements were statements of future intent, and thus, not the proper basis for a case of deceit. However, if the statements were know by the maker to be false and were said for the purpose of making the Plaintiff enter in to a contract, then they can be held liable for deceit. The statements about the area becoming a major attraction and the profits the Plaintiff could make by subleasing the summer house were mere conjecture and not a basis for an action for deceit.

Discussion. If a person makes a statements of future plans, knowing that they are false, in order to induce someone to take certain actions, those statements can be the basis for an action for deceit.

358 Burgdorfer v.Thielemann

Burgdorfer v.Thielemann
Citation. 55 P.2d.1122. Brief Fact Summary. The Plaintiff and the Defendant made a contract to buy land. The Plaintiff alleged that the Defendant misrepresented the value of the land and agreed to pay off a mortgage on the land when the Defendant had no such intent. Synopsis of Rule of Law. Failure to follow the Statute of Frauds (SOF) is not a defense in a case alleging deceit. Facts. The Plaintiff and the Defendant made a contract for the Plaintiff to buy and the Defendant to sell land. 1 In the negotiations for the sale, the Plaintiff alleged that the Defendant said the value of the land was much higher than it was. The Defendant said another party offered to buy the property for a certain amount of money when no such offer had been made. The Plaintiff further, alleged that the Defendant told the Plaintiff he would pay off the $500 mortgage on the land, but the Defendant had no intent of doing so and that he, in fact, did not do so. During negotiations, the Plaintiff told the Defendant that the Plaintiff had little experience and knowledge in real estate and that he trusted the Defendant to tell him what he needed to know. At trial, the Defendant denied all the allegations of the Plaintiff, including the promise to pay off the mortgage. The trial court ruled in favor of the Plaintiff. The Defendant appealed alleging the court erred in allowing the Plaintiff to testify about the promise to pay off the mortgage because it could not be accomplished in a year and fell under the SOF. The Defendant also appealed the court's not granting the Defendant's motions for dismissal and directed verdict.

4 5

Issue. Was it reversible error to allow the Plaintiff to testify about an agreement that fell within the SOF? 1 Did the trial court err in not granting the Defendant's motions for dismissal and direct verdict?

Held. No, on both counts.

An action for deceit is proved by showing the defendant made a statement in order to induce action in the plaintiff that defendant knew to be false. In this case, one of the Plaintiff's complaints is that the Defendant said he

359 Burgdorfer v.Thielemann 1 would pay off the mortgage when the Defendant had not intention of doing so. The cases the Defendant cites in support of his appeal do not deal with the tort of deceit, but rather conflict found in contract. The SOF s is not a defense to a charge of deceit. 2 The Defendant supports his appeals having to do with the motions for directed verdict by citing cases with similar facts, tried in equity, where the appeals court heard the cases de novo and declined to find for the Plaintiff. We, a court of law do not decide questions of fact. That is for the jury. Rather we determine whether or not there is enough evidence to support a jury's finding. We find that there was sufficient evidence for the jury's findings.

Dissent. The SOF does not apply here, at all. The record indicates that the Defendant intended to pay off the mortgage right away. Therefore, it did not take more than one year to accomplish and the statute of frauds does not apply. 1 It is error to say that the SOF does not apply to cases alleging deceit. The purpose of the SOF is to protect against fraud and perjury in cases that stemmed directly or indirectly from the oral promise. This purpose would be defeated if the claimant could claim deceit and not have to follow the SOF.

Discussion. A finding of deceit, while possible to derive from a set of facts that would lead to a breach of contract, case, is not the same as a breach of contract case and the same rules do not apply.

360

Hinkle v. Rockville Motor Co., Inc

Hinkle v. Rockville Motor Co., Inc

Citation. 278 A.2d 42. Brief Fact Summary. The Defendant, Rockville Motor Co., Inc. (Defendant), sold the Plaintiff, Hinkle (Plaintiff) a car, claiming it was "new". In fact, it had about 2000 miles on it and had been in an accident, where the body was severed. The Plaintiff sued the Defendant for the costs the Plaintiff would incur to fix the car. Synopsis of Rule of Law. In a case of fraud or deceit, plaintiff need not show the actual value of the misrepresented item at the time of purchase to make a case. It is enough that plaintiff show there was deceit and that plaintiff incurred damages as a result of the deceit. Facts. The Plaintiff bought a car from the Defendant. The Defendant told the Plaintiff that the car was new. In fact, there were 2000 miles on the speedometer and the car had been in an accident. 1 The Plaintiff noticed the mileage on the speedometer as he was driving the car home. He returned to the Defendant's place of business. The Defendant agreed to refund the Plaintiff the amount of his first payment in exchange for him signing a release from further claims except for breach of warranty. The Plaintiff found out, a few months later, that the car had been in an accident. He sued the Defendant and had an expert witness testify as to the amount of money the repairs would cost. The Defendant moved for and received a directed verdict from the trial court on the basis that the Plaintiff has not given any evidence as to the value of the car, as represented by the Defendant.

Issue. Was the trial court correct in granting the directed verdict in favor of the Defendant? Held. No. 1 A review of Maryland case law shows a variety of ways a plaintiff in a case of deceit may establish what his damages are: "(1) If the defrauded party is content with the recovery of only the amount that he actually lost, his damages will be measured under that rule; (2)if the fraudulent representation also amounted to a warranty, recovery may be had for loss of the bargain because a fraud accompanied by a broken promise should cost the wrongdoer as much as the latter alone; (3) where the circumstances disclosed by the proof are so vague as to cast virtually no light upon the value of the property had it conformed to the

361

Hinkle v. Rockville Motor Co., Inc

representations, the court will award damages equal only to the loss sustained.; and (4) where the damages under the benefit-of-the-bargain rule are proved with sufficient certainty, that rule will be employed."" In this case, the Plaintiff made a prima fascia case for deceit and showed that he sustained damages in having to repair his car.

Discussion. This case shows that it is only necessary to show that the Defendant committed deceit and that the Plaintiff suffered damages because of it in order to recover.

362

CHAPTER XXII. Interference With Advantageous Relationships

363

Ratcliffe v. Evans

Ratcliffe v. Evans
Citation. 2 Q.B. 524 (1892). Brief Fact Summary. False and malicious information is published in a county newspaper about a boiler maker business. Synopsis of Rule of Law. General damages need to be proven in order to receive compensation for false and malicious statements. Facts. Ratcliffe and Sons (Plaintiff), an engineer and boiler maker business, argue that a publisher of a county newspaper (Defendant) falsely and maliciously published certain words indicating the Ratcliffe and Sons was no longer in business. The trial court awarded Plaintiff monetary damages for Defendant's false statement purposely made about the Plaintiff, which was intended to, and did in fact, cause him damage. The trial court declared that the only proof at trial of damage consisted of general loss of business without specific proof of the loss of any particular customers or orders. The appealed because Plaintiff failed to show any special damages for its injuries. Issue. Whether special damages need to be proven at trial to receive compensation for false and malicious publication of Plaintiff's business affairs? Held. (Justice Bowen). No. Plaintiffs are not required to prove special damages in order to receive compensation for false and malicious publication of its business affairs. Plaintiffs are only required to show general damages. Defendant's appeal is dismissed. Discussion. The court seems to reserve the requirement of proving special damages to more complex defamation cases. The opinion, however, fails to outline which cases would require a showing of special damages.

364

Horning v. Hardy

Horning v. Hardy
Citation. 373 A.2d. 1273. Brief Fact Summary. The Plaintiff, Albert C. Hardy (Plaintiff), brought suit against the Defendants, William B. Martin, Phyllis Martin (the Martins), Joseph P. Horning, Jr. and Lawrence E Horning (the Hornings), claiming that the Defendants had committed trespass on the Plaintiff's land and seeking ejectment and damages. The Hornings filed a cross claim against the Martins, from whom, they had purchased the land and a counter claim against the Plaintiff for malicious interference with the contracts between them and the Martins. Synopsis of Rule of Law. In order for there to be a case of slander of title, the plaintiff must prove that the defendant made statements he knew to be false for any reason or made statements he knew might be false for the purpose of harming the plaintiff. Facts. The Martins claimed ownership to a tract of land. They made a contract to sell it to the Hornings. During the contract negotiations, the Plaintiff claimed ownership of the land. The Plaintiff's council sent a letters to the Hornings and the Martins, warning them of the Plaintiffs claim on the land and threatening suit. Negotiations soon broke down. 1 The Hornings filed a counter claim against the Plaintiff for slander of title with their contract with the Martins and a cross claim against the Martins for breach of warranty.

Issue. 1 2 3 Who has title to the land in question? Are the Hornings entitled to a judgment against the Martins? Do the Hornings have a case against the Plaintiff for malicious interference with their contract with the Martins?

Held. The Martins have rightful title to the land in question. 1 At trial, the Plaintiffs claimed title through a title deed and through adverse possession. The court found that the Plaintiff did not have a claim to title through adverse possession because they had not used the land in a way that would give them title through adverse possession. While the trial court found problems and unanswered questions with the chain of title on the land in question, the Plaintiff failed to prove his case. A person wins a case such as this on the strength of his title, not on the weakness of the opponent's title.

Because title belongs to the Martins, the Hornings are not entitled to a judgment in their favor on the cross claim.

365

Horning v. Hardy

1 The Hornings do not have a case of slander of title against the Plaintiffs. The Plaintiff had the privilege of informing the Hornings and the Martins that they might have title and in pursuing this case to find out one way or another. They did not act, knowing that they did not have title, nor did they act for the purpose of harming the Martins or the Hornings. Discussion. The Horning's claim for slander of title did not succeed because the Plaintiff did, reasonably believe that he had title to the land in question. The court determined that the Plaintiff had enough evidence pointing to that conclusion to bring the suit. (Notice that there is no mention of a motion to dismiss.) The Plaintiff was privileged to bring the suit to protect the claim he believed he had on the property.

366

Testing Systems, Inc. v. Magnaflux Corp

Testing Systems, Inc. v. Magnaflux Corp

Citation. 251 F. Supp. 286. Brief Fact Summary. The Plaintiff, Testing Systems, Inc. (Plaintiff) and the Defendant, Magnaflux Corp. (Defendant), are both engaged in the same trade. The Defendant published statements saying the United States Government had tested the Plaintiff's product and the Defendant's product and found the Defendant's product to be 40% more effective. This statement was untrue. Synopsis of Rule of Law. For a party to sustain an action for trade libel, they must show that the defendant made statements that are false and that these statements led to a loss of business. Facts. The Plaintiff and the Defendant are both in the business of making products to be used in non-destructive testing. 1 The Plaintiff alleges that the Defendant circulated written material among the Plaintiff's current and potential customers, that the United States Government had tested both the Plaintiff's and the Defendant's product and found the Defendant's product to be 40% more effective. Also, the Defendant's agent said, in a loud voice at a manufacturer's convention "[Plaintiff's] stuff is no good and the government is throwing it out." The Plaintiff sued the Defendant for trade libel. The trial court dismissed the Plaintiff's case because the Plaintiff failed to show damages.

Issue. Should the Defendant's motion to dismiss the Plaintiff's claim for failure to state a case be upheld? Held. Yes, unless the Plaintiff can amend the claim to include specific clients he lost because of the Defendant's slander, within thirty days. 1 Normally, puffery and comparison between one's own product and another's product is not actionable. Saying one's own product is superior to a competitor is mere opinion. In this case, however, the Defendant made specific claims about the government testing both products, finding the Plaintiff's to be inferior and deciding to use the Defendant's product instead. These are specific claims that are untrue and are actionable. In a case where the Defendant's actions are "libelous per se" the Plaintiff need not specify damages. This case does not reach the level of "libelous per se". Therefore, the Plaintiff must specify what damages the Plaintiff has suffered by stating the

2 3

loss of particular customers name or showing a loss of profits after the statements that can be traced back to the statements.

367 Testing Systems, Inc. v. Magnaflux Corp Discussion. Here, the court makes it clear that absent a showing of libel per se (The court fails to say what, exactly that is.) one of the elements to sustain a case of trade liable is a showing of damages.

368

Lumley v. Gye

Lumley v. Gye
Citation. 2 El. & Bl. 216, 118 Eng. Rep. 749 (1853). Brief Fact Summary. Defendant intentionally and maliciously interferes with a business contract causing one party to refuse to perform. Synopsis of Rule of Law. Intentional and malicious interference with a business relationship is a violation of a right, which provides a cause of action for a plaintiff. Facts. Plaintiff, manager of the Queens Theatre for performing operas, entered into a contract with a female performer to perform within the theatre at a designated time. The performer agreed to perform at no other theatre during the period of the contract. Defendant maliciously enticed and procured the female performer not to perform for Plaintiff. Issue. Whether the Plaintiff has a cause of action against a person who maliciously interferes with a business contract which caused Plaintiff to sustain damages as a result of the broken contract. Held. (Justice Erle). Yes. Plaintiff has a cause of action against a person who maliciously interferes with a business contract and causes Plaintiff to sustain damages as a result of the broken contract. The Defendant violated Plaintiff's rights by intentionally and maliciously created a situation which caused the female performer to break her contract with Plaintiff. There are many cases that would support a cause of action under such a scenario. Judgment for Plaintiff. Discussion. The court makes one who breaks a contract equally liable as one who intentionally and maliciously cause the interference with a contract.

369

Bacon v. St. Paul Union Stockyards Co.

Bacon v. St. Paul Union Stockyards Co.

Citation. 201 N.W. 326. Brief Fact Summary. The Plaintiff, Bacon (Plaintiff), worked in the Defendant, St. Paul Union Stockyards Co.'s (Defendant), place of business for several years. The Defendant barred him from working there with any employer who would hire him. The Plaintiff, maintaining the Defendant wrongfully barred him from the Defendant's place of business, sued. Synopsis of Rule of Law. The Plaintiff's showing of the Defendant's actions and the damages suffered by the Plaintiff because of them, overcome the Defendant's motion for dismissal of the Plaintiff's claim of libel. Facts. For several years, the Plaintiff worked in and around the stockyards, managed by the Defendant. The Defendant excluded the Plaintiff from the stockyards and did not allow him to work there for any company. 1 The Plaintiff sued the Defendant. The trial court dismissed his case.

Issue. Did the trial court err in dismissing the Plaintiff's claim? Held. Yes. 1 The Plaintiff showed that the Defendant performed certain actions and those actions led to the Plaintiff's damages-his loss of employment. The Defendant may have defenses for his actions, but the Defendant can show them at trial.

Discussion. One cannot get more concise than in this case. The court said that a showing by a plaintiff that the defendant acted a certain way and because of a defendant's actions a plaintiff suffered damages, is enough to survive a motion to dismiss.

370 Della Penna v. Toyota Motor Sales, U.S.A., Inc.

Della Penna v. Toyota Motor Sales, U.S.A., Inc.

Citation. 902 P.2d 740. Brief Fact Summary. The Plaintiff, Della Penna (Plaintiff), is a distributor of automobiles. The Defendant, Toyota Motor Sales, U.S.A., Inc. (Defendant), made a policy disallowing the sale and distribution of the Lexis line of cars outside the United States. The Defendant published a list of "offenders", parties supposedly guilty of this practice and told its franchise owners not to do business with them, threatening punishment if they did. Synopsis of Rule of Law. Showing that there was an interference with an economic relationship is not enough to make a case for the tort of "interference with economic relations". One must show that the interference was one that is outside what is considered normal and proper business dealings. Facts. The Plaintiff is a distributor of automobiles. The Defendant made a policy whereby no United States Toyoda dealer could sell Lexis cars to parties outside the United States. 1 The Defendant compiled a list of parties who broke this policy and distributed it to all the franchise owners. The Defendant said that if the franchise owners did business with the parties on the list, they would face sanctions from the Defendant, up to and including, the loss of the franchise. The Plaintiff's name was on the list of offenders. The Plaintiff lost much of its business because the Plaintiff was on the list. The Plaintiff sued the Defendant. The trial court gave the jury an instruction that, for the jury to rule in favor of the Plaintiff, they must find that the Defendant's actions were "wrongful". The court defined "wrongful" as "outside the act of legitimate business transactions". The jury ruled in favor of the Defendant. This was a departure from the usual instructions that required ". . .the defendant [to] intentionally engage[ ] in acts designed to interfere with or disrupt the relationship"

2 3

Issue. Was the trial court's instruction to the jury in error? Held. No. 1 Throughout history, there has been confusion over the tort of "interference with economic relations". Many acts that might interfere with economic relations are merely participation in a competitive economic system. In order to recover for a disruption of economic relationship, one must prove that the acts that lead to the disruption were wrong - beyond what one

371 Della Penna v. Toyota Motor Sales, U.S.A., Inc. 1 would normally do to increase one's own business. Mere evidence that the disruption happened is not enough to make a case for the tort of interference with economic relations. Concurrence. The judge agreed with the court's decision, but not with their conclusion that the trial court's instructions were correct. He also found them to be too vague and not helpful in defining what actions constitute behavior in a competitive economy and what actions constitute tortuous interference. Discussion. This case brings out two principles having to do with the tort of interference with an economic relationship: Malicious motives are not enough to prove the tort and neither is the mere existence of the disruption.

372 Adler, Barish, Daniels, Levin and Creskoff v. Epstein

Adler, Barish, Daniels, Levin and Creskoff v. Epstein

Citation. 393 Ad.2d 1175. Brief Fact Summary. The Plaintiff, Adler, Barish, Daniels, Levin and Creskoff (Plaintiff) is a law firm. The Defendants, Epstein and others (Defendants) are former salaried associates. The Plaintiffs brought an action for injunctive relief to keep the Defendants from soliciting the Plaintiff's clients to have the Defendants handle their current legal projects. Synopsis of Rule of Law. Soliciting a law firm's clients to break their contracts with the firm and hire the solicitor instead is commercial speech not protected by the First Amendment of the United States Constitution (Constitution). The injured party may find relief in tort. Facts. The Plaintiff is a law firm. The Defendants were salaried associates of the Plaintiff. The Defendants decided to leave the Plaintiff's employ and start their own firm. The Defendants met personally with clients whose cases they worked on while in the Plaintiff's employ. The Defendants told the clients they were leaving the firm and invited them to break their contracts with the Plaintiff and have the Defendants be their attorneys instead. The Defendants also sent a mass mailer out to all the Plaintiff's current clients that the Defendants had worked for. The mailer included a form to fill out that would break their contract with the Plaintiff and a retention agreement for Defendants' new firm. The Defendants also took out a $150,000 line of credit at a bank. As security, they listed the value of the work they were doing for the clients as attorneys in Plaintiff's employ at $500,000. The Plaintiff sued for an injunction, preventing the Defendants from contacting the clients and soliciting them to hire the Defendants' new firm. The trial court granted the injunction. The Court of Appeals reversed. The Plaintiff appealed to the Supreme Court of Pennsylvania. Issue. May the Plaintiff find relief in tort? 1 Are the Defendants activities commercial speech protected by the First Amendment of the Constitution?

Held. Yes, on the first count. No, on the second. 1 The Plaintiff's activities are not protected by the First Amendment of the Constitution. While the First Amendment of the Constitution does protect commercial speech, that protection does not extend to this kind of targeted campaign directed at the Plaintiff's clients who had active legal matters pending. The First Amendment of the Constitution protects a lawyer's right to advertise truthfully to the general public. The Defendants may advertise to the public at large, which would include Plaintiff's clients, that they are

available to provide legal services. As it stands, the Code of Professional Responsibility forbids lawyers from soliciting business from

373 Adler, Barish, Daniels, Levin and Creskoff v. Epstein 1 non-lawyers who have not sought out legal services and other kinds of commercial speech of a sensitive nature may be regulated without offending the First Amendment of the Constitution. Furthermore, the in person solicitations that the Defendants engaged in, could put the clients on the spot and pressure them to choose the Defendants over the Plaintiff, thus, hindering their ability to make an intelligent, informed decision. 2 Since the Court determined that the Defendant's activities are not protected by the First Amendment of the Constitution, the Court turned to whether the Plaintiff is entitled to relief. The common law has recognized, since Lumley v. Gye, the tort of intentional, unprivileged interference with contractual relations. It is clear that the Defendants sought to interfere with the contractual relationship between the Plaintiff and its clients. In light of what society continues proper, the court found that the Defendants action offended the "rules of the game". The Plaintiff trusted the Defendants to work as its agent to serve these clients. In turn, the Defendants betrayed the Plaintiff's trust by trying to take the client's business away from the Plaintiff Dissent. The Defendants' activities did not put undue pressure on the clients to choose their services over the Plaintiff. Rather, it gave the clients the option to have the Defendants represent them. Rather, their solicitation gave the clients the chance to make an informed, intelligent decision that the First Amendment of the Constitution is trying to protect.

Discussion. The court's decision, as opposed to exploring the relationship between the tort of intentional interference with contractual relations and excepted business practice in a competitive market economy, explores the relationship between the tort and the First Amendment constitutional protection of commercial speech.

374 Brimelow v. Casson

Brimelow v. Casson
Citation. 1 Ch. 302 (1923). Brief Fact Summary. A union representative intentionally induced a breach of contract entered into between a chorus group manger and various theatres. Synopsis of Rule of Law. Intentional interference with a contractual agreement may, depending on the circumstance, be legally justified. Facts. A manager of a chorus group underpaid members of the chorus group for their various performances. A representative from the Actors' Association, a performance union, persuaded owners of theatres to cancel contracts held with the manager of the chorus group until higher wagers were paid to the chorus group members. A bill of equity was brought on behalf of the manager and other owners of the group against the representative of the union to enjoin them from inducing the breaches of contract. Issue. Whether there is a legal justification for an intentional interference with a contractual agreement? Held. (Justice Russell). Yes. There may be a legal justification for an intentional interference with a contractual agreement. "[p]rima facie interference with a man's contractual rights and with his right to carry on his business as he wills is actionable; but it is clear on the authorities that interference with contractual rights may be justified; a fortiori the inducing of other not to contract with a person may be justified." The union was forced to take extreme measures to end the practice of underpayment of the chorus group members. These extreme measures included inducing the proprietors of theaters to either break existing contracts or to refuse to enter into contracts. The manager of the chorus group had a duty fix the problem of underpayment of the members. Therefore, even though there is no bright-line rule for such cases, the circumstances in this case allow for legal justification for interference with a contractual agreement. The action to enjoin the union from interfering with the contract is dismissed with costs. Discussion. This case is quite interesting because the Chancery Division makes a ruling not by using any concrete rule set out by law or in other cases, but, the court, seems to go with a moral or gut feel as to how to decide this case. The court is doubtful that the manager of the chorus group would receive any "sympathy or support [from] decent men and women."

375 Harmon v. Harmon

Harmon v. Harmon
Citation. 404 A.2d 1020. Brief Fact Summary. The Plaintiff, Richard Harmon (Plaintiff), sued the Defendants, Harold C. Harmon and Virginia S. Harmon (Defendants), Plaintiff's brother and sister in law, for allegedly inducing the Plaintiff's mother by fraud and undue influence, to transfer property to the Defendants, effectively disinheriting the Plaintiff. Synopsis of Rule of Law. A party who, due to alleged wrongful interference from another, may seek relief in tort for the loss of the expectation of gain. Facts. The Plaintiff sued the Defendants, the Plaintiff's brother sister-in-law, for using fraud and undue influence, to induce their mother to transfer property to the Defendants. This effectively disinherited the Plaintiff. The mother in question was eighty seven years old and in ill health. The mother had said, on other occasions, that she wanted the Plaintiff and the Defendants to share the property, equally. The Plaintiff sued the Defendant. The Plaintiff's case was dismissed. Issue. May an expected legatee find relief in tort for wrongful interference with his intended legacy? Held. Yes. A plaintiff may sue in tort for interference causing the loss of an expected interest. While it is true, that without the alleged undue influence, the Plaintiff's mother may will her property to whomever she wants, the alleged interference has cost the Plaintiff the expectation of the inheritance completely. The Plaintiff may sue, now, before his mother has died so that the events that led to this suit will still be fresh in the witnesses' minds and the court could hear from the mother. Discussion. A person may sue for the loss of expected gain as well as the loss for actual gain caused by wrongful interference by a third party.

376 Neibuhr v. Gage

Neibuhr v. Gage
Citation. 99 Minn. 149, 108 N.W. 884 (1906). Brief Fact Summary. Plaintiff seeks recovery for damages resulting from duress and identifies the recovery as that found under remedies for deceitful practices. Synopsis of Rule of Law. The remedy for deceitful practices is the same for actions of duress. Facts. This action was brought to recover damages, which the Plaintiff claims he suffered when he was forced to transfer certain shares of stock in a corporation to the Defendant under duress. The trial court ruled in favor of the Plaintiff and denied the Defendant's Motion for Judgment Notwithstanding the Verdict, but granted a new trial. The Defendant contends that if the contract resulted from duress it was voidable, and the sole remedy of the injured party was to either rescind and to restore the benefits, and then bring an action at law for the property he lost, or bring an action in equity. Both parties appealed. Issue. Whether a party, who has been injured by duress, is entitled to the same remedies as one who has been injured by deception? Held. (Justice Elliott). Yes. A party injured by duress is entitled to same remedies as one who has been injured by deception. There can be no distinction made between duress and deception. The damages caused by the wrongdoer in either case is the same. The remedies available to one who has been induced to part with his property or execute a contract by ordinary fraud are well understood. One may keep what he has received under the contract and bring an action to recover the damages which he has sustained by reason of the fraud, or he may rescind the contract by his own act, and sue at law for what he parted with by reason of the fraud, or he may sue in equity for a rescission of the contract by the court and recover what he parted with upon such conditions as the court may deem equitable. If he seeks equitable relief, he must proceed promptly and comply with all conditions which equity imposes. If he elects to rescind by his own act and sue at law for what he parted with by reason of the fraud, he must do all that he reasonably can to place the Defendant in status quo. The action granting a new trial is reversed, with directions to the trial court to enter a judgment in favor of the Plaintiff upon the verdict. Discussion. The court views the word "deceit" as a synonymous with the word "duress." "Fraud is ordinarily accomplished by deceit, but it is also accomplished by many other practices. As commonly understood, fraud is a wrong accomplished by deception but duress is a species of fraud in which compulsion in some form takes the place of deception in accomplishing the injury."

377 Freeman & Mills, Inc. v. Belcher Oil Company

Freeman & Mills, Inc. v. Belcher Oil Company

Citation. 900 P.2d 669. Brief Fact Summary. Freeman & Mills (Plaintiff) is awarded a tort remedy under its breach of contract claim. Synopsis of Rule of Law. Tort and breach of contract remedies should not be awarded under the same claim unless the claim contains independent issues that support a claim for each type of remedy. Facts. A jury verdict was granted in favor of Plaintiff in its breach of contract action against Belcher Oil Company (Defendant) for failing to pay accounting fees to Plaintiff as part of a service agreement between the two parties. The jury awarded the Plaintiff compensatory and punitive damages. The punitive damages were awarded as a remedy under tort law since Defendant denied the existence of the contract and acted with oppression, fraud, or malice. The court of appeals did not find a special relationship between the parties, which would justify a tort theory, and therefore, reversed and remanded the case on the issue of the Plaintiff's breach of contract claim. The court reexamined the ruling in Seaman's Direct Buying Service, Inc. v. Standard Oil Co., 36 Cal. 3d 752 (1984), which allowed, in breach of contract case, a tort cause of action for bad faith denial of contract. Issue. Whether a party to a contract may recover in tort for another party's bad faith denial of the contract's existence? Held. (Justice Lucas). No. A party to a contract may not recover in tort for another party's bad faith denial of the contract's existence. The holding in Seaman's Direct Buying Service, Inc. v. Standard Oil Co. is overruled. Seaman's Direct Buying Service has left many courts confused as to the scope and application of its holding. If there is no independent duty arising from principles of tort law, then tort recovery should not be considered an added remedy under breach of contract cases. If bad faith denials of liability within the scope of Seaman were included in breach of contract cases, then potentially every contract breach could also include a tort remedy. The judgment of the court of appeals is affirmed. Discussion. Even though the court decides not to include tort remedies with breach of contract remedies, it does reserve tort remedies in implied covenant in insurance cases and civil remedies created by legislation.

378 Nash v. Baker

Nash v. Baker
Citation. 522 P.2d 1335 (1974). Brief Fact Summary. A mother (Appellant) brings an action on behalf of her minor children against a woman who allegedly lured their father away from their family. Synopsis of Rule of Law. Minor children do not have a cause of action against a woman who lures their father away from their family. Facts. The mother of five minor children, brings this action on behalf of her children and in her own right alleging that a women lured her husband away by providing him with "a finer home, sexual charms, and other inducements." The Appellant sought to recover actual and punitive damages for alienation of the father's affections, interference with their family relationships, and loss of consortium. Issue. Whether any cause of action may be maintained on behalf of the minor children of a marriage against a woman who entices away their father from the marital home? Held. (Justice Romang). No. A cause of action may not be maintained on behalf of the minor children of a marriage against a woman who entices their father from the marital home. Common law did not recognize a child's right to sue his or her father in this situation. The fact that the spouse has an action for alienation of affections, loss of consortium, or criminal conversations does not require that a cause of action be given to the child. The judgment of the lower court is affirmed. Discussion. The court does not clearly state why a child could not bring this type of action. It simply rejects Prosser's predictions that future cases may allow for a cause of action because there has been an increase in the number of parents that have had a divorce and remarried. One reason may be that the court intended to prevent an overload of these types of case in court as a result of the increase in failed marriages, which the court predicts will continue to increase.

379

CHAPT ER XXIII. Torts In The Age Of Statutes

380 Burnette v. Wahl

Burnette v. Wahl
Citation. 588 P.2d 1105 (1978). Brief Fact Summary. Minor children brought an action against their mother for emotional and psychological injury. Synopsis of Rule of Law. The law does not provide any cause of action for children claiming emotional and psychological injury resulting from the actions of a parent failing to carry out his or her duties. Facts. Plaintiffs are five minor children, aged two through eight who, through their guardian, are bringing actions against their mothers (Defendants) for emotional and psychological injury, caused by the failure of Defendants to perform their parental duties. Plaintiffs appeal from orders of dismissal. Issue. Whether children, claiming emotional and psychological injury, resulting from a parent failing to carry out parental duties, have an action under tort law? Held. (Justice Holman). No. Children do not have an action under tort law for emotional and psychological injury resulting from a parent failing to carry out his or her parental duties. These tort actions may impede the social agencies' abilities to carry out plans for these children. These agencies are designated by statute to aid children, for whom there is no hope of reestablishing a relationship with their respective families. Therefore, this is not a proper case for tort litigation. Allowing these tort actions, do not solve the social problem in the manner in which the legislature intended it to be resolved. The judgment of the trial court is affirmed. Dissent. The dissenting opinions are as follows: 1 2 (Justice Lent). The community should conclude that the emotional harm, which Plaintiffs suffered is monetarily compensable. (Justice Linde). The Plaintiffs have stated a claim of injury because they suffered severe mental and emotional injuries as a result of being deserted and abandoned by a parent that acted maliciously, intentionally, and with cruel disregard of the consequences. This is conduct, which the legislature has declared to be a crime, and may upon proper proof hold the parent responsible in damages for these severe mental and emotional injuries.

Concurrence. The concurring opinions are as follows: 1 (Justice Tongue). In cases involving physical injuries, the doctrine of intra-family tort immunity has been abandoned by this court. However, this

does not mean that the doctrine should be abandoned when mental and emotional injuries are alleged.

381 Burnette v. Wahl 1 (Justice Lent). Plaintiff has failed to state a claim for outrageous conduct. Discussion. The court seems to suggest that for a child to be successful in a claim for emotional and psychological injuries, he or she must also provide some sort of physical injury as well.

382 Nearing v. Weaver

Nearing v. Weaver
Citation. 670 P.2d 137 (Or. 1983). Brief Fact Summary. An abuse prevention statute created an independent cause of action under tort law that could be raised at the same time as a negligence action. Synopsis of Rule of Law. Statutes may create an independent cause of action that would allow a plaintiff to bring an action in negligence as well as other independent tort actions by the statute's intended beneficiaries who were injured. Facts. In 1977, the Legislative Assembly enacted the Abuse Prevention Act (Act) to strengthen legal protection for persons threatened with assault by a present or former spouse or a cohabitant. The means chosen for this purpose included the use of temporary restraining orders, injunctions, and temporary child custody orders, and mandatory provisions for a warrantless arrest upon probable cause of a person believed to have violated such an order. Henrietta Nearing and her two children (Plaintiffs), alleged that Martin Weaver (Weaver), the children's father and Ms. Nearing's husband, unlawfully entered their home and assaulted their family. A restraining order was issued against Weaver. After the order was issued, Weaver again illegally entered Plaintiffs' home, assaulting the Plaintiffs and damaging their home. Plaintiffs state that that police officer called to the home declined to arrest Weaver because he had not seen the husband on the premises. Plaintiff also alleges that Weaver continued to seek entry into the home. Plaintiffs' complaint states that the police officers of St. Helens, New Orleans (Defendants), had knowledge that Weaver violated his restraining order. In addition, they allege that the proximate result of their failure to arrest Weaver, was that Ms. Nearing suffered acute emotional distress, difficulty sleeping, and psychological impairment. The case is on appeal from the circuit court's summary judgment for Defendants, affirmed by the court of appeals. Issue. Whether Defendants can be held liable under the ordinary tort elements of a negligence action and held liable for duties owed to the Act's intended beneficiaries? Held. (Justice Linde). Yes. Defendants can be held liable under the ordinary tort elements of a negligence action and for duties owed to the Act's intended beneficiaries. Officers who knowingly fail to enforce a judicial order under the Act are potentially liable, under tort law, for resulting harm to the psychiatric and physical health of the intended beneficiaries of the judicial order. The Act imposes a specific duty by statute for the benefit of individuals previously identified by a judicial order. The restraining order clearly established a duty of Defendants toward the Plaintiffs under the Act. "[The Act] prescribes that a peace officer 'shall arrest and take into custody a person without a warrant' when the officer has probable cause to believe that an order under the statute has been served and filed and that the person has violated the order." The widespread refusal or failure of police officers to remove persons involved in episodes of domestic violence resulted in the

legislature revising the law to require mandatory arrest to prevent violations of restraining orders. This case presents a specific duty of the Defendants

383 Nearing v. Weaver toward Plaintiffs. The decision of the court of appeals affirming the summary judgment must be reversed and the case remanded to the circuit court for further proceedings. Dissent. (Justice Peterson). The majority opinion is inconsistent with a number of recent decisions of this court. The court should be slow to hold public bodies and their employees liable for damages arising from the failure to perform the duty imposed by this Act. The majority's utterance is the first time that any strict liability doctrine has been discussed or considered. On its own, the majority has converted the case to one of strict liability without any argument by the parties. Concurrence. (Justice Linde). The court's result was correct. However, the doctrine of stare decisis mandates that the court follow precedent and reject the creation of strict liability tort based upon a violation of this Act. Discussion. It is difficult to determine whether the court, in this case, created a strict liability tort, as suggested by the dissenting opinion, for the alleged actions or whether the court is merely using the Act as its iron fist in assessing the facts of this particular case. In its own defense, the court states that the decision did not create strict liability because the liability is not absolute and that there are potential defenses. The court, however, does not provide what kind of defenses could be raised which would provide a clear distinction between this case and other cases dealing with strict liability.

384 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics

Citation. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. Brief Fact Summary. Petitioner alleged damages resulting from a federal agent acting unlawfully. Synopsis of Rule of Law. Actions for damages may be brought against federal agents acting unlawfully as they carry out their duties of the United States. Facts. Petitioner's complaint alleged that agents of the Federal Bureau of Narcotics (Respondents) acting under claim of federal authority, entered his apartment and arrested him for alleged narcotics violations. The agents manacled Petitioner in front of his wife and children, threatened to arrest the entire family, and searched the apartment. Petitioner also alleges that the arrest was conducted with unreasonable force and without probable cause. Petitioner sought $15,000.00 in damages for "great humiliation, embarrassment, and mental suffering." The district court, on Respondents' motion, dismissed the complaint on the ground, inter alia, that it failed to state a cause of action. The court of appeals affirmed. Issue. Whether a federal agent acting under color of his authority gives rise to a cause of action for damages consequent upon his unconstitutional conduct. Held. (Justice Brennan). Yes. An action for damages may be brought against federal agents acting under the color of their authority but acting unconstitutionally. The judgment is reversed. "The Fourth Amendment [of the United States Constitution] provides that: '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated . . . .'" Therefore, those who have their rights violated under the Fourth Amendment by a federal agent require protection under the Constitution. The Court has consistently ruled that "where federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." The Fourth Amendment, however, does not provide any monetary damages for injuries suffered as a result of a federal agent acting unconstitutionally. However, when there is a general right to sue under a federal statute, a court "may use any available remedy to make good the wrong done." Petitioner is entitled to a cause of action and to recover monetary damages. The court of appeals is reversed and remanded. Dissent. The dissenting opinions are as follows: 1 (Justice Burger). The Court's holding "judicially create[d] a damage remedy not provided for by the Constitution and not enacted by Congress."

385 Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics 1 (J. Black). "[n]either Congress nor the State of New York has enacted legislation creating such a right of action. For [the Court] to do so is an exercise of power that the Constitution does not give." Concurrence. (J. Harlan). "[t]he federal courts do have the power to award damages for violation of 'constitutionally protected interests.'" Discussion. The Court recognizes an all encompassing remedy, under the Constitution, that would enable federal courts to "use any available remedy to make good the wrong done."

386 Alexander v. Sandoval

Alexander v. Sandoval
Citation. 532 U.S. 275 (2001) Brief Fact Summary. The state of Alabama amended its Constitution to require all driving tests to be administered in English. The constitutionality of this amendment was at issue. Synopsis of Rule of Law. Congress did not intend to create "a private right to enforce regulations promulgated under 602." Facts. The Petitioner, James Alexander (the "Petitioner"), was the director of Alabama's Department of Public Safety (the "Department"). The Department received grants of financial assistance from both the United States Department of Justice ("DOJ") and United States Department of Transportation. As such, the Department was subject to Title VI of the Civil Rights Act of 1964 ("Title VI"). Section 601 of Title VI states, no person shall, "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity". Section 602 allowed federal agencies to promulgate regulations to "effectuate the provisions" of 601. The DOJ adopted a regulation forbidding recipients of funding from "utilize[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin ....". The state of Alabama amended a provision in its Constitution to make English "the official language of the state of Alabama". Under the auspices of this amendment, and in the name of public safety, the Department required all state driver's license tests be administered in English. The Respondent, Sandoval (the "Respondent"), a class representative, brought a class action suit to enjoin the English only driver's tests, arguing that they violated the DOJ regulation, because they discriminated against non-English speakers due to their national origin. The District Court enjoined the license test policy. The Court of Appeals affirmed the District Court. Both the District Court and Court of Appeals rejected the argument that Title VI did not create a private cause of action. Issue. Can individuals bring a private cause of action "to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964"? Held. No, "we have found no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under 602." Judge Antonin Scalia ("J. Scalia"), writing for the majority of the Supreme Court of the United States ("Supreme Court"), first observed three aspects of Title VI that must be treated as certainties. First, "private individuals may sue to enforce 601 of Title VI and obtain both injunctive relief and damages." Second, 601 only forbids intentional discrimination. Third, for the purposes of this case, the Supreme Court assumed "regulations promulgated under 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under 601." The majority relied upon [Central Bank of Denver, N.A. v First Interstate Bank of Denver, N.A.] which found a "private plaintiff may not bring a [suit based on a

387 Alexander v. Sandoval regulation] against a defendant for acts not prohibited by the text of [the statute]". Accordingly, here, the Supreme Court found that a private right of action must be based on 602. 1 J. Scalia then discussed the Supreme Court's past precedents concerning private rights of actions. The majority observed "[t]he judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy." Accordingly, statutory intent is significant and the majority refused to create a private cause of action Congress did not intend. J. Scalia then found that legal context should only be considered to clarify the text. As such, the majority began and ended their "search for Congress's intent with the text and structure of Title VI." The court observed the text of 602 did not include "rights creating" language stressed in past precedent. To the contrary, 602 limits agencies to "effectuat [ing]" rights already created by 601." Additionally, "[s]tatutes that focus on the person regulated rather than the individuals protected create 'no implication of an intent to confer rights on a particular class of persons.' " The majority then observed, "[s]ection 602 is yet a step further removed: It focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating."

3 Additionally, J. Scalia concluded the methods 602 provided to enforce its authorized regulations, did not "manifest an intent to create a private remedy". Section 602 allowed agencies "to enforce their regulations either by terminating funding to the 'particular program, or part thereof,' that has violated the regulation or 'by any other means authorized by law[.]" J. Scalia went through various other regulations and observed "[w]hatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of 602 they tend to contradict a congressional intent to create privately enforceable rights through 602 itself." Discussion. This case provides an interesting discussion about how Congress interprets statutes that arguably allow for private causes of action.

388 De Falco v. Bernas

De Falco v. Bernas
Citation. 244 F.3d 286 (2d Cir. 2001) Brief Fact Summary. A township engaged in certain practices to ensure that the purchasers of a tract of land did certain things with the land. Synopsis of Rule of Law. "To establish a RICO claim, a plaintiff must show: '(1) a violation of the RICO statute, 18 U.S.C. 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962.' " Facts. The Plaintiffs, Mr. and Mrs. Defalco and others (the "Plaintiffs"), sought to develop certain land in the Township of Delaware, Sullivan County, New York, New York. The Defendants, Bernas and others (the "Defendants"), were certain public officials and private individuals, involved with the Township of Delaware's local governance. After the Plaintiffs purchased the land, the Defendants threatened and intimidated the Plaintiffs to give over the property or employ certain individuals. The Defendants threatened to withhold certain developmental permits if the aforementioned demands were not met. The Plaintiffs brought suit under 18 U.S.C. 1962(c) of the Racketeer Influence and Corrupt Organizations Act ("RICO"). Issue. Was a RICO violation established? Held. Partially. "To establish a RICO claim, a plaintiff must show: '(1) a violation of the RICO statute, 18 U.S.C. 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962.' " Section 1962 "makes it unlawful for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity.... "Further, "[t]o establish a violation of 18 U.S.C. 1962(c) then, a plaintiff must show "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." A RICO enterprise "includes any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity." Racketeering activity "is broadly defined to encompass a variety of state and federal offenses including, inter alia, murder, kidnapping, gambling, arson, robbery, bribery and extortion." Further, a " 'pattern of racketeering activity' requires at least two acts of racketeering activity, one of which occurred after the effective date of this chapter and the last of which occurred within ten years ... after the commission of a prior act of racketeering activity." Additionally, "to establish a violation of 18 U.S.C. 1962(c), a plaintiff must establish that a defendant, through the commission of two or more acts constituting a pattern of racketeering activity, directly or indirectly participated in an enterprise, the activities of which affected interstate or foreign commerce." 1 The Court analyzes each of 1962's elements. First, whether the Town of Delaware can be treated as a RICO enterprise. The court concluded that

389 De Falco v. Bernas 1 "[t]he requirement of distinctiveness between the defendants and the enterprise [ ] was met here." Specifically, "[t]he jury could reasonably have concluded that the RICO persons [the Defendants] were a separate and distinct assortment of public officials, private individuals and corporations who used their political power to influence the Town of Delaware's exercise of governmental authority over the plaintiffs' development." Additionally, the court observed governmental units have in the past been deemed a RICO enterprise. As such, "the jury could reasonably have concluded that the Town of Delaware's grant or denial of approval for aspects of the plaintiffs' development was conditioned upon complying with the demands of Dirie, the Town Supervisor, and others with influence." Further, that the "jury here could have reasonably found that the Town of Delaware was a 'passive instrument' through which the defendants wielded power for their personal benefit and, accordingly, was a RICO enterprise." 2 Second, the court concluded there was sufficient impact on interstate commerce. The court recognized, "one of the extortionate demands caused DeFalco to break an $8800 contract with the Walczak Lumber Company, an out-of-state logger located in Clifford, Pennsylvania." Third, the court analyzed whether there was a requisite amount of "Participation in the Conduct of the Town's Affairs". This phrase has been interpreted to mean "participation in the operation or management of the enterprise." It was not necessary that somebody had primary responsibility. The court observed, "[t]he jury specifically found that [the individual defendants] each "conducted or participated in the conduct of the affairs of the Town of Delaware through a pattern of racketeering activity," and the record here contains ample evidence from which a reasonable jury could have found that Dirie and the Bernas defendants each had some part in directing the Town of Delaware's affairs." Fourth, the court construed whether two predicate acts were established for each of the Defendants. One of the requisite acts important here was extortion. The Hobbs Act defines extortion as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." The court observed "[i]n this Circuit, '[t]he cases interpreting the Hobbs Act have repeatedly stressed that the element of 'fear' required by the Act can be satisfied by putting the victim in fear of economic loss.' " Additionally, "[t]he absence or presence of fear of economic loss 'must be considered from the perspective of the victim, not the extortionist; the proof need establish that the victim reasonably believed: first, that the defendant had the power to harm the victim, and second, that the defendant would exploit that power to the victim's detriment.' " The court concluded "that extortion by Dirie through threats of economic loss was shown in the instant case."

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De Falco v. Bernas

1 The court then addressed whether a "pattern of racketeering activity" was established. It observed that to establish a pattern, "a plaintiff must also make a showing that the predicate acts of racketeering activity by a defendant are 'related, and that they amount to or pose a threat of continued criminal activity.' " Further, "[t]he continuity necessary to prove a pattern can be either 'closedended continuity,' or 'open-ended continuity.' " The court observed, "[a]lthough closed-ended continuity is primarily a temporal concept, other factors such as the number and variety of predicate acts, the number of both participants and victims, and the presence of separate schemes are also relevant in determining whether closed-ended continuity exists." The court concluded that the Plaintiffs did not establish 'closed-ended continuity' because the predicate acts did not occur within a long enough period of time. 2 "In assessing whether or not the plaintiff has shown open-ended continuity, the nature of the RICO enterprise and of the predicate acts are relevant." Further, "[i]n assessing whether or not the plaintiff has shown open-ended continuity, the nature of the RICO enterprise and of the predicate acts are relevant." On the other hand "where the enterprise primarily conducts a legitimate business, there must be some evidence from which it may be inferred that the predicate acts were the regular way of operating that business, or that the nature of the predicate acts themselves implies a threat of continued criminal activity." The court concluded "[i]n short, there was sufficient evidence from which a reasonable jury could conclude that the escalating nature of the Bernas defendants' demands-- such as their demanding an increasing interest in the gravel pit--indicated that they had no intention of stopping once they met some immediate goal. Based on this evidence, the jury could reasonably have concluded that the Bernas defendants would have continued extorting the plaintiffs into the future. Accordingly, the scheme was not 'inherently terminable' and the jury could reasonably have found that the nature of the Bernas' predicate acts themselves implied a threat of continued criminal activity." The court finally addressed the proximate causation issue and found that the causal connection was too weak.

Discussion. This case offers an interesting discussion about Civil RICO actions.

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Pulliam v. Coastal Emergency Svcs.

Pulliam v. Coastal Emergency Svcs.

Citation. 509 S.E.2d 307. Brief Fact Summary. Mrs. Pulliam (Plaintiff) died of bacterial pneumonia and bacteremia after being negligently handled by a hospital physician. Synopsis of Rule of Law. The Virginia damage cap neither violates the United States Constitution or the Virginia Constitution. Facts. Plaintiff died of bacterial pneumonia and bacteremia after being negligently handled by a hospital physician. She was survived by her husband and son. After a jury trial based on the medical malpractice of the medical malpractice of the hospital physician, the jury awarded $2,045,000.00 which was reduced to $1,000,000.00 pursuant to a Virginia statute's damage cap. Plaintiff argues that the cap is unconstitutional. Issue. Whether the medical malpractice cap imposed by the Virginia statute is constitutional? Held. (Chief Justice Carrico). Yes. The cap is constitutional despite the Plaintiffs various arguments stating otherwise: the cap does not violate the Seventh Amendment right to a jury trial, it was not arbitrarily drafted by the legislature, it does not amount to the taking of property under the Fifth Amendment, the statute is supported by the rational basis standard to withstand Due Process and Equal Protection challenges, and there is no merit in the Plaintiff's argument that the statute is a violation of the separation of powers or invades the province of the judiciary. The damage cap awarded in the lower court is affirmed. Concurrence. (Justice Kinser). Medical malpractice caps create an unwarranted injustice in certain situations. Discussion. The court makes it clear that constitutional challenges to damage caps are quit difficult to win.

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CHAPTER XXIV. Compensation Systems as Substitutes for Tort Law

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Blankenship v. Cincinnati Milacron Chemicals, Inc.

Blankenship v. Cincinnati Milacron Chemicals, Inc.

Citation. 433 N.E.2d 572 (Ohio 1982). Brief Fact Summary. Plaintiffs seek to be compensated by Defendant as a result of working in hazardous conditions. Synopsis of Rule of Law. An employer cannot immunize himself from liability of intentional torts. Facts. Plaintiffs, eight current or former employees of Cincinnati Milacron Chemicals, Inc., (Defendant) brought an action against Defendant, alleging that as a result of failing to warn of, report, and correct hazardous conditions in their work environment, they had been exposed to "to fumes of certain chemicals" which "rendered them sick, poisoned, and permanently disabled." The Plaintiffs also allege that the Defendant's "omissions were intentional, malicious, and in willful and wanton disregard of the duty to protect the health of employees." The trial court dismissed on the ground that the action was barred by a relevant section of the Ohio Constitution and the Ohio Workers' Compensation Act, which offered an employer and his employees total immunity from civil suit. Plaintiffs appealed and the court of appeals affirmed the lower court ruling. Issue. Whether the Workers Compensation Act was intended to cover an intentional tort committed by employers against their employees? Held. (Justice Brown). No. "[w]here an employee asserts in his complaint a claim for damages based on an intentional tort, . . . the substance of the claim is not an injury . . . received or contracted by any employee in the course of or arising out of his employment within the meaning of Ohio law." Intentional and unintentional torts occurring on the job can be categorized into two completely different risks. An unintentional tort is a natural risk of employment. The Workers' Compensation Act does not immunize employers from civil liability for their intentional torts and an employee may resort to a civil suit for damages. Dissent. The dissenting opinions are as follows: 1 2 (J. Homes). "[t]ort actions should be permitted against employers only in cases of actual intent to injure the employees." (J. Krupansky). "[t]here should be no judicial creation of an intentional misconduct exception to the employers' tort immunity because there is no express exception in the Ohio Workers' Compensation Act."

Discussion. The court states that the Ohio Workers' Compensation Act can only apply to unintentional torts.

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