Comprehensive Case List
Content
Comprehensive Comprehensi ve Case List 9/11 Fund (pg. 549) o Afer 9/11, Congress capped the liability that airlines and other deendants might ace i sued by survivors or the amilies o vicms -- no more than $6 billion could be collected o A vicm compensaon und was also collected where aggrieved pares could apply or relie i they agreed not to sue the airlines, the WTC or other potenal deendants
Payments were madewere to nearly 5,560 claimants totaling than billion Ninety-our lawsuits led by people who opted outmore and all but$7 our seled The und compensated or lost earnings and or "non-economic" losses They used exisng ederal programs or public saety ocers who were injured or killed as a model or the program o This is not an ordinary ligaon There can not normally be comparisons or similar ligaons, but in this case the vicms are rom the same incident and horizontal inequies in their awards would be too visible In order to avoid this inequity the awards were somewhat standardized to ensure equity This approach also osters administrave eciency Adams v. Bollack Bollack (227 N.Y. 208) (1919) (pg. 145) o Facts
A boy a bridge is swinging an 8-oot wire and it tangles with an adjacent trolley linewalking and he along is burned The jury nds or the plain o Appellate court reversed The trolley has a duty to adopt all reasonable precauons to minimize the resulng perils and the court says that there is no evidence to show that this was ignored Only extraordinary circumstances would allow this to happen ( probability is is very low) The precauons that were taken were reasonable (wires could not be insulated) but the burden o removing the trolley lines and pung them underground is unreasonable In balance, there can be no liability Alami v. Volkswagen Volkswagen of America, America, Inc (766 N.E.2d N.E.2d 574) (N.Y. 2002) (pg. 586)
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Facts
The plain was drunk driving a Jea when he hit a pole and was killed Plain's wie sued the deendant claiming that the car's deecve design led to her he r husband's death Deendant sought summary judgment on the ground that the plain's sued was barred by the raonale in Manning The trial court granted summary judgment to the deendant on the basis o Manning The court o appeals reversed Comparave ault principles apply in this case (paral recovery) The raonale in Manning can only be applied to claims where the pares to t o the suit were involved in the underlying criminal conduct The court held that i the manuacturer did deecvely design the vehicle, it breached a duty to any driver involved in a crash regardless o the inial cause
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The wie did not seek to prot rom her husband's intoxicaon, she asked only that the manuacturer honor its duty to produce a product that did not unreasonably enhance or aggravate a user's injuries Dissent The injury was the direct result o his unlawul unlawul acvity (drunk driving) and that this acvity is just as bad as joy riding Alexander v. Town Town of New Castle Castle (17 N.E. 200) (Ind. 1888) (pg. 371)
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Facts
A man was thrown into an open pit that had been dug in the deendant town's street The trial court ound or the deendant and the plain appealed o Indiana Supreme Court armed The third party man was clearly an intervening orce as well as an independent human agency in the inicon o the injuries American Tobacco Tobacco Co. v. Grinnell Grinnell (951 S.W.2d 420) (Tex. 1997) (pg. 494) o Facts A man smoked the deendant's cigarees or about 33 years and developed lung cancer; he and then his estate sued or ailure to warn on the deendants part about the risk o addicon to cigarees and the risk o injury they presented The trial court gave summary judgment to the deendants on all claims The court o appeals reversed
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Texas Supreme Court armed in part and reversed in part Ulmately summary judgment is not appropriate here and the acts need to be evaluated by the jury The existence o a duty to warn o dangers or instruct as to the proper use o a product is a queson o law -- generally a manuacturer has a duty to warn i it knows or should know o the potenal harm to a used because o the nature o its product There is however, no duty to warn when the risks associated as within the ordinary knowledge common to the community I the danger comes rom only excessive use beyond the norm then the manuacturer does not have a duty to warn Second restatements 402A comments i and j connote c onnote a general societal understanding o the risks inherent in a specic product or class o products Common knowledge has been dened as encompassing those acts that are so
well known to the community as to be beyond dispute (it needs to be actually true) The deendant asserts this common knowledge deense The deendant must assert and show that when the plain started smoking that the risks were common knowledge Armed The court concluded that the general health dangers aributable to cigarees were commonly known as a maer o law by the community when the plain began smoking Reversed The court concluded that it could not say that the specic danger o nicone addicon was common knowledge when the plain began smoking The deendants argue that the plain was warned several mes afer he started smoking that the product was addicve and he should stop but this is
not ound to be conclusive evidence that he would not have heeded the warning had it come beore he started smoking at all 2
Rebuable presumpon or the plain is given by law (it is presumed that the plain would have heeded the warning but i the deendants can product evidence that rebuts that presumpon then it will be dropped) It is ound in this case that it should be lef to a jury to decide whether or not he would have heeded that warning (not enough evidence or summary judgment)
Dissent
Stated he would arm both claims be decided on summary judgment or the deendant -- addicon should be considered one o the harmul eects (dangers aributable) to smoking The court nds that addicon is a separate risk in itsel but the dissent eels that the addicon and the risks o smoking are one in the same Because nicone is what makes tobacco good it needs to have the addicve quality to be good in its inherent nature The plain should only be entled to damages because he was addicted, not because o any o the carcinogenic or other damaging qualies Baker v. Snell (2 K.B. 825) (1908) (pg. 405) o Facts The plain worked or the deendant at his inn where he kept a dog he knew to be
dangerous; one day another inn employee who was charged with chaining the dog outside let the dog go in the vicinity o plain and she was bien The trial court held the deendant liable despite the employees intervening act because the owner o a savage animal is strictly liable or its acons o House o lords armed The keeping o an inherently dangerous animal that is known to be dangerous is an inherently wrongul act and thereore the deendant must be liable even though the immediate cause o the harm is a third-party It was a wrongul act in itsel to keep kee p the savage animal Banks v. Maxwell (171 S.E. 70) (N.C. 1933) (pg. 402) o Facts The plain works or the deendant on his arm and is injured by his bull when he is told to drive it out o its pen
The trial court nonsuited the plain N.C. Supreme Court armed A person injured by a domesc animal must show two things 1. The The a ani nima mall iin nic icn ng g tthe he in inju jury ry must must be da dang nger erou ous, s, vi vici ciou ous, s, mi misc schi hiev evou ouss o orr erocious or one termed in the law as possessing a vicious propensity 2. The The ow owne nerr must must ha have ve ac actu tual al or cons constr truc ucv ve e know knowle ledg dge e o the the vi vici ciou ouss propensity, character and habits o the animal There is no evidence in this case that the bull had ever aacked a person, shown a desire to do so or evidence that the owner knew the bull was dangerous Barnes v. Geiger (446 N.E.2d 78) (Mass. App. 1983) (pg. 302) o Facts A mother witnesses an accident near an area where w here she knows her son is playing and or a ew moments believes that it is her son who was involved in the accident; she dies o a
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vascular hemorrhage the next day 3
Woman's husband sues the deendant and claimed that his wie's death was the result o the stress she endured while thinking that her son was the one injured in the accident The trial court gave summary judgment to the deendant Court o appeals armed They court concluded that a eeng moment o ear or excitement does not present a set o circumstances against which a toreasor can airly be asked to deend Though the mistake was reasonable, this would open up an expansive possibility o
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people claiming to have mistakenly thought a vicm was a relave Barnhill v. Davis (300 N.W.2d 104) (Iowa 1981) (pg. 302) o Facts The plain was driving in his car and being ollowed in another car by his mother; his mother's car was involved in an accident rom which she received no lasng or substanal injuries The plain sued or the suering he endured as a result o worrying about his mother's health ollowing the accident The trial court gave summary judgment to the deendants o Supreme Court reversed and remanded or trial It is reasonably oreseeable as a maer o law that a son who witnesses an accident involving his mother may suer mental distress Behrens v. Bertram Mills Circus, Ltd. (2 WLR 404) (1957) (pg. 396)
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Facts
Plains were midgets in a circus and were injured when a circus elephant was spooked by a small dog and trampled their booth The court nds or the plain As a maer o law an elephant is an animal erae naturae There can be no disncons or specic genres o animals or specic animals themselves There needs to be a bright line rule to make these disncons -- the legislature should enact a negligence standard to help deal with these cases Currently the court is bound by precedent and cannot make ne tuned disncons by parcular origin or gender -- the rule would lose all eect i judges began to make subdivisions subdivisions creang disncons The mens rea o an animal cannot be considered
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Animals o this sort are concluded to be dangerous whenever they get out o the control o their handler There was a ailure o control in this instance Even i the act by the animal is not savage and vicious the animals stu must always be under complete control o the deendant The deendants are liable or any damage while the animal is out o control (strict liability) -- but i the animal is under control and causes damage then there is a queson o negligence or a jury Bell v. Campbell (434 S.W.2d 117) (Tex. 1968) (pg. 376) o Facts The deendant pulled onto the highway without properly looking or yielding and was subsequently hit by another driver which caused the trailer o the second vehicle to overturn on the highway
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Someone aempted to warn oncoming cars while others tried to move the trailer rom the highway but a man ignored or missed the warnings and ran into the trailer, killing the people who were trying to move it The decedent's sued the third man and also the two drivers drivers in the inial crash Negligent driving caused the inial accident and thereore increases the chances o the subsequent accident But this case is dierent or two reason
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The plain was a rescuer The driver o the third car was drunk By the me that the third car struck the rescuers all the actors o the rst collision had come to rest and thereore the second accident was a separate incident The deendant was ound not liable (this is an excepon and many courts nd the other way) Benwell v. Dean (57 Cal. Rptr. 394) (Cal. App. 1967) (pg. 530) o Facts The plain brought suit or loss o support and loss o society afer her husband's death The deendant was denied quesoning the plain about whether she had remarried The jury gave verdict to the plain and the deendant appealed o The court o appeals armed
It is a common rule that the surviving spouse's remarriage (or possibility o remarriage) does not aect the damages recoverable in an acon ac on or wrongul death The cause o acon arises at the me o the decedent's death and the damages are determinable as o that me It is too dicult to compare the prospecve earnings, services and contribuons o a new spouse and a deceased spouse The court also reerenced another case that determined de termined that a spouse should not be punished because she is migang her loss through a new relaonship (compare this acon to an insurance policy) The deendant should not be able to benet rom this (deterrence) Berry v. Borough of Sugar Notch (43 A. 240) (Pa. 1899) (pg. 365) o Facts The plain was a trolley driver and one day when he was w as driving through the
deendant's borough high winds caused a large tree to all onto his trolley The plain claimed the tree was negligently maintained and the deendant claimed that the plain was contributorily negligent or driving at an excessive speed Liability ound The court ound that the act that the motorman was operang at a speed greater than that permied by an ordinance which allowed his employer to operate its cars on the borough's streets did not aect his right to recover The court ound that the speed at which the motorman was traveling did not contribute to the cause o the accident The trolley speeding did not increase the probability that the tree would all on the trolley car I the deendant had hit the tree or the tree had allen across the road then the speeding would have had a more direct eect
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Biakanja v. Irving Irving (320 P.2d 16) (Cal. 1958) (pg. 277)
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Facts
Deendant notary prepared a will that was to designate the enrety o an estate to the plain but the deendant ailed to have a witness present a att the creaon o the will, thus rendering it invalid Plain sued the deendant and recovered the dierence between the amount she would have received in the original will and the amount she was awarded when that will was invalidated
The deendant appealed Caliornia Supreme Court armed The deendant, despite not being in privity o contract, was under a duty to exercise due care to protect the plain rom harm and was thereore liable or damage to the plain caused by his negligence The deendant must have been aware rom the terms o the will itsel that i it was deemed invalid that plain would suer harm (knew the specic person who would be harmed) The deendant's negligence in preparing the will directly led to the deendant's harm The "end and aim" o the transacon was to provide to estate to the plain Blaak v. Davidson (529 P.2d 1048) (Wash. 1975) (pg. 189)
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Facts
A man is driving a truck when a dust storm makes him lose all visibility and he must slow to 5-10 mph; the man hits the rear o another car traveling at 2-3 mph because o the same dust Jury brought verdict or the deendant, the trial court entered e ntered judgment n.o.v. (notwithstanding the verdict) or the plain and the deendant appealed Judge over rules the verdict o the jury because the trial court views the juries decision as unreasonable The Washington Supreme Court reversed the n.o.v When the visibility o a driver o a vehicle is completely obscured by atmospheric condions the queson o negligence should ordinarily be submied to the jury or consideraon in view o the acts and surrounding circumstances Reject the rule holding a driver o a vehicle negligent as a maer o law or
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ailure to stop when his vision is obscured because such a rule would be too rigid to cope with the numerous situaons presenng new or addional actors and variable (i.e. dust, og, danger o stopping at that me) There is a saety trade-o juscaon in this case Bright-line rules v. exible standards There can be no bright-line rules or automobile cases because the acts can vary so widely rom case to case The jury should determine whether the deendant's ailure to stop constutes negligence under the general test o whether the deendant acted reasonably under the acts and circumstances Bloomberg v. Interinsurance Exchange Exchange (207 Cal. Rptr. 853) (Cal. App. 1984) (pg. 235) o Facts
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The plain's son and another boy become stranded on a highway at night and call or assistance and are reerred to the deendant company who dispatches a tow truck that is unable to locate the boys A drunk driver causes an accident in the me when the tow truck is searching or the boys and the plain's son is killed The plain sued the deendants but they moved to have the complaint dismissed on the grounds that the owed the plain's son no duty
Duty exists and the deendant is liable The son reasonably relied on the idea that the tow truck t ruck would be providing assistance and thereore took no urther measures to help himsel The tow was negligent in ailing to aempt to reach the car "A deendant who entered upon a course o conduct aecng the interests o another was regarded as assuming a duty to act and would be liable or negligent acts or omissions because one who undertakes to do an act must do it with care." Bolton v. Stone (1 All ER 1078) (1951) (pg. 146) o Facts A woman living next door to a cricket pitch (surrounded by a 7 oot wall) is hit by a ball that ies into her property and is injured The deendants were awarded judgment o The court o appeals reversed and the House o Lords reversed again, holding that there must o
be judgment or the deendant The probability o this happening is close to zero The cricket pitch has already taken a burden in creang a 7 oot wall around it There is always a risk and it can not be eliminated (Lord Reed) Not necessary to take urther precauon and impose urther burden (Lord Radclie) Bostock-Ferari Amusements Amusements v. Brocksmith (73 N.E. 281) 28 1) (Ind. App. 1905) (pg. 404) o Facts The plain was driving a horse down the road when it was spooked by a bear being led across the road in restraints and the horse caused injury to the plain The jury brought verdict or the plain and the deendant appealed o Court o appeals held or the deendant and ordered a new trial The injuries to the plain were not the result o any dangerous tendencies o the bear
The horse can be spooked by any number o things and the bear was not in any manner threatening Brauer v. N.Y. Central & H.R.R. Co. (103 A. 166) (N.J. App. 1918) (pg. 368) o Facts The deendant's train collided with the plain's wagon at a crossing and the plain's horse was subsequently killed and his wagon destroyed Unknown pares then stole the contents o the wagon The trial court entered judgment on a jury verdict or the plain o Court o appeals armed The controversy o the damages was whether the plain could recover the costs o the stolen items rom the deendant The thef was both oreseeable and inevitable The thef and the other damage were joint torts because they happened
simultaneously and occurred concurrently with the deendant's negligence 7
The negligence which caused the collision was the ault o the deendant This event caused the plain to no longer be able to protect his property which was then stolen This occurrence was oreseeable because the deendant had two people guarding the contents o his train and thereore knew o the risk o thef Dissent The collision created the opportunity or thef, but was not the proximate cause o it
The chain o events is not connuous Crime should not be presumed (considered oreseeable as a maer o
law) Brauner v. Peterson (557 P.2d 359) (Wash. 1976) (pg. 197) o Facts Plain drove his car into the deendant's cow which had strayed onto the highway Plain had no evidence o how the cow had escaped Trial court ound or the deendant and dismissed the plain's acon o Supreme Court armed The plain's evidence o negligence was insucient to support his claim The cow could have escaped rom perectly good connes, thereore there may have been no negligence on the part o the deendant
Brooks v. Medtronic, Inc. (750 F.2d 1227) (4th Cir. 1984) (pg. 506) o Facts The plain had a heart aack and, on the advisement o his doctor, was equipped with a pacemaker made by the deendant company The original pacemaker needed to be replaced because the lead would not properly operate The plain sued the deendant claiming that the product was deecve and that they had ailed to warn him o the risk o the lead coming loose It was undisputed at trial that dislodgment o a lead is a common risk when a pacemaker is implanted and the deendant gave all doctors wrien warnings o this danger but the plain's doctor never passed this warning onto him The jury brought a verdict or the deendant based on instrucon that the deendant had a duty to warn doctors o the risks associated with pacemaker leads; the plain
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appealed and claimed that the jury should have been instructed that they had a duty to warn him as well Court o appeals armed Prescripon drugs get a dierent approach or warnings than other products Is the prescribing doctor has received adequate noce o possible complicaons then manuacturer has not duty to warn the consumer The doctor acts as a "learned intermediary" between the manuacturer and the consumer because he is in the best posion to understand the paent's needs and assess the risks and benets o a parcular course o treatment The plain contends that the excepon or prescripon drugs should not apply here because All cardiac pacemaker paent ace idencal risks and do not rely on doctors to to act as learned intermediaries
The manuacturer in this case ofen has the opportunity to contact its users prior to surgery 8
The court rejects these arguments arg uments under the asseron that doctors are in a beer posion to disclose risks and once a warning is given to a doctor the choice c hoice o treatment and the duty to disclose properly all on the doctor Broshman v. Western Air Lines (892 F.2d 730) (8th Cir. 1989) (pg. 237) o Facts Plain is injured when he is sing aboard an airplane and another passenger aempng to load his luggage into the overhead compartment drops the luggage on him
Plain sues the airline with the claim that a ight aendant should have been present to assist the other passenger and henceorth prevent the injury Trial jury brought verdict or the plain, trial court gave judgment n.o.v. to the deendant o Court o Appeals Reversed An airline has a duty to supervise the enre boarding process unl it is completed The plain was injured when orce's created by the airline's negligence were in play Brown v. McDonald's Corp. (655 N.E.2d 440) (Ohio App. 1995) (pg. 501) o Facts The plain purchased a meatless simulaon o a hamburger rom the deendant restaurant and subsequently had an allergic reacon to a seaood ingredient and sued the restaurant or ailing to warn o the ingredient Deendant conceded that it did not give a warning on the product but that a ier was
available that listed the ingredients and urther argued that the sandwich posed no risk to ordinary customers and thus they had no duty to warn Trial court gave summary judgment to the deendant Court o appeals reversed A relevant statute asks whether a manuacturer exercising exerc ising reasonable care would warn o that risk in light o both the likelihood and the seriousness o the potenal harm There is a duty to warn when the deendant knew or should have known o the danger and the seriousness o it There must be a consideraon o the extent o the duty (there was a ier, but did they need to go urther to meet their duty) Hand ormula The cost is likely low (B) because it would be cheap to add a warning But it is not trivial in B to ask McDonald's to invesgate every
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single possibility o an allergy rom every one o their oods -- basically the burden is a lot bigger than it may seem on the surace at rst look Brune v. Belinko (354 Mass. 102) (1968) (pg. 165) o Facts A woman is given a certain dose o anesthesia during childbirth and aferward suers numbness and weakness. She claims the dose was too large (8mg in New Bedord v. 5mg in Boston) Trial court is instructed to apply the "locality rule" (measures a physicians by the standards o other doctors in similar communies) The trial court nds or the deendant o The Supreme Court reverses and abandons the locality rule The proper standard o care should be whether a praconer has exercised the degree o care and skill o the average qualied praconer, taking into account advances in the
proession and medical resources available 9
Rejecon o the "locality rule" The decision o whether custom was ollowed or not is usually based on expert tesmony (doctor) about whether or not the physician in queson met the standard o care Many doctors may not want to tesy against a local doctor or may hold the same sub-standard o care based on the community Brzoska v. Olson (668 A.2d 1355) (Del. 1995) (pg. 20) o Facts o
A denst is diagnosed with HIV/AIDS and does not inorm his paents o his condion and connues to pracce unl shortly beore his death Trial court gave summary judgment to the deendant o Delaware Supreme Court armed Consent was given to the healthcare provider and the procedure was perormed by them in the way consented to It was not reasonable or the plain's to state that this was a pernent act or them to know about their denst beore giving consent Plain's were not able to establish actual exposure to HIV Where is the line drawn in what needs to t o be disclosed and what does not? Can not begin to open that door (it is not the court's place to do so) Opens the door or raudulent cases based on various acts Byrd v. English (117 Ga. 191) (1903) (pg. 285)
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The deendant was building a house and in the course o excavaons caused damage to power lines while removing earth under an adjacent sidewalk, which was against city ordinance The plain's company subsequently lost power or several hours The plain sues or the prots lost and the deendant moves to dismiss the case o The court held no liability or loss o prots Though the deendant was negligent, the losses were purely economic The deendant would be liable to the power company or damage to their property and then economic losses on top o that Byrne v. Boadle (159 Eng. Rep. 299) (Exch. 1863) (pg. 192) o Facts The plain is walking by a warehouse when he is struck by a barrel o our that alls
rom above The plain can not say how the our barrel ell and no witness w itness can aest to any more then him being hit with the barrel The plain was nonsuited on the grounds that no evidence against the deendant was available or the jury to consider The Court o Exchequer (English Superior Court) brought verdict or the plain Deense argued that because the accident could have been caused by negligence does not mean that the plain is entled to a presumpon o negligence The court stated that the barrel could not roll out o the warehouse without some type o negligence The deendant is responsible or the warehouse, its workers and its content and thereore is negligent in allowing the barrel to roll out o it The court holds that the plain does not need to witness the
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negligence 10
Two theories o support or the deendant's negligence The accident very likely resulted rom negligence (Pollack) The pares did not have the same access to evidence bearing on how the accident occurred (Bramwell) Candler v. Smith (179 S.E. 395) (Ga. App. 1935) (pg. 401) o Facts A baboon escapes rom the deendant zoo and gets into a woman's car, subsequently
scaring her back into her house and destroying some o her belongings A jury ound or the plain and the deendant appealed o Held or the plain (no new trial) A baboon is an animal erae naturae and thereore it is not necessary or the owner to be negligent in allowing the animal to escape because the owner is bound to keep ke ep the animal or be liable Central of Georgia Ry. v. Price (32 S.E. 77) (Ga. 1898) (pg. 363) o Facts Plain was a passenger on deendant's train and the deendant was negligent in not leng her o at her spot and taking her to a urther stop The deendant put the plain in a hotel or the night where a kerosene lamp in her room caught re and caused her injury The jury returned verdict or the plain and then overruled the deendant's moon or
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a new trial; deendant appealed Georgia Supreme Court reversed The injury was cause by the negligence o the hotel or its workers, not by the negligence o the train company A third party's negligence (intervening acon between the harm and the railroad's negligence) caused the actual harm The injuries were not the natural or proximate consequences o taking the plain past her stop The actual harm that happened was not oreseeable based on the reasonable expectaons o the railroad when they were negligent The harm that occurred was not more likely because o the deendant's negligence (the deendant's negligence did not increase the probability o the harm to the plain)
Charles v. Seigfried (651 N.E.2d 154) (Ill. 1995) (pg. 239) o Facts The deendant is hosng a party where he serves a 16 year old girl alcoholic beverages and subsequently permits her to drive him with a BAC o .299 where she is killed in an auto accident The plain's estate sues the deendant The trial court dismissed the plain's complaint o The Supreme Court Arms It is the drinking o the alcohol not the urnishing o it that causes the resulng damages The court was unwilling to open the "Pandora's box" that would hold all social hosts liable in similar situaons Leave imposions o civil liability in these situaons to the legislature Many states have instuted social host and bar tender responsibility
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Moon to dismiss phase The court is unwilling to accept the acts o the plain as true City of Boca Raton v. Maef (91 So. 2d 644) (Fla. 1956) (pg. 263) o Facts Plain's decedent was a sign painter and oered to paint the town water tower; his oer was accepted by the Town Council i the Town Aorney drew up the proper contracts The Town Aorney delayed the contract because he needed more inormaon but the
plain connued with the work anyway and was killed when he ell rom the tower because o a breaking tower ladder rung Plain brought suit or her husband's death claiming that the city breached its duty to provide the deceased with a reasonably sae place to work The trial court instructed the jury that the deceased was an employee o the city (invitee) and was owed a duty o reasonable care; jury ound or the plain Deendant appealed, claiming mis-instrucon o the jury (argued that the plain was a volunteer and thereore a licensee, not an invitee) Florida Supreme Court reversed and remanded or a new trial The court concluded that the deceased was a volunteer and thereore equivalent to a licensee The deceased had not yet been ocially invited by the deendants to undertake the job (the contract had not yet been ormed)
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The deceased entered onto the land and aempted to perorm the job by his own volion and thereore was not owed a duty o reasonable care that an invitee would be owed (the deendant is not obliged to make provisions or the saety o the deceased under these circumstances) The court states that the plain can not be considered an invitee because there was no established contract at the me o the incident (creates incenve or proper business) Not a trespasser because the superintendent o the property knew he was there and consented to his presence Because the plain was decided to be a licensee the only duty o care owed by the deendants was to warn o condions they were aware o in terms o passive negligence I there was acve negligence (i.e. injured by an act o the
superintendent) then there would be liability Cleveland Electric Illuminang Illuminang Co. v. Van Benshoten (166 N.E. 374) (Ohio 1929) (pg. 257) o Facts Plain aempts to use a make-shif outhouse constructed by the deendants on a work site and when he lit a cigaree it ignited a gas line below and caused an explosion Plain sued the deendants or negligence in construcng the building and in ailing to warn o its dangers Trial court directed a verdict or the deendant o Ohio Supreme Court armed The plain was neither an invitee nor a licensee but rather a trespasser There are no acts that show that an ordinarily prudent person could reasonably have ancipated or oreseen that plain would use use the building or any purpose or that he would light a cigaree while in it
Evidence comes solely rom the plain and rom it there appears to be no duty or breach o duty 12
I the plain had asked permission to use the outhouse then some dierent things t hings may apply The deendants would owe a duty o due care and would need to warn the deendant o any oreseeable dangers The court would need to decide i it was reasonably re asonably oreseeable or the deendants to know that the plain may light a cigaree while using the outhouse
Cohen v. McIntyre (20 Cal. Rptr. 2d 143) (1993) (pg. 600) o Facts The deendant took her dog, who had a history o bing people, to be neutered and the dog snapped at the veterinarian and the vet made the dog be muzzled during the procedure and when the procedure was over and the muzzle removed the t he dog bit the vet The trial court gave summary judgment to the deendant o Court o appeals armed The deendant owed no duty o care to the plain in this case unless she either engaged in intenonal concealment or misrepresentaon or her conduct was so reckless as to all totally outside the range o behavior expected o those who avail themselves o vet services The plain had made an assumpon o the risk Cohen v. Smith (648 N.E.2d 329) (Ill. App. 1995) (pg. 21)
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Facts
Woman is admied to the hospital to deliver her baby and tells her doctors that she can not be seen nude by a man, however during her C-secon she is seen and touched by a male nurse The trial court dismissed her complaint o Court o appeals reversed Plain needed to prove that she had expressed her need not to be touched in advance (which she had) and she had the right to do so In Brzoska, there was no evidence that the paent expressed non-consent in certain circumstances beore hand Colonial Inn Motor Lodge v. Gay (680 N.E.2d 407) (Ill. App. 1997) (pg. 360) o Facts Deendant was in plain's parking lot and backed up his car into a heang unit on the
side o the building which subsequently severed the gas line and caused a re and the closing o the motel The deendant claims that he thought he had only hit the building and that the events were not oreseeable The trial court gave summary judgment to the deendant Court o appeals reversed and remanded The plain has at least some evidence that the deendant's car struck the heang unit and was thereore the proximate cause o the damage The court holds that oreseeability in this case can not be held as a maer o law I the deendant's conduct is a substanal actor in bringing about the injury then it is not necessary that the extent o the harm or the exact manner in which it occurred be reasonable oreseeable The acts should be brought to the jury
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"eggshell skull" menoned in that i the plain has some inherent weakness that results in an injury at the hands o the deendant then the deendant is sll liable The deendant set o a chain o events that led to the harm without any intervening third party Combuson Engineering v. Hunsberger (187 A. 825) (Md. App. 1936) (pg. 193) o Facts Plain was working in a boiler room when a workman o the company was hammering
a metal wedge which then ell and hit the plain The jury ound or the plain Court o Appeals reversed Held that there was not sucient evid evidence ence o negligence The act that the wedge ell cannot be held as the denite result o negligence because there are situaons that it could all when there was no negligence It may be expected that a tool may all rom me to me despite all precauons because to expect otherwise would presume perecon among workmen Must consider the reasonable care o everyone around the incident A person walking in a building site had more o a duty to reasonably expect that something would all than a person who is walking down a public street
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Conboy v. Mogelo (567 N.Y.S.2d 960) (App. Div. 1991) (pg. 276) o Facts The plain was prescribed a medicaon by the deendant doctor and told that, despite its side eect o drowsiness, that she could drive a car The plain was driving while on the medicaon and blacked out at the wheel, causing an accident and injury to her passenger children The plain brought suit against the deendant or the injuries to her children The appellate division help that the plain's complaint should be dismissed because the doctor owed no duty to the children o Armed The court reasoned that to establish a duty owed to a third party by the doctor there would be a need or actual privity or something close to it that would show a link between the deendant and the third party's reliance and an understanding by the deendant o that
reliance The deendant cannot reasonably oresee that the children were relying on his conduct In order or a duty to be established the deendant must understand that the injured party is relying on his conduct not to be negligent Connolly v. Nicollet Hotel (95 N.W.2d 657) (Minn. 1959) (pg. 196) o Facts The plain was walking by a hotel when she suddenly had mud in her eye At the me o the incident the hotel was host to a convenon which had, in many ways, goen out o control and caused a great deal o destrucon to t o the hotel Jury entered verdict or the plain, but the court gave judgment n.o.v. (notwithstanding the verdict )to the deendant because they claimed the plain ailed to show negligence o the hotel
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The Court o Appeals reversed 14
Negligence may be inerred rom all the acts and surrounding circumstances The mayhem at the hotel at the me suggested a higher level o oreseeability which in turn lowers the burden o taking precauons Dissent What urther precauons could have been taken by the deendant? Crabtree v. Dawson (83 S.W. 557) (Ky. App. 1904) (pg. 89) o Facts
Man orcibly removes another drunken man rom a party and then is told by someone that the same man is coming back up the stairs so he hits the man with a musket when he appears, but it turns out it is another man The trial court ound in avor o the deendant o Court o appeals reversed and remanded or a new trial on jury misinstrucon o The court suggested, however, that the deendant may sll be ound not liable The deendant must show two things 1. Used all due care to nd the identy o the per ersson 2. Use no no mo more o orce th than n ne eces cessary iin n tth he ci circum cumstances Crosby v. Cox Aircra Co. (746 P.2d 1198) (Wash. 1987) (pg. 429) o Facts An airplane owned by the deendant ran out o uel and crashed into the plain's garage
The trial court held that the deendant was strictly liable or the damage to the plain's property o Liability or damage by airplanes is bound by negligence The ight o airplanes has become a common acvity and technology exists to make it saer There was obvious negligence in this case (not properly ueling the plane) Restatement secon 24(a) -- the passengers came into contact c ontact with the dangerous acvity in order to gain the benet o the air travel while the people on the ground had no inherent benet Daugert v. Pappas (704 P.2d 600) (Wash. 1985) (pg. 332) o Facts Deendant represented the plain in a contract dispute and ailed to led a mely peon or review o a court o appeals decision so the plain led a malpracce suit Both pares presented expert tesmony on the likelihood that the state supreme court would have reviewed and reversed the decision in the contract case i the peon had been mely led Jury ound that there was a 20% chance and thus rewarded rew arded the plain 20% o the damages incurred in losing the original suit (based this on the loss o chance doctrine) Deendant appealed o Washington Supreme court The court held that the tradional more-like-than-not standard applied (not loss o chance) The burden alls on the plain to show that but or the deendant's negligence the claim would have been successul Davies v. McDowell Naonal Bank (180 A.2d 21) (Pa. 1962) (pg. 261) o Facts
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Plains go to visit the a worker at the deendant business business where they nd him unconscious in his oce; doctors are able to revive him and the plains agree to stay and make sure he is stable enough to get home later Authories later visited the oce and ound Mrs. Davies and the worker dead o carbon monoxide poisoning due to a blocked chimney Plains sue the business claiming that the death was caused by negligence in maintaining the premises
The deendant worker was told he needed to have his chimney/venlaon checked Trial court stated they could assume negligence but sll nonsuited the plain's because there was no evidence that the deendant knew o the unsae condions Pennsylvania Supreme Court armed The reasonable conclusion is that the plains were social guests at the oce (licensees) and thereore the deendant would be liable only i he had knowledge o the dangerous condion and ailed to give warning Would need to realize (1) that the danger involved an unreasonable risk to the guests and (2) that they are not likely to discover the danger on their own The plain had no knowledge and thereore could have no duty to warn Key disncons in this case Private space (dierent rom Ehret)
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Lack o acon as opposed to an armave act (dierent rom Ehret) Visitors were licensees not invitees
Davis v. Feinstein (88 A. 2d 695) (Pa. 1952) (pg. 134) o Facts A blind man is using a walking sck while going down the street and alls through the cellar door o another man who lef it open. The blind man is injured and sues. The trial court nds or the plain o Appellate court arms The plain took all the precauons that he could to compensate or his disability and used due care under the circumstances so he was not negligent
The property owner had a responsibility o due care to not make the sidewalk a dangerous place He was negligent in creang an obstacle that a reasonable person could not expect (not oreseeable obstacle) Dawson v. Chrysler Corp. (630 F.2d 950) (3d Cir. 1980) (pg. 482) o Facts A police ocer was driving a patrol car when he lost control and the car skidded o the road and wrapped around a pole causing him to be rendered quadriplegic The plain based his claim on strict products liability and alleged that the patrol car was deecve because it did not have a ull and connuous steel rame and a cross-member I the vehicle had been designed as such he alleged he would not be paralyzed Expert tesmony agreed and said that the design was possible but it would add several hundred pounds to the car and increase the price and it would also most likely
not absorb as much o the impact o the crash 16
The jury awarded to the plain and the deendant's moved or judgment notwithstanding the verdict or a new trial; the court denied both Circuit Court o Appeals armed The queson is whether the jury verdict or the plain was reasonable The deendant argues that it is not because as a maer o law the product was not deecve The determinaon o whether a product is "reasonably t, suitable and sae or its
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intended or reasonably oreseeable purposes" is determined by a "risk/ulity analysis" A product is deecve i "a reasonable person would conclude that the magnitude o the sciencally perceivable danger as it is proved to be at the me o trial outweighed the benets o the way the product was so designed and marketed" 7 actors on pg. 484 The deendant alleges that the plain ailed as a maer o law to prove that the patrol can was deecve They urge that the substute design proposed would be less socially benecial and they argue that their design meets the saety standards o the me However, Congress explicitly stated that complying with saety standard does not mean that there was not a deect The car was saer in a head on collision, but in the present crash it was not saer
The plains evidence by expert tesmony was sucient Chrysler is going to have to bear the costs o claims that say the car is not heavy enough and others who say it is too heavy -- these costs will likely be passed on to the consumer The outcome may vary on a case by case basis and needs to be or a jury to decide The court expresses concern about inconsistent standards across jurisdicon
Desnick v. American Broadcasng Broadcasng Companies (44 F.3d 1345) (7th Cir. 1995) (pg. 29) o Facts ABC sent reporters into the oces o Desnick under the impression that they wanted eye examinaons and they used secret ootage on a TV special but Desnick claims he would not have consented to work on them i they had revealed re vealed who they really were The district court dismissed the trespass counts in the complaint
Court o appeals armed the dismissal o the trespass counts and remanded the rest or trial The raud that was commied did not inringe on the interests o the oce or disrupt the premises There was no invasion o a person's private space The law gives eect to consent procured by raud under the circumstances that the acon is not an intererence with the ownership or possession o the property Restaurant Reviewer Analogy There is a potenal or a posive outcome that would come with a posive review The ABC Corp would never have aired what they would at Desnick i there was nothing interesng and scandalous to report Dillon v. Twin State Gas & Electric Co. (163 A. 111) (N.H. 1932) o Facts o
A boy was sing on the edge o a bridge when he lost his balance and grabbed one o the deendant's wires; he was electrocuted and thrown back onto the beam 17
Boy's ather sues or negligence and the deendant moved or a directed verdict which was denied Court o appeals armed The boy was owed no protecon rom alling but was owed protecon rom the danger o the wire Several situaons may arise Boy would all and either be maimed or killed
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I the jury concludes he would have been killed than the deendant would not be liable because there was no aconable negligence (unless or addional suering) I the jury concludes he would have been maimed than the deendant would be liable and would owe damages measured to the value o the lost lie and earning capacity in its injured condion In this case there was no background risk o electrocuon absence negligence o the deendant, but there was a background risk o death rom a all (more similar to Wendland than Herskovits) The loss o a chance doctrine is not essenally applicable because the cause o death and any background risk are not the same source DiPonzio v. Riordan (679 N.E.2d 616) (N.Y. 1997) (pg. 361) o Facts
The plain was a customer at the deendant's gas staon and was pinned between two cars when an aendant lef a running car unaended There was a rule that all cars needed to be turned o when ueling The court o appeals held that the deendant was entled to summary judgment When a vehicle's engine is lef on at a gas staon there is a reasonably oreseeable risk o re or explosion -- it is this class o oreseeable risk that denes the scope o the deendants duty The plain is owed a duty because he was a customer o the deendant's business The queson o duty would be more dicult i the plain was not a customer The incident that led to the injury o the plain was outside the scope o the deendant's duty
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The oreseeable risk establishes the scope o duty -- it must then be examined i the actual harm is within the scope o the duty Doughty v. Turner (1 Q.B. 518) (1964) (pg. 359) o Facts Plain worked in the deendant's actory The actory worked with cauldrons o cyanide kept at 800 degrees cengrade and a cement cover was knocked into one cauldron and two workmen watched it sink into the t he molten liquid; moments later, the cauldron erupted and injured the plain The trial court ound that the deendants had not know that the immersion o the cover into the cauldron would cause the chemical reacon The court held the deendant's workman negligent in knocking the cover into the cauldron and thereore gave judgment to the plain The plain argues that it is oreseeable that the cyanide would harm someone
i it touched them on their skin not that the chemical reacon was oreseeable 18
A splash o the cyanide was oreseeable and the explosion is just an extension o that oreseeable splash House o Lords reversed I the lid had been dropped into the cauldron and caused a splash that injured the plain there would be liability; but the events are not equal to this The explosion which caused injury was the result o an unoreseeable chemical reacon, not the agitaon caused by the dropping o the cover into the cauldron
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There was a two minute gap between the cover dropping in and the injury, thereore the explosion was not just a magnied splash The negligent act did not cause the harm Dissent Discusses the reasonable man The deendant, under the majority's opinion, would not be liable even i he intenonally immersed the lid Doyle v. Pillsbury Co. (476 So. 2d 1271) (Fla. 1985) (pg. 478) o Facts The plain's husband opened a can o green beans distributed by the deendant and the plain looked into the can and observed a large insect oang and she recoiled in alarm and ell and was injured o The deendant is liable or oreseeable injuries rom the insect being in the can (physical and
mental injuries rom consuming the insect) but not rom the random injuries rom merely observing Dreisonstok v. Volkswagenwerk A.G. (489 F.2d 1066) (4th Cir. 1974) (pg. 490) o Facts The plain was a passenger in a Volkswagen "microbus" that crashed into a telephone pole and caused her various injuries or which she brought suit A judge ound the deendant liable or ailing to make the bus crash-worthy o The court o appeals reversed Sacrices o saety were made or the design benets o the bus (more space) and these designs changes/benets were readily known to the consumer There was no evidence presented that the was any praccal way o improving the "crashability" o the vehicle that would have been consistent with the purpose o its design In Dawson the tradeo was one type o saety or another while here the tradeo would be between adding a saety eature and losing the unique advantage o the bus Earl v. Van Alsne (8 Barb. 630) (N.Y. 1850) (pg. 400) o Facts Deendant maintains his bees on his property adjacent to a highway and one day a man's horse is killed when they go past the bees The trial court ound or the plain o N.Y. Court o appeals reversed Bees are a useul animal that is necessary to the existence o man and thereore they can be considered domesc Bees have been studied and they have been ound to be manageable and it is rare that they will cause serious injury The bees had been kept in the same locaon or several years and caused no damage and thereore did not have violent tendencies Eckert v. Long Island R. Co. (43. N.Y. 502) (1871) (pg. 148) 14 8)
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Facts
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A man talking to another man noces a boy sing on a set o railroad tracks in the path o an oncoming train (the train gave no noce it was approaching) and goes to the boy and throws him to saety but is himsel killed by the train as a result The plain won a jury verdict and the court entered judgment upon it The deendant claimed that he could not be liable because the plain was contributorily negligent
Court o Appeals armed The railroad was negligent Plain was not negligent The child was not aware and was not going to rescue himsel The plain had to have had a slight chance o being able to rescue re scue himsel and not just be throwing himsel into undue danger and being outwardly reckless Necessary risk was taken in order to save a lie, not property Economics Did the plain expose himsel to an unreasonable risk? Magnitude o Risk (man's probability o death) was great and the principle object (man's lie) was very valuable but the collateral object (child's lie) and the great ulity (probability man saves child) and necessity o the risk (probability child does not save himsel) counterbalanced those rst consideraons and made the risk
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reasonable Hand Aspects B = loss o the chance o saving a child (value o the child's lie) The untaken precauon would be doing nothing P = probability that either the child or man is killed L = value o loss o lie (magnitude o harm that would be eliminated i the precauon was taken) Posner "Almost any tort problem can be solved as a contract problem…" I the values o the lives are equal, then the expected benet o the rescue to the railroad in reducing expected liability cost to the child's parents are greater than the expected costs o the rescue (probability that the man would die) (probability (probability the child will be saved and lawsuit costs will be avo avoided ided
v. probability the man will be able to save the boy and not die)...based on this, the railroad would have hired the man to save the child, thereore they should compensate him ex post Would this be viewed as a posive cost-benet analysis i gured out beore hand? I the railroad owned the train, the man and the boy, would it be worth it or the railroad to risk the man in order to save the boy? This view considers the private benets o the opposing pares The hand ormula tends to look at all the social benets o the situaon Ehret v. Village of Scarsdale (199 N.E. 56) (N.Y. 1935) (pg. 257) o Facts A company laid drainage pipes under under the street by newly built houses and during during the process encased an exisng gas main within it which subsequently began to leak and gas
entered the drainage pipes and asphyxiated a trespasser who had enter one o the t he vacant houses 20
The trespasser's estate (plains) won a judgment against the deendants or ordinary negligence in laying its pipe Court o Appeals armed The rule that an owner o land is not liable to a trespasser should not be extended so ar as to coner immunity upon the deendant in this case The trespasser may have assumed the risks o using the land unlawully, but could not reasonably expect or assume the risk o danger that would arise rom an
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exisng condion on a public street A trespasser assumes the risks/dangers associated with the private land that they trespass on The danger that caused the harm was not on the private land that was trespassed on but on a surrounding public area A trespasser does not assume the risks o surrounding public area Einhorn v. Seeley (136 A.D.2d 122) (N.Y. App. 1988) (pg. 279) o Facts The plain was raped by an unknown aacker while vising an apartment building and she alleged that the assailant was able to enter the building because the lock on its ront door had been negligently installed/maintained by the deendant Deendant moved to dismiss in that there was no privity between himsel and the plain
Summary judgment or the deendant Deendant could not reasonably ancipate harm to the plain rom his negligence No special relaonship between the deendant and the plain Farmilant v. Singapore Airlines, Ltd. (561 F. Supp. 1148) (N.D. Ill. 1983) (pg. 376) o Facts The plain bought an airline cket rom the deendant that would take him rom Los Angeles to Madras and back with several stopovers The plain aempted to change his ight inerary during the trip and when he arrived in the last stop beore his desnaon, he was told there were not seats on any ights to his desnaon or 3 weeks so he took a dierent ight to another stop over locaon where he took a train to Madras During a stop on the train trip he ate some bad ood and became very ill and then tried to book an immediate ight back to the U.S. but was told his wait would be over a month He booked a ight home on another airline The plain sued the airlines to recover his medical expenses and alleged that his injuries were aributed to the airline's negligence in ailing to have a sear or him on a ight rom his last stop over to Madras o The deendant's negligence did not substanally increase the risk o the plain geng ood poisoning The deendant was not ound liable The purchase o the ood rom the vendor was a superseding cause Federal Longshore and Harbor Workers' Compensaon Act (33 U.S.C. 901-950) (pg. 551) o Fixed rate o compensaon This is a basic trade-o o airness or eciency Forbes v. Parsons (9 F.Cas. 417) (E.D. Pa. 1839) (pg. 111) o Facts o
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A sea captain beats the cook on his ship or ailure to maintain his kitchen and cook edible ood The captain claimed that his acons were jused while at sea The court ound or the captain The court rules that, while at sea, the captain may discipline his crew as he sees t in order to maintain order Seriousness o the oense v. the seriousness o the harm done
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The captain o the ship is able to jusy how serious the oense o preparing a bad meal or men at sea really is o Congress rules 11 years later that corporal punishment on a ship is no longer allowed (commerce vessels) Forster v. Red Top Sedan Service (257 So. 2d 95) (Fla. App. 1972) (pg. 441) o Facts The two plains were driving when a driver or the deendant company began trying to run them o the road, approached their vehicle and physically assaulted both o them The trial court gave a directed verdict to the deendant o Florida court o appeals reversed The court ound that a reasonable jury could bring in a verdict or the plains Frank v. United States (250 F.2d 178) (3d Cir. 1957) 1957 ) (pg. 233) o Facts A man is aboard a ship when it becomes disabled and is given an aempted tow by a U.S. Coast Guard heavy motor lieboat The man is on the deck when a handrail breaks and he is drowned in the water beore the Coast Guard can reach him and successully save him The plain sues on behal o the deceased, claiming negligence on three counts 1. The The b boa oatt h had ad a de deec ecv ve e rev rever erse se hear hear whic which h del delay ayed ed it in re reac achi hing ng the the dec decea ease sed d or rescue 2. The The lli ie e rin rings gs we were re ov over er se secu cure red d and and coul could d not not be thro thrown wn to the the dec decea ease sed d iin n me 3. The The ccre rew w o the the boa boatt was was in inco comp mpet eten entt in term termss o Co Coas astt Guar Guard d st stan anda dard rdss The district court ound or the deendant o Court o Appeals armed An obligaon to render aid does not exist in this case because there is no relaonal basis or the duty It was only a diligent rescue eort that was not successul and had nothing to do with inadequate equipment (claim 1), preparaon (claim 2) or personnel (claim 3) The court concludes there was no duty to aempt rescue A stronger argument may be that... There was a duty to aempt the rescue that was established once the boat aempted tow, but no breach o that duty in that they aempted rescue re scue to the best o their ability Fris v. McKinne (934 P.2d 371) (Okla. 1997) (pg. 585) o Facts Plain was driving his pickup truck drunk and ran into a tree and was seriously injured and required surgery or which he needed a tracheostomy The plain's artery was ruptured during surgery and he died
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The plain's wie asserted that the doctor had negligently cut the artery while perorming the tracheostomy The deendant asserted that it was the plain's own negligence which led him to need the surgery so he should not be liable The jury brought a verdict or the deendant Court o appeals reversed The court held that a physician cannot avoid liability or negligent treatment by
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asserng that the paent's injuries were originally caused by the paent's own negligence A doctor's obligaon to exercise due care when treang their paents cannot be compromised by the theory o the plain's negligence Gain v. Carroll Mill Co.(spaal proximity) (787 P.2d 553) (Wash. 1990) (pg. 302) o Facts Plain was watching the news when he saw ootage o an accident which he was able to conclude killed his son Plain sued the other driver in his son's accident and the trial court gave summary judgment to the deendants on the ground that recovery could could not be had unless the plain was present at the scene o the accident o Supreme Court armed The court concluded that mental suering to a relave who is no present at the accident scene is not oreseeable as a maer o law Gambill v. Stroud (531 S.W.2d 945) (Ark. 1976) (pg. 166) o Facts An anesthesiologist and surgeon was supposed to perorm surgery but stopped because o complicaons rom which the paent suered damages. The jury was instructed along the lines that the doctor should have met a reasonable standard o care in a similar locaon and ound or the deendant The plain appealed and claimed the "locality standard" had been used o Supreme court armed Comparison o locaons is not based on parcular locality, but the main ocus should be on the standard o medical acilies, pracces and advantages Not being aware o what is the most medically up to date is not en excuse, but not having the physical technological capabilies is o The "similar" community standard Gives incenves or doctors to pracce in smaller communies May make it necessary or doctors to at least aempt to keep their acilies as up to date as possible Gardner v. Naonal Bulk Carriers, Inc. (310 F.2d 284) (4th Cir. 1962) (pg. 308) o Facts Plain's decedent was a seaman who was discovered to be lost overboard and his ship did not turn around or aempt to look or him at all; all; he was never seen again Plain sued under the Jones Act (ederal statute that allows seamen to recover or injuries caused by negligence o a shop's owner or master) The court exonerated the ship's owners on the noon that they t hey acted reasonably They concluded that there was no reasonable possibility o success in nding the seaman and hence there was no causal relaon between any negligence and the death
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Court o appeals reversed and gave summary judgment to the plain (as a maer o law there was a causal element and that the trial courts judgment was not reason reasonable) able) The court reasoned that many seamen who all overboard survive or many hours Turning back would have entailed no risk or the deendant The inacon o the master was a neglect o the duty o rescue and henceorth a neglect rom which a contribung cause o the seaman's death is airl airlyy and conclusively drawn A duty is owed to the plain because a duty is always owed to a crewmember by their
superior There is a strong case or breach because the captain made no eort to rescue There is a causal link in this case because the captains acons would most likely have prevented the death (more likely likely than not) There is no way to know whether the plain drowned instantly or was killed in another way instantly or whether he was alive or hours and and would have survived but or the deendant's negligence in not coming ba back ck to get him The court wants to create a precedent that when a captain has an opportunity to deliberate about whether to help a crewmember or not, that they make the decision to help in most cases Glanzer v. Shephard (135 N.E. 275) (N.Y. 1922) (pg. 275) o Facts A bean seller hired the deendants to cery the t he weight o bags o beans which were
then sold, at the price o the cered ce red weight, to the plains who, upon trying to resell the beans, ound that they had been weighed incorrectly and overcharged The plains sued the deendants to recover the amount they had overpaid to the bean seller The trial judge gave direct verdict to the plains Court o appeals armed The law imposes a duty to the buyer and the seller in the situaon here The plain's use o the weight given to them by the deendants was a direct consequence o the acons o the deendants (incorrectly weighing the beans) Though there is no privity between the plain and deendant (like in H.R. Moch) the deendant knew the purpose o weighing the beans and the direct eect that he would have on potenal buyers (i.e. the plain) The deendant knew the plain would be the immediate intended third party
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beneciary o the contract "The plain's use o the cercates was not an indirect or collateral consequence o the acon o the weighers. It was a consequence which, to the weigher's knowledge, was an end and aim o the transacon" = intent Can the deendant reasonably predict the scope o liability o their negligence Gorris v. Sco (9 L.R. Ex. 125) (1874) (pg. 184) o Facts Ship owner agrees to take the plain's sheep rom one port to another. The sheep were swept overboard in a storm because they were not penned A statute exists stang that sheep must be penned on voyages to prevent the spread o disease o Not negligence per se because the purpose o the statute was not to stop sheep rom going
overboard 24
Harm sought to be prevented was dierent than the harm that occurred The legislave statutes must be kept clear and explicit Violaon o the statute can sll be presented as evidence Grabowski v. Quigley (684 A.2d 610) (Pa. Super. 1996) (pg. 19) o Facts A man consents to surgery by one doctor who in the end is only present or part o the surgery while another doctor perormed much o the surgery Trial court gave summary judgment to the deendants o Court o appeals reversed Consent given to one person does not necessarily transer to another person or the same acon, even i they are qualied The identy o the healthcare provider does indeed maer When a person is generally admied to the hospital, they give their consent to the hospital and its workers as a whole Graves v. Church& Dwight (631 A.2d 1248) (N.J. App. 1993) (pg. 499) o Facts The plain drank baking soda and water one night to alleviate heartburn and was soon hospitalized when the baking soda combined with his stomach acid to create a large volume o gas that caused a rupture in his stomach The plain contended that there were several ways to warn on the contained (his expert claimed as many as 20) The plain said that he had no read the label on the box but that he usually did read labels and paid aenon to warnings The plain also smoked 3 packs a day despite knowing o the warnings on cigaree cartons The jury ound that the baking soda was deecve in not carrying a warning o the danger o stomach rupture but ound that this ailure to warn was not a proximate cause o the plain's use o it; Graves said he was entled to a presumpon that i the warning had existed he would have heeded it There was a duty, a breach, but no cause c ause o Court o appeals armed The plain was entled to a presumpon that he would have heeded the warning but the deendants had presented sucient evidence to rebut that presumpon It was admissible that a jury make an analogy between the plain's smoking in the ace o health warnings on cigarees and his projected behavior i a warning w arning had been on the baking soda he consumed (the jury's decision was reasonable) It may be arguable that because o the dierences in the danger (long term danger o smoking v. instantaneous danger o ingesng baking soda) that they two situaons were too dierent to make a reasonable analogy The pleasure that is received rom the acvity could also be considered Green v. Smith & Nephew (629 N.W.2d 727) (Wis. 2001) (pg. 487) o Facts The plain claimed that the latex gloves she used as a hospital worker created a new allergy when the proteins in the gloves interacted with her immune system The jury brought a verdict or the plain o Wisconsin Supreme Court armed
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WI law is at odds with the third restatement The biggest issue is that the restatement sets the bar higher or recovery in strict products liability design deect cases than in comparable negligence cases -- it increases the burden or injured consumers not only by requiring proo o the manuacturer's negligence but also by adding an addional element o proo o an alternave design to the negligence standard There is a ocus on consumer expectaons
The oreseeability standards set orth by the 3rd restatement are too similar to those o the negligence standard and there is no place or that in strict liability Grimshaw v. Ford Motor Co.(174. Cal. Rptr. 348) (Cal. App. 1981) (pg. 559) o Facts The plain was injured when the Pinto he was driving was rear ended by another car and because o the gas tank placement, exploded The plain alleged that the care was deecvely designed and brought evidence at trial that Ford knew o the deect because o product tesng The trial court awarded compensatory damages and $125 million in punive damages, evaluang Is the sum so large as to raise a presumpon that the award was the result o passion and prejudice and thereore excessive as a maer o law? Does the award bear a reasonable relaonship to the net assets o the
deendant? Does the award bear a reasonable relaonship to the compensatory damages? The court concluded that the award was excessive and awarded a remitur o $3.5 million The deendant appealed and argued that evidence was insucient under CA law to support any punive damages The court o appeals armed In CA malice can be dened as "a conscious disregard o the probability that the actor's conduct will result in injury to others There does not need to be an intent o harm Ford engaged in a deliberate weighing o opons and chose prots over human lie The primary purpose o punive damages are punishment and deterrence o
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like conduct by the wrongdoer and others Government saety standards and the criminal law system have ailed to provide adequate consumer protecon against manuacture and distribuon o deecve products Punive damages are thereore the most eecve remedy or consumer protecon against deecvely designed mass produce arcles In the present case injury was a virtual certainty and the deendants showed a callous indierence to public saety Guthrie v. Powell (290 P.2d 834) (Kan. 1955) (pg. 197) o Facts Plain was at a county air in a two-story building when a cow ell e ll rom the second story and landed on her Deendants responded that there was no basis or their liability because "reasonable conclusions other than negligence o the deendants can be drawn to explain the
occurrence" Trial court held that the plain was entled to a trial 26
Supreme Court armed Claimed this was an appropriate case or res ipsa loquitor because reasonable precauons were not taken by the deendant The burden on the deendant to prevent the incident was very low (should have kept the cows on the rst oor) Haasman v. Pacic Alaska Air Express (100 F. Supp. 1) (Alaska 1951) (pg. 204) o Facts A plain traveling rom Seale to Alaska disappeared during the journey; neither the plains nor the deendants have any evidence or knowledge o what happened to it Plain sues or negligence on the doctrine o res ipsa loquitor which the deendant moves to dismiss o Trial Court denies the moon to dismiss Equality o ignorance is not the same as equality o knowledge The deendant and the plain are on equal oong in terms o not having access to the inormaon But the incident which caused the harm sll must have resulted rom inherent negligence The deendant having no knowledge o how the incident occurred is only urther evidence that the deendant was not giving proper care in the situaon Deendant's negligence is the act which can not be possibly known by the plain, but the deendant's equal ignorance does not negate this Hackbart v. Cincinna Bengals (601 F.2d 516) (10th Cir. 1979) (pg. 604) o Facts The plain was a deensive end and afer he perormed a blocking maneuver a player rom the deendant team struck him in the back o the head and caused a neck injury Judgment was entered or the deendant afer a bench trial The judge reasoned that as a proessional ootball player the plain could have reasonably expected the encounter during the game The level o violence in NFL ootball games are at such a level that the plain recognized and accepted the risk that he may be injured o Appellate court reversed The rules o the game prohibit striking someone afer the play has stopped Since the conduct broke the explicit prohibion the acon cannot be assumed by the plain It is not within the custom o the game to t o strike afer the play Haddigan v. Harkins (441 F.2d 844) (3d Cir. 1970) (pg. 529) o Facts The plain's wie was killed in a three car crash c rash and the plain sued the other drivers under PA's wrongul death statute and won a jury verdict o $64,754.30 o The court o appeals reversed because o trial errors, but armed the method o making case or damages Deendant claimed that it was an error to admit expert expe rt tesmony on the economic value o services rendered by a wie and mother The plain claimed she was using various skills during 18 hours o the day (cook, baker, waitress, laundress, nurse, etc.) o
27
The court held that the plain had submied ample proo that allowed or a air determinaon The deense did not pose argument about what it would cost to "maintain" her Haskins v. Grybko (17 N.E.2d 146) (Mass. 1938) (pg. 256) o Facts The deendant was hunng woodchucks one night in order to protect his crops when he unknowingly shot and killed the plain's intestate thinking it was a woodchuck The plain brought suit and won in trial court on the nding that the deendant was ordinarily negligent o Supreme Court reversed The intestate was a trespasser and thereore the deendant was not liable or mere negligence He was under an obligaon to rerain rom intenonal injury and rom willul and reckless conduct and did not breach this obligaon He was negligent but not liable He was ordinarily negligent but it was not his duty to exercise reasonable care (Second Restatement 333, pg 258) but rather rathe r liability would have been aached i his acons were intenonal or reckless I there had been consistent trespassers on his land then Second Restatement 334 would apply I both men had been on public land or both were trespassers, they would owe the same duty to each other Hendricks v. Broderick (284 N.W.2d 209) (Iowa 1979) (pg. 602) o Facts The plain and deendant each went turkey hunng and the deendant was calling to a turkey when the plain rustled in some bushes nearby so the deendant shot into the bushes and injured him The trial court instructed the jurors that they should bring in a verdict or the deendant i they ound that the plain was negligent in that he placed himsel in a posion o assuming whatever risk there would be when he voluntarily went turkey hunng and i they ound that his negligence was a proximate cause o his injuries The jury ound or the deendant The plain appeal arguing that the jury instrucons misstated the law o Court o appeals held or the plain that the instrucon was incorrect and ordered a new trial The plain had a right to assume unl he knew otherwise that other hunters would exercise due care under the circumstances, c ircumstances, including the circumstance o the nature o the orest The plain does not assume every possible risk He had the right to assume that other hunters would not be negligent There may be a contributory or comparave negligence claim in this case
Henry v. Houston Lighng & Power Co. (934 S.W.2d 748) (Tex. App. 1996) (pg. 375) o Facts The plain was hired to x a gas line that was severed by the deendants and when he was doing so he heard another employee shout "Fire!" as a reacon reac on to og machine og that
28
had drifed into the hole; the plain rushed out o the hole and ran into a pole causing injury The trial court gave summary judgment to the deendants o The scope o the risk created by the t he deendant includes explosions and the harm which may beall a deendant as they aempt to escape explosion The deendant was ound liable Because the plain believed he was in imminent danger o an explosion then his injury while trying to escape it is within the scope o the duty o care o the deendant Herrick v. Wixom (80 N.W. 117) (Mich. 1899) (pg. 256) o Facts A man sneaks into a circus event and is subsequently injured by a recracker recracke r that is used during the show The jury brought verdict or the deendant having been instructed that i the plain was a trespasser then there was no duty and thereore no liability o Michigan Supreme Court reversed and remanded a new trial due to jury mis-instrucon A trespasser is not beyond the reaches o the law and any negligence on the part o the deendant that results in injury will render liability The presence o the plain (the audience) was known and the danger o the t he negligent act was known by the deendant Whether the plain is a trespasser or not is irrelevant, the same standard o care is owed to a known audience member who has a cket and one who does not The circus was aware that the plain was present in the proximity o their dangerous and subsequently negligent act Herskovits v. Group Health Cooperave of Puget Sound (664 P.2d 474) (Wash. 1983) (pg. 317) o Facts Plain's decedent was improperly diagnosed with a cough and later ound out that he had lung cancer which he died rom Plain's decedent brought an acon under Washington's wrongul death statute afer the deendant ailed to make an early diagnosis diagnosis o his lung cancer The deendant moved or summary judgment on the ground that the plain probably would have died rom lung cancer even i he had been diagnosed diagnosed earlier The trial court granted the moon and dismissed the acon o Court o appeals reversed and reinstated cause o acon The court concluded that the relaonship between the increased risk o harm and the plain's death is sucient enough enough to state a cause o acon A 14% (39% to 25%) reducon in chance c hance o survival is sucient evidence o causaon and thereore the jury must be allowed to consider the possib possibility ility that the deendant's ailure (negligence) was the proxi proximate mate cause o his death death I liable, damages should be awarded based on direct eects, like lost earning and medical expenses There can not be blanket immunity or doctors who have paents with less than 50% survival chances -- deterrence goal o the tort system Concurring "Loss o chance" doctrine: what caused the loss must be a separate queson rom what the nature and extent o the loss are (the loss o the chance o a cure must be examined, not just the ulmate loss o o his lie)
29
Recovery should be allowed or the loss o the chance o cure even though the chance was small (less than 50% survival) Though the plain can not show that he was denied a cure, he can show that he was denied the chance chance o a cure An all or nothing approach is wrong Its arbitrary It subverts the deterrence objecve o tort law It creates pressure to manipulate and distort rule aecng causaon and damages It gives deendants the benet o uncertainty It denies the loss o a chance as worthy o redress H.R. Moch Co. v. Rensselaer Water Co. (159 N.E. 896) (N.Y. 1928) (pg. 273) o Facts The deendant water works company entered into a contract with the city to provide, among other things, water to the hydrants within the city A building caught re and spread to the plains warehouse, which was destroyed The plain claims that though capable, the deendant was negligent in its omission o not providing adequate water and pressure to stop the re The plains claim that the deendants ailed to meet their contract with the city and thereore must pay the damages caused by the re A moon to dismiss was denied and the appellate division reversed o N.Y. court o appeals armed The plains complaint alleged two points (1)A cause o acon or breach o contract (2)A cause o acon or a common-law tort (1) No legal duty rests on a city to supply its inhabitants with protecon against re The contract in queson makes promises directly to the city to benet it in the corporate and private capacity The benet that would be provided to the plain is incidental and secondary (not primary and immediate like it would need to be to impose a duty) The deendant company owes a duty to the city not to its inhabitants The consequences o owing a duty to every inhabitant would be very un-proporonal (2) Liability would be unduly extended to an indenite degree by an enlargement o the zone o duty The deendant cannot be held responsible to every person who may indirectly benet rom their contract with the city The assumpon o one relaon cannot mean the involuntary assumpon o a series od new relaons Hull v. Scruggs (2 So.2d 543) (Miss. 1941) (pg. 91) 9 1) o Facts A man's dog is consistently going onto another's property and stealing all the eggs rom his coop, the neighbor shoots the dog and kills it to stop it rom stealing the eggs The jury brought in a verdict or the plain o Mississippi Supreme Court reversed All other alternaves had been exhausted at this point (progressively becoming more aggressive)
30
Tried many dierent ways to make the dog stop Consistent behavior that can not be altered at this point (dog will not stop) Magnitude o the value o the property that is trying to be protected (eggs may have been his livelihood) In Re Exxon Valdez (1995 WL 527990) (D. Alaska 1995) (pg. 564) o Facts The deendant's tanker spilled 11 million gallons o oil into an Alaskan sound Exxon and their boat captain were both held liable and had separate punive damages held against them Exxon appealed claiming that the jury was improperly instructed and there was a misstatement o the law The jury was instructed that even i Exxon was not itsel negligent, the company could be held liable or punive damages on the reckless acts o their employees Exxon argued that by deying its regulaons, the captain was acng outside the scope o his employment and thereore they could not be liable or punive damages The court held that this is not necessarily determinave o The district court armed Restatement 217C(b) the captain was an alcoholic and thereore Exxon was negligent in employing him because he was essenally unt Restatement 217C(c) the captain can be considered to be in a managerial posion and thereore he himsel has some policymaking authority In re Polemis (3 K.B. 560) (1921) (pg. 351) o Facts Plain chartered a ship he owned to the deendants who, through their negligence, caused the ship to explode and be destroyed There was gas leaking rom its cargo into the hold A panel o arbitrators ound the ollowing to be acts That the ship was lost by re That the re arose rom a spark igning petrol vapor in the hold That the spark was caused by the alling board coming into contact with some substance in the hold That the all o the board was caused by the people employed by the deendant The plain was negligent because he allowed the plank to all There were oreseeable harms (harm to a person or property) The unoreseeable harm (the explosion) does not actor into the queson o negligence That the causing o the spark could not be reasonably ancipated rom the alling board, though some orm o damage may have been reasonable ancipated o House o Lords awarded ull damages to the plains It is immaterial that the cause o the damage (the spark) could not be reasonably ancipated Given the breach o duty that constutes negligence and given the damage as a direct result o that negligence, the ancipaons o the person whose negligent act has produced the damage appear to be irrelevant I an act would or might cause damage, the act that the damage was not the exact type o damage ancipated is immaterial
31
The damage must be caused directly by the negligent act and not by independent causes The deendant argues that there should be a disncon between the type o harm and the extent o the harm in terms o oreseeability There may be more extensive harm that is o the oreseeable type, but there may also be a completely dierent type o harm that is not oreseeable The court rejects this disncon Indiana Harbor Belt Ry. Co. v. American Cyanamid Co. (916 F.2d 1174) (7th Cir. 1990) (pg. 419) o Facts American Cyanamid is a manuacturer o chemicals and in this case the one in queson is acrylonitrile, which is used or many things but is highly ammable, toxic and carcinogenic Acrylonitrile is used or a variety o things American loaded 20,000 gallons o this onto a railroad car and sent it on its way where it was to switch lines at Indiana's switching line It was discovered by employees o the switching line that the car c ar was leaking the chemical due to a broken lid and subsequently a massive evacuaon a cleanup was ordered at the expense o the plain Indiana Indiana brought two claims against American Negligently maintaining the leased tank car That the transportaon o this chemical through this area is an abnormally dangerous acvity and the shipper should be strictly liable or the damages caused The district court gave summary judgment to the plain Indiana on the grounds o strict liability o Court o Appeals reversed and remanded The issue on appeal is whether this acvity is an abnormally dangerous one that is subject to strict liability This should be decided as a maer o law This issue is governed by second restatement secon 520 The Supreme Court o Illinois treats the second restatement secon as authoritave
Guilles v. Swan
Paradigmac case or strict liability Covers all the aspects o secon 520 The court bases its decision in considering the 6 actors set out in the second restatement's secon 520 (based in 19th century cases) -- discusses them in a dierent order Briey discusses how these would apply but not impose strict liability Incenve is created to experiment with methods o prevenng accidents that involve changing the way that the actor operates Moves beyond just asking the actor to exercise due care, asks them to change their acvity Common acvies are likely to have technology o care available and the hazards are not seen as great on a social whole -- risks outweighed by the social value The accidental spill was caused by carelessness -- it is not clear how the acvity could be altered to reduce the risks associated It is irrelevant that the chemical is dangerous and it was not the properes o
the chemical that caused the damage (not corrosiveness, etc.) 32
I a tank car is careully maintained the danger o a spill is any chemical is negligible The deendants could have properly inspected and maintained the rail car Other pares could have been negligent in their handling o the car I the case moves orward on a negligence theory then the possibility is opened that other pares (plain, any third pares, etc.) may be responsible in part or the damage There is no compelling reason to move to a regime o strict liability When a lack o care can be shown in court such accidents are adequately deterred by the threat o liability or negligence Because it is easy to see how the accident in this case might have been prevented at reasonable cost by greater care on the part o those who handled the tank car, this is not a case o strict liability I strict liability was ound here there would be the possibility that the shipping o all other dangerous chemicals would be subject to the same liability (Pandora's Box) But i due care is used then the accidents acc idents won't happen very ofen anyway so the strict liability imposed won't be invoked very ofen -- the Pandora's Box will not necessarily be opened to the degree that the plain argues There may only be a slight increase in insurance i the vast majority o spills are preventable by proper due care The railroad network is a hub and spoke system and all the hubs are in major cies It is unreasonable to think that major transports would not go through metropolitan areas Strict liability would not impose incenves or alternave routes It would be extremely costly The route would likely be longer Even i the magnitude o the risk is decreased (L), the probability would likely be increased (P) The deendants are not experts in rail road routes (the shipper/transporter/carrier would be in a beer posion to make determinaons about routes) I a less hazardous substute or the chemical existed then the case would be dierent
-- strict liability would make more sense because an alternave orm o acon would be incenvized reasonably It would make sense to create a strict liability incenve to manuacture the less dangerous chemical substute Posner's applicaon o 520 actors (c) there is the possibility to decrease or eliminate the risk with reasonable care (d) the parcular hub is very commonly used to transport hazardous chemicals -- there is most likely technology that is available to reduce the risk (b) magnitude may be high but priority is low (e) railroad used ofen or this type o transport, alternave routes were not praccal () products created have a greater social good Restatement approach
Is Allocave: Who was in the best posion to lower the risk o the harm, i.e. can do so most eecvely? This person is who the responsibility should all on 33
Not Distribuve: Who is best able to incur the cost, i.e. will suer the least in doing so? This person is who the responsibility should all on It is not the chemical acrylonitrile that is at issue here, it is the transp transportaon ortaon o it The manuacturer o a product is not considered to be engaged in abnormally dangerous acvity merely because the product becomes dangerous when it is handled or used in some way afer it leaves his premises even i this danger is oreseeable Strict liability is not appropriate here, but negligence claims can sll be brought and should be tried in court -- the burden on the plain is higher now (they need to show negligence) I you can eliminate the risk by due care (c) then because the risk did occur there must be negligence (res ipsa), but who is the negligence on? Ira S. Bushey & Sons v. United States (398 F.2d 167) (2d Cir. 1968) (pg. 434) o Facts A U.S. coast guard ship was being overhauled in a oang drydock when one o its sailors opened valves that caused ooding and subsequent sinking o parks o the drydock and the ship The drydock owner sought damages and was granted them by the district court o Court o appeals armed The lower court applied the move test The actor's conduct needs to be closely related to a move that is intended to benet his employer, whether it actually does benet them or not The court determined that the sailor's act were too ar removed rom anything personal to not be considered within the scope o his employment The sailor's conduct was not so unoreseeable as to make it unair to impose liability Some type o damage by the sailors crossing the drydock is oreseeable so it is immaterial that the exact type o acon and harm were not oreseen The oreseeability o the event is sll conngent on the scope o employment It all basically alls under a airness raonale There is inherent risk o damage and this is enough to impose liability Policy raonales that are rejected The distribuve argument is that just because the employer might be in a beer nancial place to pay the damages does mean they need to be held liable The allocave argument is to allocate the risks/burdens in the most ecient and least costly way -- the deendant should be in the best posion to avoid this type o harm But in this case the court argues that the drydock owners are the ones in the best posion to prevent this harm (put locks on valves, etc.) Jacobsma v. Goldberg's Goldberg's Fashion Forum Forum (303 N.E.2d 226) (Ill. App. 1973) (pg. 265) o Facts Deendant (manager o the store) calls "Stop thie!" and points in the direcon o the plain who sees a man (the thie) running in his direcon; the plain aempts to stop the thie and dislocates his shoulder in the process The trial court reuses to instruct the jury on the issue o whether the plain was a volunteer and thereore determined that the was not a volunteer as a maer o law Jury gave verdict to the plain and the deendant appealed stang that the court had erred in reusing instrucons or the jury on volunteer status o Court o Appeals armed
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The plain was a business invitee upon entering the store and thereore the deendant owed him a duty to exercise ordinary care or his saety When the deendant called "Stop thie" it was concluded that it was reasonable or the plain to iner that this was an acve call or his assistance The deendant's acve call or assistance and the plain's purpose in aempng to stop the shoplifer was to benet the deendant and is sucient to connue his characterizaon as an invitee The deendant was also ound to have had prior knowledge o the shoplifer's illegal acvies and it was thus concluded that the deendant became charged with the responsibility (owed a duty) to protect its invitees rom other illegal acts by the shoplifer Johnson v. Douglass Douglass (723 N.Y.S.2d 627) o Facts The plains were out walking their dog when the deendant came speeding down the road and nearly hit them and also killed their dog Plain's allege negligent inicon o emoonal distress Plain's could claim a bystander posion or a near miss posion Bystander: argument would be that the dog was closely related to them and that witnessing its death was emoonally distressing Pets are not usually viewed as "amily members" but as property Near miss: argument would be that the couple had to jump out o the way o the speeding car but they would need to note some type o physical ailments that they suered as a result It may be reasonably oreseeable that in a residenal neighborhood there would be pedestrians Foreseeability is not weighed as highly in these cases o Court ruled against both claims in NY (can not recover or property, can not recover or emoonal injury when there is no pre-exisng duty) Johnson v. Jamaica Jamaica Hospital (467 N.E.2d N.E.2d 502) (N.Y. 1984) (pg. 297) 297) o Facts Plain's inant child was abducted rom the deendant hospital shortly afer her birth and missing or a period o 4 months beore being recovered by the police Plains sued the hospital or the emoonal distress that they suered at the hands o what they reerred to as the hospitals negligence Trial court held the complaint stated a good cause o acon Appellate division armed o Court o appeals reversed The court stated that there was no basis or establishing a duty between the parents and the hospital and thereore there could be no liability The direct injury allegedly caused by the negligence was to the inant and thereore the plain's grie was not directly related and thereore not aconable Though the parents are in a pre-exisng contractual relaonship with the hospital, there is concern that a Pandora's box will be opened and that liability will be expanded too ar The general rule in contract cases is that absent a duty upon which liability can be based, there is no right o recovery or mental distress In this case, the inant was a more direct vicm but the parents would have diculty showing evidence o emoonal distress in an inant
35
Dissent
Plains were subjected to the hospital's ailure to protect their right to custody o their child and thereore there is sucient guarantee that the claims o emoonal distress are indeed legimate
Johnson v. Kosmos Kosmos Portland Cement Cement Co. (64 F.2d 193) (6th Cir. 1933) (pg. 374) o Facts The deendant owned a barge that was moored in a river and had recently been used to haul oil and had thereore accumulated gas in its hold The deendant's negligently ailed to remove the gas beore having the plain's work on the barge using an acetylene torch The gases were ignited by a lightning strike and not by the torch, killing the workers The trial court ound that the deendant's negligence was not the proximate cause c ause o the atal injuries to the plains and thereore gave judgment to the deendants o I the plain can convince the court that the oreseeable harm is the risk o explosion then the deendant is liable because the risk that was oreseeable is within the class o the actual harm This was the case and the deendant was ound liable The deendant negligently created the risk o an explosion Johnson v. Wills Memorial Memorial Hospital (343 S.E.2d 700) (Ga. App. App. 1986) (pg. 168) o Facts An unstable man is in a hospital under guard but he escapes rom a window and is ound later rozen to death The plains sue because they claimed the man was not properly cared or The jury ound or the deendant o Court o Appeals armed "Similar" community modied locality rule is appropriate because it is the adequacy o the acilies and services that is in queson Services may be limited by locaon and resource by no ault o the hospital o Facilies may be judged by custom because it allows a judgment based on the custom o the best that can be done under the uncontrollable circumstances Katko v. Briney (183 N.W.2d 657) (Iowa 1971) (pg. 85) o Facts A couple uses a house or storage purposes and experiences mulple aempts o trespass so they set up a spring gun which injures an intruder The trial court nds or the deendant o Court o appeals armed Lie must be valued more than property One may cause bodily injury i there is a physical threat to sel, not otherwise Harm to a person must be at stake I Briney had been there and concerned or his own lie then shoong the intruder would be under dierent circumstances Dissent There must be a consideraon o whether there was an intent to seriously injure or kill an intruder and that queson o act should be lef to a jury with proper instrucons I what is contained on the property is "his lie" then he should be allowed to use the threat o orce to protect it
36
Keel v. Hainline (331 P.2d 397) (Okla. 1958) (pg. 8) o Facts Students were in class beore it was called c alled to order throwing erasers back and orth at each other intenonally, a student not involved in the throwing or receiving was caught in the line o a throw and lost an eye rom the impact Plain sues the thrower o the eraser and the target o the eraser Jury brought a verdict or the plain against both deendants The deendant at whom the eraser had been thrown appealed o Court o appeals held or the plain The basics o a baery have been established A intenonally threw the eraser at B (intenonal contact) The acon is unlawul in its essence (inappropriate in the current situaon (the classroom)) Transerred Intent A's intenons toward B are combined with harmul contact with C to create a baery A throws eraser at B and hits C, A is liable "Transerred" transerred intent A throws eraser at B (a willing parcipant) but hits C instead, B is liable as well They were willing parcipants who either aided, abeted, encouraged, procured, promoted or insgated the act Kee v. Milwaukee & St. Paul R. Co. (21 Minn. 207) (1875) (pg. 259) o Facts A young boy caught his leg in a railroad turntable and subsequently needed it amputated The turntable was unenced, revolved easily and was located near the plain's home The trial court ound or the deendant on the grounds that the plain was a trespasser o Minnesota Supreme Court reversed The deendant knew that by leaving the turntable as it was he was alluring young children to the scene which they could not know was dangerous (Second Restatement 337, pg 259) This parcular duty deals specically with respect to children (aracve nuisance) A child cannot be blamed or not resisng temptaon beore them There are dierent expectaons o adults and their percepons o danger The deendant was bound to use care to protect the plain rom the danger which they led them to because the plain could not be expected to protect himsel Kemezy v. Peters (79 F.3d 33) (7th Cir. 1996) (pg. 555) o Facts Plain sued deendant policeman under the claim that he had wantonly beaten him with his nightsck in an altercaon in a bowling alley where the deendant was working security The jury gave verdict to the plain
37
The deendant appealed the punive damages awarded on the ground that it was the plain's burden to introduce evidence concerning the deendant's net worth or purposes o equipping the jury with essenal inormaon to a just determinave o punive damages o Court o appeals armed The court laid out their juscaons or punive damages Compensatory damages do not always compensate ully because they must be based in objecve evidence they ofen all short, especially i the damage is intangible Punive damages are necessary in some cases in order to make sure that torous conduct is not under deterred Punive damages are necessary in some cases to make sure that people channel transacon through the market when the costs o voluntary transacons are low When a torous act is concealable, a judgment equal to the harm done by the act will un-deter (person who assaults is caught only hal the me) An award o punive damages expresses the community's abhorrence at the deendant's act Punive damages relive the pressures on the criminal jusce system The eliminaon o punive damage may result in a burden on the criminal jusce system which may lead to people using a sel-help sel-help method instead o the judicial system The actor o the deendant's wealth is not a crical part o any o the above elements The plain does not have the burden to show the deendant's net worth Punive damages serve as a type o bounty that give the plain an incenve to act in a when that is benecial to the public at large, which is why they are awarded to private plains rather than the state (in cases that involve crimes that may inuence the state) Kennen v. Checker Cab Co. (620 N.E.2d 1208) (Ill. App. 1993) (pg. 563) o Facts The plain was a blind man who was assaulted afer geng in the deendant cab because he brought his guide dog into the cab with him The jury returned a verdict or the plain or compensatory damages and punive damages The deendant appealed, claiming that they should not be liable or punive damages based on the driver's conduct o The court o appeals reversed in part (concerning the punive damages) The court applied the complicity rule (2d Restatement o Agency) In order or an employer to be held he ld liable or punive damages based on the conduct o an employee there must be some deliberate corporate parcipaon in the acon 217(a) the principal authorized the doing and the manner o the act In this case there was no deliberate acon, only a possible knowledge that some cab drivers did not take blind passengers, which was not the cause o the injury Kerr v. Conneccut (140 A. 751) (Conn. 1928) (pg. 133) o Facts A man with very poor hearing was walking along a trolley line and, despite the driver trying to warn him by horn to move, was hit by a trolley when he ailed to move away rom the tracks when the trolley came by The plain's negligence is in queson here (a negligent plain can not collect damages even is the deendant was at ault) The trial court ound negligence on the part o the plain but not on the deendant
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Conneccut Supreme Court armed The plain was contributorily negligent as a maer o law The law required the deendant to exercise that care or his own saety which a reasonably prudent dea man would exercise The plain is responsible or compensang or his own deciency (he should not have been walking on the trolley tracks) Kershaw v. McKown (196 Ala. 123) (Ala. 1916) (pg. 92) o Facts A mans dog had been aacking another's goat so the goat owner shot the dog o Liability in this case depends on the relave value o the two animals in queson The court is ocusing on the economic end result o the acons Goat > Dog or Goat = Dog then deendant not liable Goat < Dog then deendant liable o
Kingston v. Chicago & N.W. Ry. Co. (211 N.W. 913) (Wis. 1927) (pg. 334) o Facts The plains property is damaged by re; the deendant caused one re which joins with another equal re beore it reaches and destroys the plain's property Jury brought verdict or the plain, deendant appealed arguing that the other re would have burned down the plain's property anyway o Court o appeals arms The plain established the cause o the origin o the re and the course o the re up unl it reached his property No principle o jusce requires that the plain be placed under the burden o idenying the origin o mulple res or the damage which one o the res could have done on its own The plain has the burden to show the source o one o the res and that it would have burned down its property (that it would reach his property) The burden then shifs to the deendant to show that i his re had not united with the other re then his re would not have burned down the property because the other re was o much greater proporons He also could show that the other re was the result o natural causes and thereore the property would have been destroyed anyway Most courts use the approach that as long as the deendants negligence contributed substanally to the harm then they are liable Even i the other re was natural or larger, liability would exist This most closely ollows 433b (illustraon 10 and 11) in the second restatement, but would be similar to 433A (illustraon 3) i the source o the other re was another deendant In Summers both deendants were negligent but only one actually caused harm, in this case the deendant certainly contributed to the harm In Dillon the deendant's negligence did cause the injury, but the uncertainty lies in what would have happened to the plain i the deendant had not been negligent, but in this case the uncertainty lies with the causaon (how much was the deendant's negligence a contribung actor)
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Klein v. Pyrodyne Corp. (810 P.2d 917) (Wash. 1991) (pg. 427) o Facts The deendant company was hired or a reworks show and knocked one rework sideways and sent it into a crowd causing various injuries The trial court gave summary judgment to the plains on the ground that the deendants were strictly liable or damage caused by its reworks o Washington Supreme Court armed There is an inherent risk o personal injury or property damage when reworks are used No maer how much care is taken, the high risk cannot be eliminated when the acvity is done near crowds o Some courts have rejected this raonale on the idea that reworks are a maer o common usage on appropriate occasions I something is common then it is most likely not viewed by society as "abnormally dangerous" or parcularly hazardous The more common something is the more likely it is that there are saeguards available to reduce any inherent dangers associated with the acvity
Knight v. Jewe (275 Cal. Rptr. 292) (1990) (pg. 3) 3) o Facts Two people playing touch ootball end up with the P on the ground and D steps on her hand which causes serious injury to her hand that leads to amputaon The trial court gave summary judgment to the deendant o Caliornia Supreme Court Armed o Like Vosburg, the D did not intend harm with the conduct c onduct The dierence is that in Vosburg the physical contact was intended, in Knight the physical contact that caused the injury was not intended Kopczick v. Hobart Corp. (721 N.E.2d 769) (Ill. App. 1999) (pg. 558) o Facts The plain was a proessional meat cuer who lost a nger using the deendant slicer The slicer was a dierent type o design that held the blade at a new angle The plain claimed the design caused the cuer to "sel eed" The plain brought other butchers who aested that someme the saw did "sel-eed" and there had been as many as 30 other injuries rom the saw The jury ound or the plain and awarded compensatory damages and $20 million in punive damages o The court o appeals reversed Such a small number o injuries does not jusy the large punive damages The injuries were inherent and could essenally be somewhat expected through the use o the machine The evidence does not provide support that the deendant's conduct was wanton and willul because such a small number o injuries did not put the deendant on noce o the danger Konradi v. United States (919 F.2d 1207) (7th Cir. 1990) (pg. 438) o Facts A mailman was driving to work when he collided with the plain's car and killed him
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The estate sued the U.S. under the Federal Torts Claims Act which allows the ederal government to be liable under state tort law in circumstances where private pares would be held liable The trial court gave summary judgment to the deendant government o The court o appeals reversed and ound summary judgment premature The idea o this doctrine overall is to provide incenve or employers to alter not their care but their acvity itsel Businesses should consider tradeos and are more likely to do so i they are liable or the torts o their employees within the scope o the employment The scope o employment can be unconally dened by reerence to the likelihood that liability would induce benecial changes in acvity In this case the postal service had rules in place which guaranteed that an employee would need to drive to work and take a parcular parc ular route It is viewed that the Postal Service had control c ontrol over the aspects that led to the accident Laidlaw v. Sage (158 N.Y. 73) (1896) (pg. 6) o Facts Man comes into an oce and threatens to blow up the building unless he is paid a substanal amount o money, D uses a coworker as a shield and when the explosives go o he is not injured but P is The case was tried several mes due to evidence as to whether P would have been injured even i she had not been used as a shield In the ourth jury trial the court entered verdict or the plain o The NY court o appeals reversed and remanded or new trial They stated that the jury had been mis-instructed as to whether the deendant had commied a voluntary act The issue becomes whether or not the act o moving the coworker in ront o them was voluntary or not Court says anything done in imminent danger or to protect yoursel is not a voluntary act but more reexive and insnctual Very subjecve decision as to what is to be considered imminent danger and under what circumstances can this be applied The urther a person gets rom a situaon where they are acng purely insnctually the weaker becomes the argument that the act was involuntary Landers v. Ghosh (491 N.E.2d 950) (Ill. App. 1986) (pg.527) o Facts The plain was shot and taken to the hospital where the contacted deendant doctor said he would be there shortly but did not arrive or several hours; the plain died The plain used an expert witness to esmate her deceased husband's lost earnings He was a trained carpenter The jury awarded $400,000 or loss o support and loss o consorum (society) (it does not dierenate how much o the award was or each) The plain appealed claiming that the award was inadequate o The court o appeals armed The court held that there was no evidence e vidence to show that the award amount was inadequate Lander v. Seaver (32 Vt. 114) (1859) (pg. 113)
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o
Facts
A boy makes a rude comment about his school master outside o school and the master hears it; at school the next day the school master beats the boy at school The trial court ound or the school master I the school master was acng with good moves then he is not liable o The Supreme Court reversed and remanded They held that the jury had been mis-instructed Good moves need to go along with reasonable behavior and judgment Larson v. St. Francis Hotel (188 P.2d 513) (Cal. App. 1948) (pg. 195) o Facts The plain was walking along the sidewalk when an armchair ell rom the sky and hit her on the head; it was later presumed, despite a lack o witnesses, that the air chair ell rom the hotel window The plain pled her case relying o the doctrine o res ipsa loquitor The court, however, granted the deendant's moon or nonsuit The plain had no way to prove negligence without reliance on res ipsa loquitor o The Court o Appeals armed Followed the standard set in Gerhart v. So. Cal. Gas Co. Doctrine only applied where the cause o injury is shown to be under the exclusive control and management o the deendant Does not apply to cases o divided responsibility "V.J. Day" is an extraordinary day that constutes extraordinary circumstances A hotel does not have "exclusive control" o its urniture (patrons have control at most mes) The accident was such that it can be presumed that it ordinarily might happen despite the best precauons o the deendants Lawson v. Management Acvies, Inc. (81 Cal. Rptr. 2d 745) (Cal. App. 1999) (pg. 296) o Facts An airplane crashes near a car dealership where the workers o the dealership witnessed the crash and subsequently led a claim because they elt they were in danger during the ordeal The trial court dismissed o Court o appeals armed There were not physical ailments to the plains as the result o the incident ( Robb) There was not a special relaonship in that the pilot does not owe a duty to keep those on the ground sae ( Third Restatement ) The plane may not have crashed as the result o negligence and thereore the deendant may not hold a duty or moral blameworthiness Policy raonale There are so many other plains who can le a claim in this situaon that there is no need or a concern that the deendants will have no liability in any case (not like Robb where the plain was the only vicm and potenal plain) Liebeck v. McDonald Corp. (pg. 513) o The plain was burned severely by McDonald's coee and she got a selement during ligaon
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One o the key things that led to victory was w as that the coee had burned a lot o people in recent years and the coee sold by McDonald's was kept at 20 degrees de grees hoer than the compeon Litzman v. Himboldt County (273 P.2d 82) (Cal. App. 1954) (pg. 335) o Facts A boy is at the county air when he nds what he thinks is a are and lights it only to have it explode and he nds out it is really an aerial bomb The aerial bomb could have come rom one o two sources (one o them was negligent, but the plain cannot show which one it was) The jury is instructed that i they can not conclude c onclude which source lef the bomb unaended then they need to dismiss the claims against both deendants The jury nds ore the deendants The plain appealed, stang that under res ipsa loquitur and under alternave liability the jury should nd or him o Res Ipsa Loquitor There is no way to know that both o the sources were negligent in leaving the bomb -one is completely blameless But, should there be a burden on the deendants to show that it was not them based on their inventory? I they cannot prove it this way, they may be negligent or not keeping proper inventory o dangerous materials Unlike in Ybarra, the two sources had no duty to monitor each other as part o a team o Alternave liability Both deendants were not necessarily negligent -- only one could have lef the bomb o Outcome -- liability Court accepted both the res ipsa argument and the argument o alternave liability The burden was shifed to the deendants o
London Borough of Southwark v. Williams (2 All ER 175) (1971) (pg. 104) o Facts A group o homeless squaers take residence in an abandoned home and the city evicts them and they claims a necessity to be in the house o The court denied the use o the privilege o private necessity The town does not want to open the ood gates to claims o private necessity by the homeless "I homelessness were once admied as a deense to trespass, no one's house could be sae." This case does not constute an acute and immediate need o protecon rom threat The problem o homelessness itsel is chronic and does not constute the right to invoke private necessity Economic Perspecve In cases where transacon costs are high and it is dicult or pares to bargain the law should take more lenient view o property rights however when transacon costs are low then the two pares should be able to take the me necessary to bargain The homeless are not able to bargain in any way (no means to compensate) Lordi v. Spioa (45 A.2d 491) (N.J. 1946) (pg. 262) o Facts
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Plain and his son are vising the deendants bungalow when the deendant's son turns on and lights the gas heater and then later asks his ather (deendant) to turn it o; the deendant ails to properly shut o the gas and later there is an explosion that kills the plain's son when the deendant asks the plain to light the gas heater The plain sued or negligence The jury gave a verdict to the t he plain which the deendant appealed rom an order denying his moon or directed verdict o New Jersey Supreme Court armed The "guest rule" cannot establish immunity or the deendant when the guest (plain) is injured by an unknown danger created by the deendant's negligence (armave act o negligence) The deendant's act (not properly closing the gas valve) amounts to acve negligence Key disncon rom Davies is the acve negligence (does not maer that the t he danger was sll unknown i it is the result o acve negligence) Acve or passive negligence would not maer in a trespasser situaon (negligence but no liability: a person may be negligent (either acvely or passively) but i they owe no duty o care then they are not liable) Louisville & Nashville Ry. v. Creighton (50 S.W. 227) (Ky. 1899) (pg. 531) o Facts The plain's child ran across RR tracks and was killed by a negligent train driver The jury awarded the administrator o the child's estate $10,500 or lost earnings The deendant appealed claiming that the award was excessive o Court o appeals reversed and ordered a new trial t rial There is no assurance that the child will reach manhood and unl that me he would need to be supported There are many childhood diseases and other obstacles to reaching adulthood Comparable to awards given to adults, the amount is too high Dissent The jury had just as much right to assume that the child would earn a large amount o money as the court has to assume that he would w ould not The decision is speculave either way There needs to be some deterrence or killing a child Lowe v. California League of Professional Baseball (65 Cal. Rptr. 2d 105) (Cal. App. 1997) (pg. 603) o Facts The plain was hit by a oul ball and claimed he was distracted rom the game by the team mascot who was hing the plain in the back o the head with his tail, causing him to turn his aenon away rom the game The team claimed that the plain assumed the risk by aending the game Summary judgment or the plains o Appellate court reversed Deendant owed a duty not to increase the risk that t hat the plain had assumed, but the plain needs to provide evidence that the distracon by the mascot did increase the risk (a jury is needed) Luthringer v. Moore (190 P.2d 1) (Cal. 1948) (pg. 429) o Facts
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The deendant was hired to exterminate vermin in the basement o a restaurant and did so by releasing hydrocyanic acid gas which which overcame the plain the next day when she arrived or work at the pharmacy next door The trial court instructed the jury that umigang with the gas g as was an ultra hazardous acvity or which the deendant would be strictly liable even i he had taken all reasonable precauons The jury returned verdict or the plain o Liability was ound or the exterminator 520 Factor (c) -- even i all due care was taken the deendant himsel admits that the harm sll has potenal to occur Acvity level economic raonale -- was a substute inseccide available that is inherently less harmul 520 Factor (d) -- gas was not considered a maer o common usage 520 Factor (e) -- the place was a common business area and thereore not necessarily appropriate Another way to think about it is that to use the gas at all was inherently negligent in itsel 532 Madison Avenue Gourmet Foods, Inc. v. Finlandia Center, Inc. (750 N.E.2d 1097) (N.Y. 2001) (pg. 283) o Facts The south wall o the deendants oce building collapsed and caused the surrounding area to be closed o; the plain's deli was eected e ected and was closed rom business or 5 weeks The plain brought suit alleging that the deendant's negligence cause the collapse and sought to collect lost prots The trial court dismissed the complaint o Appellate division reversed Deendants should have ancipated that pre-exisng problems with their structure would be eected by the planned renovaon and could oreseeably result in injury to others and because they did not they are to be considered in reckless disregard Causes incenve to act reasonably in regard to the saety o others o New York Court o Appeals then consolidated this case with others and ordered all complaints dismissed While a landowner owes a duty to those around him to take reasonable re asonable care to avoid injuring them, it can not be held that the landowner owes a duty to protect an enre urban neighborhood against purely economic losses By liming the scope o the deendant's liability to those who have suered injury or property damage aord a reasonably apporoned liability Policy-driven line-drawing is too arbitrary Madsen v. East Jordan Irrigaon Co. (125 P.2d 794) (Utah 1942) (pg. 429) o Facts The plain ran a mink arm and the deendant owned a nearby property where they were using explosives during repairs The plain claimed that the vibraons rom the explosions caused the mother mink to become rightened and caused her to kill a large number o her young The trial court sustained the deendant's demurrer to the complaint o The Utah supreme court armed
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There was the intervenon o a third party between the explosion and the damage thereore breaking the chain and causing queson o proximate causaon One who res explosives cannot be liable or every occurrence ollowing the explosion which has a semblance o connecon to it Malouf v. Dallas Athlec Country Club (837 S.W.2d 674) (Tex. App. 1992) (pg. 34) o Facts People who live next door to a gol course c ourse ofen experience gol balls ying onto their property and hing their house or car Deendant won judgment afer a bench trial o Court o appeals armed There is no liability in this case due to the act that t hat there is no evidence that there was any intent to violate a property right The gol balls ending up on the property was an "unintended consequence" Manning v. Brown (689 N.E.2d 1382) (N.Y. 1997) (pg. 584) o Facts Two unlicensed drivers decide to take an unaended car and take turns driving around One girl suggests to the other that she should change the radio staon which causes the driver to crash; the passenger at that me was injured and sued the driver and the car owner The trial court gave summary judgment to the deendants o Court o appeals armed The court holds that where a plain engaged in unlawul conduct the courts will not entertain suit i the plain's conduct constutes a serious violaon o the law and the injuries or which the plain seeks recover are the direct result o that violaon The act in this case was considered a serious violaon Unlicensed drivers engaged in an acvity which was hazardous not only to themselves but also to the public at large Criminal conduct that puts the public at grave risk constutes a serious violaon Manning v. Grimsley (643 F.2d 20) (1st Cir. 1981) (pg. 10) o Facts Pitcher was irritated by ans who were heckling at a baseball game and threw a ball into the stands intenonally and hit a an The trial court gave a directed verdict to the deendants o Court o appeals reversed and remanded The intent to create a direct ear o imminent danger is sucient or liability when the intent transers to actual contact The other hecklers can not be held liable or the injury because the act o heckling can be reasonably expected at a baseball game The hecklers were not a necessary part o the acon which caused injury Diers rom Keel because there was not a back and orth mutual and proporonal exchange Shows that transerred intent requires some type o mutual and proporonal exchange The Margharita (140 F. 820) (5th Cir. 1905) (pg. 151) o Facts A man ell overboard and beore he was recovered his leg was bien o. There was no doctor on the ship and the closest doctor was ar out o the ship's course (3 weeks) so the
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ship simply connued on its prescribed path and upon reaching its desnaon (3 months later), the man's leg is cared or and slightly urther amputated Trial court says the man is owed a duty to make up or his pain and suering o Court o appeals reverses that verdict There was no addional loss or disability that was substanal enough to warrant the danger o turning back and nding aid The delay would be o an indenite me period and the owner's would have been subjected to high and un-proporonal damages o Economics Hand Aspects B = cost (danger, monetary) o reroung the ship to the other port with a doctor (really big in this case...very risky, very dangerous) P = probability o harm (i no detour is taken, will the man suer?) (yes, the man will suer) L = magnitude o the resulng harm (long-term consequences, suering) Would the cost o being sued be more than the cost o re-roung the ship? There was no addional injury to the man on the remainder o the journey (no urther damage to be incurred) but there would have been substanal damage i the ship was re-routed Posner Contractual perspecve How much will the man accept to incur the suering? How much would the man pay to avoid the suering? Wright Aggregate Risk Ulity Test The creaon o signicant risk to others is reasonable i 1. The risks are not too serious 2. The risks are necessary (unavoidable) to obtain a benet 3. The risks have been reduced to the maximum easible 4. The risks are outweighed by the desired benet There are benets in preserving the willingness o men to sail Marn v. Herzog (126 N.E. 814) (N.Y. 1920) (pg 171) o Facts Man and his wie are traveling by buggy when the deendant rounds the corner and strikes the buggy in his automobile which causes the death o the husband Plains claim the deendant was negligent or not keeping to the right side o the road Deendant claims the plains were contributorily negligent or not having headlights Jury ound or the the plains (no negligence on them them at all) o Appellate Division reversed and ordered a new trial (Supreme Court arms) A new trial is ordered because the jury was mis-instructed They should have been told that the omission o lights was "prima acie (adequate) evidence o contributory negligence" not just a "consideraon or negligence" Appellate says that to willully not use headlights (a saeguard prescribed by law) is to all short o the duty o care that people in organized society need to conorm to Omission o the lights was a negligent wrong
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The absence o the lights must be a contribung actor to the "disaster" that is at claim or negligence (the deendant must demonstrate a causal connecon or it to be relevant) The plain needs to show that despite their violang the statute, the accident sll would have happened (i.e. there was so much light elsewhere etc.) o Appellate court claims that the collision was due to the deendants ailure to see the buggy at a me when the headlights o the buggy should have alerted him to it (i there were lights) Marzolf v. Stone (temporal proximity) (960 P.2d 424) (Wash. 1998) (pg. 301) o Facts Plain's son was killed in an accident which the plain came upon 10 minutes later in me to see his gravely injured son and the accident acc ident afermath Plain sued the deendant or negligent inicon o emoonal distress and the trial court dismissed the complaint o Supreme Court reversed The court held that the emoonal trauma caused by seeing a loved one injured at an accident scene stems not merely rom witnessing the transion rom health to injury, but also rom witnessing the afermath o an accident Allowing recovery only to those who are present at the impact o the accident creates an arbitrary disncon that the court is not willing to make McCarthy v. Olin Corp. (119 P.3d 148) (2d Cir. 1997) (pg. 490) o Facts A man boarded a train and opened re on the passengers (killing 6, injuring 19) using "black talon" bullets which are designed to bend on impact and cause more damage than an average bullet The deendant manuacturer had pulled the bullet rom the market but the gunman had purchased them beore this me The plain alleged that the deendant should be held strictly liable because the bullets were deecvely designed The district judge granted the deendant moon to dismiss the complaint or ailing to state a claim upon which relie can be granted o The court o appeals armed The plains ailed to allege that the bullet was unreasonably dangerous or its intended use Some product must by their very nature be dangerous in order to be unconal The risk/ulity test is inapplicable because the risks arise rom the uncon o the product and not a deect The purpose o the risk/ulity analysis is to determine whether the risk o injury might have been reduced or avoided is the manuacturer had used a easible alternave design The risk/injury to be balanced with ulity must be a risk not intended as the primary uncon o the product Dissent A possible alternave does exist in this case (eliminaon o talons on bullet) Cites restatement: the designs o some products are so maniestly unreasonable in that they have low social ulity and a high degree o danger that liability should aach even absent proo o a reasonable alternave design McIntyre v. Balenne (833 S.W.2d 52) (Tenn. 1992) (pg. 577)
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o
Facts Deendant's tractor collided with plain's truck and caused the plain various injuries The evidence at trial showed that the deendant had been drunk but the plain had been speeding The trial court gave judgment to the deendant when the jury ound the two men equally at ault The court used the doctrine o contributory negligence The court o appeals armed Afer urther appeal, remanded or new trial with instrucons "All-or-nothing" bar o contributory negligence (rejected by most states at this me -1992) Plain's contributory negligence completely bars recovery Plain should be penalized or his misconduct Plain should be deterred rom injuring himsel Plain's negligence supersedes the deendant's so as to render the deendant's negligence no longer proximate Does not apply when Deendant's conduct was intenonal Deendant's conduct was grossly negligent Deendant had the "last clear chance" with which, through the exercise o ordinary care, he could have avoided plain's injury Plain's negligence can be classied as remote Court concluded that it was me to abandon the outmoded and unjust common law doctrine o contributory negligence and adopt in its place a system o comparave ault Pure comparave ault Damages are reduced in proporon to the percentage o negligence aributed to the plain The plain can always collect unless they are 100% at ault Modied comparave ault Plain's recover like in pure orm, but only i the plain's negligence is either less than the deendants (≤49% o o total) or is equal to but does not exceed deendants (≤50% o total) I there are more pares than 2 the pares are looked at collecvely as plains and deendants or their percentages o ault This court chose the modied comparave ault or recovery i the plain's negligence is less than the deendant's negligence (≤49% o total) Special verdict or modied contributory negligence (≤49% comparave ault) (pg. 579) (1) Was the deendant negligent? Yes or No (I the answer is no, do not go any urther) (2) Was the deendant's negligence a proximate cause o injury or damage to the plain? Yes or No (I the answer is no, do not go any urther) (3) Did the plain's own negligence account or 50 percent or more o the total negligence that proximately caused his/her injuries or damages? Yes or No (I the answer is yes, do not go any urther) (4) What is the total amount o plain's damages, determined without reerence to the amount o plain's negligence? Amount in dollars
o
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(5) Using 100 percent as the total combined negligence which proximately caused the injuries or damages to the plain, what are the percentages o such negligence to be allocated to the plain and deendant? Plain % Deendant % (total must equal 100%) McMahon v. Bunn-O-Mac Corp. (150 F.3d 651) (7th Cir. 1998) (pg. 509) o Facts Plain was a passenger in a car driven by her husband who had purchased a cup o coee and the plain was aempng to transer the coee into a smaller smaller cup when she spilled it on hersel and suered 2nd and 3rd degree burns She claimed the makers o the coee coe e machine had ailed to warn consumers about the severity o burns that hot coee can produce and that any coee served at more than 140 degrees is deecve The district court gave summary judgment to the deendant o Court o appeals armed The court concludes that the average serving temperature o coee is between 170 and 205 degrees so the plain's contenon o 140 being appropriate is unreasonable (Failure to warn) The plains argued that they knew coee could burn but did not know the extent to which it could burn and the damage it could cause The court held that to give what would be adequate warning in the plains eye there would need to be a medical and scienc explanaon in ny ne print on the coee Indiana law expects consumers to educate themselves about the hazards o daily lie (Design deect) The plains contend that the coee maker was w as deecve in design because it kept coee too hot but Indiana does not condemn product as deecve just because they are designed to do things that create serious hazards Without evidence that coee at 180 degrees is o lile use to consumers the plains cannot show that the high temperature makes the coee deecve I the product was held deecve, Mobil would be held liable as well because selling coee was part o their regular business The proper means o compensaon or the plain is rst-party health insurance and accident insurance and this alternave means is only urther reasoning or why this should not be a case or the torts system Mexicali Rose v. Superior Court (822 P.2d 1292) (Cal. 1992) (pg. 477) o Facts The plain was injured when he swallowed a chicken bone ound in the ood he was served at the deendant's restaurant The plain based his claims on the second restatement's secon that stated that there should be strict liability when the ood was more dangerous than would be normally thought The trial court dismissed the claims They relied on the raonale in Mix v. Ingersoll Candy Co. which held that liability could not be held or injuries caused by substances "natural" to ood o Supreme Court o CA armed The court agrees with the plain that a reasonable expectaon rule should be adopted but in applying the test sll connued to disnguish between oreign and natural substances
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It stated that i the injury-producing substance is natural to the preparaon o the ood served then it can be said that it was reasonably expected by its very nature and the ood cannot be determined unt or deecve Dissent Claimed that the term natural could be construed to include too vast an array The reasonableness should means that the consumer could ancipate nding the object in the meal Miami Herald Publishing Co. v. Kendall (88 So. 2d 276) (Fla. 1956) (pg. 442) o Facts A worker o the deendant was delivering newspapers and ran over the plain The trial court entered judgment on a jury verdict or the plain o Florida supreme court reversed Held as a maer o law that an independent contractor is not an employee and the doctrine does not apply I the one securing the services controls the means by which the task is accomplished, the one perorming the service is an employee I not, he is an independent contractor The means o the accident was the vehicle selected and in this case the paper boy selected his own vehicle In this case any control directed by the deendant was to the result, not to the manner o perormance by the independent contractor Small regulaons in manner do not override this Miller v. Civil Constructors, Inc. (651 N.E.2d 239) (Ill. App. 1995) (pg. 428) o Facts The deendants operated a ring range and the plain was hit by a stray bullet as he drove down a nearby road The plain claimed on one count that the deendants were strictly liable because "discharging rearms is an ultra hazardous and highly dangerous acvity" The trial court dismissed the strict liability count o The court o appeals armed The risk o harm to persons or property, even though great, can be virtually eliminated by the exercise o reasonable or even utmost care There needs to be a clear disncons between requiring a deendant to exercise a high degree o care when involved in potenally dangerous acvies and requiring a deendant to insure absolute saety o others while engaging in the acvity The use o rearms is a maer o common c ommon used and the harm comes rom misuse rather than rom their inherent nature 520 Factor (c) reasonable care could result in the reducon o risk The target pracce is o some social ulity (police ocers used the range) 520 Factor () social ulity The place where this was happening was the appropriate place 520 Factor (e) acvity in relaon to place Miller v. Reiman-Wuerth Co. (598 P.2d 20) (Wyo. 1979) (pg. 437) o Facts The deendant employed a man who was given permission to leave work to deposit a check; on his way back to work the man was in a car accident and the plain's sued the man's employer (deendant) or damages associated with the accident
51
The trial court gave summary judgment to the deendant The plain argued that the determinaon o whether or not the trip was in the scope o employment was a queson o act or the jury o Wyoming supreme court armed A reasonable mind would not nd the acvies o the accident to be under the scope o employment Moskovitz v. Mt. Sinai Medical Center (635 N.E.2d 331) (Ohio 1994) (pg. 561) o Facts The plain alleged a malpracce because o a ailure to diagnose a tumor and treat it The deendant doctor did not properly diagnose the ailment, did not perorm a biopsy and then altered medical records to try to cover their mistakes The jury brought a verdict or the plain and awarded compensatory and punive damages o $3 million o Ohio Supreme court held the punive damages excessive and ordered a remitur re mitur An intenonal alteraon, alsicaon or destrucon o medical records by a doctor, to avoid liability or his or her medical negligence, is sucient to show actual malice Punishment does not mean conscaon -- they are not meant to completely ruin the deendant Suggested $1 million in punive damages Mouse's Case (77 Eng. Rep. 1341) (1609) (pg. 106)
o
Facts
Man on a ship has his casket thrown overboard because o a storm and the ship will sink i it is not lightened o No liability is ound because all o the passengers were in danger and the preservaon o their lives is more valuable than Mouse's belongings o Law o Admiralty (general average) Compensaon can be sought rom those whose belongings were saved by Mouse's belongings being thrown overboard o Boat Overload I the erryman was negligent in overloading the cargo, he may be liable or damages Murphy v. Hobbs (5 P. 119) (Colo. 1884) (pg. 552) o Facts
The plain is bringing acon to recover damages or malicious prosecuon and alse imprisonment The trial court ound in avor o the plain The deendant appeals on the grounds o trial error The appeal court examines whether damages as punishment can be recovered in this type o case Court o appeals reversed The court considered several actors which may contribute to double jeopardy and unair punishment The ne awarded as punishment in the civil acon does not prevent indictment and prosecuon in a criminal court Evidence o punishment in a criminal c riminal suit is not admissible even as migaon o exemplary damages in a civil acon
o
52
The court holds that there may be more juscaon j uscaon or punive damages i there was no criminal trial, but this would not necessarily change things There ought to be no disposion to take rom the deendant or give to the plain more than equity and jusce require When he is awarded pain and suering damages, lost earnings, etc. it seems excessive to allow awards to punish the deendant as well The unair rule allows... Torts unaccompanied by malice will consider only the actual injury to the person or property Torts accompanied by malice will consider the injury as well as exemplary damages The court accepts the deendants argument that the previous decision allowed or double prosecuon and punishment The compensatory damages essenally covers all the damages that the plain is entled to o This case was overruled 5 years later by the Colorado General Assembly and punive damages were re-allowed in cases o intenonal-like torts Murphy v. Steeplechase Amusement Co. (166 N.E. 173) (N.Y. 1929) (pg. 597) o Facts The plain chose to go on an amusement park aracon called "The Flopper" which consisted o a moving belt that was meant to cause people to lose their balance The plain ell and ractured his knee cap The trial court and court o appeals gave judgment to the plain o Those judgments were reversed and a new trial was granted The court held that a all was one o the obviously oreseeable risks o the aracon The plain complained that the aracon was too dangerous and was not properly equipped to prevent injury to those who did not know o its dangers The court holds that because the risk o the all was obvious it was not negligent or it to exist They state it would have been dierent i the danger was unobservable or i there had been so many accidents like the plain's in the past to warrant a change The plain may have a claim i the padding to catch the alling people was inadequate and there was a concealed danger where it looked like there was padding Neal v. Neal (873 P.2d 871) (Idaho 1994) (pg. 24) o Facts A husband has an aair and his wie sues him or baery based on the argument that she would not have consented to sexual relaons with him i she had known about the aair o There would seem to be no liability because there were no condions to the consent I there was liability, it would open the ability o anyone to le a suit i they wanted to essenally withdraw their consent afer an incident Also, there is a deterrence raonale here in that i an aair is had that tthe he person can be held liable or baery
Neighbarger v. Irwin Industries (882 P.2d 347) (Cal. 1994) (pg. 601) o Facts
53
Some employees o the deendant company negligently tried to unplug a valve which resulted in a leaking stream o ammable petroleum that the plain saety supervisors, as part o the re brigade, were supposed to clean up and when they did the petroleum ignited The trial court gave summary judgment to the deendants on assumpon o risk grounds o Supreme Court o Caliornia reversed A special rule does exist liming the duty o care the public owes to reghters and police ocers whose need or employment arises rom certain inevitable risks that threaten the public welare Fire is inevitable, but industrial accidents are not Because the saety employees in this case are privately employed, a third party lacks the relaonship that juses exonerang him or her rom the usual duty o care They are paid by their employer, but can sll collect rom a third party (here the maintenance company) who had nothing to do with paying or and providing those rescue services With a reghter and a police man taxes paid by the public essenally pay or the service provided and or immunity rom liability The person who is being rescued paid directly or the rescue services in this instance Newlin v. New England Telephone & Telegraph Co. (54 N.E.2d 929) (Mass. 1944) (pg. 285) o Facts The plain had a mushroom actory and the deendant company owned a telephone pole nearby; the telephone pole ell over and caused a loss o electricity in the plain's actory causing all the mushrooms to spoil The plain sued to recover the losses and claimed the telephone pole had been negligently maintained; deendant moved to dismiss the complaint o Held or the plain The complaint stated a good cause o acon There was direct property damage in this case (ruined mushrooms) and thereore the claim o economic losses can be added New York Central R.R. v. Grimstad (264 F. 334) (2d Cir. 1920) (pg. 308) o Facts Plain's husband was the captain o a barge that was moored in a harbor; when the plain emerged rom the cabin to check things on the deck she saw that her husband husband was in the water (he did not know how to swim) and and then tried to etch a line to throw to him but was too late and he drowned Plain sued the owner o the barge claiming c laiming negligence on his part or ailing to provide liesaving liesaving equipment on the vessel Jury ound or the plain and the trial entered judgment on that o Court o appeals reversed The proximate cause o the decedent's death was alling into the water There is no evidence to show…. That the husband did not die because he could not swim That i there was a lie buoy on board it would have been successully used to save him A duty existed between the barge owner and the captain because there is a special employee/employer special contractual relaonship
54
There was a breach because the burden o having saety equipment on a ship is not high There was no causal link between this breach and the injury I the claim o negligence was or something like saety nets on the sides o the boat, then the cause- in-act issue is established, but the saety measure may have gone against customary saety procedures and thereore the duty duty would not h have ave been breached (analyze with the Hand ormula) I the plain had established the prima acie case and the suit turned to the deendant to assert a deense, then he may have made a claim o contri contributory butory negligence because the the captain could not swim
1977 NYC Power Outage (pg. 275) o
o
A massive power outage lef 3 million Consolidated Edison customers without power or 25+ hours Food Pageant v. Con. Ed. (429 N.E.2d 738) (N.Y. 1981) (pg. 276)
o
Deendant ound negligent in perming the blackout and was held liable to the plain or damages resulng rom spoiled ood and lost business caused by the blackout
Lilpan Food Corp. v. Con. Ed. (493 N.Y.S.2d 740) (Sup. Ct. 1985) (pg. 276)
Plain supermarket sued deendant to recover damages or loong o its store during the blackout but their claim was dismissed o In both cases there was a contract with the stores Disncon: the thrust o the plain claim in Food Pageant was was directed to the ailure to supply electricity to the market while the thrust o the t he claim in Lilpan was directed to the ailure to supply electricity to the city in general (street lights, trac lights) which contributed to the vandalism A duty is owed to the market directly, but cannot be owed to the city as a whole The cases need to be examined in the intent o the contract (providing electricity to run the store) not the other eects overall (the streets being dark and thereore allowing loong) Food Pageant : Contracted to provide electricity, which they did negligently and a oreseeable consequence resulted Lilpan: Contracted electricity o the store but their claim ocused on the electricity lost elsewhere which caused the loong (not a oreseeable consequence) Olin Corp. v. Smith (990 S.W.2d 789) (Tex. App. 1999) (pg. 539) o Facts The plain and a riend were hunng when driving in a truck and the plain opened re on a wild pig unl he heard a click rom his gun and he assumed it was empty The gun then discharged into his leg due to a deect which then had to be amputated A bench trial led to a verdict or the plain who was awarded $6 million+, with $5 million+ or "physical pain and mental anguish, disgurement and physical disability The deendant appealed, arguing that the damages were excessive o The court o appeals armed The plain was 16 at the me and had a lie expectancy o 55.8 more years and went through months o agony while the doctors aempted to save his leg He experienced blistering and phantom pain
55
Opelt v. Al G. Barnes Co. (183 P. 241) (Cal. App. 1919) (pg. 405) o Facts The plain was scratched by a circus leopard when he deliberately crossed under a saety rope and put himsel within reach o the animal The trial court gave judgment to the deendant on the nding that the plain was injured solely because he willully w illully placed himsel within reach o the wild animal which he knew to be dangerous o Held or the deendant o I the leopard had been let out o its cage and injured a third party then there would likely be liability because there would be no assumpon o risk Ouellee v. Carde (612 A.2d 687) (R.I. 1992) (pg. 585) o Facts The deendant was working on his car when he was pinned under it and in the process o releasing himsel he caused a gas leak rom his car Upon escaping rom under the car he called his neighbor plain and while on the phone passed out so the plain came to help and revived him The two decided to leave the garage and when they opened the door the gasoline ignited
The plain was negligent in creang the situaon while the deendant claimed that the claimed plain that was he negligent in her rescue aempts The trial court reused to allow the deendant to argued contributory negligence or or the jury to consider that o The Rhode Island Supreme Court armed One who voluntarily aempts to save a lie o another should not be barred rom recovery due to their own negligence The law and our society puts a high value on human lie The principles o comparave negligence only apply i a deendant establishes that the rescuer's acons were rash or reckless Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd; Wagon Mound (No. 1) (1961) (pg. 352) o Facts
Deendants which accidentally which eventuallyowned led to aa ship re and severe propertydispersed damage oil throughout a plain's whar The trial judge ound that the re started when molten metal ell rom the plain's whar onto a rap which ignited the oil (the reason o oil is to burn) The judge also ound that the deendant did not know and could not reasonably be expected to have known that the oil could be set on re in the water The deendant was indeed negligent in allowing the oil to leak into the water and not cleaning it up, leaving a dormant danger The deendant could not have oreseen the harm that resulted, however The deendant's negligence was indeed the cause o the harm House o Lords grants appeal The court holds that the decision in Polemis is no longer good law
o
Establishes the appropriate rule or causaon and proximate cause is reasonable oreseeability 56
Foreseeability is more important and air than directness A man must only be held responsible or the probable consequences o his act Negligence is judged by a reasonable man and thereore it is air and just that causaon be judged by reasonable oreseeability It is the oresight o the reasonable re asonable man which alone can determine responsibility Foreseeability replaces "directness" as the acceptable test I the re had been immediate as opposed to delayed the deendant would sll have been negligent The consequence o the spill is unoreseeable and it is irrelevant even i there is no temporal separaon Overseas Tankship (U.K.) Ltd. v. The Miller Steamship; Wagon Mound (No. 2) (1967) (pg. 355) o Facts Previous case acts, but the plain this me is the owner o a ship that was destroyed in the re Trial court gave judgment to the deendants o Privy Council reversed The court ound that the deendants would have regarded the oil as "very dicult to ignite in water" but not impossible (the harm was oreseeable) The plains in the rst case had to be concerned about the risk o the re being oreseeable because i it was they could have been held contributorily negligent or connuing work when the oil was in the water In this case however, the plains took no acons that could c ould have caused the re and thereore they did not need to be concerned about contributory negligence They were able to argue oreseeability ully without concern and the court accepted it The court held that it was clear that the reasonable man would have realized or oreseen and prevented the risk and thereore there must be liability Palsgraf v. Long Island R.R. Co. (162 N.E. 99) (N.Y. 1928) (pg. 378) o Facts Plain was on the plaorm o the deendant's railway when a train stopped at the staon and two men ran to catch it; one o the men made it onto the plaorm while the other jumped on but was unsteady so the guards tried to push and pull him onto the train The man was carrying a package which ell as he was pushed and pulled onto the train; the package, though it looked innocent, contained reworks which exploded when they ell The explosion caused a scale to all on the plain The trial court and the appellate division gave judgment to the plain o Court o Appeals reversed (minority approach to proximate causaon) The conduct o the guards was negligent in relaon to the t he man trying to board the train and was not negligent to the plain The plain aempted to sue in her own right or a wrong to her personal sel, not as a beneciary o a breach o duty to the other man The cause o acon by the plain, even though they are ar away, must primary and original The duty in this case was owed to the passenger, not to Palsgra hersel The plain ails to show an actual wrong to hersel The reasonably oreseeable risk denes any duty that may be owed
57
Negligence is not a tort unless it results in a wrong (intenonal v. unintenonal) I the harm was not willul then the plain must show that the act had obvious apparent dangers that warrant protecon despite no oreseeability Even i the package had been thrown intenonally then Palsgra would sll not have a claim because the explosion was not oreseeable ( Doughty ) Thereore, because they would not be liable or an intenonal act, then they would denitely not be liable or an unintenonal act The issue is that the rights that are said to have been violated are not o the same type The man experienced damage to his property when the package ell e ll The plain claims damage to her person The undamental dierence between a tort and a crime is that in a criminal case the "people" are the plain because the crime is against society (public at large) where in a tort case the individual is the plain because it is a harm to one person A tort harm to one person can not be thought o as a harm against the people The court emphasizes that because there is no duty owed there the re is no issue o causaon to even consider in this case I a duty was ound to be owed to the plain then liability would entail any and all consequences no maer how novel or extraordinary This may be subject to some discreon on a case by case basis The line is being drawn between who can bring a suit and who can not (who a duty is owed to not how vast the scope o that liability should be) Introduces the idea that a case brought by an unoreseeable plain should ail or want o a duty rather than or want o proximate cause The line needs to be drawn with who can bring a case c ase Dissent (majority approach to proximate causaon) Notes that everyone owes a reasonable duty o care to the world at large People owe a reasonable care to each other -- there is a public law aspect to torts This approach seems to state that the duty owed is presumed in many cases where there is an injury that results re sults rom an acon The issue should be proximate cause, not negligence There needs to be an emphasis on praccality and reasonable policy bounds Support or the judgment in Polemis I the act is wrongul then the actor is liable or the proximate results Everyone owes the world a duty o not acng in a way that may unreasonably threaten saety Any damage must be connected to the negligence so that it can be the proximate cause The scope o the harm is immaterial The court should consider whether the harm resulted rom a natural and connual sequence that can be traced to the negligence In this case, the act was negligent and the plain's injuries were the proximate result o this negligence There was a direct connecon between the two events (no temporal or geographic separaon)
58
The judgment should be armed (he most likely would have sent the case back to a jury to be re-evaluated re-evaluated as to whether the deendant's deendant's acons were the proximate cause -- he cannot decide this case as a maer o law) o Cardozo (ocus on duty, private acon) v. Andrews (ocus on proximate cause, public law) Cardozo's approach would limit the number o plain's while Andrews would let most all injured pares be plains and draw the lines within proximate cause Cardozo's approach makes it more likely that the result will be a queson o law or the judge rather than a queson o act or the jury in Andrew's approach approach With Cardozo, less cases would reach the jury (it is more likely to reach a jury when the issue is ramed with proximate causaon) o Duty Palsgra was an invitee and is owed a duty by the railroad because o the duty owed by common carriers to their passengers o Breach The untaken precauon was the guards not taking proper care in geng the passenger onto the train or to stop him rom trying to jump on the train late Foreseeable damage to the package and to the passenger i care was not taken o Causaon Cause-in-act: but or the guard pushing the man onto the train, the package would not have allen and exploded and then caused the scale to all onto Palsgra Proximate Cause: There is a direct sequence o events between betwee n the package alling and the injury to Palsgra but it is a very remote and unoreseeable consequence Is the type o harm similar because it is to a passenger or is it dierent because it was rom an explosion and not an impact (push or all)? There was a direct consequence and oreseeable or not does not maer (Polemis) Colonial Motor Lodge -- impact which led to an unoreseeable explosion Pegg v. Gray (82 S.E.2d 757) (N.C. 1945) (pg. 33) 33 ) o Facts The deendant was driving his dogs, in pursuit o oxes, onto another's land which in turn scared the mans cale and caused damage to his land The trial court nonsuited the plain o The North Carolina Supreme Court reversed There would be no liability i the dogs were unprovoked; however, in this case, the dog's were intenonally sent with the knowledge that it was likely that they would cross property lines in pursuit o the game Perez v. Wyeth Laboratories (734 A.2d 1245) (N.J. 1999) (pg. 508) o Facts The plains were women who used a contracepve device that t hat is implanted under the skin; the women complained o un-warned side eects The contracepve device was widely adversed in a campaign directly targeted at women rather then at doctors and had no menon o the side eects The trial court dismissed the plain's complaint on the ground that the learned intermediary doctrine shielded the deendant rom liability
o
New Jersey Supreme Court reversed
59
The doctrine does not apply in cases where the manuacturer o a drug is alleged to have marketed it directly to consumers in a misleading ashion The dramac shif in pharmaceucal markeng to consumers is based in large part on signicant changes in the health-care system rom ee-or service to managed care The direct markeng o drugs to consumers generates a corresponding duty requiring manuacturers to warn o deects in the product The deendant is aorded the presumpve deense that they were complying with the FDA requirements in their adversing It is air to enorce the FDA's regulatory scheme by allowing paents who are deprived o reliable medical inormaon to establish that the misinormaon was a substanal actor contribung to their use o a deecve pharmaceucal product I the FDA regulaons must always be gone beyond, then these regulaons may not be enough and they may need to be changed c hanged and enhanced (should these requirements be the oor or the ceiling?) This is generally a queson o causaon when the manuacturer potenally argues that the doctor should have warned the paent when they wrote the prescripon Perry-Rogers v. Obasaju (723 N.Y.S.2d 28) (App. Div. 2001) (pg. 297) o Facts Plains underwent in vitro erlizaon at the deendant's clinic and the embryo they created was mistakenly implanted into another woman who subsequently gave birth to the child and then there was a court order needed nee ded to return the child to the biological parents Plains sued the clinic to recover or their emoonal distress Trial court held that the complaint stated a good cause o acon o Appellate division armed Plains seek damages or the emoonal harm caused by having been deprived o the pregnancy and birthing experiences Damages or emoonal harm can be recovered even in the t he absence o physical injury when there is a duty owed by the deendant to the plain (to properly care directly or them and implant the embryo in a direct procedure) and a breach o that duty resulted in the emoonal harm A plain must produce evidence sucient to guarantee the "genuineness o the claim" Pescatore v. Pan American World Airways, Inc. (887 F.Supp. 71) (E.D.N.Y 1995) (pg. 528) o Facts A bomb exploded on an airplane and caused it to crash, killing all the passengers It was decided that the plane company had commied willul misconduct in ailing to nd the bomb The plain's husband worked or BP and had several advanced degrees The jury awarded $9 million or lost earnings and $5 million or loss o society The deendant moved or a new trial on the grounds that the verdict was excessive o The district court denied the moon, the court o appeals armed The jury acted reasonably when considering the compensaon or top execuves at major corporaons similar to BP Peon of Kinsman Transit Co. (338 F.2d 708) (2d. Cir. 1964) (pg. 357) o Facts
60
A ship is moored to a dock when large chunks o ice in the water create pressure which eventually causes the post holding the ship to come loose; the ship oats downstream where it unmoors another ship and the two oat downstream together Eventually the two ships collide with a bridge and cause collapse o the bridge and damming o the river, ooding the bank or several miles Mulple cases were led rom various pares One party sued the original dock owner or negligently maintaining his post Trial court held or the plain that the post was not adequately maintained o Court o appeals armed The deendant was negligent because the boat was able to come ree and there is a lot o risk in a ree oang boat (any burden o maintaining the post is less than the potenal harm) The events were oreseeable and thereore the deendant was negligent Where damages resulted rom the same physical orces whose existence required re quired the exercise o greater care than was displayed and were o the same general sort that was expectable, unoreseeability o the exact developments and o the extent o the loss will not limit liability The deendant needs to be liable or all the harms that are o the same general sort o those that were oreseeable Takes into consideraon the extent o the harm (the actual extent may not have been oreseeable but the type o harm was) It is necessary to oresee the type o harm, not necessarily the extent o damage by that type o harm Peon of Trans-Pacic Fishing & Packing Co. (152 F.Supp. 44) (W.D. Wash. 1957) (pg. 237) o Facts Three men are thrown overboard during a rough me at sea The captain did not make an aempt to look or the crewmen cre wmen and only sent out a may day Two o the men were recovered rec overed with serious injuries and the third was never ound Plains sued the ship owner and operator or negligence o Trial court ound or the plain There is an inherent duty o a ship owner or operator to assist or rescue any member o the crew (a special relaonship exists) The skipper and those aboard ailed to Use due care to make an eort to turn the boat around Keep the vessel in good working condion Cast a line to the men Throw any lie saving device to the men This provides incenve or ship owners to maintain their vessels His inacon caused urther harm to the plains Phoenix Professional Hockey Club, Inc. v. Hirmer (502 P.2d 164) (Ariz. 1972) (pg. 285) o Facts The plain owned a hockey team and hired a new goalie g oalie when his was injured in an accident caused by the negligence o the deendant The plain sued the deendant to recover the costs o hiring the new goalie o Held or the deendant The complaint ailed to state a good cause o acon
61
There was no physical injury to the plain and the goalie is not the hockey clubs property and thereore there is no claim on which the economic e conomic loss can be added Ploof v. Putnam (81 Vt. 471) (1908) (pg.97) o Facts Man and his amily dock the ship against a stranger's dock during a storm, the dock
o
servant unaached the boat and the ship was destroyed and the amily injured The owner's judgment was armed and cause remanded The plain is the one invoking the privilege in this case Under the circumstances the plain had the right to be on the property to protect his property and his amily The court states that the deendant can not expel the plain rom the property because o the privilege but the deendant has no armave acon requirement to help the plain reach the property
Polmaer v. Russ (537 A.2d 468) (Conn. 1988) (pg. 5) o Facts A man shoots his ather in law and kills him and is then ound later in the woods in a
stateA that appearsound to be "insane" (crying, naked, holding inant daughter) psychiatrist D to be suering rom schizophrenia Criminal trial: not guilty by reason re ason on insanity Civil trial: ound guilty The Conneccut Supreme Court Armed Reason o policy: incenve or the guardians o insane people to prevent these types o things rom happening (variaon on the idea o deterrence) Based on D's state o mind, he sll shot and killed someone, no maer who he thought that person was and what his reason was or doing so The court deems that everything is an act (unless it is purely reexive, convulsive or epilepc) and that a raonal choice is not a requirement or baery, just the intent to invade the interests o another (intenonal conduct) Though the deendant could not make a sane choice he could sll make an
o
insane choice and Center a choice(359 is a A.2d choice Pridham v. Cash and Carry Building 193) (N.H. 1976) (pg. 363) o Facts Plain is injured in the deendant's showroom when a worker negligently uned a rope that was securing vinyl panels, which then ell and landed on the plain The plain was taken to an ambulance and on the way to the t he hospital the driver had a heart aack and drove into a tree, killing the plain Plain won a jury verdict and the trial court entered judgment upon it The deendant appealed and contended that the jury had been improperly instructed o New Hampshire Supreme Court armed The jury was instructed correctly They were told that the law states that i a deendant is liable or the plains injuries then the is also liable or any addional harm that results rom the normal
eorts o a third person in rendering aid
62
But or the inial negligence, the plain would not have been in the ambulance and would not have been harmed Purtle v. Shelton (474 S.W.2d 123) (Ark. 1971) (pg. 134) o Facts A 17 year old and a 16 year old are out hunng and the 17 year old shoots the 16 year old
The jury aributesunder an equal sharethat o responsibility the accident to thei he plain and deendant the idea the deendantor would only be liable did not exercise the degree o care expected o someone at his age and his intelligence The plain appeals and contends that the court should have instructed the jury that the 17 year old was required to use the same degree o care that would be observed by an adult in the like circumstances Court o Appeals armed The standard is that is a minor is to be held to an adult standard o care he must be engaging in an acvity that is (a) dangerous to others (b) normally engaged in only by adults Hunng was not an acvity that is usually engaged in by adults only
o
This is standard is something or opinion not willing to set orth a legislature new rule to change and modiy and the majority Quill v. Trans World Airlines (361 N.W.2d 438) (Minn. 1985) (pg. 296) o Facts Plain is on an airplane that goes into a tailspin or about 40 second beore the pilots are able to recover the plane Plain alleged that, because he must travel ofen or work, that he now suered rom anxiety and other ailments when ying in a plane Trial court allowed the case to jury where the plain was awarded damages o Court o appeals armed There is most likely a duty o care between betwee n the plane and the passengers (pre-exisng contractual relaonship, duty owed to passengers by common carriers) There is not the concern o expanding the scope o liability indenitely
Reina v.Facts Metropolitan Dade County (285 So. 2d 648) (Fla. App. 1973) (pg. 442) o
The plain was a passenger on the deendant's bus when he got into an argument about the are o the bus with the driver and urther conict when the bus driver did not stop at his stop; the driver eventually let the plain o and subsequently chased him down and beat him when he made an obscene gesture afer leaving the bus The trial court gave a directed verdict to the deendant o Florida court o appeals armed Richardson v. Ham (285 P.2d 269) (Cal. 1955) (pg. 375) o Facts A bulldozer was lef atop a mesa unlocked over night when two drunk men ound it and drove it around the mesa unl the abandoned it because they couldn't gure out how to stop it; the bulldozer drove down the side o the mesa and across a reeway, through a
house and into an automobile beore it was stopped by a retaining wall and ulity pole
63
The plain's brought suit claiming that their damages were aributed to the negligent ailure o the deendant's to lock the bulldozer The trial judge granted the plain's moons or a new trial and the deendants appealed The unlocked bulldozer was a tantalizing opportunity or the drunk men and thereore the deendant was liable because they had created the opportunity or the 3rd party
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The liable Rinehart v. Board ofdeendant Educaonwas (621ound N.E.2d 1365) (Ohio App. 1993) (pg. 115) o Facts A boy makes a rude comment about a teacher and the teacher whacks him with a paddle to punish him ollowing the school's policy; the boy and his parents sue or damages Ohio has a corporal punishment policy or schools "...may inict...reasonable corporal punishment upon a pupil...whenever such punishment is reasonably necessary in order to preserve discipline while such pupil is subject to school authority" Board o Educaon has a urther policy on corporal punishment in school Other methods o punishment had ailed The punishment could not be out o malice or anger No danger o physical injury
Only acceptable or o is with the approved paddle Another adult must bepunishment present Trial court gave summary judgment to the deendants o Court o appeals armed The teacher had ollowed the policy or the punishment and thereore was within his bounds Riss v. City of New York (240 N.E.2d 860) (N.Y. 1968) (pg. 253) o Facts The plain ends a relaonship with a man who subsequently repeatedly threatens her i she will not come back to him; though she goes to the police mulple mes, she is awarded no protecon unl the man causes her permanent blindness and scarring The plain sues the city The trial court gave a directed verdict to the deendant
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Court o Appeals armed The amount o protecon that can be aorded is limited to the resources o the community and is not or the judiciary to dole out Robb v. Pennsylvania Railroad Co. (210 A.2d 709) (Del. 1965) (pg. 291) o Facts Plains car became lodged on the deendants railroad tracks and she only narrowly escaped beore a train hit her car Plain suered no physical injuries but claimed to have suered "great right and nervous shock" The trial judge gave summary judgment to the deendant on the ground that the plain had claimed no physical impact ("impact rule"); plain appealed o Supreme Court reversed and remanded The plain was in the immediate zone o danger created by the deendant's negligence
The court is not concerned with right that does not lead to physical injury or sickness or situaons in which the right arises rom the peril o another 64
There must be physical consequences as a result o the right Advances medical sciences allow a legimate diagnosis o emoonal distress The court determines that there is more support or rejecng the "impact rule" The court concludes that where negligence proximately caused right to someone within the zone o danger and that right results in physical ailments that would be similar or comparable to injuries as the result o physical contact that the injured party has the right to recover The plain should have the opportunity to present proo o her own physical injuries as a result o the emoonal distress she suered at the hands o the negligent deendant Here the plain claims that she is no longer able to nurse her child (physical consequence) Compensaon goals o the tort system need to take precedent over eciency and expediency Roberts v. Ring (173 N.S. 437) (Minn. 1919) (pg. 137) 1 37) o Facts An old man ran over a 7 year old boy who ran into the street o The jury brought a verdict or the deendant and the plain appealed
Held the or the that theojury was properly because they were told to consider ageplain and inrmies both thenot man and theinstructed c hild child The child does not know any beer and has not developed good judgment The old man, however, should know o his limitaons and his abilies in driving and the inrmies that he claims should only have stopped him rom driving a car Court should not say that the old man is not liable because he is old Robins Dry Dock & Repair Co. v. Flint (275 U.S. 303) (1927) (pg. 280) o Facts The plains chartered a steamboat and as part o their agreement agree ment with the boat owners it was cleaned every 6 months During a cleaning a crack was ound in the propeller and the boat owners hired the deendant company to install a replacement but one o the deendant's employees negligently dropped and cracked the new propeller causing the boat to be in dry dock or an
addional two week while a new propeller was to cast The plains sued the deendant company collect the losses they incurred while in dry dock The district court gave judgment to the plains and the court o appeals armed United States Supreme Court reversed The issue is whether the respondents (Flints, plain) have an interest protected by the law (under their contract) against unintended injuries inicted on their chartered vessel by third persons Jusce does not permit that the peoner be charged with the ull value o the loss o use unless there is someone who has a claim to it against the peoner The respondents have no claim The respondents can not recover on the grounds that i someone else recovered, they would get part o that
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The deendant would be liable to the owners o the boat because there t here was physical damage to their property The plains did not own any o the property that was damaged
65
"The injury to the propeller was no wrong to the respondents but only to those to whom it belonged" The general noon is that a plain who suers no physical injury generally cannot recover or pure economic losses caused by deendants negligence Rodi Yachts v. Naonal Marine (948 F.2d 880) (7th Cir. 1993) (pg. 162) o Facts
A barge lashed a dock Naonal Marine and should unloaded by TDI but and beore it is itisslips reetorom theby dock and damages other ships.be Naonal Marine is sued impleads TDI. Trial court nds Naonal Marine 2/3 responsible and TDI 1/3 responsible The deendants appealed, each claiming the other was solely at ault Court reversed and remanded The relevant customs are how the ropes should be ed and how ofen the barge should be checked once it is ed (The queson is not whether the deendants were negligent and liable to the deendant (they were and are), it is which o the deendants is liable or what part o the damages) Posner Custom should be determinave when there is not potenal or contractual relaons
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I there is a potenal contractual relaonship, customs should determine the outcome A contractual relaonship exists because they have a oreseeable relaonship with each other in the present situaon (related through third party customers) People who should unload the boat, people who should be watching the ship, people who lashed the ship to the dock, etc… What has happened is beyond the scope o the contract but the act that the pares have a contractual relaonship with each other should inuence how the case is viewed rom a torts t orts perspecve I there is no potenal contractual relaonship, customs shouldn't be the standard Third pares who were not at all involved in the situaon prior to damages (plain barge damaged by deendant's negligence) Both collecvely ace third party customers and i the two groups work together eciently than they will create customs to help avoid damages which represent the ecient allocaon o the risks The Roman Prince (275 F. 712) (S.D.N.Y 1921) (pg. 373) o Facts The plain was on a barge that was struck by the deendant's boat and began to leak The plain did not think the ship would sink so stayed aboard unl realizing that the ship was actually sinking and then tried to climb rom one boat to the other and injured her knee o The trial court gave judgment to the deendant The collision between the two ships was not the proximate cause o the injury
The stumble plain chose to ault stay aboard the ship and aferthere the collision The was the o the plains was plenty o me to deliberate leaving the ship and to take due care in doing do 66
This me to deliberate makes it dierent than Sco (Squib) because the plain was not acng out o compulsive necessity (she is her own superseding cause in this instance) Rowland v. Chrisan (443 P.2d 561) (Cal. 1968) (pg. 267) o Facts Plain cut his hand on a aucet in the deendant's bathroom; the deendant knew the
aucet broken and had not theinplain o the Thewas deendant claimed thatwarned the crack the aucet thatdanger caused the injury was obvious and that the plain was aware o it because he had used the bathroom beore Trial court gave summary judgment to the deendant on the grounds that the plain was a licensee Caliornia Supreme Court reversed Landmark decision that the tradional disncons between dues owed to trespassers, licensees and invitees had become obsolete Classicaon as a trespasser, licensee or invitee does not ofen reect the major actors o a case that should determine whether immunity should be given to a deendant The actors that should be considered are not necessarily related to the plain's status The court concluded that a man's saety does not become less valuable based on his
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status on the depending onparcular this statusland and that reasonable people to not vary their conduct To ocus on status in terms o determining duty o care is contrary to modern social mores and humanitarian values The proper test to be applied, under secon 1714 o the Civil Code, is whether in the management o his property the deendant has has acted as a reasonable man in view o the probability o injury to others Although the status o the plain on the property may have some eect eec t on liability, it is not determinave Under the present case, the court c ourt concludes that the deendant was aware o the risk and ailed to remedy it or warn the plain that they were in danger When a deendant is aware o a hidden danger on their land and ails to warn the plain o it, they are negligent
A plain should be ableprecauons to rely on warnings o risk romlikely a takes) deendants so that theyreasonably may take special (like the deendant to avoid harm Roth v. First Naonal State Bank of New Jersey (404 A.2d 1182) (N.J. App. 1979) (pg. 441) o Facts The plain ran a check-cashing business and rounely went to the bank every morning to cash checks; one day he was robbed because one o the bank tellers told her boyriend o the acvity o the plain and he pped o the robbers The trial court gave summary judgment to the bank on the ground that the teller had not been acng within the scope o her employment o Court o appeals armed In examinaon o the restatement the court notes that the teller had no apparent connecon with her dues at the bank when she commied the torous act
She potenally was also not involved in the transacons the plain A claim sll exists or negligent hiring, but with the strict liability o the employer does not t 67
Rufo v. Simpson (103 Cal. Rptr. 2d 492) (Cal. App. 2001) o Facts The deendant was prosecuted and acquied o a stabbing murder in criminal court The deendant was then convicted in a civil suit Based on the esmated net worth o the t he deendant the court awarded $12.5 in compensatory and $25 million in punive damages
The appealed by claiming the award was excessive The court o deendant appeals armed The proper level o punive damages is an amount not so low that the deendant can absorb it with lile no discomort, nor so high that it destroys, annihilates, or cripples the deendant To review the damages, they should consider The reprehensibility o the deendant's conduct The actual harm suered by the vicms The wealth o the deendant The deendant's conduct was outrageous, thereore making the damages jused Ryan v. Towar (87 N.W. 644) (Mich. 1901) (pg. 259) o Facts A company owned a water wheel which was enclosed in a pump house; children made a o
hole ingirl thewho pump wall and played on theand wheel young gothouse caught between the wheel the which pit subsequently caused injury to a Trial court gave directed verdict to the deendant Michigan Supreme Court armed The current remedy or dealing with trespassing children is inadequate The burden would be too high or the company to put more eort into enclosing the pump house Second Restatement 339 The plain would need to show that the deendant Knew there would be children on the property Know that a risk or danger existed Know that because they are children they would not recognize the risk Would not take on the appropriate burden to prevent the harm
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this case, the deendant that they did take on burden o In enclosing the water wheel can and argue that any urther burden is the disproporonate to any risk that exists to children Failed to exercise reasonable care Sanderson v. Internaonal Flavors and Fragrances, Fragrances, Inc. (950 F. Supp. 981) (C.D. Cal. 1996) (pg. 343) o Facts Plain alleges that the scents and her exposure to the aldehydes in them caused serious injury to her including brain damage and sense o smell damage The plain asked the court to apply the market share theory in determining liability o Summary judgment to the deendants A plain cannot shif the causaon burden to deendants The plain was not injured by a ungible product made by many dierent manuacturers
thedamage products to disnguish which product Because caused the is were sll innot theungible hands othe theability deendants 68
The plain has not joined a substanal share o the market There must be a substanal chance that one o the deendants caused the harm to the plain The larger the poron o the market the t he plain joins, the smaller the chance o error in liability Schuster v. City of New York (154 N.E.2d 534) (N.Y. 1958) (pg. 253)
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Facts
A man provided inormaon to the police which aided in the capture o a well-known criminal; the man's assistance to the police was widely televised and he subsequently began receiving threats on his lie The police did not take the treats seriously and aorded no protecon to the man and he was eventually murdered The plain's estate sued, alleging That the city had a duty to protect people who had cooperated in law enorcement eorts That the city ailed to exercise reasonable care in not supplying protecon to the man That the death o the man was due to the t he city's negligence in recklessly exposing him to the danger
trial court dismissed the complaint Court oThe Appeals reversed The city owes a special duty to use reasonable care or the protecon o person who have collaborated with it once reasonable dangers appear The public authories made acve use o a private cizen Even i the police do not solicit the help o the cizen's, c izen's, there may be an argument that the police were sll acvely using the cizens c izens Sco v. Shepard (K.B. 1773) (pg. 372) o Facts A recracker was thrown into a crowded market and then tossed around unl it blew up and took out the plain's eye o The important queson was whether the plain had stated a good claim or trespass or whether the claim should have been brought as an acon or trespass "on the case" c ase" o
The court thatathe plainbetween had a good trespass There is noheld longer disncon trespass andclaim case but this case (the squib case) is precedenal in terms o proximate causaon Because the third party acts were not the acts o a ree agent but o people who were acng under compulsive necessity or their own well-being their intervenon does not eliminate liability or the deendant Segler v. Steven Brothers Inc. (222 Cal. App. 3d 1585) (1990) (pg. 177) o Facts A store owner opens his store each day and cleans the lef behind dog poop that has accumulated over night; on this day the store owner did not get around to cleaning the sidewalk and a woman walking by slipped and ell The woman sues the store owner or not keeping ke eping his sidewalk clean as is required under city law
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The trial court nds or the plain Court o Appeals reversed 69
Evidence against the deendant was insucient as a maer o law The jury was instructed that i they ound that the store owner did not keep his sidewalk clean, like the statute says, then he should be ound negligent per se This was incorrect The ordinance was not meant to create a standard o care owed to the public, but to the city
intent o the statute wasaesthec not to protect the public, but to make the businessThe owner liable to the city or reasons
Sellers and Non-Sellers o Keen v. Dominick's Finer Foods, Inc. (364 N.E.2d 502) (Ill. App. 1977) (pg. 477 477))
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The plain was pushing a shopping cart in the deendant's grocery store when the cart inexplicably pped over; she was hurt when she tried to stop it rom overturning and sued on a theory o strict products liability claiming that the cart was deecve No strict liability -- the grocery store is not in the business o selling or renng shopping carts, rather they just oer them as a convenience (the store was a user o the carts just like their customers and the customer could pursue a strict liability claim against the manuacturer or a negligence claim against the store)
Peterson v. Lou Bachrodt Chevrolet Co. (329 N.E.2d 785) 785 ) (Ill. 1975) (pg. 477)
The plain's decedent was killed when she was run over by an automobile that had
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been purchasedonrom the deendant's used-car dealership; the plain brought suitrom against the dealership theories o strict products liability, alleging the accident resulted various deects in the car's brakes that were present when the car lef the dealer's control No strict liability -- one o the raonale or liability on wholesalers and retailers is to put pressure on them to choose a good manuacturer but since the car was used there was an intervening person and there was no allegaon that the deect came rom the manuacturer (once the car came into the control o the original customer the chain o distribuon was completed)
Nung v. Ford Motor Co. (584 N.Y.S.2d 653) (App. Div. 1992) (pg. 477)
HP computer makes annually bought thousands o cars or its employees to use then auconed them o a couple o year later; the plain bought one o the cars at aucon then was injured when it stalled on the highway and sued HP on the theory o strict products liability
liability -- HP o regularly buys and aucons o cars and thereore makes it soStrict that the incenve good business exists; the third restatement saysthis thatliability the business does not need to be the primary business i it goes beyond the casual occasional sale (HP sells computers primarily but they also aucon these cars on a regular basis) Siegler v. Kuhlman (502 P.2d 1181) (Wash. 1973) (pg. 426) o Facts The deendant's driver was transporng a truckload o gasoline and even though he perormed all the necessary saety checks the trailer came c ame loose on the highway and ell to another street where the plain drove over some spilled gasoline which subsequently ignited and killed her o Washington Supreme Court held the deendant strictly liable Gasoline develops even greater dangerous qualies when it is carried as reight Gasoline is highly likely to cause re or explosion which would likely destroy
evidence o any negligence
70
I the plain can not rely on strict liability they must move to negligence but i all the evidence was destroyed then the plain would not be able to show negligence The hazards to third persons are so great as to be almost beyond calculaon The transportaon o gasoline in large quanes creates dangers that cannot be eliminated by the exercise o reasonable care
The act thatbetween this is the only way to American transport Cyanamid gasoline is is The dierence here this case and isirrelevant that the transporter is the actual deendant in this case (although it is suggested that it may have not made a dierence) 520 Factor (c) -- in this case the risk cannot be eliminated by the exercise o due care The deendant took all necessary saety checks but the incident sll occurred In this case, there is one single party that was obviously negligent (in American Cyanamid there there may have been mulple pares that were w ere negligent) 520 Factor (b) -- there was a death in this incident (magnitude o harm) Sindell v. Abbot Laboratories (607 P.2d 924) (Cal. 1980) (pg. 336) o Facts
Plains were as aoresult o a drug administered to their mothers during pregnancy with theinjured intenon prevenng miscarriages Daughters o the mothers who took the medicine have vaginal and cervical tumor issues The deendant companies were aware o the risks o the drugs as experimental medicine and did not properly label the drugs, adequately warn doctors who would prescribe the drugs, or ollow FDA regulaons concerning the drugs It is taken as a maer o act that the deendants should have known (or knew) that the drug was a carcinogenic substance Deendants demurred to the complaint stang that the plain was unable to make the idencaon o which deendant had caused her injury and thereore there could be no liability There is not an issue o duty or breach, rather a duty o causaon
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The trial court dismissed Caliornia supreme court reversedthe acon Plain places primary reliance on the cases dealing with alternave liability that hold that is a party cannot ideny which o two or more deendants caused an injury, the burden o proo may shif to the deendants to show that they were not responsible (Summers) This case diers rom Summers because there is a signicant chance that none o the deendants were the ones whose negligence caused c aused the injury Though the collecve deendants did represent a majority o the market Neither the plain nor the deendant is in a notably beer posion to ideny the actor whose negligence caused the harm The absence o evidence is not the ault o the deendants, but rather rom the passage o me The court establishes that under the raonale o the deendant does Summers not necessarily need to have greater access to inormaon regarding causaon
71
Advances is science and technology create ungible goods which may harm consumers and which cannot be traced to any specic producer There needs to be a remedy to harms caused by the changing mes The court holds that the proper soluon is to measure the likelihood that any o the deendants supplied the product which allegedly injured the plain by percentage which the company sold verses the enre producon sold by the industry industry
Each deendant willobe held liableunless or the o the represented by its share the market it proporon demonstrates thatjudgment it could not have made the product that injured the deendant (burden shifs to the deendant) Deendants argue that to hold them responsible is unair and contrary to public policy because there is an absence o proo as to which one caused the injury Court argues that it is air because the liability will be directly proporonal to the damages caused by each deendant The court extends the theory o alternave liability to market share liability A modicaon o the rule in Summers is warranted because this involves ungible goods which can not possibly be traced to any specic producer (through no ault o either party) so there must be some way to give relie in cases like this Dissent There is an essenal e ssenal unairness in holding only a small number o deendants, in
this case 5, responsible orindustry the acons an enre industry It hurts the as a o whole (chilling eect)
There is an issue with plains who have the ability to sue or not I other states do not adopt this policy then the companies in the states that do will need to take responsibility or the enre market The deendant's wealth and ability to pay damages should play no part in a decision (deep-pocket theory o liability) Smith v. Cuer Biological, Inc. (823 P.2d 717) (Haw. 1991) (pg. 343) o Facts Plain, a hemophiliac, received mulple blood transusions and claims to have contracted HIV/AIDS as a result o the blood manuacturers negligence in ailing to screen donors and warn recipients Plain asserts his claim under market share theory o liability
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The court allowed market-share liability The product is not necessarily as ungible as it has been required to be in other cases The plain does ideny the enrety o the market as deendants There is a strong deterrence incenve The court ound that general state tort law would allow the acon and recognized the market-share theory o recovery to supply causaon with modicaons Since the court was aced with a minimal number o manuacturers, it believed that the culpability or markeng the product was the beer policy and advocated several liability, holding a parcular deendant only liable or its market share Smith v. Pelah, Hilary Term (20 Geo. 2) (pg. 402) o A dog had previously bien someone and was kept anyway and when the dog was upset again in the uture it bit another person -- the deendant was strictly liable or the dogs second bite The animal which was originally mansuetae naturae had exhibited violent tendencies
and thereore could not longerinbe harmless The harm caused theconsidered uture must be o the same type as the violence
exhibited in the past 72
Many states have replaced the common law approach with animal control statutes that hold a dog owner strictly liable or any bites a dog inicts, regardless o the dog's past record or reputaon Soldano v. O'Daniels (141 Cal. App. 3d 443) (1983) (pg. 225) o Facts Deendant owns two businesses and an employee o one o his establishments is told by o
a man that the plain's relave was being threatened in the other establishment The man asked to use the phone but was denied by the employee and the employee reused to call or help; the plains relave was subsequently shot and killed The plain brought suit against the owner o the two businesses The trial court dismissed the complain o Court o Appeals reversed The use o a telephone in a public part o a business should not be reused or a legimate emergency call No innocent cizens would impose any risk The stranger's asseron o an emergency would not create a duty unless it was clear that there was an imminent danger Stangle v. Fireman's Fund Insurance Co. (198 Cal. App. 3d 971) (1988) (pg. 225) o Facts
Plain purchases a diamond ring with the intent to sell it or prot and asks a ormer girlriend to do so or him She nds a buyer or the ring and meets him at his "oce" to make the transacon; the man disappears with the ring While the thef is in progress, the ormer girlriend aempts to use the buildings phone to contact the police but was stopped by the receponist; rece ponist; when the police are nally reached it is too late Plain sues on the theory that the deendant had a duty, afer being inormed that a thef was in progress, to make its telephone available Trial granted the deendant a directed verdict Court o Appeals armed There is a disncon between a public business and a private business area There is a dierence between the t he value o a human lie and a material object
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Steinhauser v. Hertz Corp. (421 F.2d 1169) (2d. Cir. 1970) (pg. 362) o Facts The plains and deendants were in a car accident together at the ault o the deendants Though there were no inial bodily injuries, one plain passenger began to exhibit psychoc reacons and was soon afer diagnosed with schizophrenia The doctor determined that she had a "prepsychoc" personality and that the accident caused her psychosis Injured party and her parents sued or damages associated with her condion o Liability ound "eggshell skull" plain -- the deendant has to take the plain as they are
73
The psychoc tendencies were a pre-exisng condion o the plain and thereore because the deendant's acons led to the exacerbaon exace rbaon o this condion there is liability There may be adjustment or damages under the consideraon that the plain would most likely have developed the psychoc tendency with or without the accident
Struve v.Facts Droge (62 How. Pr. 233) (N.Y. Sup. Ct. 1881) (pg. 108) o
An apartment owner noced smoke coming rom the apartment o a tenant and broke in to invesgate and potenally stop the re; the smoke had a dierent source and the property was damaged in the process o the apartment owner coming c oming in Trial court gave judgment to the deendant o The court o appeals reversed Because there was no actual public necessity the deendant is liable It does not maer to the court that it was a reasonable mistake or that there was no actual intent to perpetrate a wrong Sullivan v. Dunham (55 N.E. 913) (N.Y. 1900) (pg. 428) o Facts The deendants were using explosives to remove a tree and one blast sent a secon o
stump ying onto a highway which then struck the plain and killed her The trial court instructed the jury that the plain did not have to show negligence on the deendants' part in order to recover rom them The jury returned verdict or the plain o The court o appeals held the evidence sucient to support the outcome This consequence is a reasonable expectable one -- the kind o harm is the same type that makes the acvity dangerous (restatement secon 519) Summers v. Tice (199 P.2d 1) (Cal. 1948) (pg. 332) o Facts Plain and both deendants were quail hunng when an errant shot by one o the deendants struck the plain in the ace The trial court ound that the deendants had been negligent in ring in the plain's direcon and entered judgment against both o them
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The deendants appealed on the ground that the plain ailed to prove which o them red the shot that hit him Court o appeals armed Both deendants were negligent toward the plain and brought about the situaon where the negligence o one o them caused the injury The burden thereore lies with the deendants to absolve themselves i they can The deendants are in a ar beer posion to oer evidence to determine which one caused the injury (analogous to Ybarra) Prevents two negligent deendants rom poinng the nger at each other and escaping liability The plain would need to argue that the tradional rules o causaon in terms o negligence do not apply (plain unable to know needed inormaon) and thereore a case o alternave liability exists
I it were to come c ome out that one deendant's bullet was certainly the one to cause the injury, the prima acie case would all apart because the causaon necessity o negligence 74
would be lost (though the deendant was negligent, his negligence did not cause injury to the plain) It may be sae to say that, on average, a person who causes injury with their negligence is more reckless than someone who causes no injury with their negligence Surocco v. Geary (3 Cal. 70) (1853) (pg. 107) o Facts
The mayor o San Francisco orders a house to be destroyed in order to stop a spreading wild re; the amily claims they should have had more me to get their belongings out Trial court gave judgment to the plains o Caliornia Supreme Court reversed Public necessity is invoked in this case The plains were as much beneted rom the acons as everyone e veryone else "The right to destroy property, to prevent the spread o [disaster], has been traced to the highest law o necessity" Taraso v. Regents of The University of California (551 P.2d 334) (Cal. 1976) (pg. 243) o Facts The plain's daughter was murdered by a psychiatric paent who had disclosed to his psychotherapist his plans or the killing The killer was detained or a short me by the police, then released when he seemed
mentally stable The plains sue the police or ailure to detain the man and the psychotherapist or ailure to warn the vicm or her amily The plains argue that both pares had a duty to warn them Trial court dismissed the plains complaints Court o Appeals reversed in part and armed in part Armed that the police were in no way liable because there was no individualized special relaonship between them and the vicm or them and the killer (no special relaonship = no duty) The police have a duty to the general public, no to specic individuals The police do not have the special skills o a therapist to determine when psycho threats are legimate or not Reversed and stated that the psychotherapist was liable because o the special
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relaonship that existed between him and the killer (special relaonship = duty) There is an excepon to the "no duty" rule where a special relaonship exists The therapist ailed to exercise "that reasonable degree o skill, knowledge, and care ordinarily possessed and exercised by members o [that proession] under similar circumstances" Reerence to custom The court nds that the right to "protecve privilege (paent/doctor condenality) ends where public peril begins" There is no sucient interest in not warning the vicm or her amily This precedent creates a disincenve…. For paents to ully divulge homicidal thoughts to their therapists in ear o their therapists telling others For doctors to take on paents who are psychopathic
Tedla v. Ellman (19 N.E.2d 987) (N.Y. 1939) (pg. 173) o Facts
75
A man and his sister are walking along the side o a highway with no ootpaths carrying a lantern at dark; the two are struck by a care driving on the highway and the man is killed, his sister injured The sister brings suit against the driver o the car The deendant claims that the brother and sister were walking along the wrong side o the road or the direcon they were headed in and thus were violang a state law
Thethey plains road that wereclaim on that it was saer because o trac to be on the side o the The trial court ound the deendant liable due to his negligence; he appealed, saying that, as a maer o law, the brother and sister should have been negligent as well o Court o Appeals armed Though there was a law in place, it can not be construed so strictly that to ollow it a person would need to put themselves into more danger than i they were to break it The law was meant to protect people and thereore should be allowed some leniency when the breakers o the law are just trying to protect themselves Texas Midland v. Geraldon (128 S.W. 611) (Tex. 1910) (pg. 103) o Facts A man and his amily miss the train and want to stay at the staon overnight to wait or the next train because o a storm; the train staon aendant orces the amily to leave
despite the act that the man explains that his wie's health will be compromised i she is orced into the rain; she becomes ill and they blame the train staon The trial jury ound or the plain Texas Supreme Court armed Because the court can reasonably iner rom the trial courts c ourts judgment that the deendant knew o the wie's condion and that the weather was bad enough to exacerbate this condion, it was essenally unlawul or him to orce her out into the rain Ploof Analogy Analogy In both cases the plains claim the private necessity to be there and because they were deliberately expelled by the deendant the deendant is liable or subsequent damages Vincent Analogy Analogy I the amily sought reuge in the train staon and the staon incurs expenses to keep them there out o their necessity then the amily would owe the cost o the expenses to the
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train staon Theisen v. Milwaukee Automobile (118 N.W.2d 140) (Wis. 1963) (pg. 188) o Facts Male high school student is driving home ve emale students when he alls asleep at the wheel and, despite the calls o the girls to try to wake him, he veers o the road and hits a tree stump, causing injury to the plain o Wisconsin Supreme Court ound the driver (deendant) negligent per se Failing to heed to the bodies signs o sleep and ignoring those signs while driving a car must be negligent as a maer o law The occurrence o sleep should have been reasonably oreseen An outside orce causing the deendant to all asleep would be dierent and unoreseeable (i.e. seizure) o Analogy to Marn v. Herzog (buggy with no lights)
The acons o the deendant are never sae, thereore there is no saety trade-o that makes the acon ok
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Thompson v. County of Alameda (614 P.2d 728) (Cal. 1980) (pg. 246) o Facts A juvenile oender, who has made previous threats that i released he will murder a child and has a criminal history involving violence toward children, is released and subsequently murders a young boy within 24 hours o his release The vicms parents (plain's) le suit against the county alleging that they owed a duty
to the community to warn the parents o young children that the juvenile oender was being released The trial court dismissed o Supreme Court armed No special relaonship exists in this case (the vicm was not a named vicm) A warning would not have been helpul in this situaon because it would either cause panic or not have been taken as seriously when given to a broad secon o the community Warnings o this sort would also hinder the rehabilitaon and parole processes Thompson v. White (149 So. 2d 797) (Ala. 1963) (pg. 373) o Facts Plain was injured when the deendant's car ran into hers Clowns were perorming at a roadside gas staon and had caused a mild distracon to the plain so she also sued the Gul gas staon or distracng the deendant
The trial court brought verdict against the deendant driver (White) but sustained a demurrer to the plain's complaint against Gul o The Alabama Supreme court reversed the judgment involving Gul and remanded The acvity o the clowns naturally distracted the deendant driver because evidence reasonably supports that i the plain was distracted then so was the deendant White was not a ree agent but acng under the inuence o the clowns ( Sco (Squib) acng under a third party inuence) White's negligence was a concurring cause o the accident acc ident and not an independent intervening cause which would insulate Gul rom liability Tingle v. Chicago (14 N.W. 320) (Iowa 1882) (pg. 175) o Facts The deendants train hits the plain's cow on a Sunday Plain sues because operaon o a train on a Sunday is prohibited by law (not or
negligence) Trial court gave judgment or the plain Supreme Court reversed The accident was not the result o the deendants negligence (there was no negligence) in operaon o the train and resulted rom a situaon or which he was not responsible and thereore he is not liable Acng illegally does not necessarily create a tort case or negligence
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T.J. Hooper (60 F.2d 737) (2d Cir. 1932) (pg. 159) o Facts Two tugboats towing barges lost them in a storm because they were unaware o the impending weather because o unworking radios on the tugboats Trial court ound the tugboats "unseaworthy" (meaning the deendants were negligent)
Deendants argue that it is not customary to have radios on tugboats Court o appeals armed
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The court responds that "there are precauons so imperave that even their universal disregard will not excuse their omission" Even i it is not custom to have a radio, it is so necessary to have one that custom is disregarded Because some tugs have radios and deemed it necessary those tugs are right and the others standards are too slack
Hand Formula Cost o equipping boats with radios is less than the cost o damages as the result
o the storm, then the radios need to be there or there is negligence Customs are a good starng point because they have historical basis They reveal what the pares close to the situaon have already come up with on their own (what has been developed by those who are most amiliar with the situaon) Customs can not be the standard because i one just adheres to custom there is no incenve or innovaon Ultramares Corp. v. Touche (174 N.E. 441) (N.Y. 1931) (pg. 278) o Facts Stern hired the deendants, an accounng rm, to prepare and cery a balance sheet or the condion o their business; the deendants presented Stern with a balance sheet
that they knew they would reerence in their borrowing and other nancial dealings The plain made loans to Stern in reliance on the balance sheet prepared by the deendants; Stern was in act insolvent and could not pay back the loans The deendant negligently has ailed to discover that Stern had doctored its books The jury returned verdict or the plain; deendants appealed Appellate court reversed They held that the trial court should have dismissed the negligence count I negligence were to exist it would expose accountants to a liability in an unknown amount or an unknown me to an unknown class Unlike Glanzer , this preparaon o inormaon was not primarily or a third party It was primarily or use by Stern in its business development and was only collaterally or the use o those who Stern did dealings with (the privity was with Stern, not the others)
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The deendants could not not reasonably predict the scope o their liability i they were negligent (they could reasonably oresee who the potenal plains would be) More like H.R.Moch than Glanzer I there has been neither reckless misstatement nor insincere proession o an opinion, but only honest blunder, the ensuing liability or negligence is one that is bounded by the contract and is to be enorced between the pares by whom the contract was made The pares could have gone beyond the deault rules o tort law and contract new rules that will deal with oreseeable risk (deendants could explicitly state no liability to avoid suit like this while the plains could impose liability in the contract) United States v. Carroll Towing Co. (159 F.2d 169) (2d Cir. 1947) (pg. 140) o Facts A barge is chartered to a company (bargee included) and then ed to the end o a pier.
A tug came by and needed to une the barge to get by, so they (harbor master) did so and did not e it back up properly. The barge oated away rom the dock and ended up sinking. The bargee was not on board at the me o the sinking
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The tug boat crew is ound negligent or not properly retying re tying the boat and they are parally responsible or the damages Appellate court is deciding whether the bargee being absent rom the barge is negligent as well (determine that he is indeed) Hand Formula Applied (Bargee) P = probability the boat will break away
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Higher because it is NY harbor during WWII so it is very busy L = gravity o the resulng injuries The barge and all its cargo sinks B = burden o adequate precauons (requiring the bargee to be present) The bargee was absent or 21 hours, some o those being the work day, so he is negligent because he should have been there during working hours Hand Formula Applied (Harbor Master) Only dierence B = the me it would take to ree the boat properly United States v. Lawter (219 F.2d 559) (5th Cir. 1955) (pg. 231) o Facts The plain and his wie are boang when their ship sinks; they are stuck in the water (4 eet deep with strong waves) with no boats nearby to help them
They are spoed by a U.S. Coast Guard helicopter on patrol and an aempted rescue ensues A crew member lowers a cable and retracts it beore the plain's wie can secure hersel in the harness; she is raised to the point o the helicopter but alls beore she can be brought into the vessel; she dies rom the all The plain sues the U.S. claiming that his wie's death was due to their negligence in allowing the man to operate the cable when he clearly c learly was not qualied to do so The district court brought verdict or the plain The deendant appealed, stang that the complaint did not state a good cause o acon Court o Appeals armed The Coast Guard place the deceased in a worse posion than she was originally in and negligently caused her death When they voluntarily aempted rescue they took on a duty o care not to
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make her dangers worse Once responsibility or rescue it assumed, it must be done with due care Van Alstyne v. Rochester Telephone Corp (296 N.Y.S. 726) (City Ct. 1937) (pg. 36) o Facts The deendant lef lead droppings on the land that they had consent to be on in order to do work, but the lead droppings lef behind cause the plains dog's to die The plain sued on a count o negligence but it was dismissed because the consequence (that the dog would eat the lead) was unoreseeable The plain also sued on a count o trespass which the court ound or in avor o the plain o The workers were ound to have essenally trespassed when they lef behind the lead There was consent or the company to be on the land to repair the wire, but not to leave dangerous lead droppings behind
The deendants exceeded the scope o the consent
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They became intruder's and liable or the consequence whether the results could or should reasonably have been oreseen Van Vacter v. Hierholzer (865 S.W.2d 355) (Mo. App. 1993) (pg. 586) o Facts The plain ignored his doctors orders to change his liestyle to improve his heart, did not take his prescribed medicaon and did not visit the doctor when he was told to t o do so
The plain went to the doctor complaining o chest pains, was sent home as ok and died a ew hours later Plain's wie sued the doctor claiming she was negligent in sending her husband home The deendant asked that the jury be instructed that it could reduce any recovery or the plain by the extent to which the plain's death was caused by his own negligent ailure to ollow the instrucons o his doctor or several years The jury was instructed in this way and said that the deendant was negligent but that the death o the plain was caused by 93% his own negligence and thus no damages were rewarded Plain argued that the jury should not have been instructed to consider comparave negligence The court o appeals reversed and remanded The court agreed and held that although the decedent had a nonchalant atude about
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his health, this indierence and consequent inacon was not the signicant and legal proximate cause o the decedent's death -- the proximate cause o his death was the doctor sending him home home when he should not have (similar to Fris) The court held that the jury instrucon was bad because it invited the jury to apporon ault to the decedent or his death on the basis o evidence e vidence which was not a proximate cause o his death There is not necessarily a need or incenves through the tort system in this case because the threat o death serves as a strong incenve and i this is not enough then it is doubul that diminishing the damages awarded will be enough Vaughan v. Menlove (132 Eng. Rep. 490) (C.P. 1837) (pg. 125) 1 25) o Facts A man built a haystack near the edge o his property and though his neighbor warned him o the re hazard that it posed, he did not remove it and only built a chimney through it.
It caught re and burned down a poron o his neighbor's property Jury nds or the plain under the idea that the deendant was bound to reasonable cauon The deendant appeals based on the argument that he "ought not not be responsible responsible or the misortune o not possessing the highest order o intelligence" Court rejects and holds or the plain The court reuses to customize the judgment and capability standards or ever case Must adhere to the rule which requires in all cases a regard to cauon such as a man o ordinary prudence would observe
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Vaughan v. Miller Bros. "101" Ranch Wild West Show (153 S.E. 289) (W. Va. 1930) (pg. 403) o
Facts
An ape on exhibit at the deendants circus bit o the plain's nger
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The plain sued to recover his injuries and claimed no negligence but that the deendant was strictly liable or the damage done by his animal W.V. Supreme court disagreed (this decision represents a minority view among courts) It the right o every person in this country to exhibit wild animals animals and injury arising rom these animals must stem rom negligence in restraining them The act o the deendant was essenally a lawul acvity
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Village of Carterville v. Cook (22 N.E. 14) (Ill. 1889) (pg. 371) o Facts Deendant village maintained a sidewalk 6 eet o the ground with no railings and the plain, walking with all due care, was jostled o the sidewalk by another pedestrian The jury returned a verdict or the plain and the deendant appealed o Held or the plain Vincent v. Lake Erie Transportaon (109 Minn. 456) (1910) (pg. 100) o Facts Ship docks and must stay because o a storm; the ship crew kept the boat docked and repeatedly reastened it to the dock which caused damage to the dock The plain was liable or damages as awarded by a jury o Court o Appeals armed The boat had a right to be there to protect itsel but it does need to pay or the damages
(no trespass but liable or damages) Though the boat owner was acng reasonably, he was avoring his own property over the other's property so he is sll liable I he had let the boat drif reely re ely and then damaged the dock, he would not be liable Dissent Because the boat owner arrived legally and had no way to leave saely, the dock owner is liable or damages o Deense o Property I the dock owner wanted to une the boat in order to protect his dock rom the damage by the boat then he would need to jusy that his dock was more valuable than the boat to not be liable Vosburg v. Putney (80 Wis. 523) (1891) (pg. 1)
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Facts
One student kicks another student in school afer class has been called to order and the impact exacerbates a preexisng injury which causes the leg to become lame No evidence was presented that states the kicker meant to cause serious injury Special Verdict was handed down Set o answers to more specic quesons Shows the basis o the jury's conclusions and thus makes it easier or the court reviewing the verdict to know what the jury was thinking Court o Appeals armed Even thought the deendant did not intend harm, the act then intended was unlawul and thereore the result was unlawul Relevant that the kick happened in the class and not at recess (playground is a place where certain liberes are taken and there are implied rules o the classroom
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and the playground)
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The act was in violaon o the decorum o the school and was not in any way invited Waltson v. Lambertsen (349 F.2d 660) (9th Cir. 1965) (pg. 205) o Facts A crab shing boat sinks on a clear day; the sinking is essenally unexplainable The plain claims the ship was unseaworthy because a large crab tank made it
unstable
This claim is based in ordinary negligence in that the plain is claiming a standard o care was not met The plain also claims res ipsa loquitor Trial court enters a verdict or the deendant o Court o Appeals arms The trial court was correct in stang that there was no evidence that the ship was unseaworthy (which would have had to have been established as o its last departure) Because no evidence o unseaworthiness exists, there is no reasonable belie o negligence on which to base the claim or res ipsa loquitor The sea itsel is dangerous and thereore there is an inherent risk that exists without negligence being a actor Wanzer v. District of Columbia (580 A.2d 127) (D.C. App. 1990) (pg. 255)
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Facts
A man calls 911 complaining o headaches and the operator suggests that it would be logical to take an aspirin as opposed to geng an ambulance The man is ound by his neighbor several hours later and afer being transported by ambulance to the hospital it is determined that he has suered rom a stroke and soon dies The man's daughter (plain) sues D.C. claiming it breached its duty by negligently ailing to train and supervise dispatchers City (deendant) les a moon to dismiss which is granted by the trial court Court o Appeals arms The court held that the city could not have been held liable or the dispatcher's ailure to send an ambulance because the city owed the ather no special duty greater than that owed to the public at large By just answering the call, the dispatcher is not undertaking a duty to provide
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care to the plain Watson v. Kentucky & Indiana Bridge & R.R. (126 S.W. 146) (Ky. 1910) (pg. 370) o Facts One o the deendant's railroad cars derailed and spilled its cargo o gasoline into the streets The gasoline was ignited by a third party It is unknown whether the man ignited the gas on purpose or by accident The trial court gave a directed verdict to the deendant railroad o Court o appeals reversed and remanded The court determined that liability depended on how the third party came to start the re (this was to be a queson o act or the jury) I the third party accidentally started the re, then liability is on the deendant I the third party purposely started the re, there is no liability or the deendant
It is oreseeable that someone would accidentally start the gasoline on re, but it is not oreseeable that someone would start it on re maliciously (commit arson)
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Weirum v. RKO Radio General, Inc. (539 P.2d 36) (Cal. 1975) (pg. 223) o Facts The deendant radio staon hosts a contest in which contestants must locate a certain disc jockey in various city locaons in order to win prizes In an aempt to win, two teenagers race along a reeway at 80 mph and cause the death o a ellow driver
Plain sues one teenager (who went on to win a prize afer the accident) and the radio staon Trial court jury brought verdict or the plains, the deendants mooned or a judgment n.o.v. and were denied; deendants deendants appealed o Supreme Court armed The deendants appeal is based on a secon o the Restatement that is grounded in an armave act by the deendant that created undue risk o harm Liability in this case is not based on the deendant's ailure to intervene (armave act) (noneasance) but on its creaon o an unreasonable risk o harm (miseasance) The harm that results rom the goading in this situaon is inicted upon a third party (plain), not the actors who were goaded (teen drivers) Welge v. Planters Lifesavers Co. (17 F.3d 209) (7th Cir. 1994) (pg. 466) 466 )
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Facts
A third party purchases a jar o peanuts or the t he plain and cut o the barcode or rebate purposes; the plain uses them once without incident and then, while he is closing the jar the second me, it shaers and his hand is injured The plain brings suit against K-Mart (who sold the peanuts), Planters (who packaged the peanuts in the jar) and Brockway (who made the jar) The deendants moved or summary judgment and it was granted by the district judge because the plain had ailed to exclude possible causes o the accident other than a deect introduced during the manuacturing process The court o appeals reversed and remanded It was not a queson that the jar j ar was deecve but when the deect was introduced The deect must have been introduced beore purchase when the jar was in the control o the deendants (all o the evidence presented by the plain must be
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viewed as true and all evidence must be viewed in avor o the plain) The deendants argue that the third party use o a knie on the jar may have led to the deect The court nd this to be a common thing to do The court urther nds that because the deendants had iniated the rebate process they had invited the third party to use a knie on the t he jar K-Mart created the incenve program that encouraged the removal o the label rom the jar (needed to use a knie to take it o properly) The other deendants may not have been directly involved in the promoon but the alleged misuse has not been proved to a level that t hat can jusy summary judgment Invited misuse is no deense to a products liability claim because invited misuse is not misuse
Misuse is not a deense or strict liability unless the misuse was the sole cause o the deect I the misuse is not the sole cause then it may only reduce the damages
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The deendants argue that the jar could have been damages while sing on the shel The plain in a products liability suit is not required to exclude every possibility that the deect which led to the accident acc ident was caused by someone other than one o the deendants Relaon to Res Ipsa Loquitur An accident can itsel be evidence o liability i it is the kind o accident
that would not have occurred but or a deect in the product and it is reasonably plain that the deect was not introduced afer the product was sold An accident happening at all is evidence that the product was deecve when sold It is too remote to expect ex pect a person to lock up their cans and jars -- it is too remote to expect a raonal person to take this precauon Experts rom both sides agreed that the jar must have contained a deect but they could not nd the racture that had precipitated the shaering o the jar The court reasons that the evidence shows that the probability that the deect which caused the accident happened afer purchase is very small and thereore the probability that the deect was introduced by one o the deendants is very high The plain's evidence is strong enough to warrant a act trying by jury and not weak enough to warrant summary judgment
With respect to K-Mart it does not maer who made the deect, it only maers that they sold a deecve product I trial evidence shows that the deect was caused by a K-Mart employee then liability would be solely or K-Mart (liability is only or those who handle the product afer it becomes deecve) With respect to Planters it does not maer who made the deect, it only maers that they distributed a deecve product I trial evidence shows that the deect was caused by a Planters employee, liability would be or K-Mart and Planters The strict liability element in modern products liability law comes precisely rom the act that a seller subject to that law is liable or deects in his product even i those deects were introduced without the slightest ault o his own or ailing to discover them Wendland v. Sparks (574 N.W.2d) (Iowa 1998) (pg. 328)
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Facts
A cancer paent went in to cardiac arrest and her doctor did not aempt to resuscitate her as an act o mercy; her husband sued the hospital or negligence on the doctrine o lost chance Trial court gave summary judgment to the deendant Iowa Supreme Court reversed Held that a vicm who suered rom a pre-exisng condion and is then subjected to another source o injury may have a claim or the second event I it were not or the second event they may have survived the rst Two lost chances in this case Eorts o resuscitaon would have been successul She would have been cured o her disease The jury must examine the percentage chance o survival and then take the damages
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and award that percent Where there is more than one lost chance, the percentages o each o those chances are considered in awarding damages
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Werth v. Taylor (475 N.W.2d N.W.2d 426) (Mich. App. 1991) (pg. 26) o Facts Woman is in the hospital and giving birth; she will die without a blood transusion, which she has menoned she does not want, though her husband was not clear about the same maer
Trial court gave summary judgment to the deendants Court o appeals armed Due to the equivocal nature o their inial reusal (I don’t want the blood, but I don’t want to die) and the act that the reusal re usal was made when the person's lie was not in immediate danger Consent is ofen implied in emergency procedures when the person is not able to give their actual consent because o their condion White v. Levarn (108 A. 564) (Vt. 1918) (pg. 175) o Facts Two men go hunng on a Sunday and one accidentally shoots the other Plain sued claiming that hunng and discharging rearms on a Sunday is illegal Trial gave judgment to the deendant o Supreme Court reversed
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Because the act that caused injury to the deendant was unlawul in its nature and was the result o the deendants negligence, he is liable or damages it caused White v. University of Idaho (786 P.2d 827) (Idaho 1989) (pg. 4) o Facts Piano lesson taking place and the D (student) is touched by the P (piano instructor) during the lesson in order to demonstrate something and the touch causes a reakish injury that leads to a suit The deendant was ound liable (P led or summary judgment (no reasonable jury would decide against them) and the D was ound liable) o Court o appeals armed In relaon to Vosburg, that case states that the touching must be "wrongul" The student states that the act o the contact was not something that she would have consented to
The court ruled that that kind o contact was not what could c ould be reasonably expected in the context What is the plain communicang and what would a reasonable person communicate in this situaon Williams v. Hays (143 N.Y. 442) (1984) (pg. 122) o Facts Ship captain is on desk or 48 hours or more trying to save his ship rom a storm. When he is nally able to go below desk he takes a dose o medicaon medicaon to ght malaria that he thinks he contracted. He did not eat or sleep. He then exercises poor judgment and ends up sinking the ship. He claims insanity because o exhauson and illness. Jury instructed "i the deendant was insane then he is not liable, i he was not insane then he was liable" Jury was incorrectly instructed
The trial judge gave directed verdict or the plain which the deendant appealed Court o appeals reversed and remanded
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No man can be expected to do the impossible (perorm to the highest and most raonal degree under that level o stress) Though insanity is not a deense, the deendant in this case did all he humanly possibly could and his temporary insanity was caused solely by the storm which he was ghng The irraonal acon was a result o carrying out his dues Was unable to oresee that he may go into an insane state (not normally prone
to bouts o insanity) Williams v. United States (747 F. Supp.697) (S.D.N.Y. 1990) (pg. 540) o Facts The plain was a ormer inmate at a ederal prison; he was diabec and contracted a bacterial inecon in his oot which was misdiagnosed by the prison's medical ocer The oot eventually had to be amputated The ederal judge ound the government liable o Assessment o damages The plain was 48 at the me with a like expectancy o 24 more years He suered phantom pain, blisters and complicaons with his prosthec He was unable to perorm certain acvies afer the procedure He was a long-me inmate Drugs, alcohol, psychopathology, no job, diabetes, smoke
The plain requested $1.5 million but was awarded $500,000 (without any oset or comparave negligence) Wilton v. City of Spokane (132 P. 404) (Wash. 1913) (pg. 447) o Facts Deendant's hired a partnership as independent contractors to build a street and the partnership needed to use dynamite at one point and lef behind an unexploded piece which was paved over and later drilled into causing an explosion The plain sued the city arguing that it was responsible or the negligence o the partnership in leaving behind the dynamite o Washington supreme court held or the city The leaving o the dynamite was pure negligence There is no way that the city could c ould have known that the dynamite was there The acvity is inherently dangerous and the harm was wholly collateral to the danger o
the acvity Wolf v. American Tract Society (58 N.E. 31) (N.Y. 1900) (pg. 213) o Facts A man is on the street near ne ar a construcon site when he is hit on the head with a alling brick The plain brings suit against 2 o 19 construcon workers (independent contractors) because he was unable to ideny which man in parcular had dropped the brick Trial court dismissed the complaint o Court o Appeals armed Some proo must be given to enable the jury to ideny who commied the wrong Because the men are independent independent contractors they are not responsible to each other and not involved in a disnctly collaborave act Thereore would be unable to prove who did cause the harm
Disncon rom the barrel alling case because they are not all employees o a centralized control
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Disncon rom medical malpracce above because there is no suspicion o a "conspiracy o silence" It is assumed that the plain did suer injury because o someone's negligence, but because the person is completely unidenable there must be no redress rather than an innocent person be held responsible The chance o punishing an innocent man is too high
Over deterrence may create disincenves or socially producve acvies I every man is going to be liable, then men may not want to work on construcon anymore We do not want to compel all workers to collaborate with each other in order to aempt to avoid liability
Dissent
The rule itsel was ounded upon a necessity with the goal o protecng the public and should not be abandoned because a multude o people may be responsible or the harm Woodall v. Wayne Stener Producons (20 Cal. Rptr. 572) (Cal. App. 1962) (pg.599) o Facts The plain was a stunt man who was hired by the deendant company to parasail behind a car driven by a driver hired by the deendant
The plain was assured by the driver that he would ollow the regulaons to assure saety but he did not and caused the plain to crash and be injured The trial court entered a verdict or the plain The deendant appealed claiming that the plain should be barred rom recovery by assumpon o risk on his part Court o appeals armed The plain assumed the risk o dangers that were not directly associated with the driver's negligence The plain was assured repeatedly as to the competency and care o the driver to be urnished by the deendant The court held that assumpon o risk must be ree and voluntary I it clearly appears rom the plain's words or conduct that he does not consent to relieve the deendant o the obligaon to protect him, the risk will not be
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assumed I the plain surrenders his beer judgment upon an assurance o saety or a promise o protecon, he does not assume the risk unless the danger is so obvious and so extreme that there can be no reasonable reliance upon the assurance The plain did not assume the risk that was the proximate cause o his injury The risk that caused the injury was out o the scope o his assumpon o risk Woodbridge v. Marks (45 N.Y.S. 156) (N.Y. App. 1897) (pg. 90) o Facts Man goes onto another's property and is aacked by watchdogs when he strays rom the path (it is dark and he gets "lost"), the dogs can not reach the house or the walkway when they are chained The jury brought in a verdict or the plain and the court entered judgment upon it o Court o appeals reversed
The deendant has a right to keep his property sae and he took precauons in his method o doing so
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First purpose o the dog is to scare and protect then aack (unlike with the spring gun where the gun's rst purpose is to shoot) Designed or a means o deterrence not a means o revenge or violence There is a certain degree o noce (visibly seeing the dogs, hearing them) Wright v. Hae (196 N.W.2d 176) (Neb. 1972) (pg 89) o Facts
Man tries to rob a convenience store and the owner shoots him while the robbery is in process Jury brought verdict or the deendant o Nebraska Supreme Court armed Must be considered that the plain has already commied assault and threat o harm beore the baery takes place Was the retaliaon proporonal to the crimes which had already taken place There was no actual threat o urther harm at the me o the shoong There was also no other alternave means to prevent and stop the robbery at that me Yania v. Bigan (155 A.2d 343) (Pa. 1959) (pg. ( pg. 219) o Facts Deendant was working on a coal-strip mining operaon where he created large
trenches (16 to 18 eet deep), dee p), one that contained water (8-10 eet) Deendant was prepared to pump the water out o the trench and asked or the assistance o the plain's husband and another man Deendant and the third man were in the trench tre nch where the pumping pipe was when the plain's husband jumped into the trench and drowned The plain led three charges, claiming the deendant was negligent... 1. *By *By urg urgin ing, g, en enc cin ing, g, taun taunn ng g and and in inve veig igli ling ng Yani Yania a to to jjum ump p in into to the the wat water er 2. By a ailing tto o wa warn Ya Yania o o tth he da dangerous cco ondions 3. *By ailing to go to Yania's rescue Deendant led preliminary objecons (demurrers (moon to t o dismiss) (admit the acts as true)) which were sustained by the lower court (trial) Appellate Court arms The deendant had no legal duty to save the deceased (no armave act)
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The deceased was a man o ull mental abilies and thereore he was not goaded into the water (count 1 o negligence) The mere act that the deendant saw the deceased in the posion o peril in the water did not impose on him any legal legal duty to come to his aid (count 3 o negligence) because he was not responsible or the jump to begin with The result was not the consequence o any conduct by the deendant What i….? Bigan encourages Yania to jump into the water knowing that it is too t oo shallow to do so Baery case (intenonal harm) Bigan encourages Yania to jump into the water without knowing that it is too shallow to do so Negligence (unreasonable assumpon that the water is sae) Contributory Negligence (Yania should have checked the water or himsel; was
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he reasonable in trusng the statements o Bigan?)
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Yazoo & Mississippi Valley Railroad Co. v. Gordon (186 So. 631) (Miss. 1939) (pg. 445) o Facts A carload o cale was being shipped by railway and Yazoo hired a third party to unload and hold the cale while they waited or a connecng train; one steer stee r got loose and gored the plain o The Mississippi supreme court held or the plain
The steer was a domesc rather than a wild animals and that the deendant thereore should be held liable i the steer's escape was caused by negligence The court rejected the argument that the steer escaped while under the control o an independent contractor Yazoo owed a duty to the public to prevent the steer stee r rom being at large and could not delegate the perormance o this duty to another and escape liability I the acvity is inherently dangerous (called a peculiar risk in the Second Sec ond Restatement 416) then the employer cannot delegate the duty o care c are to a third party Ybarra v. Spangard (154 P.2d 687) (Cal. 1944) (pg. 208) o Facts The plain was admied to the hospital or a roune appendectomy but experienced severe and debilitang shoulder pain afer the operaon, which non-deendant doctors said was most likely the result o some trauma or injury by pressure
The plain's theory is that the lack o his ability to produce evidence provides a case o res ipsa loquitor The deense argues that there are too many deendants (mulple doctors, nurses and the hospital owner) to place blame and too many instruments in play to know which deendant controlled the one that may have caused injury The trial court entered judgments o nonsuit or all o the deendants Court o Appeals reversed Hold that where a plain receives unusual injuries while unconscious during an operaon, all deendants who had any control over his body or the instruments which might have caused the injuries may be called upon to [give an explanaon o their conduct] I the doctrine was not applicable then an unconscious paent who is injured during a procedure would have to rely on a doctor or nurse to disclose who was negligent during the procedure
o
up)
This chance is given when the burden o proo is shifed (someone needs to ess
I no one knows anything, there will sll be liability (equality o ignorance is not an excuse) Provides an incenve or people to hold each other accountable (deterrence emphasis) I the doctrine was not applicable, then the only air alternave would be to apply strict liability With res ipsa the deendant has a chance to prove they were not negligent With strict liability, the deendant has no chance to prove they were not negligent Three Part Test Applicability Has no problem sasying 1 or 3
When it comes to 2 Plain is unable to ideny a specic instrumentality or the deendant who had exclusive control o it
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Deendant Court says that every deendant was responsible to exercise ordinary care The employer is responsible or his employees The doctors are responsible or the nurses under them
The control at one me or another o every instrumentality was under the control o every deendant Instrumentality It is enough that the plain shows injury resulng rom an external orce applied during the operaon The number o people in whose care a paent is placed is not excuse or negligence
