TORTS FINAL OUTLINE – DOLIN – FALL 2011

Introduction

A. Definition: A tort is defined as a civil wrong, other than a breach of conduct, for which

society is willing to give a remedy. Harm is required. A person who breaches a tort duty (i.e.,

a duty to act in a manner that will not injure another person) has committed a tort and may be

liable in a lawsuit brought by a person injured because of that tort. Tort law is a fault based

system.

B. Theories in Tort Law:

1. Traditional View - Corrective Justice: The system of thought that the purpose of tort law

is to hold D’s liable for harms they wrongfully caused and to enable P’s to recover

compensation for the wrongs committed against them.

2. Social Utility or Policy: The system of thought that the purpose of tort law is to

encourage socially responsible behavior. The good of society as a whole is viewed as

dominant to the justice of an individual.

3. Redistributive Justice – Who is best suited to absorb the costs?

C. Tort law is the only branch of law still governed by common law.

Intentional Torts

A. Definition: Intentional torts share the requirement that the defendant intentionally commit the

elements that define the tort. The actor need not intend to commit a harm.

1. ACT + INTENT + CAUSATION

2. ACT

a. Acts are external manifestations of an actor’s will. Uncontrolled movements do not

qualify as acts.

1. Example: A is riding her bike. She is stung by a bee and loses control of her bike.

It crashes into B. There is no intent for battery

2. Example: A has a seizure. During her convulsing, she kicks B, causing injury.

There is no intent for battery.

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3. INTENT

a. Intent can be defined as either specific or general.

1. Specific Intent –Actor intends to bring about the consequences which occur.

2. General Intent – Actor knows with substantial certainty that the consequences are

likely to occur from his actions.

A. Garratt V. Dailey: Boy moved chair as woman was sitting down in it. He

stated he did not know she was sitting down. Trial court found him innocent

because he lacked intent. Holding: He may not have intended to hurt her, but

he acted with substantial certainty that his actions might cause her to fall.

Liability Imposed.

b. Rule of Transferred Intent: Intent can be transferred. If person A has the intent to

injure person B, and his actions result in an injury to person C, person A is liable for

person Cʼs injuries. Intent can also transfer from one intentional tort to another.

1. Only applicable for torts of – assault, battery, false imprisonment, trespasses to

chattels, and trespass to land.

2. Example: A is injured by B while trying to break up a fight. Holding: A suffered

a battery, based on the rule of transferred intent.

3. Example: A intends to scare B with a gun (assault). The gun accidentally fires,

shooting B. A is liable for the battery of B.

c. Extended Liability: People are liable for all wrongdoings that result in an intentional

tort, no matter how extreme.

1. Egg-shell Skull Rule – D is liable for all injuries resulting directly from their

wrongful act whether they could or could not be foreseen by him. (Ex. Vosburg v.

Putney – D loses use of his leg due to pre-existing condition aggravated by light

kick by P – P is liable.)

2. Example: A pushes B in frustration. B stumbles on something as a result, falls,

and breaks his neck. He becomes paralyzed. A is liable for Bʼs medical bills.

d. Insanity and Infancy – Typically, neither insanity nor age is a defense to intentional

torts. However, if the actor is incapable of forming intent (either general or specific)

due to incapacity or age, then it may be a defense.

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e. Rule of Parental Liability: In most cases, parents do not have liability for the torts of

their children (i.e., are not vicariously liable) unless a separate tort of negligence can

be proven against them.

4. CAUSATION

a. The harm resulting must have been caused by D’s act or from something set in

motion by his act.

B. Battery

1. Definition – D intentionally causes an unwanted harmful or offensive contact with V.

a. A and B always fist bump on the way out of class. A goes to fist bump B, but misses

and punches him in the face instead? Battery? No, because it wasn’t an unwanted

touch.

2. Does not require intent, only requires that a touch occur.

3. Contact may be with something attached to one’s person (ex. a purse, clothing, etc…).

4. Contact may be direct or indirect (ex. D digs a hole intending to set a trap that V falls

into).

5. Whether contact is considered harmful or offensive is judged by the standard of a

reasonable person.

6. Actual damage need not occur.

7. V need not be aware of harmful or offensive contact at the time it happens (ex. a patient

who has an unauthorized surgery performed on her while she is unconscious).

C. Offensive Battery

1. Requires intent to cause the offensive touch.

2. Conduct which offends a reasonable sense of personal dignity or which is so outrageous

that it shocks the conscience.

a. Ex. Cohen v. Smith – P was pregnant and having an emergency C-Section. P notified

hospital that it was against her religious belief to be seen by any men. During

procedure, she was seen and touched by a male nurse. She sued for battery.

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D. Assault

1. Assault is either (1) an attempt to cause harmful contact or (2) to cause apprehension of

such contact.

2. Apprehension must be reasonable.

3. Apprehension must be of immediate harmful or offensive contact (ex. NOT threats from a

distance or of future harm).

4. V must be able to perceive the immediate harmful or offensive contact (ex. not asleep or

unconscious at the time of the threat)

5. V must believe that D will carry out their threat

6. Apprehension is not the same as fear (ex. V may know that they can defend themselves).

7. Apprehension is not dependent upon D’s ability to carry through with harmful or

offensive contact (ex. D points unloaded gun at V but V does not know the gun is

unloaded)

8. Words alone are typically not enough to constitute assault, however words with an overt

act are (“give me your money or I’ll kill you” while pointing a gun at V)

E. False Imprisonment

1. In false imprisonment, the defendant unlawfully acts to intentionally cause confinement

or restraint of the victim within a bounded area.

2. Generally, it is not considered unlawful if the restraint or detention is reasonable to the

surrounding circumstances (such as preventing one from inflicting injury to other persons

or property)

3. The confinement may be accomplished by (1) physical barriers; (2) force or threat of

immediate force against the victim, the victim's family or others in her immediate

presence, or the victim's property; (3) omission where the defendant has a legal duty to

act (ex. driving to texas, get to texas and decide to keep driving, don’t stop to let V out

when they ask you to); or (4) improper assertion of legal authority. Moral pressure and

future threats are not sustainable forms of false imprisonment.

4. Accidental confinement is not included.

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5. Bounded area can be small or large (ex. an entire city), but if there is a reasonable avenue

for V to escape (of which they are aware) then the elements have not been satisfied.

a. “three walls do not a prison make”

b. The way out can’t be dangerous, disgusting, hidden, or humiliating

6. V must be conscience of imprisonment.

7. Amount of time V is restrained is not relevant.

8. Special Rules for Shop Owners Restraining Suspected Shoplifters

a. Most states grant stores a privilege to detain either by statute or case law. In order

for the privilege to apply, the following conditions must be satisfied:

1. There must be a reasonable belief that theft has occurred

2. The detention must be conducted in a reasonable matter

3. The detention must be only for a reasonable matter of time

F. Intentional Infliction of Emotional Distress

1. Intentional infliction of mental distress exists when D, by extreme and outrageous

conduct, intentionally or recklessly causes V severe emotional distress.

a. Must be directed towards on specific individual and must be done in front of at least

one witness.

2. It is judged on an objective standard based on ALL of the facts and circumstances.

3. Extreme and outrageous conduct is behavior which is beyond all possible bounds of

decency and is regarded as atrocious, and utterly intolerable in a civilized community.

4. Examples include extreme business practices (such as collections) and misuse of

authority. Obscene and abusive language typically does not constitute outrageous

conduct, but it may if it is directed toward a V who is more sensitive to such language

(ex. pregnant women, the elderly, children, etc…)

5. Third-party victim recovery is available only if, in addition to proving the elements of the

tort, V is (1) a close relative of the primary V; (2) present at the scene of the outrageous

conduct against the primary victim; and (3) D knows the close relative is present.

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G. Trespass to Land

1. Trespass to land is the intentional invasion onto V’s land, remaining on V’s land, or

failing to remove something from V’s land which you are under a duty to remove

2. Intent to trespass is not required, only an intent to “be where you are” (ex. a hiker who

unknowingly wonders onto private property is still trespassing)

3. Accidental trespass is not unlawful

4. Does not require harm as an element of the tort.

5. Land includes those areas above and below the ground surface (ex. low flying aircraft

and tunneling). Land also includes those items on it (trees, flowers, pipes, etc…)

6. Trespass to land does not require D’s physical entry upon it. Trespass could be cause by

ones pond flooding onto V’s land, throwing something on to V’s land, or chasing a third

party onto V’s land.

7. Trespass also applies to objects, thus sounds and odors could be considered a trespass.

H. Trespass to Chattels

1. D acts with the intention of interfering with the property of another OR with knowledge

that such interference is substantially certain to result.

2. P must suffer harm from such interference.

Defenses to Intentional Torts

A. Insanity

1. Insanity is not a defense to intentional torts.

2. POLICY ISSUE: In a case of two innocents, it is only fair that the guiltier of the two

parties pay.

3. POLICY ISSUE: Where an insane person has paid another to encounter a particular

danger associated with their mental illness, the insane person should not have to pay

again if they cause damage to the person they have paid to care for them. This is not an

assumption of risk issue for the caretaker but rather a policy issue in general.

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B. Consent

1. Expressed or Implied Consent negates tortious behavior.

a. Expressed consent is typically given in words.

b. Implied consent occurs when, under the circumstances, V’s actions reasonably

convey consent.

2. Consent can also be implied by law (ex. EMS officials are assumed to have consent to

perform medical procedures in emergency situations on unconscious V’s).

3. Consent achieved by fraud or duress is an invalid defense.

4. General waiver’s are not acceptable, consent must be for a specified act

5. Consent is invalidated if D’s acts go beyond the scope of V’s consent (ex. extending

medical procedures unless the extension of the procedure is warranted by a life

threatening condition and consent cannot be acquired).

C. Necessity

1. A person may interfere with the property of another in so far as the interference is

reasonable and necessary to prevent a threatened injury from natural or other forces and

where the threatened injury in substantially more serious than the trespass undertaken to

avert it.

a. Public Necessity – D acts for the public good (ex. shooting a rabid dog). Public

necessity is a complete defense.

b. Private Necessity – D acts to protect a private interest (ex. tying up a boat to a P’s

dock during a storm w/o P’s permission). Private necessity is an incomplete defense:

D is privileged to interfere with another's property, but is liable for the damage.

1. POLICY ISSUE: Law of Economics – by choosing to protect his private

interests, D is electing to pay resulting damage to P rather than to assume a

greater damage upon his own property.

D. Self-Defense

1. Reasonable force can be used where one reasonably believes that such force is necessary

to protect oneself from immediate harm.

2. Self-defense must be in response to an immediate threat of harm.

3. Amount of force exerted should be the amount reasonably necessary to prevent harm to

oneself.

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4. Retreat is typically not required before use of self-defense, but majority find that retreat

should be attempted, when it can be done safely, before using deadly force.

5. Applies to third parties (ex. In attempting to protect oneself, D accidentally hurts a

bystander. D may assert self-defense claim against bystander for any injuries.)

6. May also claim defense of others if there is a reasonable belief that the person being

aided would have had the right to use self-defense.

E. Defense of Property

1. May use reasonable force to prevent a tort against one’s real or personal property.

2. Use of deadly force to protect ones home is only acceptable when the occupant’s safety is

in immediate danger.

Negligence

A. Definition: To recover for negligence, P must establish each of the following elements by a

preponderance of the evidence (that is, by more than 50%): duty, standard of care, breach of

duty, cause-in-fact, proximate cause and damages.

1. POLICY ISSUE: The fundamental policy of negligence law is to encourage individuals

to change their behavior to conform with that which is expected by society.

DUTY

A. Standard Duty of Care

1. Everyone has a legal duty to act as a reasonably prudent person in the same or similar

circumstances and to take precautions against creating an unreasonable risk of injury to

other persons

2. POLICY ISSUE: while people can engage in whatever legal activities they choose to,

once those activities cause harm to others, they have a duty to stop partaking in those

activities

3. Duty of care is owed only to foreseeable victims

4. Unforeseeable victims – D breaches a duty of care to one P which also causes damage to

an unforeseen victim

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a. Example: Example: An employee of D negligently aided a passenger boarding a train,

causing the passenger to drop a package. The package exploded, causing a scale a

substantial distance away to fall upon a second passenger. Is the second passenger a

foreseeable plaintiff?

1. First view in Palsgraf, P2 may establish the existence of a duty extending from the

D to her by showing that D has breached a duty he owed P1. In short, D owes a

duty of care to anyone who suffers injuries as a proximate result of his breach of

duty to someone.

2. Second view in Palsgraf (majority view), P2 can recover only if she can establish

that a reasonable person would have foreseen a risk of injury to her in the

circumstances, i.e., that she was located in a foreseeable “zone of danger.”

A. Some activities are so dangerous that the zone of duty does not apply (ex.

throwing an explosive device)

B. Special Standards

1. Beginners And Experts – The reasonable person standard establishes the minimum

expectation for duty of care, although those who can perform at a higher level are

expected to do so. Thus, while the law does not ratchet down the standard of care for

beginners (they are still held to the reasonably prudent person standard), it does ratchet

up for experts in that the jury may take D’s expertise into account in determining whether

D behaved as a reasonably careful person with the same experience would have.

2. Mentally Ill – The general rule is that mental disabilities and insanity are not defenses.

However, institutionalized individuals are typically held to an objective standard of care

and are generally not liable to workers paid to care for them.

a. POLICY ISSUE: Reason behind this is that it is better to hold them to the objective

standard of a reasonably prudent person than a subjective standard. It would be

difficult to determine how a reasonable insane person would act or to determine if in

fact a person was suffering from a mental illness or simply lying to outwit the system.

3. Physical Disabilities – A person with a physical disability must act as a reasonably

prudent person would with the same disability (ex. it may be negligent for an epileptic to

drive a car, a blind person must use a walking stick, etc…).

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4. Children – Most jurisdictions ratchet down the standard of care for children to that which

would be expected of ordinary children of the same age, intelligence, and experience.

a. This rule typically does not apply when the child engages in an inherently dangerous

or “adult activity” such as driving.

b. POLICY ISSUE: It would be illogical to ask the public to change their duty of care

to each individual car on the road, so we must hold all drivers to the same standard.

C. Affirmative Duties

1. Duties of Landowners

a. Under the common law approach, the measure of the duty owed depends on the status

of the person entering the land – whether the entrant is a “trespasser,” a “licensee,” or

an “invitee.”

b. Trespassers – are those who enter or remain on the property of another without the

permission (express or implied) of the land owner. The only obligation imposed on

land owners is to refrain from willfully harming the trespasser.

1. If the land owner knows or has reason to know of frequent trespassing, then an

obligation to warn of hidden dangers known to the land owner and risking serious

injury or death may be imposed. No warning of inherent dangers is required.

2. A land owner who knows of a trespasser's presence must use reasonable care for

the protection of the trespasser in carrying on activities.

3. Attractive Nuisance Doctrine – Landowners owe a duty to exercise ordinary care

to avoid reasonably foreseeable risk of harm to children caused by artificial

conditions (not natural ones like cliffs) on their property. To assess D’s liability,

P must show the following (1) the landlord knows about the condition and knows

children are likely to trespass, (2) the condition could cause an unreasonable risk

of harm, (3) the children do not discover or realize the risk, (4) the costs to

maintain/eliminate the danger are slight in comparison to the risk, (5) the landlord

fails to exercise reasonable care to eliminate the risk and protect the children.

c. Licensee - someone who enters the land with the express or implied consent of the

land owner, as is the case with social guests. Owner is required to warn of known

dangers. An owner has no duty to ward of dangers which are not known to him, but

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he cannot be willfully blind to such dangers. Owner is not required to warn of open

and obvious dangers.

d. Invitees - those who enter the land for the benefit of the land owner. Owners must use

reasonable care in maintaining the premises and in their activities for the safety of

invitees. This often entails taking affirmative steps to discover dangers on the

property. The obligation of the land possessor to an invitee is one of reasonable care.

2. Duty of Rescue

a. The general rule remains that a person does not have a duty to aid another, even

where the person could have rendered aid with little risk or effort.

b. The exception to the no-duty-to-rescue rule applies when the need for rescue arises

because of D’s negligence.

c. While people generally have no obligation to intervene, once they do, a duty arises.

There are different views about the extent of the obligation: under the traditional

view, once a person undertakes to rescue, he must not leave the victim in a worse

position; under the more modern view, the rescuer is obligated to act reasonably once

he has begun to act.

d. Standard of care for good Samaritans is typically to the “best of his abilities”

3. Duty to 3rd Person’s

a. Generally a person has no obligation to control another person's conduct to prevent

harm to a third person, exceptions arise where there is a special relationship. For a

duty to exist there must be some sort of relationship involving some degree of control

by D over the perpetrator (ex. ER-EE, doctor-patient, parent-child, landlord-tenant)

combined with knowledge (actual or constructive) of the need for control.

1. Tarasoff v. Regents of University of California, P’s asserted that D, a therapist,

had a duty to warn them or their daughter of threats made by D's patient.

b. Mere knowledge of future harm does not create a special relationship.

c. Even if 3rd party knows of perpetrators violent tendencies, he need not warn the

public at large, only identifiable V’s.

d. Foreseeability of the risk is a primary consideration in establishing the element of

duty towards 3rd persons. (Ex. where radio host spurred on reckless conduct by

listeners it should have been foreseeable that an accident may have ensued.)

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e. D may also be liable for supplying a potentially dangerous instrumentality (such as a

car or gun) to a person that D knows or should know is not fit to handle it.

4. Special Relationships

a. POLICY ISSUE: There seems to be a movement to find a duty to aid or protect in

any relation based on dependence or mutual dependence.

b. A D having a special relationship to P (e.g., parent-child, employer-employee) may

be liable for failure to act if P is in danger.

c. Innkeepers, restaurateurs, shopkeepers, and others who gather the public for profit

have a duty to use reasonable care to aid or assist their patrons and to prevent injury

to them from third persons.

d. A landlord/tenant relationship may trigger a duty to protect, provided there is enough

foreseeability of harm and it is supported by public policy.

1. Where a landlord maintains under his own control the common parts of the

building (stairs, halls, etc…), he has a duty to all those on the premises to take

reasonable measures to provide protection against foreseeable harm in those

areas.

5. Vicarious Liability

a. Scope of Employment - Doctrine of Respondeat Superior

1. A master/employer will be vicariously liable for tortious acts committed by her

servant/employee if the tortious acts occur within the scope of the employment

relationship.

2. Employee’s tort needs a causal nexus to their regular work duties. The tort must

be a generally foreseeable consequence of regular work duties.

3. POLICY ISSUE: An employer has direct control over the employee and is

benefiting from the employees actions so employer should be responsible for

employee actions.

4. POLICY ISSUE: Employers are better able to absorb the cost and holding them

liable encourages them to hire non-negligent employees.

5. If an employee on a delivery or on a business trip for his employer commits a tort

while deviating from the employer’s business to run a personal errand, if the

deviation was minor in time and geographic area, the employee will still be

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considered to be acting within the scope of employment and the employer will be

liable. If however, the employee is on a “frolic” of his own, the employer would

not be liable.

6. Intentional tortious conduct by employees is not considered to be within the scope

of employment. In some circumstances, however, courts find intentional tortious

conduct is within the constructs of the ER-EE relationship, such as when (1) force

is authorized in the employment (police officer), (2) friction is generated by the

employment (bill collector), or (3) the employee is furthering the business of the

employer (removing customers from the premises because they are rowdy).

b. Independent Contractors

1. Generally, a principal will not be vicariously liable for tortious acts of her agent if

the latter is an independent contractor.

2. DC v Hampton - Foster parents are not agents; thus the state is not subject to

vicarious liability for incidents involving abuse by foster parents.

3. Pusey v. Bator: Inherently dangerous work has a foreseeable risk of injury. Thus,

employers are held liable for the work even of private contractors (private security

guards) if they are doing inherently dangerous work.

4. An employer may be liable for her own negligence in selecting or supervising the

independent contractor if the contractor is incompetent to do the job he was hired

to do, and harm arose out of the incompetence which the principal knew or should

have known about (e.g., hospital liable for contracting with unqualified and

incompetent physician who negligently treats hospital’s patient).

6. Negligent Infliction of Emotional Distress

1. There is no general duty not to negligently inflict emotional distress (unless

associated with a physical injury).

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2. Restatement (3d) of Torts Sect. 47 – an actor who negligently causes serious bodily

injury to a third person is subject to liability for serious emotional disturbance thereby

caused to a person who: (a) perceives the event contemporaneously and (b) is a close

family member of the person suffering the bodily injury.

BREACH

A. Where D’s conduct falls short of that level required by the applicable standard of care owed

to P, she has breached her duty. Whether the duty of care is breached in an individual case is

a question for the trier of fact.

1. Phrase it as “D breached the duty of care owed to P when he did _____ because

________ is an unreasonable activity which a reasonably prudent person would not

engage in.”

2. POLICY ISSUE: Justifications for placing legal responsibility only on those at fault

include promoting freedom of activity, maximization of innovation and economic

efficiency.

3. POLICY ISSUE: HAND FORMULA: Formula for determining breach of duty and

liability B<PL, where B = An analysis of such things as the costs associated with

avoiding the harm, alternatives and their feasibility, the inconvenience to those involved

and the extent to which society values the relevant activity, P = The likelihood of the

harm-causing occurrence taking place, and L = looks at the likely harm flowing from the

injury-causing event when it occurs.

a. If the cost of protecting an individual from an injury is higher than the probability of

the injury times the severity of the injury – then there is no breach of duty

b. Ex. Eckert v. Long Island RR – The court found that it was not negligent for P to

engage in a dangerous act in an attempt to save the life of another who was in peril,

so long as they believe that they can do so with a reasonable degree of safety – B (he

may be able to save the child w/o dying) <PL (the child will certainly die)

B. Statutes as Standards - Negligence Per Se

1. In certain situations a criminal statute (or administrative regulation or municipal

ordinance) may be used to set the standard of care in a negligence case.

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2. Proof of negligence per se requires that the: (1) statute of duty is clearly defined, (2) the

harm experienced must be of the type the statute attempts to prevent, (3) P must be w/in

the scope of the protected class, and (4) violation of statute of must be the cause of P’s

injury.

3. Acceptable excuses to negligence per se include: sudden emergencies not of the actor's

making; circumstances in which compliance would involve greater danger than violation;

the actor has some incapacity rendering the violation reasonable; or, after reasonable

efforts to comply, the party is unable to do so.

4. Adherence to standards is not a bar to a negligence action. If a reasonably prudent person

would adopt additional precautions above and beyond those created by the statute that

adherence to the statute alone could still result in negligence.

C. Customs as Standards

1. Custom typically refers to a well-defined and consistent way of performing a certain

activity, often among a particular trade or industry. P may try to assert D’s deviation from

custom as evidence of lack of due care. Conversely, D may try to avoid liability by

showing compliance with custom.

2. Customs typically serve as a base for establishing a standard of care.

3. Just because something is normally done doesn’t mean it should be done. The jury is free

to determine whether adherence to the custom was negligent by applying the reasonable

person standard applicable to the totality of the circumstances.

4. Customs do not over-ride statutes.

5. POLICY ISSUE: Allowing adherence to customs to be a complete defense would allow

companies to stay bound to outdated practices and technologies.

D. Calculus of Risk - Negligence liability is imposed where D engages in unreasonable risk

creation, situations where D creates risks that a reasonable person would not. This

determination of unreasonableness considers the risks that should have been foreseen at the

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time of D’s conduct, not through hindsight after the harm occurred. (Pipher v. Parsell – P was

injured when a passenger grabbed the steering wheel of the vehicle driven by D causing the

vehicle to crash. D was found liable because the passenger had previously grabbed the wheel

and D should have foreseen that he would do it again.) (What if a friend is drunk or has had

epileptic seizures and you let them drive?)

E. Res Ipsa Loquitur

1. Like an evidentiary rule, jury may find D liable if (1) the accident causing P’s injuries is a

type of accident which ordinarily does not occur in the absence of someone’s negligence,

(2) it is caused when by an agency or instrumentality within the exclusive control of D,

and (3) it was not caused by any voluntary action or contribution on the part of P.

a. Byrne v. Boadle, in which P was seriously injured when a barrel of flour in D’s

custody fell out of a window and onto him. The court found that the mere fact that

the accident occurred was evidence of negligence.

b. A plane crashes, killing everyone on board and completely destroying the plane. A

plane typically does not fall out of the sky without the presence of some type of

negligence. The airline may be sued under res ipsa.

c. Other examples: folding chair collapses while P is sitting on it, bolted spare tire falls

from V’s car and causes injury

2. The mere fact that P was injured by something that typically would be a result of

negligence is not enough, P must proved that D had exclusive control over the item which

caused the resulting injury.

a. Larson v. St. Francis Hotel – a guest threw chair out of window injuring P. Hotel was

not liable because they did not have exclusive control over the chairs.

b. However, if the hotel was aware that similar activities had previously occurred and

took no action against it, then they would be liable. (Connoly v. Nicollet Hotel)

CAUSATION

A. The breach of duty must be the actual and proximate cause of P’s injury

B. Cause in Fact – D’s activity must be the actual cause of P's injury.

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1. But-For Test - But for D’s conduct or activity P would not have been injured.

a. In cases where e a small number of D’s have engaged in substantially simultaneous

culpable conduct imposing similar risks on V, most courts will shift the burden of

proof by requiring D’s to prove they were not the actual cause. Ex. Summers v. Tice,

where two hunters negligently fired pellets but only one hit the plaintiff's eye. If D’s

are unable to exculpate themselves, as was the case in Summers, both D’s would be

found liable as joint tortfeasors. P still has the obligation to establish that both D’s

breached a duty of care. Only the burden of proof regarding causation is shifted.

Courts have also required that all such wrongdoers be joined as D’s.

b. Defense to but-for should be “even-if.” Ex. P says I would not have broken my leg

but for your speeding. D says you bolted into the road; therefore I would have hit you

even if I wasn’t speeding.

2. Multiple Causation

a. Substantial Factor Test - where multiple occurrences occur to bring about an injury –

and any one alone would have been sufficient to cause the injury – it is sufficient if

D’s conduct was a “substantial factor” (materially connected to) P’s injury.

1. Ex. A starts a fire on the left side of B's house and C starts a fire on the right side,

and both fires merge concurrently and destroy B's house, neither fire is the “but

for” cause of the destruction. In the absence of either fire, B's house would have

been destroyed at the same time by the remaining fire. Since both causes are

redundant, neither is a “but for” cause, a result that potentially precludes P’s

recovery against either D. In order to avoid this inequitable result, the substantial

factor test is allowed as an alternative proof of causation for redundant causes.

b. Alternative causes approach - applied if two or more persons have been negligent and

there is uncertainty over which one caused P’s injury. Under this theory, P must only

prove that harm was done by one of two D’s, burden shifts to D’s to show that their

17

negligence was not the actual cause of P’s damage. If they can’t disprove their

negligence then they share the liability.

1. Ex. A and B both negligently fire shotguns in C’s direction. C is hit by one pellet

but can’t tell by which gun. A and B both must prove that the pellet was not

theirs or they will be held jointly liable.

c. Market Share Liability – Used when there are multiple D’s involved. (Ex. suppliers

of defective products caused injury to P and she cannot prove which brand of the

product she used. The court held that once P establishes culpability, D manufacturers

have burden of proving they were not the supplier. If they cannot disprove causation,

then they are liable for paying a share equal to the share of product which they had on

the shelf at the time the injury occurred.)

1. Only appropriate under specific circumstances (ex. not lead based paint

cases).

2. POLICY ISSUE: By holding all companies liable under this theory, it

adjusts behaviors by urging companies to operate more cautiously.

3. POLICY ISSUE: Similar to the “rule of two innocents,” someone must

pay and here it is easier to spread the cost out among all manufacturers.

C. Proximate Cause

1. Proximate cause is concerned with whether and to what extent D’s conduct foreseeably

and substantially caused the specific injury sustained by P.

2. Foreseeability is the measuring stick – we want to make people pay for the foreseeable

consequences of their actions

a. Two Categories of these types of questions:

1. Direct Cause - D commits breach, P suffers an injury – consequences are almost

always foreseeable, and almost always the D’s breach is the cause

2. Indirect Cause Questions – D acts, stuff happens in the middle, and P later gets

injured

3. If the accident is of a different type and kind than that which is foreseeable, then D is not

liable (lid drops in vat and no splash, but then explosion – no liability because splash was

what was expected and explosion was not foreseeable). But, D is liable for an injury

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which is foreseeable but which occurs in an unexpected manner (kid getting burned on

kerosene lamp but not in manner expected).

4. Egg-shell Skull Rule – D is liable for all injuries resulting directly from their wrongful

act whether they could or could not be foreseen by him. (Ex. Vosburg v. Putney – D loses

use of his leg due to pre-existing condition aggravated by light kick by P – P is liable.

5. Intervening Acts - the act of a third person intervening and contributing to the injury of P

caused by D’s original negligence does not excuse D’s negligence if such an act ought to

have been foreseen.

a. Dependent Intervening Acts

1. Normal responses or reactions to the situation created by D’s negligent act. They

are almost always foreseeable.

b. Independent Intervening Acts

1. They are independent actions rather than natural responses or reactions to the

situation. They may be foreseeable where D’s negligence increased the risk that

these forces would cause harm to P.

6. Superseding Acts - intervening forces that produce unforeseeable results (i.e., results that

were not within the increased risk created by defendant’s negligence) will be deemed to

be unforeseeable and superseding.

a. A superseding force breaks the causal connection between D’s initial negligent act

and the ultimate injury, and itself becomes a direct, immediate cause of the injury.

Thus, D will be relieved of liability for the consequences of his antecedent conduct.

b. Example: D negligently blocks a road, forcing P to take an alternate road. Another

driver negligently collides with P on this road, injuring him. Even though D is an

actual (but for) cause of P’s injury, the other driver’s conduct is an unforeseeable

intervening force because D’s negligence did not increase the risk of its occurrence.

Thus, the other driver is a superseding force that cuts off D’s liability for his original

negligent act.

HARM

A. There must be an actual harm caused by D’s breach of duty.

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1. Personal Injury – P will be compensated for all his damages (past, present and

prospective) including medical expenses, lost earnings and noneconomic damages, such

as pain and suffering. P is also entitled to compensation for impaired future earning

capacity. P’s noneconomic damages include damages for any emotional distress suffered

as a result of the physical injury.

2. Property Damages - The measure of damages for property damage is the reasonable cost

of repair, or, if the property has been almost or completely destroyed, its fair market

value at the time of the accident.

3. Punitive Damages - In addition to the various types of compensatory damages discussed

above, P may also be able to recover punitive damages in most jurisdictions if D’s

conduct was “wanton and willful,” reckless, or malicious.

4. Collateral Source Rule - Generally, damages are not reduced or mitigated by reason of

benefits received by P from other sources, e.g., health insurance, sick pay from employer.

5. Medical Uncertainty / Loss of Opportunity to Survive

a. Some courts will allow P to recover for wrongful death from medical malpractice

even if the patient probably would have died anyway, if the doctor's negligence

significantly reduced the patient's chance of beating the odds and surviving.

b. A reduced chance of survival is also considered actual harm. In such cases, P is not

awarded the full value of a wrongful death claim, but only those based on his

premature death (ex. lost wages).

c. If alleging a “but for” claim for future injuries, the injury must be probable (51%) not

just possible

d. Look at the Substantial Factor Test – D must have materially contributed to P's injury.

Defenses to Negligence

A. Emergencies

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1. Nearly all states permit the jury to consider in its determination of D’s reasonableness

evidence that D was acting under emergency conditions not of D's making. The fact that

D was acting in an emergency does not necessarily exculpate D from liability.

2. Emergency cannot be used as a defense if the emergency was caused by D’s own actions.

B. Contributory Negligence

1. “Conduct on the part of P which falls below the standard of conduct to which he should

conform for his own protection, and which is a legally contributing cause . . . in bringing

about P’s harm.” (Restatement §463.]

2. P does not act in a way that a reasonable person would and as a result she is injured.

a. Must prove correlation between P’s conduct and resulting injury. (Ex. Smithwick v.

Hall Upson Co. - The failure to follow a warning does not amount to contributory

negligence if a party suffers injury through an entirely different source of danger that

exists due to the negligence of D, if P did not know and could not have known of that

danger.)

3. P’s negligence is viewed completely independent of D’s negligence.

4. It is a complete defense to negligence. Burden of proof lies with D to show that they

were not negligent.

5. MD, DC, and VA all adhere to the theory of contributory negligence.

6. Some activities are so privileged that we will not assign contributory negligence (ex.

going out at night in a dangerous neighborhood, childbirth, etc…).

7. POLICY ISSUE – Contributory negligence inspires people to look out for themselves

and thus positively changes actor’s activities.

8. Last Clear Chance - If D’s negligence occurred after P’s contributory negligence, then

the court will ignore P’s contributory negligence. Most jurisdictions reject this doctrine

when replacing contributory negligence with comparative negligence.

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a. Example: Bowater negligently parked his car on the railroad tracks. The train

engineer saw him in time to stop but failed to do so. The engineer had the last clear

chance, and thus the railroad will be liable for the accident.

C. Comparative Negligence

1. Comparative negligence reduces P’s recovery by the percentage of responsibility for the

injury attributable to P.

a. Pure comparative negligence - Under pure comparative negligence P can recover

some percentage from liable D regardless of the extent of his own negligence.

1. Ex. A and B are in an auto accident. A’s car is worth $200,000, B’s car is worth

$20,000. A is 90% liable, B is 10% liable. A’s get’s $20,000 (10% of his cars

value) and B gets $18,000 (90% of his cars value). So, less liable party ends up

paying more.

b. Modified comparative negligence – P is allowed a partial recovery just as in pure

comparative negligence until P is more negligent (greater than 50% at fault) than D.

2. Primary assumption of risk still exists. (ex. an ice skater who falls on the ice does not

have a claim against the rink owner for failure to make the ice safe, however the owner

must not increase the risk such as leaving water on the ice)

D. Assumption of Risk

1. There are three basic elements to the assumption of risk. P must (1) know a particular risk

and (2) voluntarily (3) assume it.

2. Assumption of Risk is a complete defense to negligence.

3. May be expressed or implied.

4. Must be completely voluntary (ex. can’t sign universal waiver at an ER, can’t make a

train brakeman sign a waiver). Courts will not enforce if the consent is contrary to public

policy (ex. universal waiver at ski resorts for unforeseen dangers).

5. Only applies to risks which P is aware of or which P should be able to reasonably foresee.

6. Ex. – Being hit by a baseball at a baseball game = inherent risk = assumption of risk,

falling down when a carnival ride (which is meant to make you fall down) that breaks =

no greater risk then already existed = assumption of risk, hitting a metal pole while

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downhill skiing after signing a waiver = risk which should not be incurred by an

individual = no assumption of risk.

7. Fireman’s Rule – some jobs are inherently dangerous and one who opts to partake in such

occupations cannot recover for injuries attained thereof.

Strict Liability – Animals, Product Defects, Ultrahazardous Activity

A. Traditional Strict Liability – dealt with liability claims involving land, including animals,

ultrahazardous activities, and nuisance. If D was not negligent, he was not liable. In such

cases, the cost of damages fell upon the injured party. (Ex. where D’s property,

unbeknownst to him, sat over an abandoned mine shaft owned by P, and he subsequently

built a reservoir which caused flooding to P’s mines causing the mines to shut down – D was

not liable for the damage caused to P’s mines because was not negligent in his building of the

reservoir)

B. Strict Liability Today – Under strict liability, D is liable for P’s damages without any

requirement that P prove D was negligent.

1. Why choose strict liability over negligence? You don’t have to prove reasonableness.

2. Comparative Negligence and Assumption of Risk are not defenses in strict liability cases

because those defenses apply to torts involving negligence and negligence is not a

required element of strict liability.

C. Animals - Owners of domestic animals are liable for injury caused by the animal only where

the owner knew or should have known of the animal's vicious disposition. Courts have

rejected the theory that ‘”every dog gets one bite.” Owners of wild animals that cause harm

even though the possessor has exercised the utmost care are held strictly liable.

D. Ultra-Hazardous Activities

1. An activity may be characterized as abnormally dangerous if it involves a substantial

risk of serious harm to person or property no matter how much care is exercised.

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2. Restatement § 520 suggests evaluative factors to assist in determining if an activity

should be termed abnormally dangerous, and includes (1) an existence of a high degree of

risk of some harm; (2) a likelihood that the magnitude of that harm will be great; (3) the

inability to eliminate the risk by the exercise of reasonable care; (4) the extent to which

the activity is not a matter of common usage; (5) the inappropriateness of the activity to

the place where it is carried on and (5) the activity's value to the community in

comparison to the risk of harm created by its presence.

3. Location of the activity is relevant (drilling for oil in England v. Texas).

4. Under § 519, liability is limited to the kind of harm made possible by the abnormally

dangerous activity.

5. Under the traditional view accepted by the Restatement in § 523, only P’s assumption of

the risk is a defense to a strict liability action based on an abnormally dangerous activity;

the fact that P may have failed to use reasonable care for her own protection is irrelevant.

6. POLICY ISSUE: Public policy requires that those engaging in abnormally dangerous

activities bear the cost of the damages such activity inflicts upon innocent parties, even

when they have not acted negligently.

E. Nuisance.

1. May be tried under a theory of intentional, negligent, or strict liability tort action, but

primarily it is considered a strict liability tort.

2. A substantial, unreasonable interference with another private individual’s use or

enjoyment of property he actually possesses or to which he has a right of immediate

possession.

a. Must be offensive, inconvenient, or annoying to an average person in the community.

b. May be private or public nuisance

c. The severity of the inflicted injury must outweigh the utility of D’s conduct. In

balancing these respective interests, courts take into account that every person is

entitled to use his own land in a reasonable way, considering the neighborhood, land

values, and existence of any alternative courses of conduct open to D. – (ex. odor

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from burning of bricks – it was not a natural and ordinary use of the land – didn’t

have to make the bricks there.)

d. Live and Let Live Doctrine – While burning weeds, emptying cesspools, and making

noisy repairs on one’s home may all be nuisances, they are considered reciprocal

nuisances because they are part of living in a civilized society and are ordinary to the

location. Likewise, experiencing smoke, dirt, or noise as part of city living OR odors

and noise in an apartment building would also be expected.

F. Products Liability

1. Restatement § 402A provides: (1) One who sells any product in a defective condition

unreasonably dangerous to the user or consumer or to his property is subject to liability

for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and (b) it is expected to

and does reach the user or consumer without substantial change in the condition in which

it is sold. This rule applies although the seller has exercised all possible care in the

preparation and sale of his product.

2. D is liable for all foreseeable uses of the product, including reasonably foreseeable

misuses. P must be a reasonably foreseen user of the product. Foreseeability is limited to

what was known or knowable at the time of manufacture.

3. Consumers conduct is irrelevant to the defect of the product – it cannot be used as a

defense to a charge of product liability

4. Manufacturers are not liable for injuries resulting from obvious and known dangers of

products (ex. “knives can cut you”).

5. POLICY ISSUE: Public Policy demands that responsibility be placed where it will most

effectively reduce the hazards of life and health inherent in defective in products that

reach the market.

6. POLICY ISSUE: Risk-bearing economic theory – in strict liability we hold the

manufacturer liable, not because it is “blameworthy,” but because it is more able than the

consumers to spread that loss among those who use the product.

7. Manufacturing Defect

a. When a product emerges from a manufacturing process not only different from the

other products, but also more dangerous than if it had been made the way it should

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have been, the product may be so “unreasonably dangerous” as to be defective

because of the manufacturing process.

8. Design Defect

a. When all the products of a line are made identically according to manufacturing

specifications, but have dangerous propensities because of their mechanical features

or packaging, the entire line may be found to be defective because of poor design.

b. To prove design defect, P must show that (1) there was a safer alternative, (2) the

safer alternative would have prevented or significantly reduced the risk of injury,

without substantially impairing the product’s utility, and (3) the safer alternative was

both technologically and economically feasible when the product left the control of

the manufacturer.

c. Warnings on packages need only be reasonable under the circumstances. Does the

benefit of a more detailed warning outweigh the costs? Not a question of financial

cost but of whether increased warning labels undermine the effectiveness of the

warnings altogether.

9. Prescription medications – if the prescribing physician is acting as a learned intermediary

between the manufacturer and consumer, then the manufacturer’s duty is to warn the

doctor, rather than the patient, although the manufacturer is directly liable to the patient

for breach of such duty.

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Tort Law Cases – Dolin – Fall 2011

INTENTIONAL TORTS

Battery

Vosburg v. Putney

Facts: The defendant was an 11 years old guy and the injured was a 14 years old guy.  While in

school, the defendant kicked the plaintiff in the shin area and that resulted in severe pain. It

turned out that the plaintiff was healing from a previous injury to the area and the kick triggered

the injury and the plaintiff permanently lost the functioning of the limb.

Rationale:  Court used this rule: “if the intended act is unlawful, the intention to commit it must

necessarily be unlawful. Hence, if the kicking of the plaintiff by the defendant was an unlawful

act, the intention of the defendant to kick him was also unlawful.  The court reasoned that if the

kicking had happened in a playground then the story would have been different. But since the

school was in order when the kick occurred, the actions of the defendant are considered

unlawful. Thus the intention under the battery law is established. 

Garratt v. Dailey

Facts: Garratt is an arthritic old lady. Dailey is a kid. Garrett started to sit down, but Dailey

moved the chair she was going to sit in before she could sit down, and she fell and was injured.

She sued Dailey for battery. The lower court found for the defendant, and the plaintiff appealed

to the State Supreme Court, asking for damages or a new trial.

Rationale: If the defendant “knew with substantial certainty” that his actions would cause

harmful contact, then the defendant is liable for battery.

Cohen v. Smith

Facts: Cohen filed suit against Smith, nurse, and St. Joseph’s Memorial Hospital (Defendants)

for battery after Smith observed and touched her naked body in violation of her religious beliefs.

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Holding: The defendant did commit a battery by committing an offensive contact with the

plaintiff. The result of the defendant’s intentional contact resulted in offending a reasonable

sense of personal dignity by violating the plaintiff’s religious beliefs.

Talmage v. Smith

Facts: Def found several boys atop his sheds. He requested that they get down and they did. As he

rounded the corner he saw two other boys remaining.  He ordered them down, and as they began

to he threw a stick at them.  The stick struck one boy in the eye causing an injury therefrom.

Ct. Rationale: The def caused the stick to be propelled in the direction of the boys, knowing that

the boys were there, and intent on hitting one of them.  It is no defense that the one hit, wasn’t

aimed for, nor hit in the manner determined, only that he caused the stick to be propelled under

the intent to hit someone.

Offensive Battery

Alcorn v. Mitchell

Facts: After a trail in a case involving trespass, Defendant spat in Plaintiff’s face. Plaintiff sued

Defendant for battery and the trial court awarded $1,000 to Plaintiff.

Rationale: D’s act was purely one of malice meant to cause insult and indiginity and therefore

an offensive battery.

Fisher v. Carousel Motor Hotel

Facts: The plaintiff was approached while standing with a plate. One of the defendant’s

employees snatched the plate out of his hand and made a racist remark. The plaintiff was not

touched and didn’t suffer physical injury, but was hurt emotionally.

Rule: “it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching

anything from the plaintiff’s body or touching anything connected with his person, when done in

an offensive manner, is sufficient.”

Assault

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I. de S. and Wife v. W. de S.

Facts: ∆ came to π's tavern for wine at night when it was closed and began chopping at the door

with a hatchet. π's wife stuck her head out a window and ordered him to stop, "and he perceived

her and struck with the hatchet, but did not touch the woman." An inquest said "no harm, no

foul".

Rule: It is not necessary for physical contact to occur for an assault to have occurred.

Tuberville v. Savage

Facts: π put his hand on his sword and stated to ∆, "If it were not assize-time, I would not take

such language from you." ∆ took this language to

be sufficient provocation to assault, batter and wound π.

Reasoning: π explicitly stated that he would not strike ∆, because it was assize-time (judges were

in town)

Cullison v. Medley

Facts: Plaintiff Cullison met a 16 year old girl in a parking lot then invited her to his home for a

soda, which she declined.  That night, she and her family came to Cullison’s home, surrounded

him, and verbally threatened him with bodily harm if he did not leave the girl alone while her

father was armed with a holstered revolver.  Cullison experienced mental trauma and distress as

a result of the incident and sued for assault. 

Rationale:  It is important to note that typically words alone do not rise to the level of assault,

unless together with acts or circumstances they put the other in a reasonable apprehension of

imminent harm.  Moreover, the imminence element does not mean harm must be immediate, but

that there will be no significant delay in effectuating the harm.

False Imprisonment

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Bird v. Jones

Facts: Jones (Defendant) prohibited Bird (Plaintiff) from moving in the direction he wished to

go. Plaintiff was free to remain where he was, or move in any other direction but the one

direction obstructed by Defendant. Plaintiff sued Defendant for false imprisonment.

Rationale: In order to have a claim for false imprisonment, the Plaintiff must have been confined

to some boundary, whether it be tangible or intangible. In this case, Plaintiff was not restrained

to a bounded area. Plaintiff still had the option to remain in one spot or proceed in a different

direction. Defendant only prevented Plaintiff from continuing in one specific direction. Plaintiff

may have suffered a loss of freedom, but this loss of freedom did not constitute false

imprisonment.

Coblyn v. Kennedy’s Inc.

Facts: After shopping in Kennedy’s Inc.’s (Defendant’s) store, Coblyn (Plaintiff) was leaving

when Defendant stopped him. Defendant thought Plaintiff was attempting to steal an ascot.

Plaintiff was hospitalized and sued Defendant for false imprisonment.

Rationale: In this case, Plaintiff was imprisoned by a demonstration of physical power that could

only be avoided by submission. Plaintiff was falsely imprisoned and Defendant was not

privileged to detain Plaintiff. Defendant did not have any objective, reasonable grounds for

believing that Plaintiff committed larceny. The court added that even if there were reasonable

grounds to detain Plaintiff, the detainment was not executed in a reasonable manner. In its

analysis, the court pays special attention to Plaintiff’s age and physical condition.

Sindle v. NYC Transit Auth.

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Facts: Plaintiff was a passenger on a school bus owned by Defendant transit authority and driven

by Defendant Mooney. Students aboard the bus were behaving rather disobediently and causing

damage to the bus despite Defendant’s admonitions. Ultimately, Defendant bypassed the usual

stops and took the Plaintiff and a few other students to a police station.

Rationale: One is justified in restraining or detaining another in a manner reasonable under the

circumstances to prevent personal injury or damage to property, and evidence regarding such

justification should not have been excluded in evaluating this claim of false imprisonment.

IIED

Wilkinson v. Downton

Facts: The ∆, in a practical joke, told the π that her husband lay injured from a car accident on

the side of the road, and that he wanted her to go get him. The effect of the statement made the π

vomit and caused her serious medical problems.

Rationale: The court reasoned that although the ∆ may not have intended this particular injury, it

was enough that he intended some injury. Such is the nature of tort recovery. They felt that the

medical damages were not too remote a consequence.

Trespass to Land and Chattel

Dougherty v. Stepp

Facts: Defendant entered Plaintiff’s land to perform a survey, but did not mark trees or cut

timber. Plaintiff sued for trespass. The trial court instructed the jury that no trespass had occurred

and the jury found for Defendant.

Rationale: Every unauthorized entry upon another’s land qualifies as a trespass, regardless of the

degree of damage done in the process.

DEFENSES TO INTENTIONAL TORTS

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Insanity

McGuire v. Almy

Facts: Mcquire (Plaintiff), a registered nurse, was hired to care for Almy (Defendant), an insane

person. During a violent attack, Defendant stuck Plaintiff with the leg of a low-boy (a piece of

furniture). Plaintiff brought suit against Defendant for assault and battery.

Rationale: An insane person will be liable for his or her torts.

Consent

Mohr v. Williams

Facts: Mohr (Plaintiff) brought suit against Williams (Defendant), a surgeon, for assault and

battery after Defendant successfully and skillfully performed an operation on Plaintiff’s left ear

that impaired Plaintiff’s hearing.

Rationale: An operation that is performed without the consent of the patient is wrongful unless

the circumstances were such as to justify its performance without it. If the operation is wrongful

it is unlawful. There is no evidence that the left ear involved a serious or life threatening

situation. The circumstances were such that consent should have been obtained.

Kennedy v. Parrott

Facts: The plaintiff went to see the defendant, a surgeon, who diagnosed her ailment as

appendicitis and recommended an operation to which she agreed. During the operation the doctor

found some enlarged cysts on her left ovary, and he punctured them. After the operation the

plaintiff developed phlebitis (blood clots in the vein that cause inflammation). The defendant

offered to pay to correct any damage that was done due to the phlebitis. The plaintiff claimed

that she had to undergo considerable pain and suffering on account of the phlebitis. The plaintiff

filed a civil suit to recover damages for personal injuries resulting from an alleged unauthorized

operation performed by the defendant.

Rationale: When an internal operation is indicated, a surgeon may lawfully perform and it is his

duty to perform, such operation as good surgery demands, even when it means an extension of

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the operation further than it was originally contemplated, and for doing so he is not to be held in

damages as for an unauthorized operation.

O’Brien v. Cunard Steamship Co.

Facts: While on a ship from Queenstown to Boston, O'Brien was inoculated for small-pox. At

Boston, there were strict quarantine regulations to ensure that immigrants were protected from

small-pox by vaccination, and only those persons who held a certificate from the medical officer

of the steam-ship stating that they were protected were permitted to land without detention in

quarantine, or vaccination by the port physician. The ship's surgeon vaccinated all immigrants

who desired it and gave them a certificate. On the day of vaccination, O'Brien lined up with other

about 200 other women for vaccinations. She told the surgeon that she had been vaccinated, but

she had no mark and she did not tell him that she did not want to be vaccinated. After he

vaccinated her, she took the certification he gave her.

Rationale: If the plaintiff's behavior indicated consent, the surgeon was justified in his act,

whatever her unexpressed feelings may have been. In determining whether she consented, he

could be guided only by her overt acts and the manifestation of her feelings. There was nothing

in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a

certificate which would save her from detention at quarantine, and to be vaccinated for that

purpose. The surgeon's conduct was lawful, and there was no evidence tending to show that it

was not.

Barton v. Bee Lines

Facts: The plaintiff (15 yrs) claims that she was raped by the chauffeur of the defendant (a

common carrier).  The chauffeur claims that they had consensual sex.  The trial judge instructed

the jury that the plaintiff was entitled to recover en if she consented, although consent might be

considered in mitigation of damages.

Rationale: The society protects underage girls by criminal statues.  According to subdivision 5

of section 2010 of the Penal Law: “A person who perpetrates an act of sexual intercourse with a

female, not his wife, under the age of eighteen years, under circumstances not amounting to rape

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in the first degree, is guilty of rape in the second degree, and punishable with imprisonment for

not more than ten years.”  According to the court, it is one thing to say that society will protect

itself by punishing those who consort with females under the age of consent; but it is another to

hold that, knowing the nature of her act, such female shall be rewarded for her indiscretion.  If it

is held that underage females can recover monetary damages for have consensual sex, this can to

abuse.  “Instead of incapacity to consent being a shield to save, it might be a sword to

desecrate.”   Therefore, a female under the age of 18 has no cause of action against a male with

whom she has consensual sex, if she knows the nature and quality of her actions.

Necessity

Ploof v. Putnam

Facts: To escape a storm, Ploof (Plaintiff) tied his boat to Putnam’s (Defendant’s) dock.

Defendant untied Plaintiff’s boat. Plaintiff and his family were injured and the boat was

destroyed.

Rationale: Necessity will justify entries upon land and interferences with personal property that

would otherwise have been trespass.

Vincent v. Lake Erie Transport

Facts: Lake Erie Transportation Co. (Defendant) tied and prudently held its steamship to

Vincent’s (Plaintiff’s) dock during a severe storm. In doing so, Defendant preserved its

steamship at the expense of Plaintiff’s dock. Plaintiff seeks compensation for the damage done to

the dock and Defendant claims the privilege of private necessity.

Rationale: A party acting under private necessity is liable for damages incurred to the property

of others.

Surroco v. Geary

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Facts:   During the great fire of 1949 the City Alcalde, by authority and office, ordered the

destruction of homes, by dynamite, to stop the spread of the fire.  Pl’s home was one such home

destroyed.  Pl was in the process of removing personal items when ordered to cease and the

home was blown up.

Rationale: The interests of individual members of society must yield to the rights of preserving

the whole of society. 

Wenger v. Milwaukee Mutual

Facts: The Court of Appeals of Minnesota affirmed a trial court’s granting of summary

judgment to Milwaukee Mutual Insurance Company (Defendant) in Harriet G. Wenger’s

(Plaintiff’s) action for damages caused to her house when city police flushed out a criminal

suspect hiding in the house. The homeowner challenged the judgment.

Rationale: In situations where an innocent third party’s property is taken, damaged or destroyed

by the police in the course of apprehending a suspect, it is for the municipality to compensate the

innocent party for the resulting damages.

Self-Defense and Defense of Property

Courvoisier v. Raymond

Facts: Courvoisier (Defendant), a jewelry storeowner, shot Raymond (Plaintiff), a police officer,

because Defendant believed his life was in danger.

Rationale: Defendant shot Plaintiff during a riot. Defendant swears that he thought Plaintiff, a

police officer, to be a rioter who was approaching him in a threatening attitude. Thus self-

defense was an applicable defense.

Bird v. Holbrook

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Facts: Bird (Defendant) set a spring gun trap in his garden to protect his property. The spring

gun trap injured Holbrook (Plaintiff) innocent trespasser.

Rationale: No man can do indirectly that which he is forbidden to do directly.

Katko v. Briney

Facts: Df secured to an iron bed a shotgun, with the barrel pointed downward. It was rigged with

wire from the doorknob to the gun’s trigger so it would fire when the door opened.  The spring

gun could not be seen from outside.  No warning of its presence was posted.  PL had broken and

entered the house to find and steal old bottles and dated fruit jars which they considered antiques.

PL opened the door the shotgun went off striking him in the right leg above the ankle bone. 

Much of his leg was blown away.

Rationale: The value of human life and limb outweighs the interest of a possessor of land in

excluding from it those whom he is not wiling to admit thereto that a possessor of land has no

privilege to use force intended or likely to cause death or serious bodily injury against another

whom the possessor sees about to enter his premises or meddle with his chattel, unless the

intrusion threatens death or serious bodily injury.  Therefor the use of a mechanical devise

capable of death or serious injury to protect property at the expense of life or limb is no

privilege.

NEGLIGENCE

Reasonableness as Duty of Care

Vaughan v. Menlove

Facts: Defendant paced a stack of hay near cottages owned by Plaintiff. Defendant was warned

that there was a substantial possibility that the hay would ignite, and Defendant replied that he

would “chance it”. The hay eventually did ignite and burn Plaintiff’s cottages, and Plaintiff sued

to recover for their value.

Rationale: The standard for negligence is an objective one. One has behaved negligently if he

has acted in a way contrary to how a reasonably prudent person would have acted under similar

circumstances.

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Emergencies

Lyons v. Midnight Sun

Facts: Plaintiff was killed when her van was truck broadside by a truck driven by Jette and

owned by Defendant. Plaintiff pulled out of a parking lot in front of Jette. Jette braked and

steered to the left but Plaintiff continued to pull out further into the traffic lane. Jette’s truck

collided with Plaintiff. Plaintiff filed suit against Defendant, claiming that Jette had been

speeding and driving negligently. Conflicting testimony was introduced regarding Jette’s speed.

Testimony suggested that if Jette had stayed in his lane, the accident would not have happened.

Defendant claimed that steering to the left when a vehicle pulls out is a normal response. The

jury was given an instruction on the sudden emergency doctrine. The jury found that Jette (and

thus Defendant) had been negligent, but his negligence was not a cause of the accident.

Rationale: In assessing a party’s standard of care, the test is always the standard of a reasonable

person under like circumstances. If the circumstances are such that an emergency is present, the

“reasonable person under like circumstances” rule considers the emergency without the need for

the sudden emergency doctrine. The sudden emergency doctrine is a legal principle exempting a

person from the ordinary standard of reasonable care if that person acted instinctively to meet a

sudden and urgent need for aid. The sudden emergency doctrine is essentially the “reasonable

person under like circumstances” rule.

Beginners, Experts, and the Handicapped

Roberts v. Ring

Facts: Defendant, seventy-seven years old, was driving on a busy street. His sight and hearing

were defective. (Plaintiff, a seven-year-old boy, ran from behind a buggy, across the street, and

in front of Defendant’s car. As he passed in front of Defendant’s car, Plaintiff was struck and

injured. Plaintiff sued Defendant for negligence.

Rationale: In considering the negligence of a seven-year-old boy, the standard of care, is the

degree of care commonly exercised by the ordinary boy of his age and maturity.

Daniels v. Evans

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Facts: Plaintiff, a 19-year-old, was killed when his motorcycle collided with Defendant’s car.

The jury returned a verdict for Plaintiff. Defendant appealed and alleged error pertaining to the

standard of care required of Plaintiff.

Rationale: When minor plaintiff undertakes an adult activity, which can result in grave danger to

others, the standard of care is measured by what a reasonable and prudent adult would use.

Robinson v. Pioche

Facts: A drunk π stumbled into an open hole in front of his house, dug by ∆

Rationale: The court reasoned that a drunk man is as much entitled to a safe street as a sober

one, and much more in need of it.

Statutes as Standards

Martin v. Herzog

Facts: Plaintiff was killed when Defendant’s automobile crashed into Plaintiff’s buggy.

Defendant requested a ruling that the lack of lights on Plaintiff’s buggy was prima facie evidence

of contributory negligence.

Rationale: The jury may not discount a breach of a statutory duty. The question of duty is a

question of law. The jury is the trier of facts. Plaintiff wrongfully violated a statute intended for

the protection of Defendant. Plaintiff is negligent per se. The only thing left to determine is

causation and injury. If Plaintiff’s failure to light the buggy was the cause of the accident, then it

is contributory negligence.

Tedla v. Ellman

Facts: Anna Tedla and her brother, John Bachek (Plaintiffs) were walking along a road to the

right of the centerline in violation of a traffic statute, when they were struck by a passing

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automobile, operated by Ellman (Defendant). A jury found that the accident was due solely to

the negligence of the Defendant. Appellant maintained that Appellees were guilty of contributory

negligence as a matter of law because of their violation of the statute.

Rationale: The court in Tedla appears to promote a flexibility of statutory interpretation where

“The general duty is established by the statute, and deviation from it without good cause is a

wrong and the wrongdoer is responsible for the damages resulting from his wrong.”

Nevertheless, the court opined that it would contravene common sense and the general welfare to

“assume reasonably that the Legislature intended that a statute enacted for the preservation of the

life and limb of pedestrians must be observed when observance would subject them to more

imminent danger.”

Brown v. Shyne

Facts: Plaintiff was paralyzed after Defendant performed nine chiropractic treatments without a

license. The jury was permitted to infer negligence from the violation of the statute.

Rationale: If violation of the statute by the defendant was the proximate cause of the plaintiff’s

injury, then the plaintiff may recover upon proof of violation. If violation of the statute has no

direct bearing on the injury, proof of the violation becomes irrelevant.

O’Guin v. Bingham County

Facts: Plaintiff’s children were playing in the Bingham County landfill when a wall collapsed

and killed them.  Plaintiffs sued the County under a negligence per se theory, arguing that the

County’s failure to fence the boundaries of the landfill, as required by state statutes and federal

regulations, caused the children’s deaths.

Rationale: To make a prima facie claim for negligence per se, the following elements must be

met: (1) the statute must clearly define the required standard of conduct; (2) the statute must have

been intended to prevent the type of harm the defendant’s acts or omissions caused; (3) the

plaintiff must be a member of the class of persons the statute was designed to protect; and (4) the

violation must have been the proximate cause of the injury.

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Customs as Standards

Titus v. Bradford

Facts: Plaintiff, an employee of Defendant, was killed after Defendant’s broad-gauge (standard)

car began to wobble and tobble on a narrow-gauge truck. Plaintiff claims that Defendant is

negligent in using narrow-gauge roads for standard car bodies. The jury awarded Plaintiff $5,325

Rationale: The fact that a course of business is dangerous will not give rise to liability. In

assessing a claim of negligence the court is aware that some jobs are dangerous, and it is

necessary to look at the customs of the industry, and variations within, in order to determine

liability.

Helling v. Carey

Facts: The π consulted the ∆, an opthamologist, for a period of 10 years in which she

complained of eye irritation from contact lenses. The ∆ tested π for glaucoma when π was 32,

after she complained of impaired peripheral vision. The test was positive, and the π suffered a

permanent loss of vision because the disease had run too long. π sued for damages.

Rationale: The court reasoned that common practice in the profession is not the absolute

measure of negligence. "...There are precautions so imperative that even their universal disregard

will not excuse their omission".

Breach of Duty

Osborne v. Montgomery

Facts: Plaintiff, a boy of thirteen years of age, was employed as an errand boy. He was returning

to his place of employment on a bicycle. He followed a car driven by Defendant. Defendant

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stopped his car for the purpose of leaving some clothes at the cleaners. As Defendant’s car

stopped and his door opened Plaintiff attempted to pass when the right handle bar of his bicycle

collided with Defendant’s car door. As a result, Plaintiff was injured.

Rationale: Not every injury is actionable. Society deems an actor liable for conduct that is

outside that of ordinary care. Ordinary care is that degree of care, which under the same or

similar circumstances, the great mass of mankind would ordinarily exercise.

Cooley v. Public Service Co.

Facts: In a severe storm, Public Service Co.’s (Defendant’s) electric lines fell, which caused a

loud noise in Cooley’s (Plaintiff’s) phone line. In hearing the noise, Plaintiff suffered a very rare

neurosis. Plaintiff sued Defendant for negligence.

Rationale: As a practical matter, the court was unwilling to impose liability on Defendant, when

to do so would be to punish Defendant for preventing live wires from coming into contact with

the public. Defendant’s duty to Plaintiff is outweighed by the duty Defendant owes to the public

at large. If Plaintiff can present evidence of means where Defendant could have reasonably and

concurrently protected the public from live wires and Plaintiff from emotional distress, then

Defendant would be liable for the breach of duty to Plaintiff.

Pipher v. Parsell

Facts: Plaintiff and another were passengers in Defendant’s car.  The other passenger yanked

Defendant’s steering wheel causing the car to swerve, but Defendant regained control and did

not do anything about it.  The passenger again yanked the wheel, causing the car to veer off the

road and hit a tree, resulting in injuries to plaintiff.  Plaintiff sued Defendant for negligence.

Rationale: This decision highlights the role of foreseeability in proving negligence. 

Foreseeability of harm is central to the issue of whether a person’s conduct fell below the

standard of care. 

Stinnet v. Buchele

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Facts: This is an appeal from a farm employee, Stinnett (Appellant) challenging a grant of

summary judgment to his employer, Buchele (Appellee) in an action by Appellant for injuries

suffered when he fell off a barn, which was painting. Appellant maintained that the injuries were

sustained during the course and scope of employment, the employer, Appellee, had a duty to

provide a safe work environment, and as a result, he was entitled to the recovery of damages.

Rationale: As the Stinnett court observes: “[t]he liability of the employer rests upon the

assumption that the employer has a better and more comprehensive knowledge than the

employees, and ceases to be applicable where the employees’ means of knowledge of the

dangers to be incurred is equal to that of the employer.” Further, while several federal statutes

provide for various forms of workers compensation, in certain instances employees are excluded

from such protection, and must seek remedies through tort actions.

Calculus of Risk and Negligence Definition

US v. Carrol Towing Co.

Facts: Appellant owned a barge, which was chartered by a railroad company. The barge, with a

cargo of flour owned by the United States, was moored to the end of the pier. Appellant

chartered a tug company, Carroll Towing Co. (Appellee) to drill out one of the barges. Appellee

went aboard the barge and readjusted its mooring lines. The barge broke free of the mooring

lines due to this readjustment. The Barge hit a tanker, and the tanker’s propeller broke a hole in

the barge. The barge careened, dumped her cargo, and sank. No one was aboard at the time.

Appellee argued that is someone was aboard the barge to observe it leaking after it broke free,

the cargo and the barge could have been saved.

Rationale: Appellants held partly liable. The court applied the “burden was less than the injury

multiplied by the probability” formula and found that the burden of having an attendant aboard

the barge was less than the gravity of injury of a runaway barge multiplied by the probability that

the barge would break free if unattended.

The T.J. Hooper

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Facts: P’s barges were lost at sea in a storm.  P sued D claiming that D negligently did not equip

its tugs with weather transmission radio and that resulted in the tug running into bad weather.

Rationale: First the ct. reasoned that these radios were very necessary for tugs because tugs,

unlike other vessels, do not have maneuverability of deal with bad weather.  Even though it had

not yet become a common custom to have such radios in tugs, but that they were right, and the

others too slack.”  So the fact that not many tug owners had installed such radios does not relieve

D from negligence.

Andrews v. United Airlines

Facts: Andrews (Plaintiff) an airline passenger, was hit in the head after a briefcase fell out of

United Airlines’ (Defendant) overhead compartment. The district court granted summary

judgment for Defendant.

Rationale: A common carrier has a heightened duty of care due to the fact that passengers are

completely dependent upon them for safety precautions.

Res Ipsa

Byrne v. Boadle

Facts: Byrne (Plaintiff) testified that he was walking along Scotland Road when he evidently

lost consciousness. Witnesses testified that a barrel of flour fell on him. Neither Plaintiff nor any

of the witnesses testified as to anything done by Boadle (Defendant) that could have led to the

barrel falling.

Rationale: A plaintiff must persuade a jury that more likely than not the harm-causing event

does not occur in the absence of negligence.

Contributory Negligence

Butterfield v. Forrester

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Facts: Plaintiff was thrown off his horse and injured after he struck a pole. Defendant had put

the pole across part of the road for the purpose of making some repairs to his house. Plaintiff

sued Defendant for negligence.

Rationale: Plaintiff cannot recover for hitting an obstruction caused by the fault of Defendant if

Plaintiff did not himself use common and ordinary care to avoid the obstruction.

Gyerman v. United States Lines

Facts: Plaintiff, a longshoreman, was injured while he unloaded fishmeal sacks, which belonged

to the United States Lines Co. (Defendant). Plaintiff knew the sacks were stacked in a dangerous

manner, but he still attempted to unload them. The trial court found that both parties were

negligent, therefore, Plaintiff was barred from recovery.

Rationale: Contributory negligence is an affirmative defense. Defendant has the burden of

showing that Plaintiff’s failure to report was a substantial factor in bringing about Plaintiff’s

harm.

Assumption of Risk

Dalury v. SKI Ltd

Facts: Dalury was injured when skiing at the resort—he collided with a metal pole that made up

part of the control maze for the ski lift line. Before this the ∏ had purchased a season pass, and

he signed a release form that said that he would assume risks of injury and damage and his photo

ID had the same stuff on it.

Rationale: Waiver was invalid because it was against public policy.

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