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NOTABLE COURT DECISIONS RE: TORTS Contributed by Roger Martin, 2L Student by night at Univ. of San Diego, Patent Agent by day at rmartin@qualcomm.com.

** I. de S. and Wife v. W. de S. (1348 or 1349)

2. Facts: D. came to P.'s tavern for wine at night when it was closed and began chopping at the door with a hatchet. P.'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".

3. Procedural Posture: First action before a royal court at the Assizes.

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

5. Classical Holding(s): When a D. makes an attack upon a house causing the persons inside to be placed in imminent apprehension of personal harm, then there is assault, even if there is no physical contact to the P..

6. Reasoning: Although the hatchet did not strike the P., there was still harm against P., since D. "made an assault upon the woman".

** Tuberville v. Savage (1669)

2. Facts: P. put his hand on his sword and stated to D., "If it were not assize-time, I would not take such language from you." D. took this language to be sufficient provocation to assault, batter and wound P..

3. Procedural Posture: First action before a royal court at the Assizes. Convoluted posture because the issue is really the conduct of the P..

4. Judges Rule: "...if one strike another upon the hand, or arm, or breast in discourse, it is no assault, there being no intention to assault; but if one intending to assault, strike at another and miss him, this is an assault..." Judgment for P..

5. Classical Holding(s): When a person intends to put another in imminent apprehension of personal harm, there is an actionable tort of assault.

6. Reasoning: P. explicitly stated that he would not strike D., because it was assize-time (judges were in town). Thus there was no intention, and there was certainly no act.

** Vosberg v. Putney (1891)

2. Facts: P. had previously injured his leg above the knee about 1 1/2 months before D. reached across the classroom aisle with his foot, and kicked P. in the shin just below the knee. The kick was slight, however the jury found that P. developed tissue and bone damage as a result of the kick, by aggravating the infection originating during the previous injury. The jury also found that D. did not mean to do P. any harm (no malice).

3. Procedural Posture: Action to recover damages for assault and battery. The first trial resulted in judgment for P. for $2,800. D. appealed to this court, where the previous judgment was reversed for error, and a new trial awarded.

4. Judges Rule: "A wrong-doer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him."

5. Classical Holding: In the absence of consent, either explicit or implied, a person who intentionally commits a wrongful act which results in the harmful touching of another has committed a tortious battery is liable for damages arising from his action.

6. Reasoning: 1. Since the kick was a violation of the "order and decorum" of the school classroom, it was unlawful, and therefore the intention to commit it was unlawful. 2. Because the classroom had rules of "order and decorum", and the teacher had already called the class to order, there was no "implied license" because kicking another in the shin is not expected behavior for the classroom.

Notes: 2. In Garrat v. Dailey, 5 yr. old D. was held liable for a battery tort when he pulled a chair out from under an arthritic woman P. as she was sitting down, because although he may not have intended to injure P., he knew that P. was trying to sit. This knowledge made D.'s act wrongful. 3. Transferred Intent: In Talmage v. Smith, D. was held liable for battery when a stick he threw at trespassers struck a different person, P.. Court held that intent to inflict unwarranted injury on someone is an actionable tort when that injury is inflicted on an unintended person. 4. O.W. Holmes stated that a person is liable for trespass and damages of another's property, even if does the harm because he thinks the property to be his own, because he necessarily intended to do the harm. In Brown v. Dellinger, D.'s were held liable for burning down a neighbor's house by starting an unauthorized fire in P.'s garage grill, even though they did not intend the fire to get out of the grill. 5. In Cleveland Park Club v. Perry, 9 yr. old D. put a rubber ball into a pool drain which he mistakenly believed was not operating suction. Court held that the intent controlling the tort was the intent to do the act, not the intent to cause harm.

** Mohr v. Williams (1905)

2. Facts: D. is an ear surgeon who upon examination of P.'s right ear, convinced P. to consent to submit to an operation to remove a polyp and diseased portion of P.'s right ear. However, after P. was unconscious from administration of anesthetics in preparation for the right ear surgery, D. found P.'s left ear to be more in need of surgery that P.'s right ear. He then performed a skillful and successful operation on D.'s left ear, without the P.'s consent. P. brought a battery action against D. to recover damages, complaining that the surgery impaired her hearing.

3. Procedural posture: Original action resulted in a verdict for P. for $14,322.50. The trial court set aside the previous verdict and ordered a new trial. Both parties appealed from such orders to this court.

4. Judges Rule: "...any unlawful or unauthorized touching of the person of another, except it be in the spirit of pleasantry, constitutes an assault and battery". 1 Jaggard, Torts, 437.

5. Classical Holding: When the circumstances surrounding a medical procedure that requires surgery do not justify proceeding without a patient's consent, performing said surgery without authorization is unlawful and the surgeon is liable for damages arising from a battery tort.

6. Reasoning: The trial court jury found that the surgery was not of an emergent nature. Therefore, since it was unauthorized by the P., then it was unlawful, and since it was unlawful, it was battery.

Notes: 1. Surgeons now use a consent form to avoid the dilemma in Mohr v. Williams. 2. The consent must be to the act actually performed. 3. Consent can also be implied by the conduct of a person. 4. In an emergency situation, where the health of a person is endangered, "unauthorized operation is justified under consent implied from the circumstances". 5. Substituted consent: In general, consent of a parent/guardian is necessary for non-emergency operations on minors and incompetents. 6. In Belchertown State School v. Saikewicz, the court held that the ultimate consent of performing painful and uncertain therapy on a terminal patient who was incapable of providing his own consent lies with the court. This stand was retreated from in Brophy v. New England Sinai Hospital where the court allowed a family to deny an incompetent any nutrition, even over the protests of the attending physicians, based on the need for "honoring the privacy and dignity of the individual". 7. Substituted consent for the benefit of others: it is possible for a guardian to provide consent to operation on an incompetent that will benefit another (such as for kidney transplant). 8. "Normally, the defense of consent to physical contact can be overridden if it is shown that the consent was induced by fraud or even by nondisclosure of some material fact."

** Canterbury v. Spence (1972)

2. Facts: Minor child, P., suffered from severe back pain that Dr., D., suspected was the result of a ruptured disc. D. told P. he needed a laminectomy to correct this condition. D. told P.'s mother that the operation was serious, but "not more than any other operation". D. later testified that the probability of paralysis in a laminectomy was about 1% but he did not normally inform his patients of risks of this nature so as not to deter them from undergoing necessary surgery. While performing the surgery, D. noted that P.'s spinal cord was swollen and in very poor condition. During the P.'s recuperation, he fell from his bed while unattended, and thereafter experienced paralysis of the bowels, urinary incontinence, and required crutches. P. sued D. for negligence and failure to inform him beforehand of the risks involved.

3. Procedural posture: P. filed suit in District Court 4 yrs. after the laminectomy. Judge granted verdicts for both D.'s for failure of P. to provide medical evidence of negligence. P. appealed and this court reversed and remanded for new trial.

4. Judges Rule: "True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each."

5. Classical Holding: In order for a patient to properly consent to a surgery, the physician must disclose to the patient what risks associated with the surgery are reasonable to disclose under the circumstances.

6. Reasoning: The court reasoned that "every human being of adult years and sound mind has a right to determine what shall be done with his own body". The nature of the physician-patient relationship demands that the physician volunteer this information, even without the patient asking. They further reasoned that a 1% chance of such a grave consequence as paralysis was reasonable to disclose, and a hypothetical reasonable patient would likely consider that information as significant when making his decision of whether or not to consent to the operation.

Notes: 1. When remanded, the case was once again decided for D.. 2. British cases have repudiated the burden that Canterbury put on physicians. 3. In Mink v. University of Chicago, the court held that a battery claim was proper (as opposed to negligence) because the P.'s were subjected to medical experiments without their knowledge, therefore the issue of implied consent was meaningless. 4. In Kozup v. Georgetown University (1987), the court held that the risk of contracting AIDS from a blood transfusion was not material in 1983. They further held that the P. failed to demonstrate that the disclosure of the risk of AIDS would have prevented the transfusion. 6. Disclosure for non-treatment: In Truman v. Thomas, it was held that when a patient refuses a risk-free treatment, the physician has the additional duty to inform the patient of any risks of non-treatment. 7. In Bly v. Rhoads, the court held that a patient-plaintiff suing for lack of informed consent must provide expert medical witnesses to testify what should have been disclosed. 8.

** Hudson v. Craft (1949)

2. Facts: P. is an 18 yr. old boy who, upon the promise of receiving 5 dollars, stepped into an illegal prize-fight at a carnival, where he suffered personal injuries as the result of being struck by his opponent. P. then sues D.'s, the illegal prize fight promoter, and his opponent, for battery damages.

3. Procedural posture: P. is appealing a judgment of dismissal. The dismissal occurred because of P.'s failure to amend his complaint after demurrer thereto by D. was sustained, and the judge gave P. permission to amend his complaint.

4. Judges Rule: When two parties engage in consentual combat, their consent "prevents an invasion from being tortious and, therefore, actionable, although the invasion assented to constitutes a crime". 2. "The promoter is liable where he conducts boxing matches or prize fights without a license and in violation of the statutory provisions ..., and that the consent of the combatants does not relieve him of that liability."

5. Classical Holding: 1. Consentual participants in an illegal prize fight are barred from collecting damages due to injuries sustained during the fight. 2. The promoter of an illegal prize fight is liable for damages as compensation for the possible injuries of consenting participants in the illegal fight.

6. Reasoning: 1. Based on the Restatement of torts section 60. 2. The court reasoned that it is from the illegal conduct of the promoter that the fighters are protected under the Restatement of torts section 61, where the assent of a person to a invasion of which he cannot appreciate the consequences is not consent thereto. The history of the rules of boxing in California suggest that those rules intend to protect the participants.

Notes: 2. Volenti non fit injuria - the volunteer suffers no wrong. Ex turpi causa non oritur actio, no action shall arise out of an improper or immoral cause. 3. In Hackbart v. Cincinnati Bengals, Hackbart, a football player, suffered injuries from a deliberate and wrongful blow to the back of the head by an opposing player. The court of appeals said that there is no reason that the roughness of football should excuse tortious actions on the part of a player, especially when those actions are contrary to the prescribed rules of the game. Similar ruling was upheld in Nabonzy v. Barnhill where a high-school soccer goalie was kicked in the head intentionally. In Turcotte v. Fell, it was held that the known, apparent and foreseeable dangers of a sport, in this case recklessness of another horse jockey, was not cause for action, as distinguished from Nabonzy and Hackbart.

** McGuire v. Almy (1937)

2. Facts: P. was a nurse at a mental institute, in direct care of D., who was known to have occasional violent outbursts. On the night of the alleged battery, D. ransacked her room and threatened P. that if she came in, D. would kill her. P. called for additional people to help, and then entered D.'s room. D. then hit P. over the head with the leg of a low-boy.

3. Procedural posture: An action of tort for assault and battery. Original trial court.

4. Judges Rule: "...where an insane person by his act does intentional damage to the person or property of another he is liable for that damage in the same circumstances in which a normal person would be liable."

5. Classical Holding: When insane people act upon an intent to cause a harmful or offensive contact with another, they are liable for the damage they cause according to the same principles that govern battery committed by sane people.

6. Reasoning: The court avoided the question of determining the nature and extent of the D.'s mental illness in order to determine fault, stating that for this case it was only necessary to determine if the D. actually intended to do harm to the P.. They reasoned that holding an insane person liable for his tortious actions would motivate his guardians to keep a close eye on him, because the same money he used for his medical care could also be used to pay for his liabilities. In this way, the courts provide an effective deterrent against battery by insane people, even though the insane person necessarily acts irrationally.

Notes: In Polmatier v. Russ an insane man who murdered his father-in- law was held liable for an intentional tort, because although he was being irrational in his reasons for committing the act, it was intentional. It would not have been intentional if it were shown to be a reflexive or epileptic act beyond his will.

** Courvoisier v. Raymond (1896)

2. Facts: D. was sleeping upstairs from a jewelry store that he owned, when several intruders attempted to gain entry to an adjoining room where his daughter slept. D. chased the intruders into the street with a gun, where they were joined by others. He fired some shots in the air to frighten them, but instead they began to throw things at him. A nearby police officer, P., came over to break up the fighting, and D., allegedly thinking P. was one of the rioters, purposefully shot P..

3. Procedural posture: In trial court, judgment was for P.. D. appealed.

4. Judges Rule: If a person reasonably believes that his life is in danger, or that he is in danger of receiving great bodily harm, then he is not liable for damages he causes in self-defense.

5. Classical Holding: While actively defending themselves from rioters, if people intentionally shoot and wound an innocent person because they reasonably believe they are in imminent danger of bodily harm or death from that person, their actions are justified by self-defense and therefore they are not liable for damages.

6. Reasoning: The court of appeals reasoned that the lower court was errant in it's jury instructions, which demanded a verdict for P. if they found that P. was not actually assaulting D. at the time of the shooting. The court of appeals stated that aside from actual assault, the defendant would be justified in his actions if it could be shown, in light of the circumstances, that a reasonable person would have believed himself in imminent danger of bodily harm.

Notes: 1. "The Restatement (Second) of Torts takes no position on the question of whether the privilege of self-defense is available against an assailant whose conduct is neither wrongful nor negligent." 2. "In Morris v. Platt, the court held that the accidental harming of an innocent bystander by force reasonably intended in self-defense to repel an attack by a third party is not actionable. "

** M'Ilvoy v. Cockran (1820)

2. Facts: D. owns a fence that P. was tearing down by actual force. In protection of his property, D. "used sufficient force in repelling [P.] to wound him severely."

3. Procedural posture: In trial court, the judge refused to enter into the jury instructions a plea from the D. that if it was found that D. was defending his real property against P., then verdict should be for D.. After verdict for P., D. moved for a new trial which motion was overruled and judgment entered for P.. This court affirmed.

4. Judges Rule: "A wounding cannot be justified barely in defense of possession..."

5. Classical Holding: When solely in defense of personal property, a person employs force sufficient to wound the attacker, he is liable for a battery.

6. Reasoning: The court stated that force can be employed to repel actual force in the defense of personal property, and force may even be employed where the attacker is only employing constructive or implied force and continues his attack when first asked to desist. However, there was no allegation of a personal assault by P. in this case, so a wounding was not justified, and the trial court was correct in refusing the entry to the jury instructions that was asked for by D..

** Bird v. Holbrook (1825)

2. Facts: D. owns a walled garden where he raises expensive tulips. After being robbed once, he surrounding his garden with a trip wire activated spring gun to protect it from intruders. D. intentionally did not place notice of the spring gun, because he wanted it to shoot the intruder. P. volunteered to retrieve a runaway pea-hen that had wandered into D.'s garden, and so climbed the high wall, and entered the garden where he tripped the wire and was shot in the knee by the spring gun.

3. Procedural posture: This is an English case, first action.

4. Judges Rule: A person who intentionally uses sufficient force to wound a trespasser, solely in protection of his property, with the express purpose of doing injury, is liable for battery.

5. Classical Holding: Where people give no deterrent notice to potential trespassers of the intentionally injurious traps that they have set solely to protect their property from trespassers, and that trap injures a trespasser who is not actually assaulting them or their family, they are liable for damages.

6. Reasoning: The defense plead that the P. was immune from liability under the doctrine of "Violenti non fit injuria" [the volunteer suffers no wrong], since the P. was a willful trespasser on the D.'s property. However, the court reasoned that it is "inhuman to catch a man by means which may maim him or endanger his life", and that since the D. set the traps solely for the purpose of inflicting injury to trespassers, it was a wrongful act.

Notes: 1. In Katko v. Briney, (1971), an Iowa farmer set a shotgun trap in a boarded-up storage house that he owned, and the shotgun injured a thief in the legs. The thief sued and the Iowa state supreme court awarded damages and punitive damages (thus profiting from his crime). 2. Restatement (Second) of Torts section 85 states that an actor is privileged to use force that would cause serious bodily injury for the purposes of protecting his land or chattels, and is not liable , if the intrusion is of the nature that the actor would be justified in using such force were he actually present. Furthermore in section 143 provides that a private person may, in order to prevent a felony, use force which is "not intended to cause death or serious bodily harm", as long as lesser means would not work. But, in the case where the felony threatens bodily harm or is breaking and entering a dwelling place, then the actor may use force "intended or likely to cause death or serious bodily harm".

** Kirby v Foster (1891)

2. Procedural Posture: The trial jury returned a verdict for P., and the D. moved for a new trial on exceptions to the rulings and refusals of the presiding justice to make ruling.

3. Facts: P. was a bookkeeper for a corporation in which D. was an agent. $50 was deducted from P.'s pay for money that he was responsible for that was lost. D. gave payroll money to P. who pocketed the $50 he thought he was due, and tried to leave. A scuffle ensued and the P. was injured by D. during the fight to retrieve the money.

4. Judges Rule: "...the right of property merely, not joined with possession, will not justify the owner in committing an assault and battery upon the person in possession, for the purpose of regaining possession, although the possession is wrongfully withheld." Bliss v. Johnson.

5. Classical Holding: When people honestly although mistakenly withhold money from their employers in the normal course of business, without fraud or deception, thinking it to be their own, the employer who employs force to regain the money is liable for battery.

6. Reasoning: The court reasoned that since the P. honestly thought that the money was due him, and peaceably took it during the normal course of business, that the use of force by the D. was not justified because it was redressive and not defensive in nature.

7. Policy: Although this law may cause inconvenience to individuals from time to time, the underlying principle is that the "injured party cannot be the arbiter of his own claim". Public order and peace are of greater weight.

Notes: 1. Repossession by a secured party of collateral after default is permitted "if this can be done without breach of the peace". The privilege of recapture must be exercised promptly "hot-pursuit".

** Ploof v. Putnam (1908)

2. Procedural Posture: The trial court ruled for P., and D. demurred to the count of willful unmooring, and negligence of duty.

3. Facts: P. and family were sailing their sloop on Lake Champlain when a violent storm erupted. In order to take refuge from the storm, P. moored to the D.'s dock, whereupon D.'s servant unmoored the sloop. The sloop was then grounded and smashed in the storm, casting the P. and family into the lake, where they received injuries.

4. Judges Rule: An actor is not liable for trespass when he enters another's land due to necessity caused by inability to control his movements while exercising a strict right.

5. Classical Holding: People are not liable for trespass when they moor their vessels to the dock of another without permission if they do so in order to save life and property from a violent storm.

6. Reasoning: The court cited several cases to support it's rule, each dealing with the concept of the doctrine of necessity. Examples given were when a dog chased sheep from a defendants land, but being the nature of a dog to continue the chase, pursued the sheep onto another's property. Also, a traveler may walk on another's land when the highway is blocked, in order to avoid the obstruction. Finally, it was held that a defendant was not personally liable when he jettisoned a casket from a barge during a storm in order to lighten the load and save the passenger's lives.

** Vincent v. Lake Erie Transportation Co. (1910)

2. Procedural Posture: An action for damages to a dock. Trial court held for P., dock owner. D. appealed to this court.

3. Facts: D. owns a cargo ship that was moored to P.'s dock under contract to unload cargo, when a violent storm arose. The D., exercising prudent seamanship, remained moored to the dock, and the action of the waves caused his hull to repeatedly collide with the dock, resulting in $500 damage to the dock.

4. Judges Rule: Where a person "prudently and advisedly avails himself of [another's] property for the purpose of preserving is own more valuable property" then he is liable for damages to the other's property.

5. Classical Holding: Where a person "prudently and advisedly avails himself of [another's] property for the purpose of preserving is own more valuable property" then he is liable for damages to the other's property.

6. Reasoning: The majority reasoned that since the boat owner "deliberately and with direct efforts" kept his boat moored, replacing the lines that parted with heavier ones, that he should be liable because although he had necessity, this did not excuse him from having to pay for damages for sacrificing the dock to save his own property.

7. Dissent: The dissent reasoned that the damage was an Act of God, and that under the majorities' reasoning, there would have been no liability if the boat owner had initially tied up with his strongest ropes. This reasoning would put the burden on the ship owner to have anticipated the severity of the storm in order to avoid liability, or to always tie up with the strongest cables. They further reasoned that the risk for damage of this nature was assumed by the dock owner as an ordinary risk of this type of business.

Notes: 1. The doctrine of "incomplete privilege": a defendant may cause harm but only on condition that he pay for it. This arises in a case of necessity where there is no assumption of risk. 2. Unjust enrichment: this theory would require the boat owner to pay because he came away unscathed at the expense of the dock owner. This theory, however, only works when the property protected is worth more than the property damaged. 3. Under admiralty law, the doctrine of necessity prevents a salvor from holding out for a fee equal to the value of the vessel in distress, but rather holds them to the customary fee. 4. Public necessity: a public official may act with immunity if he takes reasonable actions in good faith that destroy a person's property in order to benefit the public at large. Examples are tearing down houses in the path of a fire in order to save other houses, damage to car paint while spraying pesticides to kill the Medfly, tearing down an oil refinery to deny a wartime enemy from bombing it.

** Brown v. Kendall (1850)

2. Procedural Posture: An action for damages of trespass. Trial court held for P.. D. appealed to this court.

3. Facts: Two dogs were fighting in the presence of P. and D.. D. was attempting to break up the dog fight by hitting them with a big stick. P., who was behind D., got too close to D., who hit P. in the eye with the stick as he was backing away from the dogs and swinging the stick.

4. Judges Rule: If while performing a lawful act, an person injures another purely "by accident", then the actor is not liable.

5. Classical Holding: An actor is not liable for injury to another when the actor 1) does not intend to cause harmful or offensive touching of the other, or does not have substantial knowledge that his actions would cause damage to another, and 2) the actor could not have avoided damage to the other by using reasonable care.

6. Reasoning: The court reasoned if the D. was not unlawful in his attempt to break up the dog fight, and if he was exercising due care at the time of the injury, then he could not be held liable. They further stated that the burden of proof in this case should lie with the P..

** Fletcher v. Rylands (1865).

2. Procedural Posture: Action of trespass. Several arguments back and forth between the appellate justices, this one at Exchequer.

3. Facts: D. owns a reservoir above a mine shaft belonging to P.. D. hired engineers to build the reservoir, and they did, exercising proper professional care. The soil under the reservoir was weak from previous coal removal, and the water broke through the shafts and filled up the P.'s mine. P. sued for damages.

4. Judges Rule: An actor is liable for trespass when his actions result in the damage to another's property, even though his actions were lawful and he had no intention to cause damage, nor any knowledge that his actions would cause damage.

5. Classical Holding: When a person who lawfully builds a water reservoir on his land, and the water thereafter escapes and does damage to another's property, the person is strictly liable for the damage caused by the escaped water.

6. Reasoning: Judge Bramwell reasoned that the knowledge or intent to do wrong in this case was irrelevant, because to hold otherwise would be to say that the P. only has the right to have his mine free from water that was deposited there by those who knew what they were doing.

7. Dissent: (Martin) The dissent reasoned that to hold the D. strictly liable for the water escaping from his properly and lawfully built reservoir would be to cause him to need to insure against a lawful act on his own property from which he had no reason to believe that any damage was likely to ensue.

** Fletcher v. Rylands (1866).

2. Procedural Posture: Further review of the previous appellate decision.

3. Facts: As stated above.

4. Judges Rule: (Blackburn) "...the person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape."

5. Classical Holding: Same as above.

6. Reasoning Judge Blackburn reasoned that the damage would not have happened had the D. not brought the water onto his land. In addition, the D. should have known that if the water were to escape, it could cause damage. There was no implied consent under these circumstances because the P. had no knowledge or control over how the D. would use their land. Therefore the D. would be liable unless the occurrence was an Act of God.

** Rylands v. Fletcher (1868)

2. Procedural Posture: Review of the previous decision at the House of Lords.

3. Facts: Same as above.

4. Judge's Rule: (Cairns) If a person uses his land for any "non- natural" purpose of storing water, and the water escapes and does damage to another's property, then he is liable.

5. Classical Holding: Same as above.

6. Reasoning: The reservoir was a non-natural collection of water upon the D.'s land, as opposed to natural collection of water in some natural lake. Due to this non-natural use, the water escaping was due solely to his act, although not negligent, whereas water escaping from a natural lake could not have been his liability.

Notes: 3. In Rickards v. Lothian, a person entered a building at night, shoved stuff into the lavatory drain, and then turned on the water which overflowed and caused damage. The court held that there was not liability because the water use was not non-natural in the sense that most buildings in the area had lavatories. 4. In Nichols v. Marsland, overflow from man-made pools due to heavy and unanticipated rainfall was considered to be and Act of God, and so there was no liability. It was also held in Carstairs v. Taylor that the liability is not present if the storage of water was for mutual benefit. 6. The rigor of Ryland v. Fletcher was retreated from in personal injury cases, and negligence was held to be controlling. 8. Rylands v. Fletcher appears to accord more protection to personal property than against personal injury.

** Brown v. Collins, (1873)

2. Procedural Posture: Unknown

3. Facts: (Unclear) D. had horses on his property which, upon being frightened, ran onto the neighbor's property and broke a post.

4. Judge's Rule: In order for a person to be liable for trespass damages, he must be guilty of some "malice, or unreasonable unskillfulness or negligence".

5. Classical Holding: When horses are frightened into stampede, and thus beyond the reasonable care and control of their owner, and the horses trespass onto another's property, the owner is not liable for the damages.

6. Reasoning: Here the court rejected Blackburn's and Cairn's opinions in Rylands, stating that they were not in keeping with the concepts of progress and improvement. The court argued that anything could be construed to be capable of causing damage upon escape from a person's property, and that the only truly natural use of property was to leave it in it's native state. The court further said that a person in modern society had "relative" and not absolute rights.

Notes: 1. In Losee v. Buchanan, a person was held not liable when his boiler exploded and ignited the house of another, by reasoning of "implied compensation" - that he has already profited from the general good provided by boilers, and civilization in general, in which he shares. The doctrine of "reciprocity". In Turner v. Big Lake Oil, Ryland was held to be not-applicable because the nature of oil drilling in Texas made large salt-water storage reservoirs a necessity.

** Stone v. Bolton (1950)

2. Facts: P. is an old woman who was walking on a street that bordered a Cricket field, when she was struck by a well hit ball. It was one of the longest hit balls ever recorded at that field, and there had only been a few balls hit over the fence in the last 30 seasons. P. sued the home cricket club and all of its members claiming negligence in setting up the field, not making the wall high enough and otherwise not ensuring that the balls remained in the field.

3. Procedural Posture: At trial court, judgment was for D. on both counts. The Court of Appeals reversed, holding for P. on the claim of negligence.

4. Judges Rule: A person is liable for a reasonably foreseeable risk which he does not protect against and which results in injury to another.

5. Classical Holding: A person is liable for negligence when he does not take reasonable precautions to prevent a reasonably foreseeable risk which results in injury to another.

6. Reasoning: There had been 6 to 10 balls hit over the fence in the last 30 years, and although it was highly unlikely to happen on any one pitch, a ball was eventually going to go over the fence again, and so the risk was foreseeable. They further reasoned that it was unreasonable to require the persons who were walking along the road to assume the risk of being hit by a ball themselves.

** Bolton v. Stone (1951)

2. Facts: Same as above.

3. Procedural Posture: After judgment for P. in Court of Appeals, it was brought to House of Lords, this court.

4. Judges Rule: A person is not liable for negligence when he takes all precautions that a reasonable man would take in the same circumstances to prevent damage likely to arise from his actions.

4. Classical Holding: A person is liable for negligence when he does not take precautions that a reasonable man would take under the same circumstances to prevent damage to others that would likely result from his actions.

5. Reasoning: The court stated that foreseeability is not the only standard which applies. They also required taking into account all of the circumstances involved in the degree of the risk including: the likelihood of damage and extent of damage should it occur. They stated that these considerations together did not cause a reasonable man to do anything differently in this case.

Notes: 1. The P. had a choice of suing 3 possible D.'s: the batsman who hit the ball, the visiting team he played for, or the owner of the home team. She would have to sue the batsman under strict liability, and the visiting team under vicarious liability. 2. In the absence of strict liability, there can still be "ethical compensation" where the person who is under no legal liability might still feel obligated to offer some measure of compensation to the injured party. 3. The tort theory of Corrective Justice, where the purpose of the legal system is rectification or redress to restore injured parties to their original state, supports both strict liability and negligence theories. In strict liability, it is sufficient to make a prima facie case of "causation" without regards to "responsibility". In negligence, the argument must be that the P. must show that the D. performed an "act of injustice"; something "wrongful". Thus, in negligence, we need to show not only that the P. should be compensated, but that he should be compensated by D.. 4. Economic efficiency theory: rights of injured victims to recover should be determined by the costs involved in establishing and enforcing those rights. Thus, to minimize costs, the risk should be placed on the person who can most easily avoid it.

** Hammontree v. Jenner (1971)

2. Facts: The D. was driving home from work when he had an epileptic seizure and crashed through the front of the bike store where P. was working, and caused bodily injury to P., and damages to the store. The D. was on medication for his epilepsy, and driving on a probationary license which required him to submit to tests at 6 mo. intervals for a doctor to certify, in writing, his fitness to drive. The D.'s doctor testified that he believed it was safe to drive under the medication.

3. Procedural Posture: Trial court returned judgment for D.. P. appealed, contending that the trial court was in error in refusing to grant summary judgment on the issue of liability, and refusing to give the jury the instructions they prepared which stated that an epileptic is strictly liable for damages to an innocent person that arise from a seizure while he is driving a car. P. withdrew a negligence claim and stood solely on the strict liability claim.

4. Judge's Rule: A driver who is suddenly stricken by an illness rendering him unconcious, and who thereafter causes damages to a third party, is liable for those damages only when he is negligent in his actions to prevent such damages.

5. Classical Holding: Same as judges.

6. Reasoning: The court cited the holdings of several previous cases, and reasoned that to judge for P. would override the established law of the state, and cause chaos in insurance settlements. In addition, they rejected P.'s analogy to the strict liability involved in product liability cases. They stated that the jury instructions were properly disallowed because, besides covering the case where an epileptic had knowledge of a possible risk, they covered the case of a driver being stricken by a condition of which he had no prior knowledge.

** Helling v. Carey (1974)

2. Facts: The P. consulted the D., an opthamologist, for a period of 10 years in which she complained of eye irritation from contact lenses. The D. tested P. for glaucoma when P. was 32, after she complained of impaired peripheral vision. The test was positive, and the P. suffered a permanent loss of vision because the disease had run too long. P. sued for damages.

3. Procedural Posture: The trial court and Court of Appeals both found for D. based on lack of showing of negligence, because it was common practice not to perform the glaucoma test on patients under 40. P. then petitioned to this court.

4. Judges Rule: The reasonable standard of care that should have been followed under the facts of this case was the timely giving of the glaucoma test, and that in failing to do so, the D. was negligent.

5. Classical Holding: When a person is consults an opthamologist over several years, and is not tested for glaucoma because, in the profession, his age group is not normally tested for glaucoma, and the person later loses sight as a result of the glaucoma which could have been detected by a simple, safe test, the opthamologist is liable for damages for negligence.

6. Reasoning: 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". The court took an active role in requiring the test because it was simple, safe, and the consequences of not performing the test were very severe and should not be borne solely by the P.. A concurring opinion reasoned that the true measure here was one of strict liability, not negligence.

Notes: 1. Helling provoked a swift statutory response, providing common practice as the absolute standard of due care, therefore requiring negligence. In common law, the standard is similar. 2. The standard of custom in physician malpractice is needed because courts do not have the training to determine what is reasonable, and because it would generate too many unfounded lawsuits.

R. Keeton and J. O'Connell, Basic Protection for the Traffic Victim (1965).

Summary: Compensation of an injured party is a shifting of loss from the P. to the D.. The costs of litigation involved in a tort case are tremendous and the overall bottom line is a monetary net loss unless the advantages of the decision outweigh the costs involved in the litigation. Thus, an award for compensation should not be made unless there are more valuable reasons than mere compensation. "Otherwise, the award will be an arbitrary shifting of loss from one person to another at a net loss to society due to the economic and sociological costs of adjudication."

I. Strict liability
A. Imposed to make the D. internalize the costs imposed on others.
1. Making the actor bear the costs as if he were the injured party.
B. Eliminates the need to determine "standard of care".
1. Reduces litigation costs in individual cases, however
2. Gives incentives for more lawsuits - raising costs.
II. Negligence
A. Imposed to make the P. internalize costs for accidents that he
would not have avoided had he been the actor
1. Because the cost of avoidance would outweigh the cost of injury in
view of the minimal chance of risk (diminishing returns).
2. P. cannot say that the D. did anything "wrong" because he would
have taken only the same precautions under like circumstances.
B. Requires determination of "standard of care" or "reasonableness".
1. Increases litigation costs in individual cases.
2. Reduces number of lawsuits because the costs of litigation usually
outweigh the compensation for injury.

A. Duty
1. D. owed P. a duty or obligation to conform his conduct to a
standard necessary to prevent the unreasonable risk of harm to others.
B. Breach
1. D. did not meet the appropriate standard of care.
C. Causation
1. D.'s failure to meet the appropriate standard of care was causally
connected to the P.'s harm.
D. Damages
1. The property damage or personal injury was caused by D.'s breach
of duty.

** Vaughan v. Menlove (1837)

2. Facts: D. made a dangerous haystack near the boundary of D.'s and P.'s properties. After being warned several times about the risk of fire associated with the haystack, D. said that "he would chance it." D.'s haystack spontaneously caught fire, and the fire spread to the P.'s property, totally destroying two cottages belonging to P.

3. Procedural Posture: Judgment was for P. in trial court, and D. appealed on the grounds that the jury was improperly instructed to judge D.'s actions by the standard of care of the ordinary person. Rather, D. contested, in determining his negligence, he should be judged only on his own bona fide best judgment.

4. Judge's Rule: 1. A person must enjoy his property so as not to injure that of another. 2. In determining negligence, it is the standard of care of a man of ordinary prudence that must be followed.

5. Classical Holding: When a person disregards the ordinary standard of care in keeping flammables on his property, and a fire ensues due to his lack of ordinary care, he is liable for fire damages to the property of another that arise directly from his negligence.

6. Reasoning: To hold each individual to his own standard of care in determining negligence would be too vague to be practically enforceable. In this case, the D. had repeated warnings, which he disregarded, and so he was aware of the standard of care necessary. It was his disregard of these warnings that led to the fire and ensuing damages.

Holmes, The Common Law I. Standard of Care A. Ordinary care of the average man 1. Policy a) in society, a certain average conduct is required to ensure the general welfare. 2. Risk a) a below-average person acts at his own peril at all times, even though he may not be morally blameworthy. b) an ordinary person acts at his own peril when he fails to exercise proper foresight, or has evil intent. B. Exceptions to ordinary care of the average man 1. Policy a) a person with distinct defects which prevent taking certain types of precautions should not be held accountable for not taking them. 2. Examples a) a blind man will not be held accountable for failing to take a precaution which required sight.

** Roberts v. Ring (1919)

2. Facts: P. is a 7 Yr old who jumped out from behind a buggy and crossed the street suddenly in front of D.'s car. D. is a 77 Yr old with sight and hearing impairments, who was traveling at 4-5 mph when he hit D. P. states that he saw D. just before impact.

3. Procedural Posture: D.'s father brought the suit for damages. Trial court found for D.. D. claims boy was negligent, P. claims error.

4. Judge's Rule: "When one, by his acts or omissions causes injury to others, his negligence is to be judged by the standard of care usually exercised by the ordinarily prudent man."

5. Classical Holding: When a person hits and injures a child with his car, he is negligent and liable for damages if he has not acted with the standard of care usually exercised by the ordinary man, unless he suffers from physical defects which prevent his taking those ordinary precautions required to avoid harm to the victim.

6. Reasoning: The driver was negligent in either one of two ways. Either he was not paying attention closely enough to avoid injuring the child, or he did not stop quickly enough if he did actually see the child. Further, the court reasoned that the child had no contributory negligence, because in such a situation, he was only required to exercise the precautions of self-protection that an ordinary 7 Yr old would exercise in the same circumstances.

Notes: 2. A beginner might be held to a lower standard of care in some beneficial activities than an expert would for 2 policy reasons: 1) it encourages more beginners to take up the particular beneficial action, and 2) a uniform standard of care would not provide incentive for an expert to use as much care as he may know to be prudent, because any increment over the uniform standard would be not cost effective.

** Daniels v. Evans (1966)

2. Facts: P. is the father of a deceased 19 Yr old youth who was riding a motorcycle when he collided with D.'s automobile.

3. Procedural Posture: Trial court found for P., and D. appealed, contending that the standard of care required by the 19 Yr old motorcycle driver should have been that required of the ordinary adult, and not that of the average 19 Yr old.

4. Judge's Rule: When a minor drives an automobile or similar power driven device, he is held to the standard of care of the ordinary adult.

5. Classical Holding: When a minor drives an automobile, he assumes liability for damages resulting from his negligence as measured by the standard of care of the ordinary adult in the same circumstances.

6. Reasoning: An automobile is such a potentially dangerous thing that to hold minors to a lesser standard of care would be at risk to the general welfare. Driving an auto requires a great amount more care than most activities undertaken by children, and so should not be judged according to the standard of care that would apply to those less dangerous activities.

Notes: 1. In Goss v. Allen, the supreme court held that a 17 Yr old skier should be held to a youth standard for negligence, distinguishing on the basis that skiing required no license. The dissent stated that there are many potentially dangerous activities that are not licensed which result in severe injuries. 2. There is some argument for a double- standard of conduct - a higher one for defendants and a more relaxed one for plaintiffs. However, cases have generally moved towards a single uniform standard.

** Breunig v. American Family Insurance Co. (1970)

2. Facts: D. was driving her car when she had a sudden mental delusion that caused her to lose control, thinking that God had taken over the steering wheel. D. thought she could fly over P.'s oncoming truck like Batman, but unfortunately, they collided. D.'s had a history of delusion, and thought she was on a mission from God to survive the impending end of the world.

3. Procedural Posture: Trial jury returned a verdict finding D. causally negligent on the theory that she had advance notice that she was susceptible to such delusions.

4. Judge's Rule: A person struck by sudden mental incapacity which prevents them from exercising due care, but of which they had advanced warning, is liable for negligence.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The court avoided the question of an insane person's negligence, and simply stated that a sudden mental affliction should be treated the same as any other sudden illness, such as a heart attack. They reasoned that since the D. believed that God wanted her to survive, that it was foreseeable that God would one day take control of her car, thus she had advanced notice, and was negligent in operating the car in the first place.

** Fletcher v. City of Aberdeen (1959)

2. Facts: P. is a blind man who was using his cane to walk down the street in the vicinity of some city construction. A city worker had posted barricades around the construction, but later removed them for ease of work and never replaced them. P. was injured as a result of not encountering any barricades to protect him from the construction.

3. Procedural Posture: Trial court found for P. D. appealed contending error in the jury instructions for refusal to instruct as they requested that the city did not have a higher degree of care required just because the P. was blind.

4. Judge's Rule: The city is required to provide protection to a degree that would give a disabled person notice of the dangers to be encountered.

5. Classical Holding: A person is required to use the degree of protection which would bring notice of the possible dangers to any potential victim who might be physically inflicted and therefore unable to exercise care on his own behalf.

6. Reasoning: The city should have known that blind persons were likely to use the street, and that their only reasonable means of avoiding obstacles was by use of a cane. Thus, the city was negligent in not providing a barricade for a blind person to ward him of the dangers he could not see.

** Robinson v. Pioche, Bayerque & Co. (1855)

2. Facts: A drunk P. stumbled into an open hole in front of his house, dug by D.

3. Procedural Posture: Trial court found for D., P. appealed.

4. Judge's Rule: A person who leaves an unmarked hole in a public area, and provides no protection to prevent pedestrians from falling into it, is liable for damages for negligence even if the victim is drunk.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: 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.

** Denver & Rio Grande R.R. v. Peterson (1902)

2. Facts: Unknown

3. Procedural Posture: Unknown.

4. Judge's Rule: The care required of a person is the same whether he is rich or poor.

5. Classical Holding: Same as above.

6. Reasoning: To hold that the degree of care required were related to wealth would create a sliding rule that would be impractical to enforce. Wealth alone has no bearing on the standard of care of the ordinary person.

7. Policy: To deter someone, you must give adequate penalty of negligence to cause the actor to consider the cost/benefit analysis of his action.

** Smith v. Lampe (1933)

2. Facts: Appellant lived on the shores of Lake Erie. One winter afternoon, he heard a tug and barge heading toward the shore, so he attempted to warn them off by blowing his car's horn. Appellee is the owner of the barge, which was being led into port by the tug. The tug captain misinterpreted the automobile's horn as being fog signals from a launch at the port's entry signaling them to proceed.

3. Procedural Posture: Trial court found for barge owner.

4. Judge's Rule: "...reasonable anticipation of injury is important only in the determination of negligence, while the natural course of events is the test of required causation..."

5. Classical Holding: A person who has a reasonable anticipation that his act will cause injury to another is liable for damages.

6. Reasoning: The appellant had no knowledge of fog signals or boats. He had no means of knowing that his car horn signals might be misinterpreted by the tug. Therefore, he could not have had any knowledge that what he did would be reasonably expected to cause an injury.

** Blyth v. Birmingham Water Works (1856)

2. Facts: D. is a water company who installed a water main near the P.'s house. During the severest frost on record, the ice build-up in the plug caused the water main to burst and sent water into the home of D. The ice had been visible on the surface for some time before the accident.

3. Procedural Posture: The Trial court judge instructed the jury that if the ice had been removed from the plug, the accident would not have happened, and so found for P. D. appealed to this court.

4. Judge's Rule: People are negligent if they omit doing something which a reasonable man, guided by the considerations which regulate the conduct of human affairs, would do.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: A reasonable man would have taken precautions to avoid accidents brought about by the normal frost seasons. The fact that the cause of the accident was not discovered until months after the accident occurred is evidence of how remote the likelihood of the accident was. In addition, the D. was not bound to keep the plugs free of ice.

** Eckert v. Long Island R.R. (1871)

2. Facts: P. was waiting for D.'s train which was approaching when he noticed a young child sitting on the tracks. The P. ran across the tracks, pushed the child out of danger, and was then hit by the train. The P. died of his injuries. Witnesses put the speed of D.'s train at 12-20 mph.

3. Procedural Posture: In trial court, D. moved for non-suit, claiming contributory negligence by P. Jury returned a verdict for P., which was affirmed at the Supreme Court level. D. then appealed to this court.

4. Judge's Rule: One who knowingly and voluntarily places oneself in a position in which one is liable to receive serious injury is not negligent if one has done so in order to save a life, unless such actions would be considered imprudent by a reasonable person under the same circumstances.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The P. had only an instant to act, or the child would have died. Furthermore, it was reasonable for the P. to believe that he could save the child without receiving serious injury.

7. Policy: The court did not wish to deter acts of heroism in preservation of human life.

Terry, Negligence
I. Negligence
A. Based on reasonableness, not math.
1. Risk involved must be unreasonably great.
2. Injurious consequences must be unreasonably probable.
B. Five factors to consider
1. Magnitude of the Risk
a. Probability rescuer would be killed.
2. Value of Principle Object
a. Value of rescuer's life, very high.
3. Value of the Collateral Object
a. Value of victim's life, very high.
4. Utility of the Risk
a. Probability that the rescue is successful.
5. Necessity of the Risk
a. Probability that the victim would not rescue itself.
C. Human life may be put at risk to save property if it is reasonable to do so after considering the 5 factors.

Seavey, Negligence - Subjective or Objective?
I. Negligence
A. If P.'s and D.'s interests are of equal value, D. is not liable if he takes a 50% chance of destroying P.'s property to save his own.
1. Balancing Interests
B. An unlawful actor is liable to anyone because his act, by definition, has no value to society.

** Hauser v. Chicago, R.I. & P. Ry. (1928)

2. Facts: P. is a woman who felt sick while riding on D.'s train. P. went to the lavatory, and feinted. When she fell to the ground, her body lay in such a way that her head was under the sink, and her face came into contact with exposed steam pipes. P. was badly burned.

3. Procedural Posture: Trial Jury returned verdict for P. D.'s motion for directed verdict was denied. D. appealed to this court.

4. Judge's Rule: One is negligent when one fails to protect against injuries that are reasonably anticipated.

5. Classical Holding: One is not negligent when one constructs a device which protects against all reasonably anticipated injuries that may be caused by the reasonably anticipated actions of its users.

6. Reasoning: In order for someone to be burned, they would have to get under the sink. The area under the sink was not intended for use by passengers. The D. could not reasonably anticipate that the P. would have fallen with part of her body under the sink, therefore D. was not liable for P.'s injuries.

** Osborne v. Montgomery (1931)

2. Facts: P. is an errand boy who was injured when his bicycle handlebar struck the partially opened left-hand door of D.'s car while it was double-parked.

3. Procedural Posture: The question was put to the jury whether the driver of the car was negligent and the boy not contributorily negligent.

4. Judge's Rule: One is negligent when one acts with without ordinary care - the degree of care which the great mass of mankind would ordinarily exercise under the same or similar circumstances.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The rights of a person living in society are not absolute. We are constantly doing acts which result in injury to others, but we must consider the balancing of social justice in determining liability. A firetruck driver might reasonably foresee injury to others while driving quickly through a highly populated area, but he would not be negligent if that injury occurred because the benefits of his actions to society outweigh the probability of injury.

** Cooley v. Public Service Co. (1940)

2. Facts: P. was talking on the phone when a severe storm caused D.'s power lines to part and fall onto the phone lines below. The resultant noise that the P.'s telephone made scared her so badly that she fainted and sustained a severe neurosis. P. contended that baskets should be placed under power wires that cross telephone wires in order to prevent contact of broken power lines with the telephone lines below.

3. Procedural Posture: P. sued both the Power Company (D.) and the Phone Company. Trial jury found for the phone company, but against the power company. The power company appealed and the judgment was reversed.

4. Judge's Rule: One is not negligent when one acts with due care to prevent a probable injury to someone, and in doing so, can not prevent an unlikely injury to another.

5. Classical Holding: One is negligent when one acts without due care to prevent a probable injury to another.

6. Reasoning: The court reasoned that the baskets for holding the power wires would increase the obvious and immediate risk to the passerby on the street that he would be injured if the power lines broke. Thus, to protect the telephone user would be to not protect the passerby. The law could not tolerate such a theory of "be liable if you do and liable if you don't."

Notes: In a case governed by negligence, the actor may only need consider due care when he engages in his activity, but not when determining how frequently he engages in his activity. Thus, the driver of a car is not negligent when the car hits a pedestrian, if the driver was acting with due care. However, the more times the driver drives, the higher the cumulative probability that he will hit a pedestrian. Strict liability, however, requires the actor to consider both due care and frequency. [This argument is flawed if you consider that one of the ingredients of determining reasonableness is necessity. One who does a dangerous activity for an unnecessary reason could still be negligent].

** United States v. Carroll Towing Co. (1947)

2. Facts: The D. tug was moving a line of unmanned barges out to sea when one broke loose, collided with another vessel, and sustained hull damage. The barge began to leak [and eventually must have sunk].

3. Procedural Posture: Unknown.

4. Judge's Rule: One is negligent when one does not act to prevent injury to another when the burden of prevention is less than the expected cost of the injury.

5. Classical Holding: A barge owner is negligent when he does not man the barge during daylight hours in a crowded port.

6. Reasoning: The court (Chief Justice Learned Hand) stated that it was not unreasonable to expect that the barge would break its moorings and cause damage to another ship, especially in the crowded New York harbor. The court used a mathematical justification to determine negligence. It stated that a person was negligent when B < P*L, where B= the burden of prevention (cost of the bargee's attendance), P= probability of injury (barge would unmoor and collide with another vessel), and L = the loss (cost of the damages arising from the collision.)

Notes: 1. This is the beginning of the cost/benefit analysis of tort law. 2. It is difficult to determine these mathematical numbers with any accuracy. Their only use should be to point out which factors should be given most consideration. 3. Marginal Precautions - taking a precaution is only desirable to the extent that it directly reduces expected cost of injury. Thus, a $100 precaution to save a $150 loss is only desirable if each dollar of the $100 went toward reducing the loss by at least a dollar. If the first $60 spent bought $120 of protection, and the next $40 spent only bought $30 of protection, you shouldn't spend the extra $40 because you get -$10 returns. 4. The Hand formula assumes a risk- neutral person. A risk preference or risk aversion would cause the outcome to be different. 5. Both a system of strict liability with contributory negligence, and a system of negligence without contributory negligence will result in a risk-neutral person acting optimally. In the former P. (victim) is barred from recovery by his own conduct, and in the second he is barred from recovery by the D.'s conduct. Therefore, in both cases he will be careful to avoid injury. 6. Grady has argued that a negligence system promotes over-cautiousness because a potential D. knows that a small error in judgment can lead to an immense increase in cost ($0 to big$), whereas in strict liability, a small error in judgment leads only to a small increase in cost (big$ to bigger$). On the other hand, Calfee and Craswell argue that the D. will be under- cautious because he considers the real probability that the court might not judge him negligent. 7. Calabresi and Hirschoff argue for strict liability by saying that it reduces the difficulty of the decision the court needs to make to one of who could have most easily have avoided the costs, rather than whether the cost of avoidance was worth it.

** Titus v. Bradford, B. & K. R. Co. (1890)

2. Facts: D. is a railroad company that operated a narrow-gauge line which often carried standard-gauge curved bottom cars. The cars were placed on the narrow gauge flat trucks and secured from wobbling by placing wooden blocks under the ends. P. was a brakeman who died when the standard gauge car he was riding on toppled over because its wooden block brace came loose.

3. Procedural Posture: The trial court jury found for P., and D. appealed to this court.

4. Judge's Rule: Employer are not negligent when they use machinery and appliances of ordinary character and reasonable safety which are ordinarily used by the business.

5. Classical Holding: Employers are not negligent to their employees when they use the ordinary and reasonable care normally provided by others in the same business.

6. Reasoning: The court stated that use of standard-gauge cars on the narrow-gauge track was normal and customary in the railroad business. Furthermore, the D. was aware of the dangers of the job, and so accepted the risks. They stated that an employer was not required to use a particular device that might have prevented a particular accident if it was not in common use.[B.S.]

** Mayhew v. Sullivan Mining Co. (1884)

2. Facts: P. was a contractor working in D.'s mine shaft. In the course of his work, P. routinely stood on a platform suspended in the mine shaft. D. cut a ladder hole in the center of the platform without notifying P., nor erecting a guard rail. P. fell through the ladder hole and received serious injury.

3. Procedural Posture: Trial court refused to allow testimony of the person who cut the hole as to the custom of putting unguarded ladder holes in mine shaft platforms. The jury found negligence, and D. appealed to this court.

4. Judge's Rule: Employers are negligent, even though they use the average custom of others in the business, if they fail to provide ordinary care.

5. Classical Holding: Same as judge's rule.

6. Reasoning: It would be no excuse for want of ordinary care to say that all employers in the same business use the same lack of ordinary care. The trial court was proper in disallowing the testimony of the D.'s witness as to mining customs, because in this case, the carelessness of cutting the ladder hole was apparent.

** The T.J. Hooper (1931)

2. Facts: The operator of the tugboat "T.J. Hooper" was sued under a towing contract when his vessels and cargo were lost in a gale. The T.J. Hooper was not outfitted with a working radio capable of receiving the gov't weather broadcasts which warned of the coming storm. Several other tugs did have working radios, and so were able to avoid the storm, but not all coastal tugs carried them.

3. Procedural Posture: Original court.

4. Judge's Rule: Tugs are unseaworthy if they do not carry effective radio sets as part of their equipment.

5. Classical Holding: Business owners are negligent if they do not provide the safety equipment that is customarily used by the majority of that industry.

6. Reasoning: The court reasoned that radios were in almost universal use at the time of the accident. Many tug owners considered them a necessary part of their equipment. Thus, when the owner of the T.J. Hooper failed to provide working radios on his tugs, he was negligent.

** The T.J. Hooper (1932)

2. Facts: Same as above.

3. Procedural Posture: On appeal from the above decision.

4. Judge's Rule: Common prudence is not the strict measure of negligence, but rather reasonable prudence.

5. Classical Holding: Business owners are negligent if they do not exercise reasonable care in the course of their business.

6. Reasoning: The fact that a whole industry may have ignored the use of reasonable care in their conduct does not excuse them from being negligent.

Notes: 1. Judge Hand's decision represents a revolution in going from the belief that market forces determine what is a cost-effective safety measure, to the notion of active regulation of safety measures. Custom may be used as evidence of reasonable care, but it is not the strict measure of reasonable care. 2. Balancing risk and safety is a cost/benefit analysis. 3. Safety codes and manuals can be used to show the custom in an industry, but do not show what ought to be done unless they meet the standard of reasonable prudence. 4. It is now generally held that an employer's own rules of conduct may be used as evidence of his negligence, even if they represent a higher standard of care than what is required by law. Thus, if an employer deems it prudent to follow a certain rule, and then does not follow it, he may be negligent, even if the rule is more strict than the law. 5. As customs change, it may be negligent not to retrofit previously built structures with safety measures that are prudently used today, but were unknown or unnecessary previously.

** Helling v. Carey, (1974)

2. Facts: P. visited the D. eye doctor from 1959 (when she was 23 yrs. old) to 1968 (when she was 32) largely for irritation of the eyes caused by contact lenses. By the end of 1968, D. suspected that P. had glaucoma, and tested her for it. She tested positive. However, the testing happened so late that she had permanent sight loss.

3. Procedural Posture: At trial court, medical experts testified that the glaucoma test was not routinely given to patients under 40 because of the rareness of occurrence. The court agreed that this custom absolved D. of liability. The Court of Appeals affirmed judgment for D.. P. petitioned the Supreme Court for review, which was granted.

4. Judge's Rule: Regardless of the prevailing custom in a profession, the courts must ultimately decide what is the standard of due care.

5. Classical Holding: An opthamologist who does not administer glaucoma tests to a patient under their regular care is liable for damages to the patient if the patient subsequently permanently loses eyesight due to glaucoma.

6. Reasoning: The court quoted Justice Hand in The T.J. Hooper, "Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." The glaucoma test was painless, inexpensive, easy to administer, and quick. The possible damages due to glaucoma were very severe. The court weighed the cost vs. the benefit, and found that the custom of not testing persons under 40 was negligent. A concurring justice (Utter) stated that the negligence argument was not even needed here, and argued for strict liability under these circumstances.

** Canterbury v. Spence, (1972)

2. Facts: P. suffered from back pain as a teenager. The D., his doctor, recommended that he undergo a laminectomy to fix his spine. The D. did not advise P. or his mother of the dangers involved because it was customary for him to withhold information of risks that he considered minor. When the D. performed the operation, he found the spinal cord to be swollen, and in very poor condition. While recovering in the hospital, the P. slipped and fell as he tried to get out of bed unattended, contrary to doctor's orders. Shortly after the fall, the P. experienced paralysis and has since walked on crutches and had bowel problems.

3. Procedural Posture: The P. brought suit as an adult, 4 years after the operation. Both the hospital and the doctor were named as D.s. The trial court granted a directed verdict for D., on the grounds that the P. had failed to provide medical evidence of causation, or negligence on the part of the doctor in performing the operation.

4. Judge's Rule: "[T]he standard measuring performance of that duty [to disclose] by physicians, as by others, is conduct which is reasonable under the circumstances."

5. Classical Holding: A doctor must disclose to a patient all risks that are reasonable to disclose under the circumstances, as measured by the patient's right to make an informed choice as to the operation.

6. Reasoning: The court disregarded the D.'s argument that he should not be liable because it was not his custom to disclose risks that he considered slight. It is the patient's right of self-decision which determines how much should be disclosed, and all risks that might bear upon a prudent patient's decision must be disclosed. However, the doctor does not need to second guess the patient. He does not need to disclose risks which the patient should already be aware of, nor those which would cause the patient to make an irrational decision not to undergo the surgery.

** Brune v. Belinkoff (1968)

2. Facts: P. slipped and fell as she attempted to get out of her hospital bed. Evidence showed that the fall was a result of being given a large dose of anesthetic by D., an anesthesiologist. The normal practice in New Bedford, where the D. practiced, was to give 8 mg. of anesthesia. However, the custom in other areas was to give only 4 mg.

3. Procedural Posture: The trial court allowed the jury to consider the average level of skill of the doctor in New Bedford, and so returned a verdict for D. P. appealed to this court.

4. Judge's Rule: A doctor's negligence to be judged by the degree of care exercised by the average practitioner without regard to his locality.

5. Classical Holding: Doctors are negligent if they do not exercise the degree of ordinary care exercised by other doctors in the same medical discipline, under similar circumstances, and with the same medical resources available.

6. Reasoning: The court reasoned that with the advancements in communication and transportation, it was not proper to judge a doctor's conduct solely in relation to other doctors in his locality. Therefore, they expressly overruled Small v. Howard, which was the old law meant to distinguish country doctors' skills from those of distinguished big-city surgeons.

Notes: 1. In Buck v. St. Clair, the local standard of care was held to be the same as the national standard of care for board certified physicians. 2. The national/local standard of care issue is also applicable to expert medical witnesses. An expert from a different locality will only be allowed to testify if the local statutes permit. 4. Interns may be held to a lower level of skill and care than an experienced physician.

Thayer, Public Wrong and Private Action (1914, 1924)

I. Before criminal ordinances for negligent actions A. Negligence was a question of fact left to jury using the test of the "ordinary prudent man". B. Reasonableness of D.'s conduct was a question of circumstances and not law. II. After criminal ordinances for negligent actions A. Negligence is a question of law not for the jury. B. To try as a question of fact would be to place the judgment of the ordinary person who knows the ordinance above the judgment of the legislature who thought the action dangerous enough to outlaw it.

** Osborne v. Mc Masters (1889)

2. Facts: D.'s clerk sold a bottle of poison to P.'s deceased without labeling it "Poison" as required by statute. The P.'s deceased apparently confused this bottle with a bottle of medicine, drank it, and died.

3. Procedural Posture: The trial court found for P. D. appealed to this court.

4. Judge's Rule: 1. People are liable for negligence if they neglect to perform a duty required by statute, and a person designed to be protected by that statute is injured as a result of their breach of that duty. 2. Breach of a duty imposed by statute is evidence of negligence as a matter of law, and may be negligence per se.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court stated that it was immaterial whether the duty imposed was by common law or statute. The statute establishes a fixed standard by which negligence can be determined. Thus, the only difference between the common law and the statute in determining negligence is that the statute does not require taking into account all of the circumstances to determine negligence.

Notes: 1. A statute that is, for some reason, defective as an enforceable statute, is nonetheless a standard that can be used for determining negligence. 2. Old statutes that are no longer enforced are NOT strict measures of negligence per se, because the fact that they are not enforced makes them suspect as a standard of ordinary care. If the standard was ordinary, it would be enforced. 3. A person may be liable for damages that arise in the future for a breach of a duty that has not yet been statutorily enacted. The fact that a statute is later enacted is strong evidence that a standard of care was required before its enactment. 4. Only the class of persons that was intended to be protected by a statute is entitled to recover in an action for its breach. However, this class can be interpreted broadly. In Teal v. Du Pont, the employee of a company that was using a ladder was held to have an action under the OSHA statutes against the manufacturer of the ladder, even though the OSHA statutes are sometimes limited only to the employees of the company that manufactures the product. This is because the OSHA statutes were interpreted to cover all employees. 5. The statute does not have to provide a specific duty against a specific injury. The character of the injury to be prevented is all that is needed to support negligence. A truck that is too heavy for a road breaks the ordinance that protects the road, but also makes the driver liable for other property damage that may result (busted underground pipes). 6. Private courses of actions under Federal statutes must pass the test of Cort v. Ash: a) is the P. a member of the class meant to be protected by the statute, b) is there any legislative intent to provide or deny a private remedy, c) is it consistent with the gist of the statute to provide a private remedy, and d) is the action traditionally one of state law jurisdiction and therefore inappropriate to provide a remedy based solely on the Federal statute. A state may, however, adopt a Federal statute as a standard of care in its determination of negligence.

** Martin v. Herzog (1920)

2. Facts: P.'s deceased was killed when the buggy he was driving collided with D.'s car. The buggy was not showing the lights required by statute.

3. Procedural Posture: The D. claimed the lack of lights was prima facie negligence. The trial court found for P., the Court of Appeals reversed. P. appealed to this court.

4. Judge's Rule: The omission of statutory signals is negligent.

5. Classical Holding: To willfully disregard the provisions of a statute, enacted to provide for the personal safety of the public, is negligence, unless the statute requires actions which would put the actor at a greater risk of harm.

6. Reasoning: The court reasoned that the statute for providing lights on highway vehicles was a standard of care that was fixed by statute, thus it was a question of law, not fact, that the violation was negligent. However, they conceded that not all negligent conduct is necessarily contributory to the proximate cause of the injury.

Notes: 1. In Day v. Pauly, the P. was found to be in violation of a statute and therefore negligent, even though he was following road markings placed there by the highway commission. The court said that the P.'s violation of the statute was not excused by the actions of public officials. However, in Tedla v. Ellman, the court held that violation of the statute that required people to ALWAYS walk on the side of the street facing oncoming traffic was not negligent during light traffic, because it put the pedestrian at a higher risk of injury. 3. A P. can be contributorily negligent when he is injured by a D. who violates a statute if the P. knows that the statute is generally ignored. Thus a statute does not remove all contributory negligence from a P.

** Brown v. Shyne (1926)

2. Facts: P. hired D. to treat her back as a chiropractor. The D. represented himself as a capable chiropractor, but had no license to practice medicine. D. was therefore in violation of a statute. P. suffered paralyzation as a result of the treatment, and sued for damages under negligence and malpractice.

3. Procedural Posture: The trial court judge allowed the jury to consider the fact that the D. did not have a license as evidence of negligence. The D. appealed to this court.

4. Judge's Rule: A P. may recover for injuries that were proximately caused by the violation of a statute by D..

5. Classical Holding: The violation of a statute is negligent as to all consequences of the violation that the statute was meant to prevent.

6. Reasoning: The majority reasoned that the D. was not liable to a private party solely because he did not have a license because the license had no direct bearing on the injury. A doctor does not gain skill by the awarding of a paper license. Thus, the doctor was committing an offense against the state, but the lack of a license per se was not the proximate cause of injury to P..

7. Dissent: The dissent (Crane) reasoned that the statute was meant to provide protection for the public in exactly this kind of case. The legislature felt that an absolute bar against unlicensed practice of medicine was necessary, even though some unlicensed doctors may not cause harm. Thus, the violation of this statute was the direct cause of the injury. To hold otherwise would put the judgment of the court ahead of the legislature.

** Ross v. Hartman (1943)

2. Facts: The P. was a person who was hit by a thief driving the stolen truck belonging to D.. D.'s employee had left the truck unlocked, violating a statute.

3. Procedural Posture: The trial court found for D., on the basis that the violation was not a proximate cause of the injury, because a third party had intervened. P. appealed to this court.

4. Judge's Rule: 1. Violation of safety ordinance is negligence. 2. An actor who brings about the harm which the statute was intended to prevent, by creating the hazard that the statute was intended to prevent, has legally caused the harm, even if a third party has also intervened.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the intention of the statute was to provide for the safety of the public against exactly this sort of event. The fact that the thief was also contributorily negligent was immaterial. The D. was negligent, per se, because he created the risk that the thief would injure a third party.

Notes: 1. In Richards v. Stanley, the court held that the owner of the unlocked car was not negligent because the risk that a thief would injure someone was less than the risk that a borrower (who had permission) would injure someone. In addition, the court reasoned that the D. had no duty to protect the P. from injury caused by third persons.

** Vesely v. Sager (1971).

2. Facts: The P. was injured when the car he was driving was hit by a drink driver who had been drinking heavily at D.'s lodge from 10 PM to 5 am. The D. knew that the patron was drunk, knew that he planned to drive, and also knew that a windy mountain road was the only exit from his lodge.

3. Procedural Posture: The D. demurred claiming that the consumption, not the furnishing, of the alcohol was the proximate cause of injury, and so he was not liable. The trial court sustained the demurrer. P. appealed to this court.

4. Judge's Rule: "[A]n actor may be liable if his negligence is a substantial factor in causing an injury, and he is not relieved of that liability because of the intervening act of a third person if such act was reasonably foreseeable at the time of his negligent conduct."

5. Classical Holding: A commercial server of alcoholic beverages may be liable to an injured party for negligence if he serves alcohol to an intoxicated person, knows or should know that intoxicated person intends to drive, and that intoxicated person injures another while driving.

6. Reasoning: The court reasoned that the statute barring persons from serving alcohol to an intoxicated person was meant to protect the public at large, and that the injury-producing conduct was one of the hazards that it meant to prevent, thus it satisfied the negligence test. They further found that the furnishing of alcohol was a substantial cause of the injury, apart from the voluntary consumption by the drinker.

Notes: 1. In Coulter v. Superior Court, the court held a non-commercial supplier of alcohol to be negligent as well. However, California has explicitly overruled Vesely and Coulter, by enacting a statute that protects the server from any liability, stating that the consumption and not the serving of alcohol is the proximate cause of the injury. 2. In other states, the state of the common law on this issue is very confused, with judgments and statutes going both ways.

I. Judge and Jury A. Policy 1. Jury might be biased and return a verdict contrary to established principles of law. 2. Unpredictability of jury undermines need for consistency in outcomes of like cases.

II. Holmes, The Common Law (1881). A. Judge determines negligence when it is a question of law. 1. Judge can determine what conduct is prima facie evidence of negligence if there is no question of fact of whether the conduct happened or not. 2. An experienced judge should be able to determine many questions of negligence without needing the assistance of a jury. B. Jury determines negligence when it is a question of fact. 1. Sometimes courts need the assistance of the experience of the community (a jury) to determine negligence as a question of law. 2. Once the jury decides a particular fact pattern is evidence of negligence, then it should become a settled matter of law thereafter, and so not be left to a jury.

** Baltimore and Ohio R.R. v. Goodman, (1927)

2. Facts: P. was killed by an oncoming train that he did not see as he drove his car across a railroad crossing. P. had slowed his car down as he approached the tracks, but the view of the train was blocked until it was too late.

3. Procedural Posture: At trial court, D. asked for a directed verdict, alleging contributory negligence, but did not get it. D. appealed to this court (Supreme Court).

4. Judge's Rule: (Holmes) Persons are negligent who rely solely upon not hearing a train or any signal and proceed to cross a railroad track without taking any further precautions.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The P. was familiar with the crossing, and therefore knew as he approached it that he would not be able to see the oncoming train. They reasoned that he should have gotten out of his car, and looked for a train. The court held that negligence in this case was based on a standard of conduct that should be well settled already. It was clear that the P. was negligent and so the court decided the question of negligence as law, and reversed the finding of the previous jury.

** Pokora v. Wabash Ry., (1934) 2. Facts: P. came to a train crossing in his truck, but he could not see any approaching trains because there were some boxcars blocking his vision. He did not get out and look for oncoming trains. As he proceeded across the tracks, he was killed by an oncoming train.

3. Procedural Posture: The trial court awarded a directed verdict for D.. P. appealed to this court (Supreme Court).

4. Judge's Rule: (Cardozo) A person is not negligent who does not get out of his car and look for oncoming trains at a railroad track.

5. Classical Holding: When courts determine a fact pattern to be negligence as a matter of law, they must be careful to base their rule on standards of common experience.

6. Reasoning: Cardozo reasoned that it would be uncommon and impractical to require motorists to stop their cars at railroad crossings. Furthermore, it would not be advantageous because trains move so quickly that one could be bearing down by the time that the P. got back in his car and proceeded to cross. Cardozo limited the holding in the Goodman case accordingly.

Notes: The "stop, look, and listen" rule is not applicable when there are other misleading circumstances. For example, obstructions to view, such as a shack, which would prevent a P. from seeing an oncoming train even if he looked. It is also inappropriate where the train tracks are normally manned by flagmen.

** Wilkerson v. McCarthy, (1949)

2. Facts: P. was a railroad employee. P. attempted to cross a catwalk that was chained off by the railroad because it was narrow and slippery, and bordered a deep pit. However, it was "customary" for the employees to ignore the chains and cross anyway. P. fell into the pit as he attempted to cross.

3. Procedural Posture: Both the trial and appeals courts of the state granted directed verdicts for the D. stating that based on the circumstances, there was no way that a reasonable jury could find negligence on the part of the D.. P. appealed to the U.S. Supreme court based on the wording of a federal statute that allowed a P. to recover a diminished amount even though he was contributorily negligent.

4. Judge's Rule: When there is evidence of a D.'s negligence that could result in a jury finding for P., the negligence issue should be submitted to a jury.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The majority reasoned that there were sufficient arguments on both sides of the negligence issue to preclude determination of negligence as a matter of law.

7. Dissent: The dissent did not find any evidence of negligence on the part of D.. They reasoned that it would be unfair to hold the R.R. liable because the employee willfully disregarded the safety chains.

Notes: 2. There are some arguments that a tort case should not be left to a jury. It is expensive and inconveniences the very people on which we are depending to make an unbiased decision. Additionally, most juries are not intelligent enough to take on technical issues such as those in medical malpractice and products liability. However, one early study shows that juries tend to agree fairly consistently with what a judge would have found. Studies show that corporate defendants and doctors suffer from "deep pocket" syndrome. Juries normally award P.'s much greater damages when the D. is thought to have "deep pockets." This fact tends to undercut the effectiveness of the Hand Formula in determining negligence because it throws an extra term in.

** Byrne v. Boadle, (1863).

2. Facts: P. was walking past D.'s warehouse when a barrel of flour fell from a hoist and struck him.

3. Procedural Posture: English case. Trial court found that there was no evidence of negligence to be submitted to a jury. P. moved to Court of Exchequer.

4. Judge's Rule: The mere fact that a barrel of flour falls from a D.'s warehouse and strikes a passerby is prima facie evidence of negligence on the part of D., and the burden is upon the D. to rebut that evidence.

5. Classical Holding: When a set of circumstances is sufficient to provide a prima facie case of D.'s negligence, the D. has the burden to rebut that evidence.

6. Reasoning: The court stated that is was not necessary for the P. to prove exactly how the barrel fell, or to prove that it was in the custody of the D.'s servants at the time. Some circumstances are sufficient that the doctrine of res ipsa loquitur applies, and the P. can prove negligence by circumstantial evidence.

Notes: 1. For the doctrine of res ipsa loquitur to be applicable: (1) The event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) It must be caused by an agency or instrumentality within the exclusive control of the defendant; and (3) It must not have been due to any voluntary action or contribution on the part of the plaintiff. [Prosser & Keeton]. 3. In Larson v. St. Francis Hotel, the court found that the doctrine of res ipsa loquitur did not apply because hotel guests in spontaneous celebration of V-day, who threw furniture out the window, were not under the positive control of the D.. Furthermore, this accident is not normally the kind that happens only with negligence on the part of the hotel. On the other hand, in Connolly v. Nicollet Hotel, the hotel was held to be negligent when it was "taken over" by a convention, and the accident was the culmination of several days of riotous drunken behavior. 4. Acts of God, like ships sinking at sea, are not normally applicable to res ipsa loquitur because there are many other potential causes besides the negligence of the D..

** Ybarra v. Spangard, (1944).

2. Facts: P. went into the hospital for appendix surgery, and was treated by many doctors and nurses while in the hospital and under anesthesia. When he awoke from his operation, he had severe pain in his neck and shoulder, which continued for a long time. He had no congenital defects that would cause this pain, and there was expert medical testimony to show that it was caused by trauma.

3. Procedural Posture: The trial court granted a motion for dismissal based on the grounds that the doctrine of res ipsa loquitur could not apply to multiple D.'s, because the P. must show that the injury was caused by an instrumentality under the D.'s exclusive control, and in this case, the P. could not point at a particular D..

4. Judge's Rule: "[W]here a plaintiff receives unusual injuries while unconcious and in the course of medical treatment, all those defendants who had any control over his body or the instrumentalities which might have caused the injuries may properly be called upon to meet the inference of negligence by giving an explaination of their conduct."

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the doctrine of res ipsa loquitur should be liberalized to apply to the case of multiple defendants, because the intent of the doctrine is to put a presumption of negligence on the D.. The peculiarity of the facts of a person undergoing surgery in a hospital should not preclude a P. from calling more than 1 D. to answer. There is a suspected "conspiracy of silence" among physicians that must be overcome by allowing the P. to use the force of res ipsa loquitur to break up the conspiracy.

** Butterfield v. Forrester, (1809).

2. Facts: The P. was riding his horse home from a public house when his horse tripped across a pole extending across the street, and was thrown from his horse. D. had put the pole across the street to block the way while he made repairs to his house. It was late but there was still sufficient light to see the pole if he had not been riding his horse so hard.

3. Procedural Posture: Trial judge directed the jury that if the pole could have been seen by someone riding with ordinary prudence, and that the P. was not riding with ordinary prudence, to find for the D.. P. appealed.

4. Judge's Rule: "One person being in fault will not dispense with another's using ordinary care for himself."

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the P. could not recover since it was his own negligence that was a contributing cause to the accident.

** Beems v. Chicago, Rock Island & Peoria R.R. Co., (1882).

2. Facts: P.'s inestate (a brakeman) was killed as he attempted to uncouple two train cars. He had made a first attempt, and when unsuccessful, he ordered the engineer to check his speed, and then immediately made another attempt. The engineer did not slow down, and P.'s inestate caught his foot in a rail and was run over by the train.

3. Procedural Posture: The trail judge refused to enter the D.'s motion for judgment non-obstante (not withstanding the verdict), arguing that the P. was contributorily negligent. D. appealed.

4. Judge's Rule: "Whatever the inestate's condition at the time of the accident, whether free to move, or fastened to the place, the defendant is liable if its cars were negligently driven over him."

5. Classical Holding: When a P. is injured without any negligence on the part of the D., then he cannot recover.

6. Reasoning: The court reasoned that the brakeman had a right to expect that his order to slow the train would be complied with, and that he was not required to wait before trying to uncouple the cars. If the cars had been slowed, he would not have been exposed to danger.

Notes: Shwartz wrote that the standard of negligence between D. and P. is a double standard. An objective, stern standard for the conduct of the D., and a subjective, mild standard for the conduct of the P.. This was necessary to avoid a P. being prevented from recovery by a slight misjudgment. A negligence system should not require any showing of contributory negligence on the part of P., because under the Hand formula, the D. can always escape any liability by showing that he took all reasonable precautions. Under strict liability, contributory negligence is critical, however it is not elegant. Consider 2 drivers who collide head-on through no negligence. They would then have to pay each other's damages instead of their own because each would be strictly liable to the other.

** Gyerman v. United States Lines Co., (1972).

2. Facts: The P. is a longshoreman who was unloading stacks of fishmeal. Fishmeal must be stacked carefully or it will tear and fall, and these stacks were not properly stacked by D. shipping company. P. brought the danger to the attention of D.'s supervisor, but he stated that nothing could be done. P. did not inform his own supervisor as provided for in grievance procedures. P. was injured on the 4th day of unloading the improperly stacked fishmeal.

3. Procedural Posture: The trial court found that the P. was contributorily negligent in not informing his own supervisor or stopping work in the face of the known danger, and thus barred from recovery.

4. Judge's Rule: "The plaintiff's negligence is a legally contributing cause of his harm if, but only if, it is a substantial factor in bringing about his harm."

5. Classical Holding: If an employee does not report an unsafe condition to his supervisor, and is subsequently injured while working under the unsafe conditions, his contributory negligence bars his recovery only if it can be shown that the unsafe condition would have been corrected if he had reported it.

6. Reasoning: The court stated that although the P. was negligent in not reporting the unsafe condition to his supervisor, there was no proof offered by D. to show that the situation was correctable, or would have been corrected if it had received immediate attention. Just because the supervisor knew does not necessarily mean that he could have, or would have done anything about it, and the P. would still have been injured.

Notes: 1. When an employer's negligence is violation of a safety statute (OSHA) to provide a safe workplace for employees, there should be no contributory negligence or assumption of risk defense. This would make the statute unenforceable because the D. could provide substandard equipment to the employee, and then claim that the employee was negligent for using it. In such a case the employer could save money, knowing that there would always be someone willing to work under unsafe conditions. 2. Contributory negligence also does not bar recovery when the P. is confined to a custodial institution. Why? 3. A patient can be contributorily negligent in a malpractice case if he does not provide an accurate medical history and the patient knows that the doctor is relying on the mistaken information in putting the patient at a risk. 4. P.'s necessity can be a defense to contributory negligence. 5. The contributory negligence must be a substantial factor in bringing about the injury, but the actual injury must be one that is foreseeable by the P.. Thus, a person who is negligently working on a platform without a railing is not contributorily negligent if his injuries arise from a bunch of bricks falling on him and knocking him off the platform (Smithwick v. Hall & Upson Co.).

** LeRoy Fibre Co. v. Chicago, Milwaukee & St. Paul Ry., (1914).

2. Facts: P. owns land that is adjacent to D.'s railroad track. P. stacked his flax close enough to the railroad that the sparks from a passing train caused the flax to catch fire.

3. Procedural Posture: Trial court found that the D. was negligent in operating the train in such a way as to produce so many sparks. The jury also found that the P. was contributorily negligent in placing his flax within 100 ft of the railroad tracks.

4. Judge's Rule: (McKenna) A property owner is not negligent when he is damaged by the negligence of another while making a proper use of his own land.

5. Classical Holding: A farmer is not contributorily negligent when he stacks his crop at a reasonable distance from a railroad track such that a well-managed train would not light the crop on fire.

6. Reasoning: Mc Kenna reasoned that the property rights were absolute, and that a property owner should not have to protect his property from the unlawful acts of the railroad. Therefore, the issue of contributory negligence was not valid. Holmes partially concurred, but stated that the property right was not absolute, and that the question of reasonableness of how close the flax could be stacked to the railroad tracks was a question of fact for the jury.

Notes: Holmes' view has been interpreted in an economical sense. When use of adjoining properties is involved, the rights of each party must be weighed. The use of one's property by either party imposes an inconvenience on the other, and the relative economic benefit must be considered.

** Derheim v. N. Fiorito Co., (1972)

2. Facts: D. made an illegal left turn in front of P. and P. was injured in the resulting accident. However, P. was not wearing his seatbelt, and D. claimed that the failure of P. to wear his seatbelt was a contributing factor to P.'s injuries by the doctrine of avoidable consequences. There was not a statute requiring the P. to wear his seatbelt.

3. Procedural Posture: The trial court refused to allow evidence or testimony that would indicate that P.'s injuries would have been reduced by wearing his seatbelt.

4. Judge's Rule: A person who fails to wear a seatbelt in a state that does not statutorily require the use of seatbelts is not negligent under the doctrine of avoidable consequences, and therefore his damages are not mitigated by his failure to wear a seatbelt.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court found several impracticalities to letting the "seat belt defense" mitigate damages. The failure to properly use any safety measure, for instance adjusting a headrest, could be used to mitigate damages if the defense were allowed. Furthermore, a battle of experts would result, with both sides arguing about which specific injuries were caused by the impact, and which could have been avoided. Also, in the absence of a statute, the law would afford unequal protection to the owners of cars that had seatbelts.

Notes: 1. In Spier v. Barker, the NY Court of Appeals allowed the "seat belt defense" in determining the extent of P.'s injuries, placing the burden of proof on D. to show that P.'s failure to use a seatbelt was a cause of increased injury. The court used Prosser's doctrine of avoidable consequences, precluding recovery of any damages that could have been avoided by reasonable conduct on the part of P.. 2. Some states have a statute that provides a fine for failure to wear a seatbelt, but specifically provides that failure to wear a seatbelt shall not limit the diminish damages in a tort action. 3. A similar situation arises with motorcyclists not wearing helmets.

** Kumkumian v. City of New York, (1953)

2. Facts: D. subway train stopped suddenly in the tunnel. The operators knew that it must either be caused by a faulty valve, a passenger pulling the emergency stop, or by a tripping device under the train that would be tripped by a person or body coming into contact with it as the train went by. The operator reset the brakes and the train proceeded one car length before stopping again. This happened twice before the operator stepped out of the car and looked for an obstruction. They then found the body of P. under the 4th car.

3. Procedural Posture: The trial jury found for P. on the theory of last clear chance, and the Court of Appeals set aside the verdict and reversed under the theory of ordinary contributory negligence.

4. Judge's Rule: When a train operator ignores the brakes of the train tripping unexpectedly and takes no action to investigate the cause, the operator's actions may be "negligence so reckless as to betoken indifference to knowledge", and the issue of last clear chance may be submitted to a jury.

5. Classical Holding: A person who ignores knowledge that a negligent victim is in peril, and fails to act to avoid injury to the victim, is liable under the doctrine of last clear chance.

6. Reasoning: The court stated that the tripping devices were not placed there to be ignored. The fact that the operator successfully reset the brakes should have told him that there was no mechanical failure, and so there must have been an emergency. The operator did not even open his own door to look at the length of his own car.

Notes: 1. Last clear chance avoids unpleasant results when contributory negligence is a complete bar to recovery. Normally, the D.'s negligence happens after the P.'s in order to invoke last clear chance. However, the doctrine was stretched in British Columbia Electric Ry., Ltd. v. Loach, the court held that the D. violated its last clear chance by failing to keep its brakes in good enough working order to have stopped before killing P.. 2. The doctrine of last clear chance also serves to place the burden of loss where it best reduces the likelihood of an accident. Under a strict contributory negligence bar, the D. has no reason to avoid the accident, even if he can. Therefore, last clear chance only provides an exception from contributory negligence when it makes sense economically.

** Lamson v. American Axe & Tool Co., (1900)

2. Facts: P. was employed by D. as a hatchet painter. As part of P.'s job, he placed the painted hatchets on a rack above him to dry. The P. felt that the rack was unsafe, and brought this to the attention of his supervisor, who said that P. would have to use the racks or leave. P. remained and continued to use the racks, and eventually a hatchet fell on him.

3. Procedural Posture: The trial court directed a verdict for D., and P. appealed to this court.

4. Judge's Rule: A person may not recover for tort damages where that person has continued to do an activity which he knows to be likely to cause injury.

5. Classical Holding: An employee who continues to work under unsafe conditions, even when he is aware that they are likely to cause him injury, may not recover damages.

6. Reasoning: Holmes reasoned that the P. knew the risks better than anyone else, yet he stayed. He was notified by his supervisor that he could leave if he did not want to take the chance. By staying, he consciously weighed the value of the job more than the probability of injury, and so he took the risk.

Notes: 1. The obsolete "common employment" rule used to govern cases whereby the P. could not recover against his employer if the accident was caused by a fellow employee, under the theory that the P. was being paid to take the risks. 2. Assumption of risk has been viewed under contract theory as a bargain whereby the P. makes a deal for high wages for high risk. Assumption of risk may be a defense even when the P.'s conduct is reasonable, as long as it is risky. 3. Workers may be paid a "premium" for higher risk jobs. This premium has been empirically shown to be about right for the market. 4. Worker's compensation has done away with the need for most litigation involving the assumption of risk defense.

** Murphy v. Steeplechase Amusement Co., (1929)

2. Facts: P. was a patron at an amusement park. D. ran the amusement park. One of the "rides" was called "The Flopper" and was an inclined, moving belt. The point of the ride was to stand up on the belt as it moved and try to look cool. However, when P. stepped on the ride, he fell and fractured his knee.

3. Procedural Posture: Unknown.

4. Judge's Rule: Violenti non fit injuria. One who takes part in a sport accepts the dangers that inhere in it so far as they are obvious and necessary.

5. Classical Holding: A person who volunteers to go on an amusement park ride, is aware of the nature of the risks involved, and is then injured by a foreseeable risk of the ride, may not recover damages.

6. Reasoning: Cordozo reasoned that the P. understood exactly the nature of the risk involved, and that was why he went on the ride - because the risk was the excitement. The P. had watched previous riders, and took the chance that he would be injured in a fall.

Notes: 1. Assumption of risk is not a complete defense if the P. has no notice of the dangers involved. Thus, like in informed consent, the D. must warn the P. of any risks that might not be obvious. In addition, in Russo v. Range, the court held that the amusement park could be liable for damages to the P. from dangers that the P. did not assume. 2. Spectators of sporting events are said to assume the risk when it is generally well known. For instance, being hit by a foul ball is well known, however, being hit by a golf ball while standing in line at a concession stand far from the tee may not be. 3. Professional athletes are said to assume risks which are generally known by other professional athletes of the same level of experience. However, a P. may still recover for injuries sustained while playing an extremely hazardous sport if the cause of the injury was not a risk inherent in the sport.

** Meistrich v. Casino Arena Attractions, (1959)

2. Facts: P. was ice skating in D.'s arena, which was too hard and slippery for ordinary skaters. The P. knew this, however, he continued to skate and was injured.

3. Procedural Posture: Trial court found that D. was negligent in preparation of the ice rink for its patrons (breach of duty). This court is reviewing the charge to the jury on the impact of P.'s conduct on his recovery.

4. Judge's Rule: The term assumption of risk has 2 meanings. In its primary sense, it is a denial of breach of duty by the D., and so the burden of proof is on the P.. In its secondary sense, it is a defense by a negligent D. against P.'s recovery based on contributory negligence, and the burden of proof is on the D..

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The court reasoned that there was confusion in that assumption of risk had two separate and distinct meanings. In its primary sense, the D. is claiming that he had no duty of care to the P., and therefore D. was not negligent. In the secondary sense, it was a defense by the D. that although he was negligent, P. should be barred fro recovery because he knew the risks and proceeded anyway. The secondary sense would be no different than plain contributory negligence. If the jury found that an ordinarily prudent person would have undertaken the same risks, then there is no contributory negligence. It would be the same as the man darting in front of a train to save a child. There was a great risk, but no contributory negligence.

Notes: 1. In Marshall v. Ranne, P. was attacked by D.'s wild boar on the way to his car. Trial court found P. could not recover because he was contributorily negligent in not shooting the boar when he had the chance. The supreme court reversed stating that P. was not contributorily negligent because the D. had put him in a position where he had no voluntary choice. The only way he could avoid the boar was to stay in his house. The suggestion has been made that a P. should only recover the cost of efficient prevention (i.e. the cost of building a fence), plus the cost of any injuries that would have occurred if the precautions had actually been taken, regardless of whether the P. took the precaution or not. This would cause optimum behavior in a P. because he would only be allowed to recover for injuries that would have resulted when he was not contributorily negligent. 2. The "fireman's rule" applies to all professionals that take on hazardous jobs that maintain public order. They are barred from recovery due to a D.'s negligence (or even criminal act) because they wouldn't have a job unless there was a negligent D..

** Obstetrics & Gynecologists v. Pepper, (1985)

2. Facts: P. went to D. medical clinic to get oral contraceptives. As standard procedure, the D. requires patients to sign a form waiving their right to trial and requiring binding arbitration as the patient's sole remedy in case of a complaint. P. does not remember signing the form, or it being explained to her. P. received a prescription for pills which later caused her to have a cerebral incident which left her partially paralyzed. The prescription was contraindicated by her medical history.

3. Procedural Posture: The trial court found that the waiver was not a binding contract, and denied D.'s motion to stay the trial and order arbitration. No findings of fact or conclusions of law were ever filed.

4. Judge's Rule: A contract of adhesion which limits the duties or liabilities of the stronger party is not binding unless there is plain and clear notification of the terms and an understanding consent by the weaker party.

5. Classical Holding: A medical waiver form which requires a patient to waive rights to a trial and submit to arbitration is not a binding contract unless it can be shown that the patient fully understood and consented to the terms.

6. Reasoning: The D. did not show that the waiver form was ever explained to P., and so they failed their burden of proof. The patient had no opportunity to negotiate or change any of the terms and there was no evidence that she knowingly consented to the terms. [Thus P. did not assume the risk that she might not be able to have a fair trial.]

** Li v. Yellow Cab Co. of Cal., (1975)

2. Facts: P. turned across three oncoming traffic lanes to get to a service station, and D.'s car and P.'s car collided after D. sped through a yellow light.

3. Procedural Posture: Trial court held that the P. was barred from recovery because of her own contributory negligence.

4. Judge's Rule: A P. may recover damages from an injury caused by the negligence of the D., even if the negligence of the P. was a contributing cause to the injury, but the amount of recovery shall be reduced proportionally by the amount of P.'s negligence as compared to the D.'s negligence.

5. Classical Holding: Where the P. may recover against a single D., and where the D's conduct was not wantonly or willfully negligent, a P. may recover damages from an injury caused by the negligence of the D., even if the negligence of the P. was a contributing cause to the injury, but the amount of recovery shall be reduced proportionally by the amount of P.'s negligence as compared to the D.'s negligence.

6. Reasoning: The court reasoned that the contributory negligence bar to recovery was patently unfair. They reasoned that the difficulties arising from a suit against multiple D's were not sufficient to defeat the need for comparative negligence. They further reasoned that the last clear chance rule and the contributory negligence portion of assumption of risk should be absorbed by comparative negligence. They chose the "pure" comparative negligence rule over the "up to the point" rule because it was more sound. The "up to the point" rule would still be a bar, and would still result in an unjust outcome when the comparative negligence of P. and D. were very close.

Notes: 1. Comparative negligence was applied to some extent even under the strict contributory negligence rule because it allowed a P. to recover when his negligence was very slight and the D.'s was gross. 2. Many courts have waited for their legislatures to institute statutory comparative negligence rather than judicially creating it. 4. In a "up to the point" comparative negligence system, the P. is motivated to sue as many D.'s as possible because the sum of D.'s negligence is greater the more D.'s there are. 5. (a) Comparative negligence principles did not apply to strict liability actions brought against a common carrier. (b) Some courts do not apply comparative negligence where the D.'s negligence is wanton, reasoning that wanton negligence is of a different kind, and not just a greater degree, than ordinary negligence. (c) Comparative negligence does not apply to intentional torts. (d) Comparative negligence does apply to avoidable consequences and mitigation of damages. (f) Comparative negligence applies to the contributory negligence version of assumption of risk, but not the waiver of D.'s duty version of assumption of risk. (g) Under comparative negligence, the insurance companies still have to pay the full amount to the other side. The awards are not offset. (h) Comparative negligence has a strange effect on economic motivation, because it then becomes dependent on how much precaution the D. has taken. Under the Hand formula reasoning, the P. might not be economically motivated to take a precaution until the D. has taken their sufficient precaution. Once the D. has taken appropriate precautions, the comparative negligence has shifted, and the P. must take precautions or risk a higher loss. Errors on one side would then promote strategic responses by the other side.

** New York Central R.R. v. Grimstead, (1920)

2. Facts: P.'s decedent was drowned when he fell into the water off of his barge. The accident was caused by a collision with another vessel. P.'s decedent could not swim, and his wife was unable to save him. There were no life-rings on board. P. sued D. owner of the barge for not providing adequate life saving equipment (life-rings).

3. Procedural Posture: The trial court found for P., and D. claimed error.

4. Judge's Rule: The absence of a life ring on a ship is not a proximate cause of the drowning of a person who cannot swim and falls overboard from a ship. [B.S.]

5. Classical Holding: An act or omission must be a proximate cause of an injury to be considered negligent.

6. Reasoning: The court reasoned that there was "nothing whatever to show that the decedent was not drowned because he did not know how to swim, nor anything to show that, if there had been a life buoy on board, the decedent's wife would have got it in time, that is, sooner than she got the small line, or, if she had, that she should nave thrown it so that her husband could have seized it, or, if she did, that he would have seized it, or that, if he did, it would have prevented him from drowning." [This goes against Carroll Towing because a radio might not have prevented the tug from sinking, it could have broken down and been too slow to get to port.]

Notes: 1. Grimstead discourages employers from providing life-saving equipment, because the of the reasoning that it might not help anyway. The modern cases give more latitude to the jury to decide whether or not the victim could have been saved, and to assign comparative negligence. 2. When, because of the D.'s negligence, there is not sufficient evidence to show causation, the burden of proof shifts to the D. to absolve themselves if they can. [Prima facie case or res ipsa loquitur.]

** Stimpson v. Wellington Service Corp., (1969)

2. Facts: The D. drove their 137 ton rig over the public street in violation of statutory weight limits. The P.'s water pipe that extended under the street broke, and flooded his basement. The P. claimed that the weight of the rig put stress on the pipes and caused the flooding.

3. Procedural Posture: The trial court found for P., and one of the questions to the court of appeals was whether the P. could connect the flooding in his basement to the D.'s violation of the statute.

4. Judge's Rule: Absolute proof of actual causation is not required when it is reasonable to infer from the facts presented that the act was the proximate cause of the damage.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that it was within a layman's grasp to understand that a heavy truck could put enough stress on a pipe under the street to cause it to rupture, even in the absence of expert testimony. It was not speculation for the jury to find that the two incidents were related.

Notes: 1. In Reynolds v. Texas & Pacific Ry. Co., the court held that "where the negligence of the defendant greatly multiplies the chances of accident to the P., and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury."

** Richardson v. Richardson-Merrell, (1986)

2. Facts: P. had a child that suffered from physical deformities of the arms and legs. P. was prescribed Bendectin during the early part of her pregnancy to prevent vomiting and morning sickness. The trial was a virtual "battle of the experts", but it was generally well settled in the scientific community that Bendectin was not a cause of birth defects.

3. Procedural Posture: The P. claimed that the drug caused the birth defects, and the trial court's jury found for P.. D. appealed.

4. Judge's Rule: When an issue is so highly esoteric and technical that it involves the cutting edge of medical technology, and has been settled by nearly universal consensus among the medical experts, it is no longer a question of fact to be decided by a jury.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the P.'s expert witness was on of the few medical experts who still felt that Bendectin caused birth defects. They refused to give credence to the argument that causation was shown simply by showing that the damage happened after the action. For a jury to reject the general consensus of the medical community and the FDA, which was more knowledgeable and had heard the same facts, was unreasonable and was speculation.

** Herskovits v. Group Health Cooperative, (1983)

2. Facts: The P. died of cancer after the D. negligently diagnosed his cancer after it had already proceeded to a point where it increased his chance of death by 14%. However, the patient had less than a 50% chance of survival to begin with.

3. Procedural Posture: The trial court granted D.'s motion that the case be dismissed because the P.'s deceased had less than 50% chance of survival, and therefore it could not ever be shown that the D.'s negligence more likely than not (51%) caused the death.

4. Judge's Rule: A D. can be liable for damages if the P. can show that the D.'s negligence caused a statistical reduction in the chances of the P.'s survival.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The majority reasoned that the D. deprived the P. of a significant chance to recover. To decide otherwise would give the doctors a blanket release from liability whenever the patient's chances were less than 50%, regardless of how flagrant the negligence. The majority said the damages should be limited to the amount of money lost due to early death. The dissent stated that it would open the door for juries to be emotional, and would be contrary to traditional proximate cause considerations. [Why is this not done exactly like comparative negligence?]

Notes: 2. A P. can recover for "probable future consequences", meaning the increased chance that they will be exposed to harm in the future. 3. Even the creation of risk can be compensable, even without actual injury.

** City of Piqua v. Morris, (1918)

2. Facts: D. city maintained water reserves with overflow wickets that became clogged due to D.'s negligence. During a storm of unforeseen proportions, the water overflowed into the P.'s farm, damaging it. The flood would have happened even if the wickets were not clogged.

3. Procedural Posture: Trial court found for D., court of appeals reversed.

4. Judge's Rule: When a flood itself is the sole cause of damage, and the damage would have happened even if the D. had taken sufficient action to be found not negligent, the D.'s negligence is not a proximate cause of the damage.

5. Classical Holding: A person is not liable for damages that are not proximately caused by his negligence.

6. Reasoning: Even if the D. would have unclogged the wickets, the flood would have caused the damage anyway.

** Kingston v. Chicago & N.W. Ry., (1927)

2. Facts: D. is a railroad who set a fire when sparks from its train ignited surrounding land. The fire set by D.'s negligence eventually merged with another fire of unknown origin, and then the resulting fire destroyed the P.'s house.

3. Procedural Posture: The lower court found for P.. D. appealed stating that if the other fire was of unknown origin, he could not be held as a joint tortfeasor, because he would not be liable if the other fire were of natural origin and would have caused the same damage anyway.

4. Judge's Rule: When two negligently started fires of human origin meet and become a single fire which causes damage, each of the negligent persons who started the individual fires is jointly and severally liable for the entire amount of damages.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that under the circumstances, there was no reason to believe that the second fire was of natural causes. The D. would have had the burden of showing that it was not caused by humans. The damage caused by each of the individual fires could not have been separated. Thus, even though the person who started the other fire was unknown, the two negligent parties were each liable under joint and several liability.

Notes: 1. If the other fire was of natural causes, the D. would not be liable because the damage would have happened anyway. If two fires are separate, the first to do the damage should be liable, even if the other was bearing down. [My opinion]. 2. Successive acts of negligence may be treated as a joint tort if the damages are not separable. This may result in one of the negligent parties paying more than his fair share for the damages accruing from a confused situation that he helped to create.

** Summers v. Tice, (1948)

2. Facts: P. was shot in the face while flushing quail for D.'s during a hunting trip. There were two shots that hit him, one in the eye, and one in the lip. Although the one shot that hit P. in the eye could not have come from both guns, there was no evidence which it did come from. P. was not negligent in any way.

3. Procedural Posture: The trial court held that the P. could bring action against both D.'s as joint tortfeasors. D. appealed claiming that the P. could not prove that his shot caused the injury.

4. Judge's Rule: When two persons both shoot in the direction of a person who is injured by one of the shots, both persons are jointly liable even though they did not act in concert to cause the injury.

5. Classical Holding: When several D.'s are similarly negligent, and a P.'s injury is actually caused by only a subset of the D.'s, and it is not possible for the P. to show which D.'s actions were the proximate cause of his injuries, the P. may bring an action against each D. under joint and several liability, even though the D.'s may not have been acting in concert, and the burden of proof shifts to the D. to show his innocence.

6. Reasoning: To hold otherwise would be to make the P. internalize the injury that he did not cause.

** Sindell v. Abbott Laboratories, (1980)

2. Facts: The P. was the daughter of a woman who was prescribed DES to prevent a miscarriage while the P. was in utero. DES was found to cause cancer, and the P. is trying to recover damages from her own cancer. The D. was one of 100 or so manufacturers who made DES as a generic from a common formula. The P. cannot prove that D. was the one who made the DES that her mother actually ingested, nor can the D. prove that they were not the actual manufacturer.

3. Procedural Posture: The D. demurred and trial court sustained the demurrer without leave to amend based on P.'s admission that they could not prove that the D. was the actual manufacturer.

4. Judges' Rule: Where several manufacturers of a product are named as D.'s to a product liability action, and the P. cannot prove proximate causation of any one manufacturer, and the manufacturers can not disprove causation, the P. may bring action against a number of D.'s jointly. If the combined market share of each of the D.'s is a substantial percentage of the overall market, the burden of proof shifts to the D.'s to disprove causation. Furthermore, the damages shall be apportioned among D.'s in proportion to their individual market shares.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The majority reasoned that as between an innocent P. and negligent D.'s, the latter should bear the cost of the injury. They relied upon the holding in Summers. Each D. could in turn bring action against the remaining DES manufacturers not joined in the action to recover their fair share. The court felt it was proper to introduce a new theory to address the changing times. Otherwise, the D.'s would have no deterrence, because they knew that they could be protected by their relative anonymity if there were enough other manufacturers.

7. Dissent: The dissent reasoned that this would shift the power to P. to go after the deep pockets, even though the probability that the D. was the actual manufacturer was mathematically very slim. There would be no "matching" between the P.'s injuries and the D.'s actions as was in traditional tort theory.

** Ryan v. New York Central R. Co., (1866)

2. Facts: The D., by careless management of their engine, set fire to their woodshed. The P.'s house, 130 ft away, caught fire because of sparks blown onto it.

3. Procedural Posture: The D. moved for a non-suit, and the trial court granted it. The court of appeals affirmed, and the P. appealed to the NY supreme court.

4. Judge's Rule: A person is liable for the proximate results of his own acts, but not for remote damages.

5. Classical Holding: When a person negligently starts a fire in his own house, he is not liable for damages to his neighbor's house if it is caught on fire by chance of the weather.

6. Reasoning: The court reasoned that to hold the D. liable would be to cause him to insure against all damages that might be caused remotely if a negligent fire caused by him spread, by chance, to damage several houses. Each person living in an industrial society assumes the risk that his neighbor might start a negligent fire that damages him by chance. [This is a very narrow construction of the words "proximate" and "remote".]

7. Notes: 2. In City of Lincoln, a ship went aground after losing its navigational equipment in a collision with another ship. The other ship was held to be negligent, and the also the proximate cause of the grounding because the reasonable human conduct of the captain of the City of Lincoln was to try to get his ship into port, even if he had no navigational equipment. 3. If a D., by negligence, puts a P. under a reasonable apprehension of personal physical injury, and P., in a reasonable effort to escape, sustains physical injury, the negligence of the D. is a proximate cause of the injury.

** Gorris v. Scott, (1874).

2. Facts: The D. lost several of the P.'s sheep at sea when they were washed overboard. The loss would not have happened if the animals were housed, as required by sanitation statutes, in certain pens, but the statute was designed to prevent disease, not loss by falling overboard. The D. sued for damages.

3. Procedural Posture: Unknown.

4. Judge's Rule: For an action to lie for negligence in violation of a statute, the statute must have been intended to protect the D. against the loss which resulted from its violation.

5. Classical Holding: Same as Judge's Rule.

6. Reasoning: The court reasoned that the statute did not intend to protect the D. from loss by being washed overboard, so an action did not lie. However, if the loss was due to disease, then the violation of the statute would have been the proximate cause of the loss, and the D. would have been entitled to recovery.

7. Notes: 1. In Haen v. Rockwood Sprinkler Co., the violation of a statute requiring the doors of a work elevator to be shut was held to be a proximate cause of injury when a radiator fell on an employee, even though the reason for the statute was to protect workers themselves from falling.

** Berry v. The Borough of Sugar Notch, (1899).

2. Facts: The P. was exceeding the speed limit in the D. town during a violent windstorm when an old and unstable chestnut tree fell on his car and injured him. The P. sued for injuries claiming negligence on the part of the town. The D. town claimed that the P. was contributorily negligent in speeding.

3. Procedural Posture: Trial court found for P., D. appealed.

4. Judge's Rule: A person's negligence is not a proximate cause of an injury unless it is a contributing factor to the injury.

5. Classical Holding: A person is not contributorily negligent to an injury that is the result of chance if he is speeding at the time of the injury.

6. Reasoning: The court reasoned that the P. could have been injured whether he was going slowly, or perhaps he would have avoided injury if he were going even faster. Therefore, his speed was only coincidentally related to the damage.

** Brower v. New York Central & H.R.R., (1918).

2. Facts: P.'s horse and cart was hit by the D.'s train because of D.'s negligence. After the collision, thieves stole the barrels of goods that were being carried on the cart. P. sued D. for recovery of the value of the stolen goods, but D. claims that the intervening activity of the thieves broke the chain of causation.

3. Procedural Posture: Trial judge found for P.. D. appealed.

4. Judge's Rule: "The act of a third person intervening and contributing a condition necessary to the injurious effect of the original negligence, will not excuse the first wrongdoer, if such act ought to have been foreseen."

5. Classical Holding: When a negligent person puts another into a position creating an opportunity for a third person to commit a foreseeable injury against the victim, either intentionally or by negligence, the original wrongdoer is liable for damages arising from the action of the third party, as a joint tortfeasor.

6. Reasoning: The majority reasoned that the cargo was "lost" at the time of the accident because it put the P. in a position such that he could not protect his cargo. The intervention of the thieves was deemed foreseeable by the D. because they employed their own detectives to prevent theft.

7. Dissent: The dissent reasoned that the chain of cause was broken by the active intervention of an independent criminal actor.

8. Notes: 2. The "last wrongdoer" theory blocks recovery when the deliberate wrong, or even the negligence, of a third party intervenes. However this doctrine does not work if the action of the third party is foreseeable, such as when a doctor returns a battered child to his abusive parents, even though he should have known they would beat the child again. 3. The Restatement section 448 states that the intentional tort is a superseding cause, breaking the causation, unless the original wrongdoer should have realized that the third person might avail himself of the opportunity to commit the crime. 4. If the D.'s act has come to rest, but leaves the P. in a dangerous position, then there is causation for the resultant actions of an intervening third party. If the D.'s action has come to rest in a position of apparent safety, the chain is broken.

** Wagner v. International Ry., (1921)

2. Facts: The P. and his cousin Herbert were riding in a train. The conductor did not shut the doors before the train got underway, and Herbert fell out and over a bridge as the train turned a corner. When the train stopped on the other side of the bridge, the P. got out and went back along the dark bridge to look for the body of Herbert. The P. claims that the D.'s conductor instructed him to do so and followed him with a light. The P. fell off the bridge in the darkness, and sued the D. for negligence, claiming that the failure to close the door was the cause of his injury because he was trying to rescue his cousin. The D. denies that the conductor instructed the P. to walk out on the bridge or followed P. with a light.

3. Procedural Posture: The trial judge charged the jury that the D. was not liable unless the D.'s conductor actually did instruct the P. to go out onto the bridge and did follow him with the light. The jury found for D.. P. appealed claiming that the jury instruction limitations were in error.

4. Judge's Rule: "The wrong that imperils life is a wrong to the imperiled victim; it is also a wrong to his rescuer."

5. Classical Holding: The wrongdoer who negligently submits a victim to injury is also liable to the rescuer who acts reasonably to rescue the victim for any damages to the rescuer.

6. Reasoning: Cardozo reasoned that the D. should expect and foresee that if they put a victim in harm's way, that someone will step forward and attempt a rescue. He rejected the defense that the rescue was not immediate and "instinctive", stating that the rescue does not need to be continuous with the injury.

** In re Polemis & Furness, Withy & Co., (1921)

2. Facts: The P. is the owner of a cargo ship which was chartered to D.. While agents of the D. were unloading the ship, a heavy plank was dropped by the offloaders and freakishly caused a spark which ignited the gasoline onboard and destroyed the ship.

3. Procedural Posture: The arbitrators found that the offloaders were negligent in dropping the plank because it could be reasonably anticipated to cause damage to the ship.

4. Judge's Rule: Foreseeability is the test of negligence, but once negligence is determined, it is not the absolute measure of causation.

5. Classical Holding: Once and act is determined to be negligent, the negligent party is liable for all damages that were a direct result of the negligent action, regardless of whether they could be foreseen.

6. Reasoning: The court reasoned that the act was negligent because it could have been anticipated to do damage to the ship. They rejected the argument that a negligent person was entitled to rely on the fact that he could not have anticipated the type of damage that would have occurred. The fact that the spark was not the anticipated "type" of damage did not make the cause of the damage remote, it was still a direct result of the negligence.

** Palsgraf v. Long Island R.R., (1928)

2. Facts: A man was late for a train. He ran after the train and attempted to baord it as it was moving. In his hand he held an unmarked package. The D.'s employees, tried to help him onto the train, and in doing so, the package was dropped under the train. It contained fireworks which exploded and caused a scale at the other end of the platform to fall on the P..

3. Procedural Posture: The trial court found that the D.'s employees were negligent and that negligence was the proximate cause of the P.'s injuries. The Court of Appeals affirmed 3 to 2. The D. appealed, claiming that their negligence was not the proximate cause of the P.'s injuries because they could not reasonably foresee that the contents of the package were explosive.

4. Judge's Rule: Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.

5. Classical Holding: A person is not liable for damages arising from his negligence if his negligence was not the proximate cause of the damage.

6. Reasoning: The majority (Cardozo) reasoned that the negligent act of the train employees did not violate a duty owed to the P. who was standing far away. Although the act may have been negligent toward the owner for damage to the package, it was not negligent towards the P. because they could not have foreseen that the package would have contained explosives. He reasoned that knocking a package out of a person's hand is not negligence toward someone who was so far away that it was not foreseeable that they would be injured by the package.

7. Dissent: The dissent reasoned that the fact that the explosion was unforeseeable did not relieve the D. of liability, since he was determined to be negligent. He compared the case to Polemis, and stated that the liability of the D. was not confined to those who might possibly be hurt.

** Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co. Ltd. (The Wagon Mound (No. 1)), (1961).

2. Facts: The D.s carelessly discharged oil from their ship while berthed in Sydney harbor. The oil drifted over and pooled around P.'s shipbuilding dock, where welding operations were ongoing. The P.'s dock supervisor suspended welding operations until he determined that the oil was not flammable while it was floating on the water [huh?], and when the welding was recommenced, the sparks set fire to some debris floating in the oil slick, and a conflagration ensued which destroyed the dock.

3. Procedural Posture: The trial judge found that the D. could not have been expected to know that the oil was capable of being set afire when spread on water, but that the fire was a "direct result" of the D.'s negligently spilling the oil, and therefore under the Polemis rule, was liable for all direct damages whether or not they could be foreseen. D. appealed to this court.

4. Judge's Rule: A person is only liable for the probable consequences of his negligent acts. The probable consequences are judged by the standard of foreseeability by the reasonable man.

5. Classical Holding: The test of liability for negligence is foreseeability of the injury caused by that negligence.

6. Reasoning: The court directly overruled Polemis, stating that is was bad law which resulted in unfair results. They reasoned that it was better policy to hold a person accountable for the probable consequences of his action so as to avoid an unjust result when slight negligence, which normally resulted in only minor damages, freakishly resulted in major damage. It also avoids the controversies of establishing chain of causation.

7. Notes: 1. The Wagon Mound rule of foreseeability of damages presents problems when the damages are neither routine nor freakish, but in the middle. Then the test becomes significance; if the unusualness of the details is significant in the outcome of the damage, then the damage was unforeseeable; if not significant, then the damage was foreseeable. 2. The foreseeability rule also brings up subtleties of damage. In Doughty v. Turner Mfg. Co., Ltd., the court held that when an asbestos lid was dropped into a vat of boiling chemicals, damage by splashing was foreseeable, but not damage by violent explosion. Contrast Hughes v. Lord Advocate, where the explosion of a paraffin lamp was held to be foreseeable, because it was not a "different type" of damage than that by burning. 3. The thin skull rule, or "you take your victim as you find him" was apparently left unshaken by Wagon Mound. 4. Polemis and Wagon Mound can be reconciled (directness with foreseeability) if one examines the causal intervention of the P. in Wagon Mound. In Polemis, there was no intervention between the dropping of the board and the explosion. In Wagon Mound, the P. had to light the fire. There could have been a defense of assumption of risk or contributory negligence when the P. recommenced welding operations. Furthermore, the Hand Formula could come into play if either party knew that there was a very slight possibility of fire, but failed to prevent it because it was too costly. 5. In the U.S., in Kinsman Transit Co., the court held that "unforeseeability is irrelevant if damage is direct" when a ship broke loose from its moorings, and drifted downstream to eventually block the river and cause substantial flooding damage. They reasoned that just because the risk of large damage is slight, that it should not be excused if it was direct.

** Dillon v. Legg, (1968)

2. Facts: P. was the mother of a child who was killed when the D. negligently hit her with his car. The mother was standing far enough away that she was in no personal danger of being hit by the car. P. sued for damages from emotional distress from watching her child be killed by D.'s negligence.

3. Procedural Posture: The trial court found that the mother was not in the "zone of danger", and so was not entitled to recover because she did not fear for her own safety. The mother appealed.

4. Judge's Rule: In determining whether the D. owes a duty of care to the P., the court should consider the following: 1) the proximity of the P. to the accident, 2) whether the P. directly witnessed the accident, and 3) whether the P. was closely related to the victim.

5. Classical Holding: Foreseeability of the risk is the chief element in determining whether a D. owes a duty of care to a P..

6. Reasoning: The court refused to limit the D.'s liability for emotional damages only to those within the artificially constructed "zone of danger". They stated that although opening the D.'s liability further would lead to fraudulent claims, that is a part of every tort case. They reasoned that foreseeability was the test of due care. The D. is more likely to foresee the risk of injury to bystanders when they are closely related witnesses who are near to the victim at the time of the injury.

** Weirum v. RKO General, Inc., (1975)

2. Facts: The D. radio station was holding a summer contest. The object of the contest was to entice listeners to be the first to arrive at a particular location, where they would be given a reward. 2 kids, eager to be the first ones to reach the location, were speeding along the highway and forced the P.'s car into a ditch, killing him.

3. Procedural Posture: The trial court found for P., and the Court of Appeals reversed, saying that the radio station had no control over the negligent actions of the drivers.

4. Judge's Rule: "If the likelihood that a third person may react in a particular manner is a hazard which makes the actor negligent, such reaction whether innocent or negligent does not prevent the actor from being liable for the harm caused thereby."

5. Classical Holding: When the negligence of a third party is encourage by affirmative action of the actor, then it becomes foreseeable, and exposes the actor for liability for the negligent acts of the third party.

6. Reasoning: The court reasoned that the D. radio station owed a duty to the P. because the risk of injury by speeding teens was foreseeable. They stated that the contest was designed to be a "competitive scramble in which the thrill of the chase" was the goal to excite listeners. As such, the radio station was negligent in encouraging the negligence of the drivers, and so was liable for damages resulting from the driver's negligence. The chain of causation was not broken due to third party intervention, because it was the negligence of the radio station that caused the ultimate injury by encouraging negligence of drivers.

1, Buch v. Amory manufacturing Co., (1897).

2. Facts: P. is an 8 year old boy who wandered into D.'s factory. The D. warned him to leave, but the P. did not speak English. The P. then had his hand crushed in some machinery gears while fooling around with his brother, who was one of D.'s employees.

3. Procedural Posture: The trial court denied a motion for directed verdict. Verdict for P. was set aside, and D. appealed.

4. Judge's Rule: A person is not liable to a trespasser for damages that arise without the person's negligence.

5. Classical Holding: A person who is not acting negligently does not have a legal duty to rescue a helpless trespasser from being injured.

6. Reasoning: The court reasoned that the mere fact that the child was not able to take care of himself was not sufficient to put the duty on the D. to forcibly eject him from the factory. The D. did not have the duty to prevent the trespass, only the duty not to negligently injure the P.. The D. was not doing any negligent thing, even if he should have known that the P. could not speak English. The duty to prevent harm from coming to a stranger is a moral obligation only and not a legal one.

Ames, Law and Morals (1908) I. Traditional approach to liability for failing to rescue A. The law has been traditionally indifferent to a person who could have saved another, so long as the victim was not put into danger by the negligence of the bystander. B. It is only up to a person's own conscience whether he is a good Samaritan or not. II. Proposed Good Samaritan Rule (3 cases) A. A person who would have to go to more than a little inconvenience to save a person from death or great bodily harm - No liability. 1. Ex: Doctor from Calcutta does not make the long journey to Meerut to save a patient who will die otherwise. B. A person who fails to interfere to save another from impending death or great bodily harm, when he might do so with little or no inconvenience, and the death or great bodily harm follows as a result of the inaction. - Should be liable both criminal and civil. 1. Ex: person on bridge fails to throw rope to drowning man. 2. Ex: bystander fails to remove small child from railroad track when there is no danger of being hit. C. A person, acting innocently (without negligence), brings about a dangerous situation. - Should be liable. 1. Ex: hunter whose shot hits another in the eye, and the other falls into the water and drowns while the hunter stands by.

Epstein, A Theory of Strict Liability (1973) I. Ames' good Samaritan rule infringes on personal freedom, because bounds can't be put easily on it. A. Ex: If a charity approaches you and asks for $10 to save a starving child, and $10 is means very little to you, are you required to give because it is certain that someone will die if you do not? - NO. II. Ames' Good Samaritan rule, which requires strangers to confer benefit on strangers when it poses "little or no convenience" to the good Samaritan, would result in a weakening of contract law. A. If the traveling doctor were paid, how much would he have to be paid in order to be required to make the inconvenient or costly trip? All a potential patient would have to pay is enough to make he difference between his payment and the fair market value of the doctor's services small enough that it would not be inconvenient for the doctor to make the trip, thus undercutting the contract.

Notes: 1. The affirmative duty to rescue could be viewed as a large contract among all of the general public, who all decided that they should require someone if it is a negligible cost to himself. Then, a person would bear the risk that it might cost him to rescue someone, but he would not have to fear that he would lose if he were the one in trouble. 2. Restitution is an alternative to tort compensation. Although it is smaller than the amount of tort compensation, it creates the incentive in the rescuer while eliminating the liability to multiple persons who stand by but do not act. 3. Some states have statutes that immunize rescuers from ordinary negligence liability (but not gross negligence or intentional torts), and some states even impose affirmative duties to rescue, subject to the payment of fines.

** Montgomery v. National Convoy and Trucking Co., (1937).

2. Facts: The D.'s trucks stalled on an icy highway at the bottom of a hill. The stalled trucks were not visible from the other side of the hill, and once a car reached the top of the hill, it could not stop in time to avoid the trucks because of the icy conditions. The D. laid out flares, but did not put them where an oncoming car would be able to see them in time. The P. came over the hill and crashed into the trucks.

3. Procedural Posture: The trial court found for P.. D. appealed to this court which affirmed.

4. Judge's Rule: A person is liable for omission of acts that the reasonably prudent person would do to prevent injury to another, when the danger to the other was created by the person.

5. Classical Holding: A person in a stalled car on the highway must take sufficient action to warn oncoming traffic of the hazard in time to avoid injury.

6. Reasoning: The court reasoned that the D. drivers owed a duty of care to the oncoming traffic to prevent injury to them. Therefore, it was negligent of the D. to fail to warn oncoming traffic at a point where it would have prevented them from crashing into the trucks.

7. Notes: 1. The difference between misfeasance and nonfeasance matters most in cases where the D. has not created the danger; for misfeasance he is liable, and for nonfeasance he is not. It is less critical in cases where the D. has created the danger, because either will result in liability. 2. In a system of strict liability, there is no need to create a duty to rescue for someone who has created the danger to P.. In that case, the D. would already be motivated to warn the P. so as to avoid liability, or at least reduce it due to P.'s assumption of risk or contributory negligence if he saw the warning but continued to proceed. 3. 322 of the Restatement imposes an affirmative duty to rescue a person you have already harmed (even without negligence) from further harm. For example, if you hit an illegal alien running across the road, you can't simply drive on even if they were completely at fault. You must stop to render aid. 4. Once a person begins a good Samaritan act, they are required not to make any negligent acts or omissions in the care of the person, nor may he leave the person in a worse position than when he started. (324 Restatement). However, if A comes upon the scene of an accident, and begins to take an injured B to the hospital, but then A changes his mind and brings B back to the scene how he found B, it is arguable that A left B in a worse position, because now B has lost valuable time in which someone else might have helped him. 5. 327 Restatement requires that a person who "knows or has reason to know that a third person is giving or is ready to give aid necessary physical harm" to him is tortiously liable if he "negligently prevents or disables the third person from giving such aid."

** Robert Addie & Sons (Collieries), Ltd. v. Dumbreck, (1929)

2. Facts: The D. is the operator of a winch an pulley system at a coal mine. The system consists of a large wheel, which drives a long cable to hoist coal ashes out of the mine. The wheel is driven by a motor, and is only operated intermittently. The wheel assembly is located in an open field, owned by the D.. Many kids play in the field, but the D. warns them away, and tries to keep people out of the field. The P.'s son was playing in and around the wheel, when it started up, killing the boy.

3. Procedural Posture: The trial court found for the P., and D. appealed.

4. Judge's Rule: A landowner owes no duty of care to protect a trespasser from injury, even from concealed danger.

5. Classical Holding: A landowner does not owe a duty of reasonable care to a trespasser when the landowner takes reasonable steps to prevent trespassers from entering and remaining on his property.

6. Reasoning: The court reasoned that there were three classes of persons who find themselves on other's property: invitees to which the landowner owes a duty of reasonable care to make sure the premises are safe, licensees who are not there by invitation, but are allowed to remain, to which the landowner owes a duty not to create a trap or concealed danger, and trespassers, to which the landowner owes no duty except to refrain from intentional harm. The court found that the D.'s actions in warning children away were sufficient to classify the P.'s son as a trespasser, and not a licensee. Thus, the D. owed no duty of care to protect the child from the danger of the wheel.

7. Notes: 1. In Excelsior Wire Rope Co., Ltd. v. Callan, the court was faced with nearly identical facts, however it found that the D. was reckless because the field was swarming with children, and the D. knew that there were likely to be children playing on the wheel when they started it up. The court in Gould v. DeBeve used the "willful and wanton misconduct" rule to find a D. liable for injury to a trespassing child because the D. had failed to replace the defective window screen that the P.'s son fell through, even though the D. had been asked repeatedly to replace it. 2. A person who trespasses accidentally on land that is adjacent to a public highway can recover from the land owner for damages caused by the landowner failing to provide reasonable care against the foreseeable accidental trespasser. 3. Attractive nuisance - the P. was lured onto the D.'s land as a trespasser by some attractive condition created and maintained by the D. This theory has the danger of being over-applied because most things can be made into attractive playthings by the imagination of a child. 4. The Restatement (Second) states that D.s are liable for "Artificial Conditions" that are dangerous to trespassing children if they are located in a place where the D. "knows or has reason to know" that children will play there, involve an unreasonable risk of great bodily harm, a child could not discover the danger because of its youth, the cost of preventing the danger is "slight", and the D. fails to exercise reasonable care to protect a trespassing child. However, the D. is under no duty to investigate the land to determine whether trespassing children are present. 5. An ice cream vendor may be held liable for injuries to children who run out onto a busy street after them under the "pied piper" theory, because the ice cream vendor lured the children into danger. 6. According to Restatement 332, an invitee is either a public invitee or a business visitor, based on the nature of the premises. In Lemon v. Busey, a child died after falling from a roof of a church where she was playing while her grandmother was working there. The child reached the roof by going through an unlocked fire escape door which should have been locked. However, the court found that she was only a licensee, not an invitee, and so the church did not have a duty to protect her from the unsafe condition of the unlocked door. 7. Public officials like police and mailmen are treated mostly as licensees because they often enter in odd places at unusual times when they cannot expect the landowner to provide standard precautions. However, the duty of care depends heavily on when and where the person enters, and if they can be expected.

** Rowland v. Christian, (1968).

2. Facts: The P. was a social guest in the D.'s house. He went to the bathroom and cut his hand badly on a porcelain handle that was cracked, but did not appear to the casual observer to be dangerous because it had not yet broken. The D. knew that the handle needed replacement, but did not warn the P. of the danger.

3. Procedural Posture: The trial court found for the D.. They classified the P. as a licensee under law and concluded that the D. did not owe a duty to P. to protect him from concealed dangers.

4. Judge's Rule: A person is liable for damages to a guest on his property the owner has not acted reasonably to protect the guest from injury. Although the P.'s status as a trespasser, licensee, or invitee may, in light of the facts, have some bearing on the question of liability the status is not determinative.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the old common law distinction of the status of the guest was rigid and meaningless in the modern world. They reasoned that the classifications grew out of tradition which dated back to the status of a landowner during the feudal times. Therefore, they reduced the test of liability to the common test of negligence. If, in light of all the facts, the D. did not take reasonable steps to prevent injury to the P., then he is liable. The P.'s status as a trespasser is only one of those facts.

7. Notes: 1. Other states are mixed in their adoption of Rowland. 2. With the onset of strict liability in products liability cases, some have sought to apply the same to liability for landlords engaged in the business of leasing dwellings, under the theory that the landlord is in a better position to bear the costs of injuries by latent defects in the property. This tends to promote more household safety at the expense of holding a morally blameless landlord liable for defects he did not discover. 3. A landowner is now under the duty to provide reasonable care to a trespasser who he knows has fallen into a dangerous condition on the landowner's premises. In Pridgen v. Boston Housing Authority, a boy was trespassing when he climbed out of the top of an escape hatch in an elevator, but the D. was still liable for his injuries because the D. failed to shut down the elevator once he knew of the boy's predicament. 4. There can also be liability for injuries resulting to strangers from the "natural" conditions of the D.'s land. In Taylor v. Olsen, the court held that the negligence was not in planting a tree, but in allowing it to remain in a dangerous area where it was likely to cause damage to passersby. A landowner may not escape liability by simply allowing nature to take its course if the resultant injury was avoidable. 5. Some states have passed statutes that limit the landowner's liability for injuries that occur on land which is open to the public for recreational purposes (i.e. hunting and fishing) fearing that stricter laws would result in less recreational land.

** Coggs v. Bernard, (1703).

2. Facts: The D. moved casks of brandy belonging to the P. from one place to another. Through the D.'s negligence, some of the casks were damaged, spilling lots of brandy.

3. Procedural Posture: The lower court found for the P., and the D. appealed claiming that the act was gratuitous and that there was no consideration to support the contract, thus he did not owe a duty of care to the P. to protect his casks from negligent damage.

4. Judge's Rule: "The owner's trusting him with the goods is a sufficient consideration to oblige him to careful management."

5. Classical Holding: A person who undertakes to move another's property from one place to another is under a duty to take reasonable precautions to protect the property from harm.

6. Reasoning: The court relied upon the notion of consideration to show that a contract was present. The consideration was similar to the modern day promissory estoppel where the P. had relied upon the promise of the D.

** Erie R.R. v. Stewart, (1930).

2. Facts: The P. was a passenger in a car which was hit by one of the D.'s trains at a railroad crossing. The crossing was normally guarded by a watchman who warned cars of the oncoming train. However, on this occasion the watchman was not present in time to prevent the accident. There was no statutory obligation to provide a watchman.

3. Procedural Posture: The trial court found for P., and D. appealed claiming that the court erred in instructing the jury that if the watchman had been present for a long period of time, then to remove him was negligence as a matter of law.

4. Judge's Rule: Where a train company has established the presence of a watchman for such a long time as to establish it as a duty of reasonable care, the train company is liable for negligence when the watchman is removed.

5. Classical Holding: Where an actor has taken precautions that are not required by statute, but are provided to protect others from hazards which the actor has created, the presence of these precautions over a long period of time establishes a standard of care to which the actor must comply to protect the reliance of the potential victims.

6. Reasoning: The court reasoned that although the railroad company was not required by statute to provide a watchman, the fact that they had for so long establishes the watchman's presence as a standard of care. The court reasoned that passersby had come to rely on the presence of a watchman when trains were coming, so the absence of the watchman implied that a train was not coming. The railroad should know that a passerby would rely on the watchman, and so they should anticipate the injury if they removed the watchman without sufficient notice as to negate the reliance.

** Marsalis v. LaSalle, (1957).

2. Facts: The P. was bitten by the D.'s cat. The P. suspected that the cat might be rabid, and so asked the D. to keep the cat under observation for two weeks. The D. promised to do so, but however let the cat out negligently. When the P. found out that the cat had run off, she was forced to receive the painful rabies injection as a precaution. P. had an allergic reaction to the vaccine.

3. Procedural Posture: Trial court found for P., D. appealed.

4. Judge's Rule: When a person promises to take action to protect another person, and the other person foregoes other means of protection in reliance on the promise, the promisor is liable for damages if he then breaches the promise by failing to take reasonable action to protect the other person.

5. Classical Holding: As stated in Restatement (Second) of Torts:

Section 323: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if: (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other's reliance upon the undertaking.

6. Reasoning: The court reasoned that the allowing the bit was not the negligent action, because there was no history of biting. However, once the D. undertook the promise to watch the cat, he became bound when the P. relied upon that promise. The negligent act was letting the cat out, and it was also the proximate cause of the P.'s injuries because otherwise, the shots would not have been required.

** Kline v. 1500 Massachusetts Avenue Apartment Corp., (1970)

2. Facts: The P. is a resident of the D.'s apartment complex. When she moved in in 1959, there were security personnel guarding the entrance ways. After several years these security measures evaporated. Assaults and thefts began to happen in the common areas. The D. was aware of the increase in crime. P. was assaulted by an intruder in a common hallway in 1966, after the D. had stopped providing security measures in the common hallways. The D., as the landlord, was the only person who could have provided security.

3. Procedural Posture: The case was originally tried in the District Court, which found that there was no duty of a landlord to protect tenants from foreseeable criminal acts committed by third parties. The P. appealed to this court.

4. Judge's Rule: A landlord has a duty to protect it's tenants from foreseeable criminal acts committed by third parties in the common areas under the exclusive control of the landlord.

5. Classical Holding: A landlord is liable for damages if he does not take reasonable measures of protection which are within his power and capacity to take to protect tenants from assault from third parties.

6. Reasoning: The majority reasoned that the landlord was in a special relationship with the tenant, because the landlord had exclusive control of the common areas through which the tenant had to pass to get to his apartment. The tenant was powerless to take precautions in the common area on his own behalf. Thus, the landlord should have a duty to act on the tenant's behalf, to provide for their safety. Since the landlord had prior notice of the type of crime, it was a foreseeable risk, not merely a possible risk.

7. Dissent: The dissent reasoned that the P. did not show that it was an intruder who attacked her, thus there was a problem of causation. If the attack was by a resident, the lack of guards at entryways would not be a proximate cause. Furthermore, the dissent rejected the contract-based reliance argument that the tenant had relied on the security measures that were present when she moved in. The tenant was aware of the changes in security as they happened, thus she did have to power to avoid the danger, by moving to a higher security complex.

Notes: 1. There is a limit to this duty. In Wassell v. Adams, the P. was raped when she answered her hotel room door in the middle of the night expecting her fiancee. She claimed that the hotel had a duty to warn her of the possibility of high crime in the hotel at night. The court held that it was common knowledge not to open a hotel door in the middle of the night, so there was no duty. 2. Condominium complex boards of directors were held liable in Frances v. Village Green Owners Assn., for the misfeasance of requiring a tenant to take down external lighting that she had installed on her own to combat the rising crime in the complex, and nonfeasance for not installing proper lighting to protect the common areas. The majority analogized to Kline, holding that for all practical purposes, the board was the landlord, even thought they did not get paid, because they exercised exclusive control over the common areas. 3. The liability of a common carrier is extended to public transportation in Lopez v. So. Cal. RTD, where a group of juveniles attacked a passenger, and the bus driver took no action to prevent it. Also the "landlord-tenant" liability has been extended to public facilities such as state colleges, even though the institution does not operate commercially for profit. 4. Foreseeability does not necessarily require prior similar acts. If it does, then the first victim loses. It should be an ordinary question of fact.

** Tarasoff v. Regents of the Univ. of Cal., (1976)

2. Facts: The P.s are the family of a girl who was killed by a patient of the D.'s psychiatrist. The patient revealed to the psychiatrist beforehand his intention to kill the girl, and the psychiatrist believed him. Because of the danger, the psychiatrist had the patient detained, but the police later let him go when he seemed rational. The P.s claim that the psychiatrist owed a duty to them to warn them of the danger posed by the killer, and that the failure to warn them was a proximate cause of the murder.

3. Procedural Posture: The superior court found that the P.s did not state a cause of action under their facts, and sustained D.s demurrers.

4. Judge's Rule: A doctor who knows, or should know, that his patient is likely to harm another has a duty to warn the potential victim of the danger.

5. Classical Holding: When a doctor knows that his patient is likely to harm another has a duty to warn the potential victim of the danger.

6. Reasoning: The majority reasoned that although there did not initially exist a special relationship between the psychiatrist and the victim, one arose when he became, or should have become, aware of the patient's intent to kill the victim. Under the Restatement (Second), the special relationship extends to the foreseeable victim of the conduct. They reasoned that the ethical confidential relationship between a doctor and a patient was outweighed by the public interest in safety. The privilege of communication is lost when the patient is a danger to others or to himself. They further stated, in dicta, that a doctor could be liable even if he did not actually know of the danger, as long as he should have known by exercising ordinary skill.

7. Dissent: Mosk partially dissented, stating the holding very narrowly, requiring the doctor to have actual notice of the danger. Other dissenters felt that the decision impaired the ability of doctors to treat patients effectively.

8. Notes: 1. In Thompson v. County of Alameda, the court found that a duty to warn did not exist. The murderer in Thompson indicated to the public welfare system that he would "if released, take the life of a young child residing in the neighborhood." Although no particular person was identified, the juvenile murdered the P.'s son within 24 hours of his release. The court distinguished from Tarasoff, finding that the threat was non-specific enough that warning the neighborhood would be difficult and would have done little to increase the safety of the neighborhood. [Huh?]. A dissenting judge argued that the juvenile's custodian should have been warned so that she could have taken precautions. The governing statute now reads that the duty to warn arises only when the victim is "reasonably identifiable", and the therapist must make reasonable efforts to warn the victim as well as police.

** Baker v. Snell, (1908)

2. Facts: The P. is a maidservant of the D.. The D. owned a dog that was ferocious and prone to biting. The D. had a potman who was in charge of keeping the dog safe. The potman released the dog on the P. as a practical joke, and the dog bit her. The potman was acting in the employ of the D. at the time.

3. Procedural Posture: The lower court found for the P.. D. appealed claiming that the D. was not responsible for the bite because of the intervening negligence of the potman.

4. Judge's Rule: Whoever keeps an animal that is dangerous by nature, or that the owner knows is dangerous, is prima facie liable for damages to anyone attacked by that animal, unless it can be shown that the person attacked had brought the injury upon himself.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court stated that the potman did not have an independent grudge against the P., but rather he was simply being negligent in his duty to keep the dog. They stated that it is wrongful for a person to keep a wild dangerous animal, and so they should be required to keep control of it at their own peril. They broke dangerous animals into two classes: those that were generally known to be dangerous, and those that were not generally known to be dangerous, but which the owner knew that particular animal was dangerous. Unless the animal was harmless, the owner was strictly liable.

7. Notes: 1. In Denver v. Kennedy, the rule of strict liability was found not to apply to zoos because the policy of having zoos was important to the public, however, negligence was still held as a standard. 2. Strict liability for trespassing animals (such as livestock) does not extend to damages that are not reasonably to be expected from the intrusion, or brought about by the unexpected operation of a force of nature or reckless or negligent conduct of a third person. 3. Assumption of risk was found to be an affirmative defense in Rubenstein v. United States, where the P. was a camper who was attacked by a bear after he was warned not to camp in the open in Yellowstone Park, but disregarded the ranger's warning. 4. "Distress damage feasant" is the taking of chattels (such as livestock) which are doing damage to the land of another, and holding them until damages are paid for by the owner. This practice only works under strict liability. 5. In some of the plain states in the U.S., the owner of private property is required to "fence out" trespassing animals, unless it is shown that the owner of the animals intentionally caused their animals to trespass. 6. Under the Coase theorem, statutes favoring the farmer, which require ranchers to control their cattle and keep them from trespassing even if there is no fence, are the most favorable because they allow the farmer to make a deal with the rancher to lease part of his land. Thus, the most efficient use of adjoining lands are reached.

** Spano v. Perini Corp., (1969)

2. Facts: The P. owns a garage adjoining a vacant lot owned by the D.. The D. was in the process of blasting the lot to dig a tunnel as part of a contract with the city. Flying debris from the explosion damaged the P.'s property.

3. Procedural Posture: The trial court found for the P., even though there was no showing of negligence. The Court of Appeals reversed, holding that a precedent case required showing of negligence.

4. Judge's Rule: "Since blasting involves a substantial risk of harm no matter the degree of care exercised," a person who engages in blasting is strictly liable for damages to adjoining property resulting from the blast.

5. Classical Holding: A person who engages in activities which require the use of explosives is prima facie strictly liable for foreseeable damages to other's property.

6. Reasoning: The court expressly overruled the precedent case. They reasoned that this was an issue of conflicting use of adjoining lands, but ruled in favor of the P., because to hold otherwise would allow the D. to blast to such an extent that it completely destroyed the P.'s use of his own land. They reasoned that although the D. had the right to blast on his own land, he should not force the P. to internalize the damages because blasting is so dangerous, it causes damage even when done properly. Although it was not necessary to the decision the court further intimated that the fact that damage occurred was res ipsa loquitur that the D. was negligent in his blasting.

7. Notes: 1. Historically, direct damages of the blast were viewed as trespass, thus strict liability without fault, while indirect damages by concussion or vibration were viewed as case, and thus subject to a negligence standard.

I. Restatement (Second) of Torts Section 519 A. One who carries on abnormally dangerous activity is subject to liability even if he is exercising the utmost care to prevent the harm. B. This strict liability is limited only to the kind of harm which makes the activity abnormally dangerous. 1. Ex: A person is not strictly liable for damages caused by the crash of a truck carrying explosives.

II. Restatement (Second) of Torts Section 520 A. In determining whether an activity is abnormally dangerous, the following factors are considered: 1. existence of a high degree of risk of harm, 2. likelihood that the harm will be great 3. inability to eliminate the risk by reasonable care, 4. extent to which the activity is not common usage, a. customarily carried on by the great mass of mankind or the community. b. "non-reciprocal" risks. 5. inappropriateness of the activity to the place, 6. extent to which the value to the community outweighs the dangerous attributes. B. The activity must be necessary, otherwise it is simply negligent, and there is no need for strict liability. C. Dangerous activity may constitute an nuisance if it substantially impairs the use and enjoyment of the neighbors. D. Determination of what is abnormally dangerous is a function of the court, not the jury. E. Policy: put the burden of loss on the person who created the abnormally high risk instead of the victim.

** Siegler v. Kuhlman, (1973)

2. Facts: The P. was 17 year old girl who was killed in the resulting explosion when the D.'s gasoline tanker separated from the truck's cab, and spilled the gasoline all over the road. The D. was not negligent in the hook up of the tank, it separated due to a link which parted under metal fatigue.

3. Procedural Posture: The trial court found for D., and refused to allow a res ipsa loquitur doctrine. The court of appeals reversed.

4. Judge's Rule: The transportation of gasoline in large commercial quantities is a abnormally dangerous activity which subjects the actor to strict liability for foreseeable damages arising from the escape of the gasoline without the intervention of any outside force beyond the control of the actor.

5. Classical Holding: Same as judge's rule.

6. Reasoning: The court reasoned that the nature of the risk to the general public, combined with the severity of the foreseeable damages if the gasoline exploded, made this an abnormally dangerous activity. They cited to Rylands. Furthermore, they stated that much of the evidence of negligence would be destroyed in the resulting explosion, therefore leading to problems of proof. Additionally, the owner was in a better position to spread the loss by passing it on to customers, as well as holding the manufacturer of the failed link accountable.

** Madsen v. East Jordan Irrigation Co., (1942)

2. Facts: The P. used a farm to raise minks. The P. owned adjoining land on which he was blasting. The shock from the blast frightened the mother minks so much that they killed their young, as minks are prone to do.

3. Procedural Posture: The lower court sustained a demurrer for the D., on the grounds that the P. failed to state a cause of action because the injury to the minks was not a foreseeable result of the blasting.

4. Issue: Did the mother minks' actions break the chain of causation from the D.'s blasting, and therefore require an allegation of negligence?

5. Holding: Yes. Where an animal intervenes and takes an unanticipated action which causes damage, the chain of causation from the abnormally hazardous activity is broken, and the D. is no longer strictly liable, but rather liable only for negligence.

6. Reasoning: The court reasoned that the peculiar nature of the minks was one which was unanticipated. It was not one of the foreseeable dangers to which the P. was exposed from the blasting activities. It was not a physical result of the explosion, but rather the result of a quirk in the personalities of the minks.

7. Notes: 3. A P. is barred from recovery for 1) assumption of risk, 2) contributory negligence in unreasonably subjecting himself to the danger (but not other types of contributory negligence), and 3) if the injury would not have occurred except for the abnormally sensitive nature of the P.'s activity.

** Winterbottom v. Wright, (1842)

2. Facts: The D. contracted with the Postmaster to provide mail coaches. The P. was a driver of the coach, and was injured when one of the coaches he was driving broke down because of a latent defect, presumably one which the D. negligently failed to correct before shipping.

3. Procedural Posture: The D. demurred, claiming that he owed no duty to the P. because the contract for the coaches was with the Postmaster, and he was simply a third party not in privity with the contracting parties. Trial court sustained the demurrer. This court affirms.

4. Issue: Is the D. liable to third party users of his equipment when it breaks down due to latent defects, even though the P. was not in privity with the contracting parties (the Postmaster and the D.)?

5. Holding: No. A contractor, manufacturer or vendor is not liable to third parties who have no contractual relations with him for negligence in the construction, manufacture or sale of the article he handles.

6. Reasoning: The court reasoned that the driver was only a third party, and so the D. did not owe any duty to him in negligence under the duty created by his contract with the Postmaster. To allow this recovery, they thought, would be to open the gates wide for too many law suits. They saw the action as grounded in contract. After the D. had done everything to satisfy his contractual obligation to the Postmaster, the third party P., who had no privity to the contract, should not be allowed to "rip" open the settlement of the contract by bringing a tort action.

7. Notes: The American courts carved out some exceptions to the rule in Winterbottom. First, that a third party should be able to recover for damages from equipment designed to save lives (such as medical equipment) which was negligently made; Second, a third party should recover for any reasonably foreseeable damages when the manufacturer or seller knows that the product is dangerous, and does not give notice.

** MacPherson v. Buick Motor Co., (1916).

2. Facts: The P. was injured in a car manufactured by the D. when the one of the wheels broke while diriving. The wheel was not made by the D.; it was bought from another manufacturer. There was evidence, however, that the defects could have been discovered by reasonable inspection, and that inspection was omitted.

3. Procedural Posture: The P. sued under a negligence theory. The Court of Appeal affirmed a trial verdict for the P.. D. appealed to this court.

4. Issue: Does the D., as the manufacturer of the product, owe a duty of care to the P., as an end user, even though the D. and the P. had no contractual relationship because the P. bought the car from a dealer?

5. Holding: [Cardozo] A person who supplies a product for the purpose of the use of another person, when it is reasonably foreseeable that harm would occur to the user if the product were not supplied with due care and skill, and which the supplier knows will be used by the third person without further inspection or testing to reveal danger, owes a duty to the user to use ordinary care and skill in supplying the product.

6. Reasoning: Cardozo reasoned that the previous distinction between thrid party users and contractors in privity was not governing. The D. knew that the P. was a member of the class of persons likely to use the car, and likely to be injured if the car was not built properly. In building the car for that specific purpose, he owed the users a duty of care. The duty extended beyond the dealer, because the D. knew that the car would be resold without any additional checking for danger to the user. The dealer was only a middleman. The court also stated that the D. was liable even though he did not manufacture the actual wheel, because he put the finished product together. The D. thus had the final opportunity to inspect the wheel for damage, and should be held accountable for its safety.

** Escola v. Coca-Cola Bottling Co. of Fresno, (1944)

2. Facts: The P. was a waitress. As part of her job, she was putting bottles of Coca Cola which had been delivered to her restaurant into the refrigerator. As she put one of the bottles in, it exploded in her hand, causing severe injuries.

3. Procedural Posture: The P. alleged that the D. was selling bottles which were dangerous, either because they were overpressurized, or because of latent defects in the glass. The jury entered a verdict for the P., which was affirmed on appeal. The Court of Appeal used res ipsa loquitur to find the D. negligent.

4. Issue: Is the D. liable for damages to the P., even if the D. can make a showing that the bottle was manufactured without any negligence (which is a defense to res ipsa loquitur)?

5. Holding: Yes. A manufacturer is strictly liable for damages to consumers when he sells a product which he knows, or should know, will be used by consumers without any further inspection for defects.

6. Reasoning: The court [Traynor], held that negligence was no longer the standard for products liability. Public policy demands that responsibility for damages from products be fixed where it will most effectively reduce the hazards to the public. The manufacturer can then spread the cost to the public at large by increasing prices to cover the liability. He went on to state that although the retailer could be held liable as well, it would be much more efficient to allow the victim to go directly against the manufacturer under an implied warranty. The consumer does not have the power to ensure his own safety because the product is normally packaged at the time of sale. Furthermore, the representations of the manufacturer create a reliance in the consumer.

7. Notes: Traynor justified his holding with a number of arguments: a) D. is in the best position to avoid the loss. However, this argument won't stand alone because simply because the D. is a business; b) the D. can spread the loss - also won't stand alone simply because the D. is a business; c) Elimination of proof complications - expressly to avoid res ipsa loquitur, this switches the residual risk of unavoidable accidents to the D., d) the retailer was unable to make any changes to the sealed bottle; e) "between two innocents" - weaker here because of the intervening third party, however, the D. knew that the intervening party would not take any preventive action.

** McCabe v. Ligget Drug Co., (1953).

2. Facts: The P. used a coffee maker which was purchased at the D.'s drug store. The P. used the coffee machine according to the instructions. After a few uses, the coffee maker exploded due to a buildup of contained steam, which apparantly could not be released because the design of the coffee maker was such that the steam would be bottled-up by residue left over from the grounds.

3. Procedural Posture: The P. brought an action in contract, for breach of implied warranty for use. The trial jury rendered a verdict for the P., but the judge set aside the verdict, and found for the D., on the ground that the P. did not give the D. proper notice by proving what day it was purchased on.

4. Issue: Is the D. liable under an implied warranty theory for personal injuries to the P., even though the P. could not show when she bought the coffee maker (as required by warranty breach laws of the time)?

5. Holding: Yes. Where a product is negligently designed so as to create a risk of harm to the user, and that defect is not readily detectable by the user operating it in a normal manner, the retailer is liable for damages under a contract theory of implied warranty.

6. Reasoning: The court reasoned that the design of the coffee maker was such that it could not have been used without danger, even if used properly. Thus, the breach of warranty applied to any coffee maker of this brand which was sold to the P., not just the specific one that she purchased. Therefore, she was not barred from her action if she was unable to produce a receipt for this specific machine.

7. Notes: 4. In Henningsen v. Bloomfield Motors, the P. purchased a car from the D. who provided a warranty for the original owner only. When the P. gave the car to his wife, the steering failed and it went out of control and crashed, injuring the P.'s wife. The court held that the D. could not avoid liability by limiting the warranty, because the implied warranty extended to the ultimate user. 5. Justice Traynor finally split the contract/tort duality of these implied warranty cases by announcing strict tort liability in Greenman v. Yuba Power Products as a matter of law, not one imposed in a contract. 6. Liability of the manufacturer of a product apparently ends when that product becomes incorporated into a final assembly by a subsequent manufacturer. In Goldberg v. Kollsman Instruments, the P.'s deceased was killed when an American Airlines plane crashed because of a defective altimeter made by the D.. The court limited the liability to American Airlines, stating that to hold the D. liable would allow a P. to select from a multiplicity of D.s, and destroy whatever contractual rights they had between them.

I. Restatement (Second) 402A - Special Liability of Seller of Product for Physical Harm to User or Consumer. A. The seller is liable if the product is in a defective condition unreasonably dangerous to the user or consumer or his property if: 1. The seller is in the business of selling that product, and it reaches the consumer without a substantial change. a. This applies to a movie theater selling popcorn. b. This does not apply to a housewife who occasionally sels her neighbor a jar of jam. 2. Unspoiled tobacco is not unreasonably dangerous just because smoking it is harmful, but laced tobacco is unreasonably dangerous. B. The rule applies even though the seller has exercised all possible care in the preparation of the product, and even if the ultimate user has not entered into any contractual relationship with the seller. 1. The seller can prevent the product from being unreasonably dangerous by providing an appropriate warning. 2. Some products can never be safe, (such as the rabies vaccine) but the public good is served by them such that they are not unreasonably dangerous because the good outweighs the danger, so it is not unreasonable to sell them. 3. Like other strict liability cases, contributory negligence on the order of assumption of risk is an affirmative defense.

** East River Steamship v. Transamerica Delaval, (1986)

2. Facts: The P. bought some steam turbines from the D., and had them installed in 4 ships. The D. supervised the installation of the turbines, and somehow the astern guard valve was put in backward. The turbines ended up damaging themselves, causing economic damages from repairs and lost business, but no personal injuries.

3. Procedural Posture: Court of Admiralty.

4. Issue: Is the theory of strict liability for products liability applicable if the damages are only to the product itself, and are economic and not personal injuries?

5. Holding: No. A manufacturer in a commercial relationship has not duty under either a negligence or strict products-liability theory to prevent a product from injuring itself.

6. Reasoning: The court examined the majority view held by the court in Seely, which limited tort liability in order to prevent it from overrunning warranty liability in contract. It also examined the minority view in Santor, which held that the manufacturer was liable for damages to the product itself, whether or not the defect created an unreasonable risk of harm. There were also intermediate cases which predicated liability on the difference between a "disappointed user" and an "endangered use", allowing recovery under tort if the defect could have caused a personal injury, even if it only resulted in economic damage to itself. The court adopted the majority view, because although it seemed arbitrary to award tort damages only for cases that resulted in actual injury to something other than the product, it provided the strongest argument for the safe separation of tort and contract.

** Murphy v. E.R. Squibb & Sons, Inc., (1985).

2. Facts: The P. developed cancer at the age of 23, presumably from the side effects of the drug DES which her mother took when she was pregnant. She brings an action against the pharmacy that sold her mother the drugs on the theory of strict products-liability.

3. Procedural Posture: The trial court dismissed the case on the basis that the pharmacist was not susceptible to strict liability under 402A because he was a service provider, and not a seller engaged in the business of selling drugs.

4. Issue: Is a pharmacist strictly liable for the drugs it sells in filling a doctor's prescription?

5. Holding: No.

6. Reasoning: The court reasoned that although a pharmacy was a combination of a seller and a service provider, that there were several policy reasons why they should not be strictly liable. They stated that the statute regulating pharmacists defines them as a health service provider. The pharmacist might be inclined to refuse to carry a new and innovative drug, and only carry those from well established manufacturers because they would have a better opportunity to recover from the manufacturer in the future if they were ever sued. Also, it did not seem fair that the pharmacist be held liable if he were only fulfilling the prescription of the doctor, and the doctor was himself immune from suit.

7. Dissent: [Bird] felt that the majority overlooked the reasons that strict products liability was created in the first place. Specifically, the pharmacist might be the only available defendant for an injured party to sue because the manufacturer might be unknown. The theory is to put the burden of loss on the one who can most easily insure against it.

8. Notes: 1. In Shaffer v. Victoria Station, Inc., the P. recovered under strict liability for a wine glass that broke in his hand in a restaurant where he ate because the use of the glass was necessarily incident to the sale of the wine. In Johnson v. William C. Ellis and Sons Iron Works, Inc., the court held that a repairman was not strictly liable for failing to inform the occupant of a pre-existing latent defect that he noticed while doing unrelated repair work. 2. In Tillman v. Vance Equipment, the court held that 402A did not apply to the sellers of used equipment because the nature of the used equipment market is such that the buyer and seller both know that the product is being sold without any particular representation as to its quality. Furthermore, the used product dealer generally has no link to the sales and distribution chain of the original manufacturer. However, in Crandell v. Larkin, the court extended strict liability to persons who refurbish used equipment. 3. Strict liability may extend to the new owner of a business. They become liable for the sales of the prior owner for 3 reasons: 1) the preceding corporation has been virtually destroyed, leaving the P. with no other choice, 2) the successor is in just as good a position to spread the risk as was the original owner, and 3) the new owner should be liable for the past products because he enjoys profits based on the original owner's reputation.

** Pouncey v. Ford Motor Co., (1972)

2. Facts: The P. was injured while putting anti-freeze into the radiator of his car when one of the fan blades broke off and hit him in the face. The P. provided an expert who testified that the fan broke due to excessive inclusions in the metal which caused it to fatigue. The D. produced an expert who said that it broke because of stress due to being bent and out of balance.

3. Procedural Posture: The trial court jury found for P., and the D. appealed alleging error in failing to grant a judgment notwithstanding the verdict because they felt there was not sufficient evidence for a reasonable jury to find liability.

4. Issue: May a jury decide that a person is negligent in the manufacture of a product based on circumstantial evidence where there is direct evidence of an actual defect in the product?

5. Holding: yes. A manufacturer's liability for a defective product is predicated on negligence in the manufacture or design of the product.

6. Reasoning: The court reasoned that there was enough evidence to find negligence in the manufacture of the fan blade.

7. Notes: 1. The burden of proof is on the P. to show that her injury resulted from a condition of the product which was unreasonably dangerous and which existed at the time the product left the manufacturer's control. 2. Res Ipsa Loquitur can be combined with a 402A action so that the P. does not need to identify the particular product defect.

** Volkswagen of Am., Inc. v. Young, (1974)

2. Facts: Young died in a car accident when he was driving a VW Beetle. He was not killed by the initial collision, but rather by a "second collision" when the seat broke free from the floor and he impacted the rear of the car.

3. Procedural Posture: The P. claimed that the car was defectively designed for its intended purpose because the seat was unreasonably vulnerable to separation from the floor upon collision. The D. asked to have the question certified whether "intended use" included collision.

4. Issue: Does the manufacturer of a car have a duty to design it so that it will be reasonably safe in a collision?

5. Holding: Yes. An automobile manufacturer is under a duty to use reasonable care in the design of its vehicle to avoid subjecting the user to an unreasonable risk of injury in the event of a collision.

6. Reasoning: The court reasoned that the risk of collision is foreseeable, so the intended use of a car is one that includes the risk of being exposed to an accident. Thus, a car is not only for transportation, but for reasonably safe transportation. They held that the standard to be applied to evaluating liability for design flaws is the traditional one of reasonableness. They also went on to state that section 402A of the Restatement (Second) does not apply to design defects of an automobile because it addresses defective products which were prepared with all possible care. So a defective design, which is unreasonable by definition, could not fit into a rule which provides for all possible care to be taken. If all possible care was taken, it would not be defective.

7. Notes: 1. The manufacturer is not necessarily liable if the defect were obvious to the user, such as the VW Van having no protection in a head-on collision. 2. Strict liability was thought to be unworkable in cars because to design a car that would survive any collision would be impractical. A cost-benefit approach as well as statutory safety regulations have been taken in determining which safety measures are required. 3. It is often difficult for a P. to prove that his injuries were enhanced by a defective design because they must make some showing of what would have happened otherwise. 4. The Illinois Supreme court held that although a car should provide reasonable protection to its own passengers when it was being hit, it refused to extend that rationale to the consequences to the crashing car's passengers. Thus, a car mfgr. was held not liable when another car crashed into the mfgr.'s truck from behind and wedged up under the bed.

** Barker v. Lull Engineering Co., (1978)

2. Facts: The P. was injured when the high-lift loader that he was operating became unstable and lost its load. The P. was not an experienced operator, and he was operating the lift on uneven terrain. He claimed that the lift was defectively designed because it lacked seat-belts, a rollbar, a locking mechanism for the lift, and a park gear in the transmission. The D. claimed that the lift was being operated by an inexperienced user, and not according to its intended use.

3. Procedural Posture: The trial court ruled for D.. P. appealed on the basis that the court erred in the jury instructions which read that the manufacturer was not strictly liable unless the product was unreasonably dangerous for its intended use. [Section 402A].

4. Issue: Does a product have to be unreasonably dangerous for its intended use to subject the manufacturer to strict liability?

5. Holding: A product is defective in design either 1) if the product has failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner, or 2) if, in light of the relevant factors discussed below, the benefits of the challenged design do not outweigh the risk of danger inherent in such design.

6. Reasoning: The court reasoned that the 402A standard represents an undue restriction on the application of strict liability principles. Thus, the P. could recover if the product failed to perform as safely as an ordinary consumer would expect [custom] or, even if the public had a low view of the product's safety, if the product was designed in such a way that the dangers could be mitigated by cost-effective precautions [cost-benefit].

7. Notes: 3. Risk-Utility test 1) usefulness, 2) safety, 3) availability of substitute, 4) ability to eliminate risks, 5) user's ability to avoid danger by exercising care, 6) user's awareness of the danger, 7) mfgrs ability to spread the loss. 5. Guns do not fit into the category of defective by design simply because they are extremely dangerous even when designed and manufactured correctly. 6. Although an original manufacturer is generally not liable for a subsequently modified product, the court in Soler v. Castmaster held that the mfgr. could be liable if the modification which was made was reasonably foreseeable to the mfgr.. [The design defect is the ability to be adversely modified.]

** MacDonald v. Ortho Pharmaceutical Corp., (1985)

2. Facts: The P. suffered a stroke as a side effect of taking the Ortho- Novum contraceptive pill. The D. provided a written warning along with the pills which stated that there were side effects which included blood clotting which could lead in some cases to death, and that the blood clot could occur in the brain, however, they did not warn directly of the increased risk of "stroke".

3. Procedural Posture: The trial court jury found for the P., but the judge granted the D.'s motion for judgment not withstanding the verdict, concluding that the D. did not owe a duty to warn the P..

4. Issue: Does the manufacturer have a duty to warn the P. directly of the increased risk of a stroke associated with using the birth control pill?

5. Holding: Yes.

6. Reasoning: The court reasoned that due to the nature of the prescription of contraceptives, the manufacturer owes a duty to directly warn the consumer of the dangers. The prescription of birth control pills happens only on a yearly basis, and the patient cannot be expected to remember all the details of the doctor's advice for an extended period of time. The patient needs a written warning that they can refer to. Furthermore, the warning given must be "comprehensible to the average user and convey a fair indication of the nature and extent of the danger to the mind of a reasonably prudent person." The court found that simply by complying with the FDA requirements, the manufacturer does not necessarily avoid common law liability because the FDA does not define the common law. Also, the tone of the warning must be imperative enough to reflect the seriousness of the risk.

7. Dissent: The dissent reasoned that the manufacturer should only be required to warn the doctor as a matter of law because the doctor is in a better position to understand the medical history of the patient, and counsel them directly.

8. Notes: 1. An extreme example of when a warning must be given is in Morgan v. Faberge, the P. burned herself badly when she poured perfume on a lit candle. She brought suit, claiming strict product liability because the D. had failed to make a warning that the perfume was flammable. The court stated that the exact circumstance of injury did not need to be foreseeable because the risk of injury from burns was generally foreseeable. A manufacturer of alcoholic beverages may be liable for failure to warn of significant health risks involved in either prolonged or excessive drinking. 2. The warning defense may be negated if the manufacturer overpromotes the product in such a way that it tends to contradict the warning. This is true even if the doctor who prescribes the product is negligent in counseling the patient when he is aware of the dangers. 3. Several cases went to court concerning the adequacy of warning for live vaccinations. In Davis v. Wyeth Labs, and Reyes v. Wyeth Labs, the provider of a polio vaccine did not warn the P.s of the 1 in a million chance of contracting the disease from a properly prepared vaccine. Although the vaccine does not meet the definition of "unreasonably dangerous", there still exists a duty to warn where "the risk qualitatively or quantitatively is such as to call for a true choice judgment." In these cases, the chance of getting the disease from the vaccine was the same as getting it otherwise. 4. A warning must be adequate. " It would defy logic and reason to suggest that an adequate warning was provided by the mere mention in the consent form's text that there was a possibility of severe or potentially fatal reactions." 5. There is an information cost associated with providing warnings on labels instead of separate pamphlets. The more you squeeze onto a label, the less likely that the average reader will give all warnings the proper consideration. 6. Some tort actions based on adequacy of warning have been preempted by federal statute. A good example is cigarette liability. The Federal Cigarette Labeling and Advertising Act sets out the exact warnings that must be included on cigarette packs, and states that no additional warnings can be required by state law.

** Brown v. Superior Court (Abbott Laboratories), (1988)

2. Facts: The P. was injured as a result of her mother using DES when she was a fetus.

3. Procedural Posture: The P. sought to hold the D. liable on a strict liability theory claiming defective design of the drug. The trial court found that the D. could not be held liable on a strict liability theory, but only for their failure to warn of known or knowable side effects of the drug.

4. Issue: Does the strict liability theory of defective design apply to makers of drugs?

5. Holding: No. A manufacturer of drugs is liable for the failure to warn of dangers inherent in the drug which are known or knowable at the time of distribution.

6. Reasoning: The court reasoned that drugs are different from other products because they alleviate pain and sustain life. The public interest in the development, availability and reasonable cost of drugs requires that they not be subjected to the strict liability standard, but rather the standard in comment k of Restatement (Second) Section 402A. Comment k is more of a negligence standard because it does not focus on a defect in the product, but rather whether the manufacturer knew or should have known of dangers in the product at the time of distribution. It rejected the argument that some drugs are not "unavoidably dangerous" and therefore should not enjoy the test of comment k.

7. Notes: 1. An application of this rule is found in Brody v. Overlook Hospital, where the P. died from contracting Hepatitis from a blood transfusion. No test for screening blood for hepatitis was available at the time, so the D. was not liable under comment k. They stated that the loss spreading compensationalist argument was outweighed by the greater need for reasonably priced blood. 2. Asbestos cases have also applied comment k. In Borel v. Fiberboard Paper Products Corp., the court held that asbestos was an unavoidably dangerous product, and that there was sufficient medical evidence at the time of distribution that exposure to asbestos caused health problems. The D. was therefore liable for failure to warn. The court in Besheda v. Johns-Manville Products went as far as to say that strict liability for asbestos was required even if the consequences were unknowable at the time because it created an incentive for the manufacturers to discover dangers. Besheda was quickly limited, however, by Feldman v. Lederle Laboratories.

** Micallef v. Miehle Co., (1976)

2. Facts: The P. is the operator of a printing press machine manufactured by the D.. The P. attempted to adjust the machine while it was running, and got his hand caught. There was no guard in the rollers which prevented a person from catching his hand. However, the danger of injury was one that was patently obvious to the user.

3. Procedural Posture: The trial court found that although the D. was negligent in the design of the press, the P. was contributorily negligent in his operation of the machine and so barred from recovery.

4. Issue: Is a manufacturer liable for injuries resulting from the negligence of his design if the user is contributorily negligent in his use of the product because the danger is patently obvious?

5. Holding: Yes. A manufacturer must design his product in such a way as to avoid any unreasonable risk of harm to anyone who is likely to be exposed to the danger when the product is used in a manner which is reasonably foreseeable.

6. Reasoning: The court reasoned that the fact that the danger was patently obvious did not exempt the manufacturer from liability because otherwise, the manufacturer would have no duty to design a reasonably safe product under the cost-benefit analysis. The loss should be shouldered by the manufacturer to provide an incentive to create a reasonably safe product. However, that does not mean that the P.'s contributory negligence is not applicable. Rather, the openness and obviousness of the danger should be available to the D. as evidence of contributory negligence, not bar the P.'s action as a matter of law.

7. Notes: 2. In LeBouef v. Goodyear Tire & Rubber Co., the P. was driving a Cougar which was had a high-horsepower engine capable of going 100 mph, but tires which had only been tested to 85 mph. As the P. drove the car at 100-105 mph, the tires blew out. The court found that although the driver was contributorily negligent in driving so fast, the manufacturer was still liable because the speeding was a foreseeable use of the car, especially since it was designed with such a high power engine. The "foreseeable misuse" standard results in a net transfer of wealth from careful to careless people because the manufacturer cannot charge the careless person a higher price for the product. Thus, the careful person subsidizes the careless one.

** Daly v. General Motors Corp., (1978)

2. Facts: The P.'s decedent was killed when the car he was driving struck the metal divider and he was thrown from the car. The P.s alleged that the door lock was of defective design because it flew open upon impact.

3. Procedural Posture: The D. claimed that the P.s decedent was contributorily negligent because he was not wearing a seatbelt, did not lock the door [factual discrepancy], and was intoxicated. The jury found for D.s.

4. Issue: Are the principles of comparative negligence outline in Li applicable to strict products liability?

5. Holding: Yes.

6. Reasoning: The majority [Richardson] reasoned that the introduction of comparative fault did not reduce the manufacturer's incentive to create a non-defective design. The manufacturer will still be required to pay for injuries resulting from negligent design, however, that amount will be diminished by the comparative fault of the P.. This also has the effect of swallowing up the assumption of risk defense into comparative fault. They reasoned that otherwise, a P. could recover more under simple negligence because assumption of risk would completely bar a strict products liability action.

7. Dissent: The dissent [Mosk] reasoned that the allowance of comparative negligence necessarily reduced the manufacturer's incentive to design a safe product. Now, every manufacturer will be looking for the slightest contribution to reduce its own liability. Mosk reasoned that the negligence of the actual victim should not be relevant because the defective design, if truly defective, would injure the careful as well as the careless. The liability issue should be pure - was the design defective or not? As long as the P. was using the product in a reasonably foreseeable manner, there should be no consideration of his negligence.

8. Notes: Although there is a fair split between the various states, most jurisdictions follow comparative negligence in strict products liability cases.

** Morgan v. High Penn Oil Co., (1953)

2. Facts: The plaintiff is the owner of some property. Next door, the defendant set up an oil refinery operation. Several times a week, the oil refinery produced noxious gases which substantially impaired the plaintiff's use of his land.

3. Procedural Posture: The trial court found for the plaintiffs, and the defendants appeal, claiming that they are lawfully producing oil on their own land, so they are not creating a nuisance per se (as a matter of law.) Thus, they allege that the plaintiff must show that the oil refinery was being operated negligently.

4. Issue: Does nuisance require a showing of negligence?

5. Holding: No. A person who creates or maintains a private nuisance is liable for the resulting injury to others regardless of the degree of care or skill exercised by him to avoid such injury.

6. Reasoning: The court reasoned that nuisance and negligence are two distinct fields of tort. A nuisance per se is an act which is a nuisance at all times regardless of location or surroundings. A nuisance per accidens or in fact is an act which becomes a nuisance by reason of its location or by reason of the manner in which it is operated. A private nuisance may be created or maintained without negligence. The nuisance may be intentional or unintentional. A person is liable for intentional nuisance when his act is both intentional and unreasonable. A person is liable for unintentional nuisance when his conduct is negligent, reckless or ultra-hazardous. The oil refinery was intentionally creating the nuisance. The court found that it was unreasonable.

7. Notes: 2. Since the determination of whether an intentional act is a nuisance requires a determination of reasonableness, the ultimate question becomes one of a cost-benefit analysis. Physical damage to tangible property, although small, may be regarded as grave harm because it involves property rights. Where the invasion involves personal discomfort, it may require that the invasion be continuing to be considered a nuisance. 3. Most minor invasions which are acts that are common and ordinary byproducts of the use and occupation of one's property are not considered nuisances because of the idea of "live and let live"; reciprocal nuisances. Both parties are probably better off if they simply allow the invasions to do uncontested, otherwise, the high transaction costs would outweigh the expected recovery. (See Coase Theorem).

** Fountainebleau Hotel Corp. v. Forty-Five Twenty-Five, Inc., (1959).

2. Facts: The Fountainbleu Hotel and the Eden Roc hotel are neighbors on the beach front in Miami. The Fountainbleu, partly out of a motivation to spite the owner of the Eden Roc, began to construct a high-rise addition to its hotel directly south of the Eden Roc, such that it would cast a dark shadow over the pool and beach area around the Eden Roc. The Eden Roc claimed that such a building would constitute a nuisance, because it would result in loss of business.

3. Procedural Posture: The trial court found for the plaintiff on the theory that a person can not use his property in a way that will damage another. They issued a temporary injunction against the Fountainbleu, and they appealed.

4. Issue: Is a landowner entitled to free flow of light and air from across his neighbor's property?

5. Holding: No. A person must never use his property in a way which injures the lawful rights of another. However, the free flow of light and air across the adjoining land of his neighbor is not a lawful right of a landowner. Furthermore, where a structure serves a useful purpose, it does not constitute a nuisance simply because it cuts off the light and air of an adjoining property, even if the structure was erected partly for spite.

6. Reasoning: The court reasoned that the Fountainbleu was entitled to make use of its own property by building the high-rise. The free flow of light and air was not a right granted under the law. Therefore, a nuisance was not created.

7. Notes: 1. American courts have traditionally rejected a common-law easement for light and air that passes over a neighbor's property because it might inhibit growth of towns and industry. However, in Prah v. Maretti, the court expressly disapproved of Fountainbleu. In Prah, the plaintiff used solar energy to heat his home. His neighbor constructed a house that blocked the sun's rays from striking the solar heater during some parts of the year. The court reasoned that a "unreasonable obstruction of access to sunlight might be a private nuisance" due to the emerging importance of solar energy. The policy of favoring unhindered private development of towns was deemed to be outdated when weighed against the value of sunlight as a potential energy source. 2. A person may not erect a "spite fence" solely to block out the sun and air from a neighbor's window. However, a tool shed, which serves a useful purpose, might not be considered a nuisance. 3. Although solely aesthetic nuisances (eye-sores) might exist which devalue the surrounding neighborhood, it may be impossible to create a workable common-law rule for how these cases should be decided.

** Rodgers v. Elliot, (1888)

2. Facts: The plaintiff was recovering from a severe case of sunstroke in a house near a church. The defendant was the bell ringer at the church. When the defendant rang the bell, the plaintiff went into convulsions. The defendant's doctor asked the plaintiff not to ring the bell, but the plaintiff responded that he would ring it even if his own mother were ill.

3. Procedural Posture: Unknown.

4. Issue: Is a person liable for nuisance if he creates necessary noises which do not injure the ordinary person, but do injure an extra- sensitive person?

5. Holding: No. The test for whether a particular act is a private nuisance is whether it injures the person of ordinary prudence.

6. Reasoning: The court reasoned that the right to make a noise for a proper purpose must not depend on the sensitivity of the extra-sensitive person, nor the robustness of the strong person, but on the ordinary person. Otherwise, the character of a business might change from legal to illegal with every change of tenant in a neighborhood, or every passing guest at a nearby house. Legal rights to the use of property can not be subject to such uncertainty. Regardless of whether the defendant should have shown more compassion for this individual, he was not required by law to refrain from using his property in a way which did not injure the ordinary person.

7. Notes: 1. This rule of no nuisance for extra-sensitive persons is under some tension with the rule that a defendant takes his victim as he finds him. 2. In Belmar Drive-In Theater v. Illinois State Toll Highway, the plaintiff was deemed to be extra-sensitive, and therefore not allowed to recover, when the lights of the defendant's road made it too bright for the plaintiff to show his drive-in movies. However, in Page Appliance Center v. Honeywell, the defendant was held liable for the EMI generated by his computer which adversely affected the picture screens in the adjoining appliance store. The court stated that televisions were everywhere, therefore the plaintiff was not extra-sensitive.

** Ensign v. Walls, (1948)

2. Facts: The defendant has operated a dog farm for several years on her property. It smells bad, attracts flies and rats, and disturbs the plaintiffs in the use of their land. However, most of the plaintiffs are new to the area.

3. Procedural Posture: The defendant claims that the business was well established when the plaintiffs moved in, and so they cannot be heard to complain.

4. Issue: Can a lawful intentional act be considered a nuisance when it existed before the neighboring residents moved in?

5. Holding: Yes. Carrying on an offensive trade for any number of years in a place remote from buildings and public roads, does not entitle the owner to continue it in the same place after houses have been built and roads laid out in the neighborhood, to the occupants of which and travelers upon which it is a nuisance.

6. Reasoning: The court reasoned that the fact that the defendant was there previously did not make it any less of a nuisance.

7. Notes: 1. To allow the pre-existing nuisance defense would allow the "theft" of an interest in real property. However, there may be some assumption of risk type defense if the plaintiff knew that the zoning laws permitted such an operation before moving in.

** Boomer v. Atlantic Cement Co., (1970)

2. Facts: The D. operates a cement plant. The P. is a resident of the area. The plant emits large quantities of particulate matter which is a nuisance to the P..

3. Procedural Posture: The lower courts found that a nuisance did exist, and that the total damages, present and future, were $185,000. However, contrary to the general rule of the state, they refused to grant an injunction to stop the cement plants operation, even though it was a substantial and continuing nuisance, because of the extreme lopsidedness in value of the plant as compared to value of the P.s property.

4. Issue: Should an injunction be granted in a nuisance case where there is a large disparity between the value of the P.s damages and the value of the D.s operation?

5. Holding: No. Where a nuisance is of a permanent and unabatable character an injunction will be granted unless the value of continuing the operation significantly outweighs the value of the damage done by the nuisance, in which case permanent damages may be awarded instead.

6. Reasoning: The majority reasoned that the value of having cement plants was very high. Furthermore, there was not likely to be any acceleration in the rate of finding a reasonable way to abate the pollution. Thus, it would be inequitable to grant the injunction and shut down the plant entirely. However, the threat of an injuction if the D. did not pay damages would correct the problem of the particualr P.s that were a party to this action. Thus, the majority reasoned that the proper remedy would be to grant an injunction, which would be removed when they paid permanent damages. The theory they used would be a "servitude on land" of P.s imposed by the D.s nuisance.

7. Dissent: The dissent reasoned that air pollution from cement plants was of such high importance to the public in general that the court should set a precendent on behalf of the rest of the public, not just the particular P.s in this action.

8. Notes: 1. Temporary damages allow an accurate measurement of actual damages, but they produce high transaction costs of repeated litigation, and require the P. to suffer first for future damages that he knows will happen. Permanent damages avoid high transaction costs, but they are difficult to approximate, and assume that the D. will maintain the same level of nuisance in the future. 2. If the damages to the P. are large, and the cost of mitigating those damages is small, the P. may be required to take steps to reduce the damage, even including fixing the problem themselves, instead of sitting back and allowing the damages to accrue. 3. Reasons for granting injunctions are that they avoid the risk that the D. will be insolvent, the provide protection to other victims who are not joined in the lawsuit, and they avoid the difficult task of determining future damages. However, in the case where the damage is slight compared to the value of the nuisance, they give the P. extreme bargaining power (perhaps unjustly in some cases). 4. An injunction may not be awarded to stop the construction of an operation that may become a nuisance when completed (ex: a half-way house for parolees in a residential neighborhood). The reasoning is that the P.s don't have damages yet, and may never have damages. They can still bring an action if the nuisance materializes. 5. Courts have broad power to consider all the surrounding circumstances in deciding whether to delay an injunction, make it conditional, or issue it at all. They may "balance the equities" of the parties to make a compromise. 6. In the case of "coming to the nuisance" the P. may get his injunction, but also be required to pay some sort of damages to the pre-existing owner of the nuisance if it it is only a nuisance because of the recent location of houses in the area.

** Anon (1535)

2. Facts: The King blocked access to one of the public roads. The P. was therby inconvenienced and brought an action for nuisance and damages.

3. Procedural Posture: Unknown.

4. Issue: Is a private citizen entitled to recover for damages from the public nuisance of a road closure if he is not specially damaged by it any more than the ordinary member of the public?

5. Holding: No.

6. Reasoning: The court reasoned that to allow this action would be to expose the person to a hundred private actions, instead of the one public action provided for the remedy of such situations (administrative remedy).

7. Notes: Gnereal damages from public nuisances are controlled only by direct public action, usually administrative regulation or criminal prosecution. The private action is maintainable only for "special" damages if they are "disproportionate" to the individual. The reasoning is that the transaction costs of adjudicating each individual's slight damages are too high.

** Union Oil Co. v. Oppen (1974)

2. Facts: The P.s were commercial fishermen who lost profits when the D.s negligently spilled a large quantity of oil into the fishing grounds.

3. Procedural Posture: The lower court refused to grant the D.s motion for partial summary judgement which claimed that they were not liable for lost profits because in general, a person is only liable for actual damages, not lost profits.

4. Issue: Does an Oil Company have owe a duty to the commercial fishermen refrain from damaging the fish in the sea that are the fishermen's livelihood?

5. Holding: Yes.

6. Reasoning: The court reasoned that the damage was foreseeable, therefore a duty was owed. [Note this was not litigated as a nuisance case].

7. Notes: 1. Although the oil company would not be liable if they had caught the fish prior to the fishermen (thereby reducing their profits), Oppen may be interpreted as providing a tort action to a resource user for the premature destruction of a valuable pool of resources, even though the resource pool is a common one, which the user does not own exclusively. However, this action may be most effeciently dealt with in terms of state regulation. 3. Air pollution is a nuisance with so many causes that to allow a private action would result in everybody suing everybody. Thus, for these public nuisances, administrative controls work best.

** Alcorn v. Mitchell, (1872)

2. Facts: At the close of a preceeding trial, the D. spat in the face of the P. in open court.

3. Procedural Posture: The trial court found for the P. (of course), and awarded damages of $1,000.

4. Issue: May a person recover large punitive damages for an offensive battery where there is only nominal physical injury?

5. Holding: Yes. Juries "may give vindictive damages where there are circumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong complained of."

6. Reasoning: The court reasoned that to award damages here was in keeping with the philosophy of providing protection against such malicious acts by giving liberal damages to make an example of the tortfeasor. Such a clear precedent helps to preserve the public tranquility because otherwise people would resort to personal violence in such a case if the damages were insufficient.

7. Notes: 1. The Restatement (Second) 18 defines a battery as requiring a) intent to cause a harmful or offensive contact, or imminent apprehension of such a contact, and b) a resulting contact either directly or indirectly. If the act is done without intent, the actor is not liable even if he has been reckless. In these cases, the insult is to be weighed more than the injury to because that is the real harm that would induce fighting. Knowledge of the unpermitted conduct is not required. Thus, "A kisses B while asleep but does not waken or harm her. A is subject to liability to B." The protection goes beyond direct contact with the person. It also covers "anything so closely attached [to the plaintiff's person] that it is customarily regarded as a part thereof and which is offensive to a reasonable sense of personal dignity." For example: striking a person's walking cane, striking the horse that the person is riding, grabbing at a person's dinner plate. 2. Transferred intent also applies to offensive battery. 3. Some states have statutes that make a person liable for insults, which in their common use tend to incite violence and a breach of the peace. These statutes are probably to be construed narrowly, applying to only those words which might make the particular individual retaliate because they might be unconstitutional under the First Amendment otherwise.

** Bird v. Jones, (1845)

2. Facts: The D. obstructed a public highway for the purpose of setting up a spectator area for a boat race. The P. wished to cross the highway through the spectator area, but was blocked by 2 police officers who had been hired to do crowd control. He was free to go back the way he came, or any other direction, except for forward on the public highway.

3. Procedural Posture: The P. brought an action for imprisonment.

4. Issue: Is a person liable for imprisonment when he intentionally blocks the right of way of another on a public highway, but allows the other to go in any other direction but forward [takes away freedom of movement in one direction only]?

5. Holding: No. Imprisonment is more than the mere loss of power to go whithersoever one pleases, it includes the notion of restraint within some limits defined by a will or power exterior to our own.

6. Reasoning: The majority reasoned that the P. was not imprisoned because although the D.'s police officers may have been wrong in not allowing him to pass, he was free to go around the obstruction. The majority defined imprisonment as requiring that the P. not be able to leave an area without breaching some sort of prison boundary. To find imprisonment in the present case would be to turn every obstruction of the exercise of a right of way into imprisonment.

7. Dissent: The dissent defined imprisonment as any illegal restraint of the person by use of force. He reasoned that it should not matter that the person could find other means of travelling. "As long as I am prevented from doing what I have a right to do, of what importance is it that I am permitted to do something else?"

8. Notes: 1. In Whittaker v. Sanford, the P. was allowed to roam freely on a palatial yacht, but was not allowed to remain ashore or to leave. She was held to be imprisoned, but the court stated that the damages awarded were to high because such confinement lacked "the elements of humiliation and disgrace that frequently attend false imprisonment." 36 comment b ot the Restatement states that the area in which the prisoner is completely confined may be large. However, when it is very large, the area of confinement becomes simply an exclusion from another area. 2. How much coercion is needed? It is not false imprisonment to lock an athletic young man in a first-floor room with an open window, but it would be if he were stripped of his clothes. In Griffin v. Clark, the P. was held to be falsely imprisoned when North, in a burst of agressive hospitality, stashed her luggage in the trunk of his car, and insisted that she ride with them on a trip instead of taking the train. In National Bond & Investment Co. v. Withorn, a person who remained in his car while it was being repossessed was held to be falsely imprisoned because he was remaining in a lawful area, but could not leave once the car had been hoisted on the tow truck and taken away. 3. Usually, the D. must have intended to confine the P. to be liable (like in battery), there being no liability for negligently caused imprisonments. However, this situation only works well when the harm to a person's dignity outweighs his physical damage. When the negligent imprisonment results in major physical harm, the case is treated as ordinary negligence. For example, if a person accidentally locks another in a walk-in freezer, and immediately realizes the mistake, he is not liable for the "momentary confinement". However, if he does not find out until much later, he would be liable for damages if the person came down with pneumonia. 4. If a person does not know that he is being confined (drunk, asleep, or insane), he may be found to be imprisoned [probably for deterrence purposes], but the damages would be slight because the injury to the person's dignity would be nominal.

** Coblyn v. Kennedy's, Inc., (1971)

2. Facts: Coblyn was an old man who had been shopping for a coat at Kennedy's. After leaving, he was confronted by an employee of Kennedy's while about a dozen people looked on. The employee demanded that the old man stop and tell him where he got the ascot he was wearing, thinking that he had shoplifted it. The old man submitted to the employee's request to go back into the store to validate the old man's story that it was his. While on the way back up the stairs, the old man had a heart attack, and had to be treated by the nurse.

3. Procedural Posture: The trial jury awarded Coblyn $12,500 for false imprisonment. The D. appealed, claiming that no unlawful use of force had been employed, nor had they restrained the P.'s movement - he had agreed to accompany the employee back into the store.

4. Issue: May a person be falsely imprisoned if he is embarassed into submitting to go with another person against his will?

5. Holding: Yes. "Any demonstration of physical power which, to all appearances, can be avoided only by submission, operates as effectually to constitute an imprisonment []. If a man is restrained of his personal liberty by fear of a personal difficulty, that amounts to false imprisonment."

6. Reasoning: The court first stated that the embarassment of being publicly accused of shoplifting was enough to motivate a person to submit against his will to return to the store, or otherwise the public might think that he was really a shoplifter. There was a statute that allowed a merchant to detain a suspected shoplifter if there were "reasonable grounds" to do so, and the merchant used "reasonable" means. The court found that under this objective test, Kennedy's did not use reasonable means because the employee grabbed the old man's arm and did not identify himself. Furthermore, the employee did not have reasonable grounds which it defined as being analogous to "probable cause".

7. Notes: 2. Generalizing from the shoplifting case, detention or restriction may be justified by showing that it was reasonably necessary for the protection of person or property. For example, in Sindle v. N.Y. City Transit Authority, a school bus driver may have been justified in transporting a busload of riotous junior-high school children on his bus to the police station, even though not all of them were involved in the dangerous behavior. 3. Consent is another defense against a charge of false imprisonment. The problem arises, however, when consent once given is retracted. 4. In Peterson v. Sorlien, a college age girl had joined a religious cult. Her parents took her against her will to a "professional deprogrammer" who subjected her to various mental deprogramming techniques. After a few days, the girl was cooperative. However, she eventually rejoined the cult and brought an action for false imprisonment against her parents and the deprogrammers. The majority reasoned that the false imprisonment action could not lie because she was incapable of rationally refusing the treatment since her mind was screwed up by the cult, and she eventually assented to the treatment after a few days, showing that she had "regained" her mental faculties. The dissent argued that since the daughter was an adult, the parents could not enjoy any immunity from subjecting her to the humiliation of deprogramming.

** Wilkinson v. Downton, (1897)

2. Facts: The D., in a practical joke, told the P. 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 P. vomit and caused her serious medical problems.

3. Procedural Posture: The trial court awarded the P. the cost of the cab fare based on fraud and deciet, but could not find a cause of action to treat the other damages.

4. Issue: May a person recover for intentional infliction of emotional distress?

5. Holding: Yes.

6. Reasoning: The court reasoned that although the D. 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.

7. Notes: In Nickerson v. Hodges, a woman had been confined to a mental institution. She had the delusion that she was constantly searching for a buried treasure. Ten people conspired to leave clues to a iron pot full of dirt and stones. When she found it, they convinced her to put it in the bank, and then open it in public in front of a crowd of people. When she realized she had been tricked, she went into hysterics, and died 2 years later. The Supreme Court would have awarded her substantial damages if she had lived, but only awarded $500 to her heirs.

** Bouillon v. Laclede Gaslight Co., (1910)

2. Facts: Bouillon liven in a downstairs apartment over a basement. Iin the basement was a gas meter. Bouillon was pregnant, and due to medical complications, was bedridden. An meter reader from Laclede, came to the door and demanded entry through the apartment to read the meter in the basement. He was very belligerent to the nurse who answered the door, and the fright and shock of the incident led Bouillon to have a miscarriage the next day.

3. Procedural Posture: The trial court directed a verdict for the D., on the grounds that the meter readers actions were not an assault against the pregnant woman, because they were directed at the nurse.

4. Issue: May a person recover for emotional distress damages when the assault was directed at another, and the person is harmed only by observing the incident?

5. Holding: No.

6. Reasoning: Although the court refused to give a cause of action under transferred intent, they stated that the action fell under trespass. The meter reader had no authority to enter the apartment. Thus, he is liable for all injuries that were proximately caused by his intrusion.

Restatement (Second) of Torts 46 Outrageous Conduct Causing Severe Emotional Distress.
(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm. [Standard is "extreme and outrageous" conduct which can be either intentional or reckless. The harm must be "severe" to recover for emotional distress itself. Even when the conduct is malicious or even criminal, it is not actionable unless it has gone "beyond all possible bounds of decency". P.s must be expected to be hardened to an ordinary amount of rough language or insults. However, if the D. is aware of the particular sensitivity of the P., and proceeds anyway, his conduct may be "outrageous".]
(2) Where such conduct is directed at third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress [transferred intent]
(a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, [family members can recover even if no physical bodily harm, but they have to be present at the time] or
(b) to any other person who is present at the time, if such distress results in bodily harm. [Other persons need actual bodily harm to recover.]

48 Special Liability of Public Utility for Insults by Servants
A common carrier or other public utility is subject to liability to patrons utilizing its facilities for gross insults which reasonably offend them, inflicted by the utility's servants while otherwise acting within the scope of their employment. [Respondeat superior for intentional infliction of emotional distress, but only for "public utilities."]

** George v. Jordan Marsh Co. (1971)

2. Facts: George is the mother of a son who has outstanding debts to the Jordan Co. Jordan repeatedly harrassed George to collect the debts of her son until she had a heart attack. Thereafter, George's attorney sent a letter to Jordan, requesting that they stop the harrassment, but they continued and she had a second heart attack.

3. Procedural Posture: The trial court sustained a demurrer to George's action for emotional distress because it was not "parasitic" to, or based on, some other existing tort (such as fraud or trespass).

4. Issue: May a person recover for intentional infliction of emotional distress when there has been no underlying tort that caused the harm?

5. Holding: Yes. "One who, without a privilege to do so, by extreme and outrageous conduct intentionally causes severe emotional distress to another, with bodily harm resulting from such distress, is subject to liability for such emotional distress and bodily harm even though he has committed no heretofore recognized common law tort."

6. Reasoning: The court followed the Restatement (Second) 46, which led to the development of a new rule in the law - that intentional infliction of emotional distress could stand alone as its own tort. They refuted the argument that this would cause a flood of unjust claims, because that is a risk involved even with emotional distress as a "parasitic" claim, and that judges and juries are competent to decide whether there is any emotional distress present, and how much. The old rule as announced in Spade, was that there could be no recovery for emotional distress where there was not a physical injury. However, this only applied to negligence cases, not intentional cases.

7. Notes: 1. A cause of action for intentional infliction of emotional distress for threatening language can exist even if the threats are made in such circumstances that they do not constitute to a technical assault. Also, a loss of consortium cause of action can arise for the spouse, in the same way that it could for an intentional battery. It is an intentional invasion of the marriage relationship. 2. An insurance company was held liable for intentional infliction of severe emotional distress when they, in bad faith, refused to pay a widow the accidental death claim on her husband. The court found that the insurance company used economic coercion to try to force the widow to settle, and so she was subjected to the emotional distress of not being able to care for her children and accept charity from relatives. 3. A doctor was held liable for the intentional infliction of emotional distress when he made accident victims wait outside in the freezing rain after only cursory examination. The court stated that the Restatement test of "outrageous" was open to too much interpretation, so he stated that "outrageous to the extreme" should be the test. [There was not a malpractice or breach of contract action probably because the burden of proof to show negligence in the performance of the examination would be difficult to overcome.] 4. Although racial insults may be a form of intentional infliction of emotional distress, the P. has to get by the 1st amendment right to free speech, as well as show some actual mental or emotional injury.

** Hustler Magazine v. Falwell, (1988)

2. Facts: Hustler magazine ran a parody of a liquor ad that featured Jerry Falwell as the "celebrity" who was portrayed to be confessing that he was an incestuous drunkard.

3. Procedural Posture: Falwell sued for intentional infliction of emotional distress, and the jury awarded him $150,000.

4. Issue: May a public figure recover damages for emotional harm caused by the publication of an ad parody offensive to him?

5. Holding: Public figures may not recover for intentional infliction of emotional distress by reason of publications without showing that in addition to the publication containing false statements of fact, that it was made with actual malice or disregard as to whether or not it was true.

6. Reasoning: The court stated that political cartoons were protected by the first amendment. Although they conceded that this ad was not really a political cartoon, they were unable to find a standard that could separate this kind of ad from the others. They stated that although Falwell may have suffered emotional injury, the First Amendment was of greater importance here because he was a public figure. Otherwise, any public figure could take a political cartoonist to court if his feelings were hurt. Furthermore, they stated that the "outrageousness" standard was inherently subjective when used in the area of social and politcal events.

** Dillon v. Legg, (1968)

2. Facts: P. was the mother of a child who was killed when the D. negligently hit her with his car. The mother was standing far enough away that she was in no personal danger of being hit by the car. P. sued for damages from emotional distress from watching her child be killed by D.'s negligence.

3. Procedural Posture: The trial court found that the mother was not in the "zone of danger", and so was not entitled to recover because she did not fear for her own safety. The mother appealed.

4. Issue: May a mother recover for negligent infliction of emotional distress for observing the negligently caused death of her child?

5. Holding: In determining whether the D. owes a duty of care to the P., the court should consider the following: 1) the proximity of the P. to the accident, 2) whether the P. directly witnessed the accident, and 3) whether the P. was closely related to the victim.

6. Reasoning: The court refused to limit the D.'s liability for emotional damages only to those within the artificially constructed "zone of danger" for the same reason that they did not require actual impact. They stated that although opening the D.'s liability further would lead to fraudulent claims, that is a part of every tort case. They reasoned that foreseeability was the test of due care. The D. is more likely to foresee the risk of injury to bystanders when they are closely related witnesses who are near to the victim at the time of the injury.

7. Notes: 1. In Tobin v. Grossman, the NY court denied recovery to a mother who had not actually seen the child being hit by the car, but heard the screeching tires and arrived only moments later. They argued that if the mother was allowed to recover, then why not other relatives or caretakers, and they were not willing to expand liability so far. 2. In Elden v. Sheldon, the CA court took a step back from Dillon, and refused to allow an unmarried cohabitant to recover damages for negligent infliction of emotional distress, stating that Dillon restricted recovery to married couples. Furthermore, in Thing v. La Chusa, the court restated the Dillon test more narrowly: 1) the P. must be closely related to the victim, 2) actually present at the accident scene and aware that it is causing injury to the victim, and 3) as a result suffers emotional distress beyond that which would be expected in a disinterested witness. 4. In Ownes v. Liverpool, the P. suffered emotional distress when the D. crashed into a funeral hearse carrying the body of the P.'s relative. The D. argued that he should not be liable because the P. was extrasensitive. The court stated that emotional harms should be treated no differently than physical ones; a D. takes his victim as he finds him. However, in Bourhill v. Young, the opposite result was reached when a woman gave birth to a stillborn child after witnessing a motorcycle accident down the street. The court held that there was no duty because the extra-sensitivity of the P. was not foreseeable. 5. In Payton v. Abbott Labs, the P. was a DES daughter who claimed negligent infliction of emotional distress based on the fear that she might some day contract a DES related illness. However, she had not yet suffered any harm to date. The court rejected the suit, stating that in order to recover for negligent infliction of emotional distress, there must be some physical harm suffered already [actual harm], and that the D. should have known that the act would cause emotional distress to a reasonable person [no extra-sensitive P. recovery].

** Molien v. Kaiser Foundation Hospitals, (1980)

2. Facts: The D. doctor nelgigently diagnosed the P.'s wife as having syphillis. This caused the marriage to break up.

3. Procedural Posture: The trial court sustained the D.'s demurrer on the ground that the P. could not recover for negligent infliction of emotional distress without any physical injury.

4. Issue: May a person recover for negligent infliction of serious emotional distress without having any manifestation of physical injury?

5. Holding: Yes.

6. Reasoning: The court reasoned that emotional harms were no less deserving of redress than physical harms. Thus, it was artificial to require physical injury to recover. Such a practice encouraged extravagant pleading and distorted testimony as people exaggerated physical injuries just to get the larger mental injury award. Thus, the floodgates were already open. Instead, the court held that the standard of foreseeability of the harm should apply to these cases just as in other torts. It was easily foreseeable to the doctor that a nelgigent diagnosis of syphillis would result in distrust, causing the marriage to break up.

7. Notes: 2. In Johnson v. State, the hospital sent the wrong body to a funeral, which caused the deceased's daughter to have emotional injuries. The court distinguished this case from the bystander cases that did not allow recovery by stating that the P. was the direct victim of the harm. The hospital owed the P. a duty to send the correct body, and breached that duty.

** Lumley v. Gye, (1853)

2. Facts: Lumley owns a theater where he hired Ms. Wagner to sing in his opera. Gye, a competitor, persuaded Wagner to sing at his own opera house. Even after the contract court issued a negative injunction for her not to sing at Gye's opera house, he still persuaded her not to sing for Lumley.

3. Procedural Posture: Lumley brought an action for malicious inducement to breach a contract. The lower court sustained the D.'s demurrer on the grounds that "as a general proposition of law, that no action will lie for procuring a person to break a contract, although such procuring is with a malicious intention and causes great and immediate injury."

4. Issue: May a contracting party sue a person who is not privy to the contract for malicious inducement breach?

5. Holding: Yes. "A person who wrongfully and maliciously, or...with notice, interrupts the relation subsisting between master and servant...commits a wrongful act for which he is responsible at law."

6. Reasoning: The majority [Crompton] reasoned that the action for recovery of contract damages was separate and unique from the action in tort. In cases where there is a malicious intent to induce a party to breach, it must be assumed that that act is the proximate cause of the breach. However, this was limited to malicious acts or those "with notice", meaning that the D. knew of the contract.

7. Dissent: The dissent [Coleridge] was worried that this would open up the floodgates for many actions for every contractual breach. The dissent felt that the inducement could not be properly linked to the breach since the persuader was not privy to the contract. Furthermore, he doubted that the court could reslove the grey area between malicious conduct, and that which was simple business competition.

8. Notes: 1. The tort has expanded to be applicable to all types of contractual arrangements where the persuasion is malicious. "Mere persuasion" is not actionable, and the "notice" requirement of Lumley v. Gye must be read in that light. In Bowen v. Hall, "malice" was defined as any persuasion which was used "for the indirect purpose of injuring the plaintiff or of benefitting the defendant at the expense of the plaintiff." 2. The tort action may be available in a contract even if it is terminable at will by either party, as long as there was a breach. However, it does not apply where the party is not in breach, such as leaving the job for higher wages elsewhere. 3. The Restatement 766 provides that "one who intentionally and improperly interferes with the performance of a contract" is subject to tortious liability such that "the actor must have knowledge of the contract with which he is interfering." Thus, the actor is not liable for a good faith inducement to breach when he does not know of the other contract. 5. Providing a tort remedy for inducement of breach complicates the contract action because it provides a disincentive to breach, even when it may be more efficient to do so.

** Tarleton v. M'Gawley, (1793)

2. Facts: The P. owned a ship that was off the coast of Africa making preparations for trade. As a canoe with local natives approached to enter into a trade with the P., the D. fired a cannon at the canoe, killing one of the natives. This scared the others away, and resulted int the P. being diminished in the amount of trade he could do. However, the P. did not have permission to engage in any trade with the natives until he had paid a duty to the local king, which he had not done.

3. Procedural Posture: The P. brought an action on the case for interference with prospective trade.

4. Issue: May a person recover for the malicious act of another to interfere with his ability to do business?

5. Holding: Yes.

6. Reasoning: The court reasoned that the fact that the duty had not been paid may have been a breach of the other country's laws, but not those of the U.S. Trade in itself was a lawful act. Since the interference was not accidental, but rather the D. had the intention not to permit any trade, to prevent the natives from trading with anyone else before they paid him a debt, an action could lie.

7. Notes: The protection afforded in Tarleton is both narrower and broader than that of Lumley. It is narrower in that prospective advantage is protected only against interference by means that are unlawful in themselves. But it is broader in that it extends beyond where a contract exists. In Keeble v. Hickeringil, the D. was liable for frightening away ducks from the P.'s pond with a shotgun, but would not have been liable if he had lured them away with his own decoy. In Evenson v. Spalding, the D. was liable for harrassing the competition's salesmen and customers when they tried to make a public sale of buggies on the roadside.

** People Express Airlines, Inc. v. Consolidated Rail Corp., (1985)

2. Facts: The People Express Airline was forced to evacuate their terminal when a toxic gas fire was negligently started at the Consolidated Rail yard. There were no physical injuries, but the airline lost business.

3. Procedural Posture: The lower court found that People's Express was entitled to recover for wholly economic damages.

4. Issue: May a party recover for damages for negligence that are purely economical without proving a physical injury?

5. Holding: Yes. A defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such damages from its conduct. [Standard of foreseeability for purely economic damages.]

6. Reasoning: The court rejected the many arguments allowing purely economic damages. There were already several exceptions to the general rule (special relationship, etc.). The court reasoned that creating a right of action for purely economic damages would not open the floodgates for a rush of unfounded claims. Even if a duty were shown, the P. would still have to prove causation and damages. Also, there would not be unlimited liability because the P. would have to be part of an identifiable class of foreseeable victims.

7. Notes: The courts were traditionally reluctant to give purely economic damages for negligence where the victim was not in privity with the tortfeasor. They were afraid that the chain of injury would go on forever (I injure you, your customers come after me, their customers come after me, etc.). Holmes stated the proposition in Robins Dry Dock & Repair Co. v. Flint, that "a tort to the person or property of one man does not make the tortfeasor liable to another merely because the injured person was under a contract with that other, unknown to the doer of the wrong. The law does not spread its protection so far." 2. An argument against allowing purely economic losses to be recoverable is that whatever business is lost by the plaintiff is picked up by some rival firm, resulting in no net loss to society. However, this argument overlooks the fact that there are increased costs in going to the competitor.

** Mogul Steamship Co. v. McGregor, Gow, & Co., (1889)

2. Facts: McGregor and Co. formed an alliance of tea trading companies who banded together to undercut the market price for tea, and drive Mogul and their other competitors out of business. Although the trade practices were intended to drive Mogul out of business, they were not motivated by any personal malice.

3. Procedural Posture: Mogul brought an action for unfair competition.

4. Issue: May a trader recover damages against a group of competitors who band together to drive him out of business with the purpose of establishing market dominance for increased profits in the future?

5. Holding: No. "Competition, however severe...if unattended by circumstances of dishonesty, intimidation, molestation, or such illegalities...gives rise to no cause of action."

6. Reasoning: The court reasoned that the self-interest of promoting one's own business was not unlawful. Neither was banding together to dominate the market. The competition in this case was not fraudulent. Although it was designed necessarily to damage the P.'s business, it was not illegal.

7. Notes: 1. The majority in Mogul did not concentrate on the social losses that result from the creation of a monopoly by predatory pricing. However, there is doubt that predatory pricing alone, in the absence of capital merger and acquisition, could lead to a monopoly. 2. In Allen v. Flood, an employee's union was held not to be liable for pressuring a company to fire a large portion of its employees. "An act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to a civil action." However, in Quinn v. Leatham, a union was held liable for pressuring the customer of the P. not to purchase goods from the P. or his workers would strike. In justification of the holding, the court remarked "the purpose of the defendant was to injure the plaintiff in his trade as distinguished from the intention of legitimately advancing their own interests." However, it is arguably within a union's best interest to secure work for its own members. 3. In Tuttle v. Buck, the D. was found liable when he set up two barbers, rent free, to compete against the P. and drive him out of business. The court stated that if the actor uses his power and capital maliciously for the sole purpose of driving another out of business, regardless of the cost to himself, that is an actionable tort.

** International News Service v. Associated Press, (1918)

2. Facts: INS and AP were in direct competition for the acquisition and distribution of news for sale to newspapers across the country. The INS used AP news bulletins released on the east coast to telegraph and telephone the news stories in to the west coast for sale to newspapers in direct competition with the AP.

3. Procedural Posture: AP brought an action for unfair competition.

4. Issue: May a news agency recover damages for unfair competition when a competing news agency pirates their news and sells it to their own customers?

5. Holding: Yes. Where tow commercial parties are in direct competition with each other, each party is under a duty so to conduct its own business as not unnecessarily or unfairly to injure that of the other.

6. Reasoning: The court reasoned that although AP did not have a right of property in the news against the general public, they did have a remaining property interest against anyone in direct competition. By pirating the AP's news, the INS is appropriating the effort and labor that the AP put into the news. "Stripped of all its disguises, the process amounts to an unauthorized interference with the normal operation of [AP's] legitimate business precisely at the point where the profit is to be reaped, in order to divert" the profit to the INS without the INS taking any of the risks of gathering the news. "It substitutes misappropriation in the place of misrepresentation, and sells the complainant's goods as its own."

7. Notes: The rule in INS has been applied in other cases where there is direct competition, such as recording a concert off the radio and selling it for profit. However, it has not been applied where the use of the information was not for reasons of direct competition, but rather was used by companies that make a profit off of the existence of another [lottery based on NFL, computer that calculates U.S.G.A. golf handicap].

** Ely-Norris Safe Co. v. Mosler Safe Co., (1925)

2. Facts: Ely-Norris has a patent on safes that have an explosion chamber to protect against burglary. Mosler sells safes which it represents as having an explosion chamber, when in fact they do not.

3. Procedural Posture: Ely-Norris appeals from a decree of dismissal on its suit for damages for unfair competition.

4. Issue: May a manufacturer who has a monopoly on a certain product recover damages for unfair competition if a competitor represents his own product as being that of the original?

5. Holding: Yes.

6. Reasoning: [Hand] If the P. could show that he lost customers due to the D.'s deceit and fraud, then the D. would be liable. A competitor can use any lawful means to promote his business, but he can not use fraud.

** Mosler Safe Co. v. Ely-Norris, (1926)

2. Facts: Same as above.

3. Procedural Posture: On certiori to the Supreme Court from the lower court of appeal.

4. Issue: May a manufacturer who does not have a monopoly on a certain product, and therefore can not demonstrate losses, recover damages for unfair competition if a competitor represents his own product as being that of the original?

5. Holding: No.

6. Reasoning: [Holmes] reasoned that Ely did not have a monopoly on explosion chambered safes. It only had a patent on one kind. Thus, Ely could not show that a customer that bought a false safe from Mosler would have bought from them (instead of one of their competitors) if they had known of the fraud.

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