Rudolph v. Arizona BASS Federation
1. Case Heading:
Parties: individuals (parents of the deceased) and an organization that sponsored a bass fishing tournament at Bartlett Lake.
Year: 1995, relatively modern period.
Court: Arizona State Appellate.
2. Disposition:Reverse and remand the trial court’s decision.
3. Holding:We conclude that defendants owed a duty to Heather to exercise due care in designing and conducting the fishing tournament. We further conclude that the record contains sufficient evidence of disputed facts on the alleged reach of the standard of care and on… case to submit those issues to the tier of fact.
4. Issue:Didthedefendants, GCBB, owe duty to plaintiff’s daughter?
5. Procedural History:The trial court granted defendants’ motion for summary judgment (pretrial motion; terminates motion before going to court; because there are no genuine issue of material fact, and wins when the law is applied to the facts). The appellant challenged the granting of summary judgment.
6. Facts: GCBB hosted a bass fishing tournament at Bartlett Lake despite its members’ oppositions due to the lake congestion. GCBB obtained a permit from the USFS, subjected to the condition that “…all participants operate boats in a safe and reasonable manner without endangering the peace and safety of other persons in and about the lake.” GCBB did not patrol the lake, provide safety instructions, or require its members to take boating safety classes. GCBB told its members to be very courteous. Members could fish in the entire lake, but GCBB designated only one weigh-in site and required the participants to return before 1:00pm. At 12:55pm, a boat operated by Kirkland collided with the jet ski operated by Heather and friend, both of whom were killed. Kirkland’s boat was traveling at a speed in excess of 40 mph, and Allen, a passenger on Kirkland’s boat, had caught a fish that could win.
7. Rule: Ontivros v. Borak, Handbook on the Law of Torts, Zanine v. Gallagher, Weirum v. RKO General, Inc., Davis v. Cessna Aircraf Corp., Robertson v. Six-pence Inns of America, Inc.
8. Reasoning: Zanine – there is no requirement that a foreseeable plaintiff must be connected with or personally known to the defendant for a duty to exist. A user of a lake owes a duty to use due care to avoid injuring all other users of the lake. Defendants had a duty to exercise due care in designing and conducting the tournament so as not to injure other uses of the lake.
Davis – To establish negligence, it has to be determined if there a foreseeable and unreasonable risk of harm from the conduct.The design of the tournament encouraged participants to fish on the lake as long as possible before hurriedly returning to the weigh-in station to beat the 1pm deadline.
Robertson – in negligence, the plaintiff must show a reasonable connection between the defendant’s act or omission and the plaintiff’s injury or damages. The defendant’s act or omission need not be a large or abundant cause of the injury. To establish cause, a plaintiff need only present probable facts from which the causal relationship reasonably may be inferred. Jurors could conclude that the men were speeding to the weigh-in station to beat the deadline. The facts that GCBB chose a crowded lake for its tournament, set up its weigh-in station at a congested area, and ended the tournament at a busy time of day caused Kirkland to race to the weigh-in station and collide with Heather’s jet ski. GCBB caused Heather’s death.
Theories of negligence against BASS: one weigh-in station, return to dock was congested, failure to supervise, failure to comply with state regulations.
Def: Heather was not specially related. Court: You don’t need a special relationship for a general duty of care to attach
Causation: connection between the unreasonable conduct and the injury.
Vaughan v. Menlove
NC Court of Common Pleas, 1837
Defendant maintained a stack of hay near plaintiff’s cottages and created a danger of spontaneous combustion. Plaintiff’s cottages were burned. -> The standard is that of the reasonably prudent person.
Edwards v. Johnson
NC, 1967
Edwards went to Johnson’s back door on a usual business but Johnson was not informed about the visit. Edwards crossed the darkened back porch and knocked at the kitchen door. Johnson loaded shotgun and cocked it. As Johnson was pulling aside the curtain to see who was on the porch, she struck the end of the barrel and discharged the gun.
The trial court dismissed the action and the Supreme Court sent the case to the jury. Dissenting judge: “[not negligent] to carry a loaded gun… to determine whether the visitor is a lamb or a lion… Fright… is a circumstance… The sex, age, and physical strength… have a direct relationship to the reasonableness of her anxiety and to her inability to handle…”
Emergency - Foster v. Strutz
1. Case Heading:
Parties: individual (passenger of pickup) and individual (driver and passenger of the vehicle)
Year: 2001, relatively modern period.
Court: Iowa State Supreme.
2. Disposition: Vacate the court of appeal decision, affirm the district court decision.
3. Holding: We refuse the instruction on sudden emergency in the present case.
4. Issue: Does sudden emergency instruction apply to the case?
5. Procedural History: The district court ruled in favor of the plaintiffs, and it did not give the sudden emergency instruction. The defendant appealed on the ground of sudden emergency, and the appeals court reversed and remanded on that ground.
6. Facts: The Ruggles vehicle was parked at the northwest corner of a parking lot, the defendant Ankrum’s vehicle was parked to the east of the Ruggles vehicle, and the plaintiff Foster’s pickup was parked to the south of the other two. Foster was standing alongside the pickup. Men in Ruggles vehicle approached Ankrum’s vehicle and assaulted Ankrum. A fist through the driver’s window hit the gearshift that placed the car in reverse. Strutz, a passenger of Ankrum, stepped on the accelerator to proceed forward, but instead, moved backward. Foster attempted to pull herself over the side and into the bed of the pickup, but her foot was crushed between the rear bumper of Ankrum’s car and the side of the pickup. The time frame of the incident was- after the altercation-ten or fifteen seconds before the vehicle accelerated, and all happened within one or two minutes.
7. Rule: Bangs v. Keifer
8. Reasoning: A sudden emergency is an event that requires, if not an instantaneous response, certainly something fairly close to that. The defendants had ten to fifteen seconds to think and to act, under the circumstances, which was sufficient time to assess the situation, make judgment calls, and drive off without striking the plaintiff. If the instruction on sudden emergency were held in this case, it would not only preserve the doctrine but expand it beyond its appropriate scope.
-it might skew the juror to the aspects of case that are less central to the case.
-SE rule given when: defendant didn’t create the emergency, and he didn’t have time to assess the situation,
Mentally Disabled - Bashi v. Wodarz
1. Case Heading:
Parties: individual (driver) and individual (driver)
Year: 1996, relatively modern
Court: California State Appellate
2. Disposition: Reverse the summary judgment of the trial court.
3. Holding: We conclude that defendant’s sudden onset of mental illness is not a defense to negligence action.
4. Issue: Is the sudden onset of mental illness a defense to a negligence action?
5. Procedural History: The trial court granted defendants’ motion for summary judgment (because the mental disorder was unanticipated). The appellant and plaintiff challenged the granting of summary judgment.
6. Facts: Defendant and respondent Wodarz was involved in a rear-end auto accident with a third party and left the scene without stopping. A short time later, defendant was involved in an auto accident with the plaintiffs and appellants. Respondent has little recollection of either event occurring and states she had no control of her actions.
7. Rule: Cohen v. Petty, Waters v. Pacific Coast Dairy, Inc., Section 41 of the Civil Code
8. Reasoning:
Difficulty in drawing line between mental deficiency and those variations of temperament, intellect, and emotional balance. The unsatisfactory character of the evidence of mental deficiency and it can be feigned (proof). Mental illness patients should pay as others would (fairness). People have incentives to look after them (deterrence).
Based on a policy rationale, mentally disabled individuals create harm and should be held responsible. Sudden physical illness is not analogous to a sudden mental disability.
Children - Robinson v. Lindsay
1. Case Heading:
Parties: Individual (child driver of snowmobile) and individual (child)
Year: 1979
Court: Washington State Appellate
2. Disposition: Affirm the granting of a new trial.
3. Holding: Because petitioner was operating a powerful motorized vehicle, he should be held to the standard of care and conduct expected of an adult. (When the activity a child engages in is inherently dangerous, the child should be held to an adult standard of care).
4. Issue: Is a minor operating a snowmobile (a motorized vehicle or an inherently dangerous activity) to be held to an adult standard of care?
5. Procedural History: The trial court ordered a new trial after a jury verdict in favor of the defendant. The defendant appealed on granting the order of a new trial.
6. Facts: Robinson, 11 years old, got into a snowmobile accident with Anderson, 13 years old, who was driving a snowmobile. Robinson lost full use of a thumb.
7. Rule: WPI 10.05, Vaughan v. Menlove, Tort Law and the Games Kids Play, Roth v. Union Depot Co., Dellwo v. Pearson, Daniels v. Evans,
8. Reasoning: The operation of a snowmobile requires adult care and competence. Holding a child engaging in inherently dangerous activity to an adult standard of care protects the need of children to be children but at the same time discourages immature individuals from engaging in inherently dangerous activities.
-There are activities that are inherently dangerous that are not adult activity (eg.fireworks) inherently dangerous is more comprehensive than adult activity.
-tender years doctrine: children under 7 not asked to live up to any standard of careful conduct.
-would a child have acted as a reasonable child standard?
Risk - US v. Carroll Towing Co.
1. Case Heading:
Parties: Individual (owner of Anna C) and corporation (operates tugs in NY Harbor)
Year: 1947
Court: Federal Appellate 2d Circuit
2. Disposition:
3. Holding: We hold that it was a fair requirement that the Anna C owner should have a bargee aboard, unless he had some excuse for his absence, during the working hours of daylight.
4. Issue: Is the absence of a bargee on board Anna C a contributory negligence such as to reduce the recovery?
5. Procedural History:
6. Facts: Carroll set several barges, including Anna C, adrift. Anna C crashed into a tanker and the tank’s propeller broke a hole in the barge of Anna C near the bottom. Carroll’s tugs came to the help of the drifting barges, but Anna C careened, dumped cargo of flour, and sank. The tugs had siphon pumps on board and could have kept Anna C afloat if they had known Anna was leaking, but the bargee had left Anna on the evening before and nobody was on board to observe the leak.
8. Reasoning: It was not beyond reasonable expectation that, with the inevitable haste and bustle during the short January days and in the full tide of war activity, barges drilling in and out might not be done with adequate care. A bargee aboard is a fair requirement.
-defendant was negligent for not properly tying the rope to the bargee.
-If B (burden; cost of taking precaution) < P (probability; of harm) * L (loss; seriousness of potential harm),
not negligible. Summertime, wartime activity -> low probability of accident.
-has to show the causation from the absence to the injury; but bargee’s action was unreasonable.
Role of Custom - Hagerman Construction, Inc. v. Copeland
1. Case Heading:
Parties: Individual (an ironworker and an employee of a subcontractor of Hagerman) and corporation (prime contractor for general construction of a new basketball arena)
Year: 1998
Court: Indiana State Appellate
2. Disposition: Affirmed the trial court ruling.
3. Holding: The evidence objected to here was relevant to establish the standard of care which accompanied Hagerman’s contractual duty of safety.
4. Issue: Is the evidence of the conduct of other persons in substantially similar conditions relevant?
5. Procedural History: Plaintiff appealed on the ground of the trial court admitting testimony of others in substantially similar conditions.
6. Facts: Copeland fell to his death through an unprotected opening in the recast concrete nearly forty five feet above the ground.
8. Reasoning: The conduct of other persons in substantially similar conditions may be relevant to the reasonableness, under the circumstances, of a particular individual’s acts or omissions. The three construction workers testified… that the general contractor typically covers openings.
-defendant: trial court errored in accepting the custom and it’s irrelevant to their conduct.
-conduct of other persons in substantially similar conditions may be relevant to the reasonableness.
Role of Custom – Trimarco v. Klein
1. Case Heading:
Parties: Individual (tenant in a multiple dwelling) and individual (landlord)
Year: 1982
Court: New York State Appellate
2. Disposition: Reverse the order of the trial court and grant a new trial because the General Business Law sections should have been excluded. The General Business Law sections protected only those tenants for whom shower glazing was installed after the statutory effective date, which the plaintiff was not a part of.
3. Holding: The General Business Law sections protected only those tenants for whom shower glazing was installed after the statutory effective date (1973), which the plaintiff was not a part of.
4. Issue: What is the role of the proof plaintiff produced on custom and usage?
5. Procedural History: Jury in trial court found for the plaintiff in $240000.
6. Facts: In 1976, Trimarco was sliding the door open to exit the tub. The door was made of ordinary glass estimated as 1/16th to ¼th inch in thickness and suddenly and unexpectedly shattered, injuring the plaintiff.
7. Rule: Sections 389-m and 389-o of New York’s General Business Law, section 78 of the Multiple Dwelling Law, Garthe v. Ruppert, Levine v. Blaine, Administrative Application of Legal Standards, Custom and Negligence, Restatement (2d), Texas & Pacific Ry. Co. v. Behymer, Martin v. Herzog, Statutory Standards and Negligence in Accident Cases
8.Reasoning:
Plaintiff’s argument: A practice of using shatterproof glazing materials for bathroom enclosures had come into common use since at least the early 1950s, so that by 1976 the glass door here no longer conformed to accepted safety standards. Sections 389-m and 389-o of NY’s General Business Law: only safety glazing material be used in all bathroom enclosures after the effective date. Agreement from Klein’s management that it was customary for landlords to install glass for shower enclosures with some material such as plastic or safety glass.
Court: No duty devolved on the defendants to replace the glass either under the common law or under section 78 of the Multiple Dwelling Law. Once its existence is credited, a common practice or usage is still not necessarily a conclusive or even a compelling test of negligence. Before it can be, the jury must be satisfied with its reasonableness.
-Untaken precautions -> precautions include installing safety glass in the first place (no evidence about the date of installation), replacing the glass once safety glass became common, warn residents of the danger and give option to replace, use curtain, refuse to rent
-Reasonable conduct is not only what you could’ve done but also what you didn’t do (B) and weight against P*L.
-hand formula: hard to figure out the numbers
-plaintiff argues d failed to adhere to custom; d might argue there was no custom in 1930s. custom might work in both ways.
-defendant argues: no alert, … no common law duty to replace.
-spirit of the statute is for landlords to provide a safe condition to tenants.
-the glass looks exactly the same whether it’s safety proof or not.
-a practice must be widespread or common to count as a custom; not uniform.
-plaintiff must show that the purpose of the custom is to protect against the kind of harm suffered by plaintiff. The custom has to show that it protects, for the custom to be relevant.
-even if a custom is established and it protects, it does not conclusively establish negligence. Must consider how reasonable is what every actor is doing in this case. Jury must be satisfied with the reasonableness of the behavior. Custom helps or speaks to reasonableness; it does not establish the reasonableness.
-Custom: did you act in the way that is reasonable? What are other actors doing in the industry?
-Even if one follows custom, it might still be unreasonable. Custom is not dispositive.
-Using custom evidence as a sord: 1) is there a general custom in the defendant’s trade or business? (need not be universal; suffices that it be fairly well defined so that the actor may be charged with knowledge of it or negligent ignorance). 2) if yes, jury make take that general custom or practice into account in considering unreasonableness. 3) jury decides whether defendant acted with reasonable care.
Role of Custom - The T.J. Hooper
1. Case Heading:
Parties: Company (owner of barges) and individuals (owners of the tugs)
Year: 1932
Court: Federal Appellate 2nd Circuit
2. Disposition: Affirm the judgment of the trial court.
3. Holding: We hold the tugs liable because had they been properly equipped, they would have gotten the Arlington reports, and the injury was a direct consequence of this unseaworthiness.
4. Issue: Is defendant liable for failing to equip radios?
5. Procedural History: The trial court applied the court-developed admiralty law, and found that all the vessels were unseaworthy, and found for the plaintiffs.
6. Facts: Two barges picked up cargoes of coal at Norfolk, Va., and were bound for NYC. They were towed by two tugs, Montrose and Hooper. As they passed the Delaware Breakwater, the weather was fair. When they were opposite Atlantic City, they got into trouble and all were lost off the Jersey Coast in an easterly gale. Tugs did not carry radio receiving sets.
8. Reasoning:
The master of the Montrose said he would have put in if he had received the evening report from Arlington. The master of the Hooper also would have turned back. The prudent masters, who had received the second warning, would have found the risk more than the exigency warranted.
There was no custom as to receiving sets, but when some have thought a device necessary, they were right and the others too slack.
-defendant argues: most tugs don’t have working radios, so it can’t be careless to operate wo radios.
-there was no custom at all; there was no custom to not equip the boats with radios. It does not mean the custom should not exist going forward. A custom does not mean that it is reasonable. It is for the jury to decide what to do with the custom.
-compliance with custom is probative of ordinary care but not dispositive.
Dangerous Bus Stop Problem
The custom of not allowing buses at mall have nothing to do with safety. No, the custom is not relevant to breach.
Statutes and Regulations as Standards - Ferrell v. Baxter
1. Case Heading:
Parties: Individual (passenger of Baxter auto - Baxter) and individual (driver of Baxter auto - Ferrell)
Year: 1971
Court: Alaska State Appellate
2. Disposition: Affirm the judgment.
3. Holding: Giving Instruction No. 10 to the jury was not error. It was worded to apply to any defendant in the case and to apply on behalf of any plaintiff.
4. Issue: Was it appropriate to give Instruction No. 10 to the jury?
5. Procedural History: The trial court found for plaintiffs and the defendant appealed on the court giving Instruction No. 10.
6. Facts: A collision occurred between an auto driven by Ferrell and a Mack truck owned by Sea-Land and driven by Graves. The yellow line indicating the center of the highway was partially worn away and obscured by ice and snow. The traffic lanes were visible with prints of other vehicles. Graves entered the curve, slowed down, and was within eight inches of the snow berm on his side. He saw Ferrell auto 300 feet away, just right about on the yellow lane, at 35-40 mph. Graves turned his truck to the right into the snow and Ferrell auto hit the left front wheels of the trailer. Ferrell states she was not over the center line but the truck seemed to be over the line, so she attempted to turn the car to the right and go into a snowbank. Ferrell “must have” unintentionally braked and threw car into a slide.
7. Rule: Instruction No. 10
8. Reasoning: According to No.10, if a jury finds from a preponderance of the evidence that a defendant violated a provision, the plaintiff has established a prima facie case that the defendant was negligent.
Traffic laws serve purposes of: provide criminal penalties for violation, and set the standard of a reasonable person. Traffic laws prescribe the standard of care owed by the driver to the general public. A violation of it is a breach of the duty and is a prima facie showing that the defendant did not act as would a reasonably prudent driver.
Court thinks Ms. Ferrell was over the center and was the actual and proximate cause of the accident.
Grave’s testimony that Ferrell auto was “little too fast for the corner” alone was sufficient to support the giving of an instruction on the basic speed law.
-negligence per se: violation of applicable safety statute is a per se breach.
-elements of negligence per se: is plaintiff among those whom the legislature or agency intended to protect by the statute or regulation? Was the accident of a type the legislature or agency meant to discourage by enacting the statute or regulation?
-not all violations of statutory/regulatory standards entitle plaintiff to a NPS instruction: does the statute actually set a standard of safe conduct?
-compliance with a safety statute is not dispositive of a no-breach, while non-compliance with a safety statute is dispositive of a breach.
Statutes and Regulations as Standards - Wright v. Brown
1. Case Heading:
Parties:
Year: 1975
Court: Connecticut State
2. Disposition: Reverse the judgment of the trial court in sustaining the demurrer.
5. Procedural History: The trial court opined that section 22-358 is designed to protect from being bitten by diseased dogs, and Wright was not within the class protected because she did not allege that she was bitten by a diseased dog. The demurrer was sustained.
6. Facts: A dog owned by Brown attacked and injured Wright. The dog attacked another person less than fourteen days prior to the incident and was quarantined by the warden, but the warden released the dog prior to the expiration of the fourteen-day quarantine period.
7. Rule: S22-358,
8. Reasoning: The specific concern of the legislature may have been to protect from rabies, that restricted purpose is not expressed in the language. The intent expressed is the controlling factor. The statute was intended to protect the general public.
Brown argues that Wright is not within the class of persons designed to be protected by the statute.
-harm alleged is not the kind statute was designed to prevent -> 2nd element not satisfied. The plaintiff has to show it in the remanded case.
-excuses to NPS: incapacity, no knowledge or occasion for compliance, inability after reasonable diligence to comply, emergency, compliance involves greater risks.
-Strict NPS: no excuses permitted; NPS: defendant tries to prove application of an excuse; NPS: defendant tries to show reasonable care (broader than the 2nd); negligence: standard of care remains the reasonable person but defendant’s violation goes to jury.
-2nd, 3rd: defendant has to disprove that he did not act negligently.
Negligence per Se - Bauman v. Crawford
1. Case Heading:
Parties: Individual (bicycle rider) and individual (auto driver)
Year: 1985
Court: Washington Supreme Court
2. Disposition: Reverse the decision of the Court of Appeals and remand on liability.
3. Holding: A minor’s violation of a statute does not constitute proof of negligence per se, but may, in proper cases, be introduced as evidence of a minor’s negligence. Violation of a relevant statute may be considered as evidence of negligence only if the jury finds that a reasonable child would not have acted in violation.
4. Issue: Is the negligence per se doctrine applicable to minors or should minors be judged by the special child’s standard of care in a civil negligence action?
5. Procedural History: The trial court instructed the jury that violation of an ordinance is negligence per se and that the standard of ordinary care for a child is that of a reasonably careful child. The trial court awarded the plaintiff with 95% reduced amount. Plaintiff appealed on the ground of negligence per se instruction.
6. Facts: At 9:30 pm, the bicycle ridden by Bauman collided with the auto driven by Crawford. Bauman was 14 years old. The collision occurred after dark on a public street. Bauman was riding down a steep hill, and near the base of the hill, Crawford turned left and collision occurred. Bicycle had reflectors but not headlight. Bauman suffered a broken lower leg.
7. Rule: Seattle Municipal Code 11.44.160, RCW 46.61.780(1)
8. Reasoning: A significant number of the courts… have determined that violation of a statute by a minor may be introduced as evidence of negligence, as long as the jury is clearly instructed that the minor’s behavior is ultimately to be judged by the special child’s standard of care.
Crawford alleged contributory negligence by Bauman as an affirmative defense.
Bauman argues it was a reversible error to instruct on negligence per se, because he is a minor, and to instruct negligence per se with special child’s standard of care instructions, because they are contradictory. He argues that negligence per se is inapplicable to minors under all circumstances and that special child’s standard of care is proper.
In 1965, Legislature repealed RCW 46.47.090 about child not being held to be negligent per se, but the entire code was being revised.
-modified comparative fault approach: allow award less than 50% of the fault. (<-> pure comparative requires 50%)
-if bike were inherentl dangerous, Bauman would be held to adult standard, and NPS applies
Circumstantial Proof - Clark v. Kmart Corp.
1. Case Heading:
Parties: Individual (shopper) and corporation (food store)
Year: 2001
Court: Michigan State Supreme
2. Disposition: Reverse the judgment of the Court of Appeals
3. Holding: Evidence was sufficient for the jury to find that the dangerous condition that led to the injury existed for a sufficient period of time for defendant to have known of its existence.
4. Issue: Was there sufficient evidence that the hazardous condition that caused the fall had been in place long enough to put the defendant on constructive notice of the condition?
5. Procedural History: The jury in the trial court found in favor of the plaintiff.Defendant was denied motion for JNOV and a new trial. The Court of Appeals reversed the trial court’s judgment 2 to 1, because it did not follow Ritter.
6. Facts: Clark and husband visited Kmart at 3:30 am. As they walked through a closed check-out lane into the store, Clark slipped on several loose grapes scattered on the floor and was injured. Clark saw footprints made by big, thick, rubber-soled shoes leading away from the grapes.
7. Rule: Ritter v. Meijer, Serinto v. Borman Food Stores
8.Reasoning:Serinto: “it is a duty of a storekeeper to provide reasonably safe aisles for customers and he is liable for injury resulting from an unsafe condition… [that] has existed sufficient length of time that he should have had knowledge of it.”
Check-out lane closed no later than 2:30 am and a customer would have dropped the grapes.
The fact that the check-out lane had been closed for about an hour before plaintiff fell establishes a sufficient length of time that the jury could infer that defendant should have discovered and rectified the condition.
Res Ipsa Loquitur - Byrne v. Boadle
1. Case Heading:
Year: 1863
Court: Ct. of Exchequer
6. Facts: A witness testified that a barrel of flour from Boadle’s warehouse fell from a window onto the public street and injured Byrne. The witness did not see the barrel until it struck Byrne and did not notice any ropes. Byrne had no recollection of the event.
8. Reasoning: It is the duty of persons who keep barrels in a warehouse to take care that they do not roll out, and I think that such a case would… afford prima facie evidence of negligence. A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems to me preposterous. If there is any state of facts to rebut the presumption of negligence, they must prove them.
Res Ipsa Loquitur – Ybarra v. Spangard
1. Case Heading:
Parties: Individual (individual whose arm atrophied) and individuals (involved in care of Ybarra)
Year: 1944
Court: California
2. Disposition: Reverse the judgment.
3. Holding: Where a plaintiff receives unusual injuries while unconscious 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 explanation of their conduct.
6. Facts: Ybarra consulted Tilley who diagnosed Ybarra with appendicitis and made arrangements for an appendectomy to be performed by Spangard. Reser, the anesthetist, placed two hard objects at the top of Ybarra’s shoulders and administered anesthetic and Ybarra lost consciousness. Whereas Ybarra did not have pain in his right arm or shoulder before the anesthesia, he felt a sharp pain about halfway between the neck and the point of the right shoulder after the anesthesia. Tilley gave him Diathermy treatments but the pain did not cease and spread down to the lower part of his arm. Ybarra was unable to rotate or lift his arm and developed paralysis and atrophy of the muscles around the shoulder. Clark opined that the condition was due to trauma or injury by pressure and Garduno confirmed the traumatic origin and connected it to Ybarra’s symptoms.
8. Reasoning:
Defendant argues that (1) where there is a division of responsibility among several defendants in the use of an instrumentality causing the injury, the res ipsa loquitur cannot be invoked against any one of them and (2) where there are several instrumentalities, and no showing is made as to which caused the injury or as to the particular defendant in control of it, the res ipsa loquitur cannot apply.
Conditions of res ipsa loquitur: (1) the accident 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; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.
Court: we have here no problem of negligence in treatment, but of distinct injury to a healthy part of the body not the subject of treatment, nor within the area covered by the operation. -> satisfies (3)
The control at one time or another, of one or more of the various agencies or instrumentalities which might have harmed the plaintiff was in the hands of every defendant or of his employees or temporary servants. It should be enough that the plaintiff can show an injury resulting from an external force applied while he lay unconscious in the hospital; this is as clear a case as identification of the instrumentality as the plaintiff may ever be able to make.
The doctrine of res ipsa loquitur should apply… upon a patient who is thereafter in no position to say how he received his injuries.
Negligent Medical Performance – Smith v. Finch
1. Case Heading:
Parties: Individual (parents of Justin) and individual (various physicians and other health care providers)
Year: 2009
Court: Georgia State Supreme
2. Disposition: Reversed the judgment
3. Holding: Finding a portion of the hindsight instruction inaccurate and misleading, we disapprove the instruction in its current form.
4. Issue: Was the hindsight instruction appropriate?
5. Procedural History: Trial court found for defendants and plaintiffs appealed on the ground of “hindsight” jury instruction. The Court of Appeals affirmed the ruling and the appellants appealed.
6. Facts: Physicians incorrectly diagnosed Justin with a viral illness when the correct diagnosis was RMSF. By the time Justin was correctly diagnosed, rash had progressed to a petechial rash.
7. Rule: Section 62.311 of the Georgia Suggested Pattern Jury Instructions: Civil Cases.
8.Reasoning:
Smith’s expert testimony indicated that the physicians breached the standard of care because they failed to obtain a sufficiently detailed medical history for Justin, and failed to consider the nature of the symptoms, the time, and the place of the onsets.
Physicians asserted that Justin’s symptoms were consistent with the diagnosis of a viral illness. In their practices, RMSF was rare or non-existent.
The trial court instructed the jury on the hindsight instruction despite Smith’s objections.
Supreme court: The third sentence of the hindsight charge is inconsistent with the standard of care in medical malpractice cases. The applicable standard of care requires employment of a differential diagnosis methodology. The sentence also states that liability may be premised only on those results that are “probable and likely to happen,” and it is inconsistent with the foreseeability element of general negligence law.
-Industry custom is persuasive but doesn’t necessarily mean the conduct is unreasonable (partially overlap).
-Professional custom: customary care and ordinary care are the same. Compliance with custom is dispositive of ordinary care.
-Board certified physicians are held to the national standard; others might be held to the regional standard.
-Low burden of an untaken precaution is irrelevant to breach if not done customarily.
-
Informed Consent – Philips v. Hull
1. Case Heading:
Parties: Individuals (mother who gave birth and daughter) and individual (physician who performed sterilization)
Year: 1987
Court: Mississippi State Appellate
2. Disposition:Reverse and remand the trial court’s judgment.
3. Holding: It appears in this case that on plaintiff’s informed consent claim there exists a genuine issue of material fact which, on documents presented, renders the claim one improper for disposition via summary judgment.
5. Procedural History: The trial court granted summary judgment to the defendant.
6. Facts: Phillips gave birth by caesarean section followed by a tubal ligation sexual sterilization operation by Hull. Phillips was diabetic and future pregnancies indicated high risk pregnancy. Hull’s nurse told Philips about tubal ligation operation. Phillips became pregnant and gave birth to Julie Ann Phillips, allegedly abnormal and having cerebral palsy.
7. Rule: M.R.C.P. 56, Hall v. Hilbun, Canterbury v Spence, Latham v Hayes
8. Reasoning:
Philips argues that Hull did not advise her that the tubal ligation was not 100% effective and to continue contraceptive measures. She complains that the doctor was negligent in performing the procedures of delivery and sterilization care; and that the doctor failed to secure the informed consent of the patient notifying her fully about tubal ligation prior to the operative procedure or the need for contraceptive devices thereafter.
Hull made an affirmative defense that he exercised required skill, care, and diligence, told Philips that the ligation was not 100% effective, and cared for Philips free of charge in event of a failure.
Professional standard: the physician is required to disclose those risks which a reasonable medical practitioner of like training would disclose under the same or similar circumstances. Requires expert testimony as to standards.
Lay standard: the physician’s disclosure duty is to be measured by the patient’s need for information rather than by the standards of the medical profession. The jury is to determine whether a reasonable person in the patient’s position would have considered the risk significant.
Prudent patient (materiality of the risk) standard: a physician must disclose those known risks which would be material to a prudent patient.
The causation between the breach of duty and the injury -> objective standard: whether or not a reasonably prudent patient, fully advised of the material known risks, would have consented to the suggested treatment. (subjective test: would the plaintiff have consented if he was properly informed?)
Philips argues Hull, not the nurse, should have informed her. Court states physicians may incur liability when an informed consent delegated falls below objectively ascertained acceptable level of expected care. Hull denies a failure.
-Def brought in experts but plaintiff did not; summary judgment given to def in performance claim
-if cause is not established (harm still would have occurred), “lack of consent was not a cause-in-fact of injury”
General Duty - MacPherson v. Buick Motor Co.
1. Case Heading:
Parties: Individual (auto driver) and corporation (auto manufacturer)
Year: 1916
Court: New York State
2. Disposition: Affirm the trial court judgment.
3. Holding: The defendant was not absolved from a duty of inspection because it bought the wheels from a reputable manufacturer.
4. Issue: Did the defendant owe duty to the plaintiff?
5. Procedural History: The jury gave a verdict for the plaintiff and the defendant appealed on the ground that no duty was owed.
6. Facts: Buick sold the auto to a retailer and the retailer sold it to MacPherson. While MacPherson was in the car, the car collapsed. MacPherson was suddenly thrown out and injured. One of the wheels was made of defective wood and its spokes crumbled into fragments. The wheel was bought from another manufacturer. The defects could have been discovered by reasonable inspection but was omitted.
7. Rule: Thomas v. Winchester – a poison was falsely labeled and sold to a druggist and then to a customer; the person who affixed the label was liable, because the danger is to be foreseen, and there is a duty to avoid the injury.
Loop v. Litchfield – manufacturer pointed out defect in a small balance wheel to the buyer but the buyer assumed the risk. The wheel broke after five years and the manufacturer was not liable.
LoSee v. Clute – explosion of a steam boiler; the risk of injury was too remote. The buyer tested it. The finality of the test has a bearing on the measure of diligence.
Devlin v. Smith – Smith built a scaffold for a painter and was held liable because he know that the scaffold, if improperly constructed, was a most dangerous trap.
Statler v. Ray Mfg. Co. – Ray manufactured a large coffee urn and the urn exploded when heated. Ray was liable because the urn was to become a source of great danger to many people if not carefully and properly constructed.
Heaven v. Pender – “Whenever one person supplies goods, or machinery… a duty arises to use ordinary care and skill as to the condition or manner of supplying such thing.”
8.Reasoning:Defendant argues imminently dangerous objects are poisons, explosives, and deadly weapons; those whose normal function is to injure and destroy.
Principles of Thomas is not limited to objects which in their normal operation are implements of destruction.
Buick was not absolved from a duty of inspection because it because it bought the wheels from a reputable manufacturer. The defendant was a manufacturer of auto and was responsible for the finished product.
Dissent: Judgment overrules the absence of any liability for negligence on the part of the original vendor of an ordinary carriage to anyone except his immediate vendee.
-Recognize a special, broader duty rule
-car is not inherently dangerous, but when it is carelessly made, it becomes so.
Limited Duty as Owners – American Industries Life Insurance Co. v. Ruvalcaba
1. Case Heading:
Parties: Corporation (owns and manages the office building) and individual (office worker at a prive security company on the second floor of a two-story building)
Year: 2001
Court: Texas State Appellate
2. Disposition: Reverse the trial court’s judgment and render that Ruvalcaba take nothing.
5. Procedural History: The trial court granted American’s motion for directed verdict on gross negligence. It found in favor of plaintiffs on negligence claim, loss of filial consortium, and bystander claim, under negligent activity or instrumentality theory.
6. Facts: On March 7, 1996, Ruvalcaba’s wife and son visited the workplace at noon to take him to lunch. When they arrived, Ruvalcaba was busy with his boss and they decided to wait in the car. On their way out, they descended a staircase that had an open handrail that did not comport with the code. While descending, Johnathan fell through the open banister, landed on his head on the ground, and lost consciousness for five minutes. He suffered a traumatic brain injury and a permanent damage.
7. Rule: Restatement(2) of Torts
8.Reasoning:There is no evidence that Johnathan was an invitee or American know the staircase was in a dangerous condition at the time of the occurrence.
The duty of an owner to keep the premises in a safe condition may subject owner to liability when: (1) those arising from a defect in the premises; and (2) those arising from an activity or instrumentality.
To recover on a premises-defect theory, a person must have been injured by a condition. To recover for injuries sustained as a result of a negligent activity or instrumentality, the injury should be from activity or instrumentality.
A person is an invitee only where the owner or occupier invites the person to enter the premises and where the person’s visit involves at least a potential pecuniary profit to the owner or occupier.
Johnathan did not (1) enter at the invitation of American; (2) have mutual benefit to both Ruvalcabas and American; and (3) give pecuniary profit to American.
Ruvalcabas argue Johnathan should be treated as an invitee under Restatement 2nd Section 360 because he was the guest of a tenant; a child of a tenant; a visitor to a public building; and a young child where the owner can reasonably expect to come onto the land.
S360 apply to apartment buildings or stores open to the public and not to private office building. There is no evidence that Garcia, Jose’s employer, was aware that Johnathan was there. Jose is not a tenant of American. American does not invite the general public into the building to transact business.
If Johnathan was a licensee, Ruvalcabas had to prove that American had actual knowledge that the staircase was a dangerous condition. -> no evidence of actual knowledge at the time of occurrence on March 7, 1996.
-common law categories retained
Limited Duty as Owners – Rowland v. Christian
1. Case Heading:
Parties: Individual (suffered injury from water faucet) and individual (owner of apartment)
Year: 1968
Court: California State
2. Disposition: Reversed the judgment of the trial court.
3. Holding: Whether or not a guest has a right to expect that his host will remedy dangerous conditions on his account, he should reasonably be entitled to rely upon a warning of the dangerous condition.
5. Procedural History: The trial court granted summary judgment to the defendant.
6. Facts: On Nov 1, 1963, Christian told lessors of her apartment that the knob of the cold water faucet was cracked and should be replaced. On Nov 30, 1963, Rowland entered the apartment at the invitation of Christian and was injured while using the bathroom fixtures, suffering severed tendons and nerves of his right hands.
7. Rule: Hansen v. Richey – liability predicated not upon the maintenance of a dangerous swimming pool but upon negligence in the active conduct of a party for a large number of youthful guests in dangerous pools.
Newman v. Fox West Coast Theaters – negligence was found that dirty washroom floor condition was created after Newman entered.
Kermarec v. Compagnie Generale – common law has moved towards imposing on owner a single duty of reasonable care in all circumstances.
8. Reasoning: Rowland alleges that the bathroom fixtures were dangerous, Christian was aware of the condition, and Christian’s negligence proximately caused his injury.
Christian alleges general denial except that Rowland was a social guest and that she told Rowland that the faucet was defective; she alleges contributory negligence and assumption of the risk and failure to use eyesight.
Plaintiff filed an affidavit stating he told Christian that he was using bathroom, that Christian knew the condition for two weeks prior to the accident, that Christian warned the manager of the building but nothing was done to repair.
All persons are required to use ordinary care to prevent others being injured as the result of their conduct… a departure involves: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden, and the insurance.
The departure from the fundamental rule of liability for negligence is accomplished by classifying the plaintiff as a trespasser, licensee, or invitee. The rule is that one is obliged to take the premises as they find them insofar as any alleged defective condition thereon may exist, and that the possessor owes them only the duty of refraining from wanton or willful injury. (Palmquist v. Mercer) “humanitarian concerns should supplant the reason for entrance -> life does not become less worthy of protection because… of permission or business purpose.”
-categories abandoned
Limited Duty to Assist of Rescue – Yania v. Bigan
1. Case Heading:
Parties: Individual (widow of operator of a coal strip-mining operation)
Year: 1959
Court: Pennsylvania Supreme Court
2. Disposition: Affirm the judgment of the trial court.
5. Procedural History: Bigan filed demurrer and the trial court sustained it. Yania’s widow appealed.
6. Facts: Yania and Ross went to Bigan to discuss business. Bigan asked them to help him start a pump. Ross and Bigan entered the mining cut in the ground and stood where the pump was located. Yania stood at the top of one of the cut’s side walls and jumped from the side wall into the water and drowned. Yania’s widow filed wrongful death and survival actions against Bigan.
8. Reasoning: Plaintiff contends Bigan’s spoken words and blandishments caused Yania’s descent from the high embankment into the water; that Bigan’s cajolery and inveiglement caused such a mental impact on Yania that Yania was deprived of his volition and freedom of choice and placed under a compulsion to jump into the water. -> he is adult.
The complaint does not aver any facts which impose upon Bigan legal responsibility for placing Yania in the dangerous position in the water and the law imposes on Bigan no duty of rescue.
-Yania was invitee because he went to Bigan to discuss business.
-Bigan did not place Yania in danger and had no duty to rescue.
Limited Duty to Assist of Rescue - Farwell v. Keaton
1. Case Heading:
Parties:
Year: 1976
Court: Michigan State Supreme
2. Disposition: Reverse the judgment of the Court of Appeals and reinstate the verdict of the jury.
3. Holding: Siegrist failed to exercise reasonable care after voluntarily coming to the aid of Farwell and had an affirmative duty to come to Farwell’s aid.
4. Issue: (1) whether the existence of a duty in a particular case is always a matter of law to be determined solely by the court? (2) whether the trial judge should have ruled, as a matter of law, that Siegrist owed no duty to Farwell?
5. Procedural History: The jury returned a verdict for plaintiff. The Court of Appeals reversed, finding that Siegrist had not assumed the duty of obtaining aid for Farwell and he neither knew or should have known of the need for medical treatment.
6. Facts: Siegrist and Farwell were at a trailer rental lot to return an auto Siegrist borrowed from a friend. They consumed beer and followed two girls to a drive-in restaurant down the street. The girls complained and six boys chased Siegrist and Farwell to the lot. Siegrist escaped unharmed but Farwell was severely beaten. Siegrist applied ice to Farwell’s head and drove him around for 2 hours, stopping at a number of drive-in restaurants. He drove to Farwell’s grandparents’ home, parked it in the driveway, unsuccessfully attempted to rouse sleeping Farwell, and left. Farwell’s grandparents discovered and took Farwell to the hospital next morning. Farwell died three days later of an epidural hematoma.
7. Rule: Bonin v. Gralewicz: whether a duty is owed usually does not require fact issues. Here, they arise and jury has to decide. Davis v. Thornton: reasonable man, the jury decides the facts. Clark v. Dalman: whether defendant was entitled to a directed verdict, the testimony should be construed in favor of the plaintiff.
Depue v. Flatau: the jury is to decide whether it was negligent to refuse an ill guest to spend the night.
Hutchinson v. Dickie: Host had an affirmative duty to attempt to rescue a guest who had fallen off his yacht.
8.Reasoning:Siegrist argues he is not liable for failure to obtain medical assistance for Farwell because he had no duty. A duty was found on a special relationship between the parties. If defendant knew or should have known of the other person’s peril he is required to render reasonable care under all the circumstances.
Courts will find a duty where reasonable men would recognize it and agree that it exists. Because Siegrist knew or should have known of the peril Farwell was in and could render assistance without endangering himself he had an affirmative duty to come to Farwell’s aid.
Limited Duty to Protect Against Risks by 3rd persons – Tarasoff v. Regents of Univ. of Calif.
1. Case Heading:
Parties: Individual (parents of murder victim) and institution (employer of doctor who consulted the murderer)
Year: 1976
Court: California State Supreme
3. Holding: The public policy favoring protection of the confidential character of patient-psychotherapist communications must yield to the extent to which disclosure is essential to avert danger to others. The protective privilege ends where the public peril begins.
5. Procedural History: The superior court sustained defendants’ demurrers
6. Facts: Poddar confided his intention to kill Tarasoff to Moore, a psychologist at UC Berkeley. Upon Moore’s request, the campus police briefly detained Poddar but released him when he appeared rational. Powelson, Moore’s superior, directed that no futher action be taken to detain Poddar. No one warned plaintiffs. Two months later, Poddar killed Tarasoff.
7. Rule: Dillon v. Legg- duty is not sacrosanct but is an expression of the sum total of considerations of policy.
Rowland v. Christian- liability for injury by his want of ordinary care or skill.
Heaven v. Pender- in circumstances, a duty arises to use ordinary care and skill to avoid danger to the other.
Merchant v. US- with a dangerous mental patient, duty of care arises even without a special relationship.
People v. Burnick- cannot be committed as a mentally disordered sex offender unless proof beyond a reasonable doubt. -> the issue is whether therapists should take steps to protect.
8. Reasoning: We depart from fundamental principle when… (1) foreseeability: duty of care to all who are foreseeably endangered by his conduct. -> relationship between Poddar and psychologist establishes duty of care.
Therapist argues it cannot accurately predict whether a patient will resort to violence or not. -> complaint alleges therapists predicted Poddar would kill but did not warn.
Social policy matter resolves conflicting interests. Therapist owes legal duty not only to his patient but to would-be victim.
Unnecessary warnings is a reasonable price for the lives saved. Must weigh public interest in safety against confidential character of psychotherapeutic. The protective privilege ends where he public peril begins.
-Plaintiff alleges psychologist was careless in failure to warn Tarasoff.
Limited Duty to Protect Against Criminal Conduct – Delta Tau Delta v. Johnson
1. Case Heading:
Parties: Individual (victim of sexual assault) and individual and organization (perpetrator and fraternity)
Year: 1999
Court: Indiana State Supreme
2. Disposition: Vacate the Court of Appeals’ judgment, reverse the trial court’s denial of summary judgment on the gratuitous assumption of duty by National, and affirm the trial court’s denial of sj on a common law duty by DTD.
3. Holding: As a landowner… DTD owed Johnson a duty to take reasonable care to protect her from a foreseeable sexual assault. The posters do not create an inference that National gratuitously assumed a duty.
5. Procedural History: The defendants, DTD and National, were denied motions for summary judgment in the trial court. The Court of Appeals reversed and granted summary judgment.
6. Facts: Johnson, an undergraduate at Indiana Univ., attended a party at DTD’s house as an invitee. She and her friends were about to leave when she encountered Motz, an alumnus of DTD. Motz offered to drive Johnson home after he sobered up and Johnson accepted. They waited in room C17 where they drank, talked, and listened to music. Johnson unsuccessfully sought a ride home, Motz locked the room and sexually assaulted Johnson.
7. Rule: totality of the circumstances test
8. Reasoning: Within two years of this case, two specific incidents occurred… DTD was provided with info from National concerning rape and sexual assault on college campuses. The posters did not profess to have security available as did the pamphlet in Ember, nor did they state that one could call National for help with problems such as date rape…
-did local chapter of DTD owe a common law duty of reasonable care? Did DTD national assumed a duty of care towards Johnson?
-rejects the distinction between invitee and licensee; rather, a permitted entrant (owed reasonable care).
-Four tests to determine whether duty exists: specific harm: a landowner owes no duty unless the owner knew or should have known that the specific harm was occurring or about to occur.
-Prior similar incident: a landowner may owe a duty of reasonable care if evidence of prior incidents of crime on or near the landowner’s property shows that the crime in question was foreseeable.
-Totality of the circumstances: a court considers all the circumstances surrounding an event, including the nature, condition, and location of the land, as well as prior similar incidents, to determine whether a criminal act was foreseeable.
-Balancing: Courts balance the degree of foreseeability of harm against the burden of the duty to be imposed.
The court selected totality of the circumstances test.
Hamilton v. Accu-tek, et al.
1. Case Heading:
Parties: Individuals (relatives of deceased and injured by handguns) and corporation (handgun manufacturers)
Year: 1999
Court: Federal District Court
2. Disposition: Deny defendants’ motion to dismiss on the ground of collateral estoppels and grant plaintiffs’ motion to amend the pleadings to conform to the proof. Defendants’ motion for judgment as a matter of law?
3. Holding: No crushing liability or unfairness; special relationship and duty exist.
6. Facts: Victims were killed by handguns.
8.Reasoning:Plaintiffs argue that defendants’ indiscriminate marketing and distribution practices generated an underground market in handguns, providing youths and violent criminals access to guns.
Reluctant to impose a duty to anticipate the criminal or tortuous conduct from: the specter of crushing liability on prospective defendants that may destroy their ability to deliver socially useful services, and unfairness of imposing a duty on someone who could have done little to prevent the harm which occurred.
Duty where a relationship between the defendant and the plaintiff or the wrongdoer provides the defendant with the ability to minimize the risk.
-Pro-duty considerations: maximize safety, fair to manufacturer, victims not likely to recover, promotes misuse
-Anti-duty considerations: crushing liability, unfair to impose a duty when difficult to guard against harm defendant is unlikely to be able to prevent.
-The Protection of Lawful Commerce in Arms Act (PLCAA) provides broad immunity for many gun manufacturers
Direct Physical Risk – Mitchell v. Rochester Ry. Co.
Emotional injury cases were treated as dependent on physical injury. Over time, courts adopted the impact rule and allowed recovery from physical impact. Courts required physical manifestations of injury from emotional distress but others dropped this requirement. Later, Zone of Physical Danger Rule I was adopted, where a party in the foreseeable zone of physical danger can recover. Zone of Physical Danger Rule II allowed recovery in witnessing a family member being killed or seriously injured.
1. Case Heading:
Year: 1896
Court: New York Supreme Court
3. Holding: Mitchell cannot recover for injuries occasioned by fright since there was no immediate personal injury.
6. Facts: Mitchell was trying to board Rochester’s car. A horse car of Rochester came down and came close to Mitchell that Mitchell was standing between the two horse heads when the car stopped. Mitchell became unconscious and alleges it resulted in miscarriage and illness.
8. Reasoning: If the right of recovery were established, it will result in a food of litigation where injury may be feigned and damages must rest upon conjecture or speculation.
-overturned
Limited Dutyin Emotional Distress – Clohessy v. Bachelor
Bystander recovery expanded the zone of physical danger rule to a witness of family outside the zone.
1. Case Heading:
Parties: Individual (mother who witnessed his son’s death) and individual (driver whose vehicle caused son’s death)
Year: 1996
Court: Connecticut State Appellate
2. Disposition: Reverse the trial court’s judgment.
3. Holding: Bystander may recover damages for emotional distress under the rule of reasonable foreseeability.
4. Issue:
5. Procedural History: The trial court granted defendant’s motion to strike the count for emotional distress.
6. Facts: Brendan left St. Mary’s Church and attempted to cross Hillhouse Ave. Liam, brother, was immediately to the right of Clohessy, mother, and Brendan was immediately to her left. Bachelor drove at excessive speed and the exterior side view mirror of his vehicle struck Brendan’s head and hurled Brendan onto the road. Brendan later died and Liam and Clohessy suffered emotional injuries.
7. Rule: Strazza v. McKittrick- defendant drove truck onto the porch. Mother could recover for fear for her own safety because she was within the range of ordinary danger but not for fear of mistakenly believing her child was injured.
Amodio v. Cunningham- mother could not recover from death of her daughter due to medical malpractice because she did not have a contemporaneous sensory perception.
Dillon v. Legg- “chief element in determining… duty… is the foreseeability of the risk” w/ (1) whether the plaintiff was located near the scene of the accident; (2) whether the shock resulted from a direct emotional impact from the sensory and contemporaneous observance of the accident; (3) whether the plaintiff and the victim were closely related.
Thing v. La Chusa- recovery of bystander based on reasonable foreseeability required limitations. A plaintiff may recover when the plaintiff (1) is closely related to the victim; (2) is present at the scene at the time and is aware that it is causing injury; (3) suffers serious emotional distress, a reaction beyond that of a disinterested witness and not abnormal.
8. Reasoning: bystander emotional distress is reasonably foreseeable. Public policy requires the duty owed by a tortfeasor to a bystander. The zone of danger test would result in anomalous situation based on the distance of persons. Limits to reasonable foreseeability rule are: (1) the bystander must be closely related to the victim; (2) the bystander’s emotional injury must be caused by the contemporaneous sensory perception; (3) the injury to the victim must be substantial, causing either death or serious physical injury; (4) the bystander sustained a serious emotional injury.
Limited Duty in Emotional Distress – Burgess v. Superior Court
Mishandling of bodily remains and erroneous notification of a close person’s death are recognized as emotional distress. Issues related to medical malpractice and others also arose emotional distress claims.
1. Case Heading:
Parties: Individual (mother who gave birth to a child) and
Year: 1992
Court: California State Supreme
2. Disposition: The court remanded for a trial.
3. Holding: Under the scope of the duty of care assumed by Gupta, Burgess’s claim from emotional distress damages may be an ordinary professional malpractice claim, which seeks as an element of damage compensation for her serious emotional distress.
5. Procedural History: The trial court granted defendants motion to dismiss, ruling that the contemporaneous observation/sensory perception requirement was not satisfied. The Court of Appeals reversed, holding that bystander liability did not apply but direct victim theory applied.
6. Facts: Burgess was in labor and experienced a prolapsed, or compressed umbilical cord, which deprived the baby of oxygen. Gupta delayed ordering an emergency cesarean delivery for 44 minutes and the baby was born with severe brain damage. Burgess was anesthetized during the cesarean and became aware of her son’s injuries when she woke up from anesthesia.
7. Rule: Molien v. Kaiser- under direct victim theory, damages are recovered for serious emotional distress unaccompanied by physical injury. (1) damages for negligently inflicted emotional distress may be recovered in the absence of physical injury or impact; (2) a cause of action to recover damages for negligently inflicted emotional distress will lie in cases where a duty arising from a preexisting relationship is negligently breached.
Ochoa v. Superior Court- parents who sought damages from witnessing their son’s demise from lack of medical care in prison were bystanders because defendants had no preexisting relationship with the parents.
8. Reasoning: “bystander” addresses the question of duty in circumstances in which a plaintiff seeks to recover damages as a percipient witness to the injury of another, all arising in the context of physical injury or emotional distress caused by the negligent conduct of a defendant with whom the plaintiff had no preexisting relationship, and to whom the defendant had not previously assumed a duty of care beyond that owed to the public in general.
“direct victim” distinguishes cases in which damages for serious emotional distress are sought as a result of a breach of duty owed the plaintiff that is assumed by the defendant or imposed on the defendant as a mtter of law, or that arises out of a relationship between the two.
Gupta argues Burgess’s damages are derivative because he owed no duty of care to Burgess to avoid injuring her child. Burgess and Joseph were two separate patients.
Court: physician-patient relationship was also directed to her fetus. In addition to physical, emotional well-being of the mother and the health of the child are inextricably intertwined. Physician owes a duty to the pregnant woman with respect to the medical treatment provided to her fetus.
Limited Duty in Emotional Distress – Huggins v. Longs Drug Stores Calif., Inc.
Year: 1993
Court: California Supreme Court
2. Disposition: Reverse the judgment of the Court of Appeal.
3. Holding: Because plaintiffs were not the patients for whom defendant dispensed the prescribed medication, they cannot recover as direct victims of defendant’s negligence.
5. Procedural History: The trial court granted summary judgment for defendant. The Court of Appeal rejected “bystander” recovery but allowed “direct victim” theory. Duty arises when pharmacist knows a medication is administered by parent and the duty is violated if the negligence causes injury to the patient and the parent, whose act caused the injury, suffer emotional distress.
6. Facts: Longs wrote directions for five times the dosage ordered by the doctor in filling a prescription for Huggins’s two-month-old son. Huggins seek emotional distress judgment from injuring their son through overdose.
7. Rule:
8. Reasoning: Expansion of liability would increase medical malpractice insurance costs and impair providing optimal care to the patient (policy argument).
But for Causation – Sowles v. Moore
But for and substantial factor tests both require that the negligent conduct or omission of the defendant must be connected to the plaintiff’s harm.
1. Case Heading:
Year: 1893
Court: Vermont
2. Disposition: Affirm the judgment of the trial court.
3. Holding: Would the horses have turned from their course by guards as reasonably prudent men would have erected? This was a material question of fact for the jury to decide before they could say whether Moore’s negligence in respect to a guard was the cause of the casualty.
4. Issue:
5. Procedural History: The jury found, by special verdicts, that the opening was not properly guarded, and that Sowles was in the exercise of due care in managing the horses, but that proper guarding would not have prevented the drowning.
6. Facts: Sowles pulled the reins on his horses to get them to turn his sled around. The sled skidded on the snow, frightening the horses. Horses ran rapidly onto the frozen lake into an opening in the ice and drowned. Moore’s ice company had removed the ice to sell and created the opening. Sowles sued for the value of horses.
8. Reasoning: Sowles cannot ecover if Moore could not have prevented the accident from occurring by the exercise of due care.
But for Causation – New York Central R.R. Co. v. Grimstad
1. Case Heading:
Parties: Corporation (owner of the barge Grayton) and individual (captain of the barge Grayton).
Year: 1920
Court: Federal Appellate 2nd circuit
2. Disposition: Reverse the judgment of the trial court.
5. Procedural History: The jury found the defendant negligent in not equipping the barge with life-preservers. The trial court denied the defendant’s motion to dismiss.
6. Facts: The barge Grayton was lying on the port side of the steamer Santa Clara on the north side of Pier 2, Erie Basin, Brooklyn, and loaded with sugar. The tug Mary M bumped against the barge. Grimstad’s wife came out of the cabin and went across the deck to the other side, where she discovered Grimstad in the water, 10 feet from the barge, holding up his hands. Grimstad did not know how to swim. Wife ran back into the cabin to get a small line, but when she returned, Grimstad was gone. Wife sued under the federal Employers’ Liability Act.
8. Reasoning: The proximate cause of Grimstad’s death was his falling into the water. Whether a life-buoy would have saved the decedent from drowning is left to conjecture and speculation.
Substantial Factor Test – Corey v. Havener
But for test often fails to produce fair and equitable results. Substantial factor test asks whether the defendant’s negligent conduct was a substantial factor in contributing to the plaintiff’s injuries.
1. Case Heading:
Year: 1902
Court: Massachusetts
5. Procedural History: The verdicts were in favor of Corey. The trial court judge refused to give the instructions on “but for” test requested by Havener.
6. Facts: Corey was riding a horse on a highway and Havener and another came from behind on motor tricycles, which emitted smoke and made a loud noise, frightening Corey’s horses. Havener and another passed Corey at a high rate of speed, one on each side, throwing Corey.
7. Rule: Railroad Co. v. Shanly- if each contributed to the injury, it binds both. Whether each contributed was a question for the jury.
Elliott v. Hayden- if both contributed to the accident, the jury could not single out one to blame. There being two actions, the plaintiff is entitled to judgment against each for the full amount. A satisfaction of one judgment is all that the plaintiff is entitled to.
Substantial Factor Test – Smith v. JC Penney Co., Inc.
1. Case Heading:
Year: 1974
Court: Oregon
2. Disposition: Affirm the judgment
3. Holding: The jury would have to find that Enco’s conduct was a substantial factor in causing an injury of some extent.
5. Procedural History: The jury returned a verdict for $600000 against Enco Service Station and Bunker-Ramo.
6. Facts: A gasoline line on an automotive vehicle was being blown out with the air pressure hose used to inflate tires. So much force was applied that it blew a spray of gasoline out of the vehicle’s opened tank and into the waiting room with a floor heater. Gasoline ignited and ignited fake fur coat worn by Smith, badly injuring her.
8.Reasoning:Enco Service Station argues that the trial court failed to instruct that if other defendants’ conduct have a predominant effect, Enco’s is insignificant and is not a substantial factor.
Proof of Causation – Ingersoll v. Liberty Bank of Buffalo
1. Case Heading:
Parties: Individual (wife of the decedent) and corporation (owner of the two-family house where plaintiff leased)
Year: 1938
Court: New York State Supreme
2. Disposition: Reverse the judgment and grant a new trial.
3. Holding: The question was one for the jury and the complaint should not have been dismissed.
4. Issue: Did the plaintiff establish a prima facie case sufficient to warrant submission to the jury of the questions of negligence on the part of the defendant and its causal connection with the injury to the decedent?
5. Procedural History: In the trial court, the jury returned a verdict in favor of the plaintiff and denied a motion for a new trial. The Appellate Division reversed the judgment, stating “there is no causal connection.”
6. Facts: Ingersolls leased the lower apartment of a two-family house. The stairway leading to the basement was constructed of wood and the treads were badly worn, shaky, and loose. The condition was called to the attention of representatives of the defendant, but carpenters failed to repair the stairway. The decedent, 214 pounds, brought a box, 32 pounds, down the stairs and the plaintiff heard a crash. She saw the decedent on the floor saying “something broke” “something gave away in here.” She found a piece had broken off from the tread of the second step up from the bottom. There was an old crack in the tread, partly filled by paint. Decedent died several months later due to the accident.
7. Rule: Fordham v. Governor Village: In the course of laying a pipe line under the sidewalk of a bridge, work holes were cut in the planks and covered by loose planks. One of the planks was higher than the rest and Fordham was injured and died. Reasonable inference can be made that the injury was produced by stumbling over the plank.
Stubbs v. City of Rochester: Stubbs argued that he became ill by drinking contaminated water supplied by City and the court pointed out that it was not essential for the plaintiff to eliminate all of the other causes.
Scharff v. Jackson: bags of cement piled in a warehouse fell and struck Scharff who was loading the bags on a truck. Plaintiff did not prove a prima facie case because the bags could have fallen because of improper piling or were undermined when another bag was removed.
8. Reasoning: Reasonable inference can be made that the defective tread broke and caused Ingersoll to fall, but there are also evidences of Ingersoll’s heart disease.
Multiple Parties – Fugere v. Pierce
True joint tort category: the purpose of joint and several liability is to create joint liability where the parties deliberately engaged in a joint tort activity even through the harm was caused by only one party.
Vicarious liability: JSL is typically imposed in employer-employee and principal and agent contexts.
Independent actions concurring to cause harm: the courts treat the defendants as jointly and severally liable as a way of dealing with what would otherwise be difficult causation problem.
1. Case Heading:
Year: 1971
Court: Washington State Appellate
2. Disposition: Reverse and remand.The trial court erred in submitting instruction No. 15 to the jury to apportion the damages.
3. Holding: The defendant has not sustained the burden of proving by substantial evidence that the damages could be apportioned with any reasonable degree of certainty.
4. Issue: (1) May plaintiff obtain a judgment against each tort-feasor for the full amount of the damages caused by independent tort-feasors? Yes. (2) Does the burden of proving an apportionment of damages rest upon the defendant claiming that such is capable? Yes. (3) Was there substantial evidence that the damages were capable of a logical and reasonable apportionment? No.
5. Procedural History: The jury in trial court returned a verdict in favor of the plaintiff for $2500, less than the special damages. Plaintiff appeals the judgment withholding special damages and denial of a motion for a new trial.
6. Facts: Driving conditions were poor due to heavy rain, wet pavement and total darkness. Fugere’s car was struck by an oncoming car, driven by Lopez that got out of control and crossed into Fugere’s lane. Then, 1 to 3 seconds later, it was struck near the front lest door by Pierce’s car. Fugere claimed injuries in liver, finger, lip, ad dentures.
7. Rule: Instruction No. 15
8. Reasoning: Where a plaintiff has been involved in two or more successive impacts, it is impossible to mke a reasonable determination of which tort-feasor caused the injury.
The negligent driver of an automobile in the successive impact has been held jointly and severally liable for plaintiff’s injuries if the injuries are indivisible and the liability cannot be allocated with reasonable certainty to the successive collisions (single indivisible injury rule).
Alternative Liability – Summers v. Tice
In some situations, inadequate proof makes it impossible to determine causation. In such a case, a court might shift the burden of causation to the defendant.
1. Case Heading:
Year: 1948
Court: California
2. Disposition: Affirm the judgment of the trial court.
3. Holding: The case is based upon the legal proposition that each defendant is liable for the whole damage whether they are deemed to be acting in concert or independently.
4. Issue:
5. Procedural History: The trial court ruled in favor of plaintiff. Each of the two defendants appeal.
6. Facts: Prior to hunting, Summers discussed exercising care when shooting and keeping in line with Tice and another defendant. Summers proceeded up a hill. A quail flushed and defendants shot in the direction, and one shot struck Summers’ eye and another in his upper lip 75 yards away.
7. Rule:
8.Reasoning:Defendants argue that they are not joint tortfeasors because they were not acting in concert.
The court was unable to ascertain whether the shots were from the gun of one… the burden of proof should be shifted to defendants because they are both wrongdoers. It should rest with them each to absolve himself if he can. The wrongdoers should be left to work out between themselves any apportionment.
-Invokes res ipsa loquitor to give remedy.
Unforeseeable Plaintiffs – Palsgraf v. Long Island R.R. Co.
Scope of liability element examines whether the careless conduct of the defendant is sufficiently related to the harm suffered by the particular plaintiff to warrant holding the defendant liable.
Direct consequences test and foresight test resolve scope of liability issues. Direct consequences: liable because the harm was directly caused by and traced to the negligence without intervening forces. Foresight: universal conceptual test; an act is negligent if it could foreseeably lead to injury. Is there an arguably unforeseeable plaintiff? Are there arguably unforeseeable consequences? Is there arguably intervening conduct?
1. Case Heading:
Parties: Individual (passenger of a railroad) and corporation (owner of the railroad)
Year: 1928
Court: New York State
2. Disposition: Reverse the judgments of the trial court and the appellate court and dismiss the complaint.
3. Holding:
4. Issue:
5. Procedural History: The trial court and the appellate court returned a verdict in favor of the plaintiff.
6. Facts: Two men ran to catch a train stopped at the station. One man jumped aboard the car but seemed unsteady. Guards pushed him to help him but his package was dislodged and fell upon the rails. The package contained fireworks covered by a newspaper. The fireworks exploded and the shock threw down some scales at the other end of the platform. The scales struck Palsgraf.
7. Rule:
8. Reasoning: Negligence is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.
The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.
It was not necessary that the defendant should have had notice of the particular method in which an accident would occur, if the possibility of an accident was clear to the ordinarily prudent eye.
There was nothing in the situation to suggest to the most cautious mind that the parcel wrapped in newspaper would spread wreckage through the station.
Dissent: if his act has a tendency to harm someone, it harms him a mile away as surely as it does those on the scene. The act was negligent. For its proximate consequences the defendant is liable. Injury in some form was probable.
-Cardozo: reasonable jury could not find defendant careless with reference to plaintiff. A negligence plaintiff cannot borrow plaintiff’s carelessness toward a differently situated person to complete their own claim.
-Andrews(dissent): owes to the world at large the duty (broad definition of negligence). The issue is not affront to plaintiff but socially undesirable conduct (different view of tort law). The imposition of liability defy common sense (different view of proximate cause)
-the trend has been less generous toward providing relief to recently. Post 9/11 how would it be decided?
-Andrews won in the long run; it’s how the law is calibrated. “we must stop events going beyond a certain point.”
Criminal Conduct of a Third Person – McClenahan v. Cooley
1. Case Heading:
Parties: Individual (husband of the driver deceased after car crash) and individual (vehicle owner who left car with key)
Year: 1991
Court: Tennessee State Supreme
2. Disposition: Reverse the judgment of the trial court and remand the case.
3. Holding: Leaving a key in the ignition of an unattended automobile in an area where the public has access, could be found by a reasonable jury to be negligent, whether or not a prohibitory statute is involved. The basic issue is foreseeability, both as to proximate causation and superseding intervening cause, and that is a question of fact…
5. Procedural History: The trial court granted the defendant’s motion for judgment on the pleadings, arguing that statute does not apply because the car was in a private lot. The court of appeals affirmed the judgment.
6. Facts: Cooley left the keys in the ignition to his parked automobile at a public parking lot and went inside of the bank. A thief started the engine and drove down the interstate where he was spotted by a state trooper. A high speed chase ensued on the busiest stretch of highway at the lunchtime hour. The thief reached an intersection, ran a red light in excess of 80 mph, and slammed into another vehicle broadside. As a result, McClenahan’s wife who was driving the vehicle died 14 hours later, her viable fetus met untimely death, his four year old son died, and young child sustained substantial injuries. Cooley was a law enforcement officer.
7. Rule:
8. Reasoning: courts have held owners not liable for leaving… [but] emerging group of jurisdictions have rejected the contention that an intervening criminal act automatically breaks the chain of causation.
Test for proximate causation: (1) the tortfeasor’s conduct is a substantial factor in bringing about the harm; (2) there is no rule or policy that should relieve the wrongdoer from liability because of the manner in which the negligence has resulted in the harm; (3) the harm giving rise to the action could have reasonably been foreseen or anticipated by a person of ordinary intelligence and prudence.
-plaintiff argues that tortfeasor’s actions foreseeable and/or expected. Defendant argues that tortfeasor’s actions broke chain of causation (superseding cause).
-intervening cause: third-party wrongdoing occurs after defendant’s carelessness. The subsequent force is the immediate trigger of the injury to plaintiff.
-defendant ceases to be liable when third party’s actions is a superseding cause, an intervening cause that is not reasonably foreseeable.
-Thief might be intervening, or intervening and superseding.
Market Share Theory – Price v. Blaine Kern Artista, Inc.
1. Case Heading:
Parties: Individual (user of George Bush mask) and corporation (manufacturer of oversized mask)
Year: 1995
Court: Nevada State Supreme
2. Disposition: Reverse the judgment of the district court and remand the case for trial.
3. Holding: A genuine issue of material fact remains with respect to the issue of the legal and proximate cause of Price’s injuries.
4. Issue:
5. Procedural History: The district court granted a summary judgment in favor of the defendant, because the patron’s push was an unforeseeable superseding cause.
6. Facts: Price wore a caricature mask of George Bush during employment as an entertainer at Harrah’s Club. A Harrah’s patron pushed him from behind, causing the weight of the caricature mask to strain and injure Price’s neck.
8. Reasoning: Price argues that legal causation is a question of fact and an intervening criminal or tortuous act does not preclude liability.
BKA argues that the third-party attack was not foreseeable to BKA and is a superseding cause of Price’s injuries.
Court: chain of proximate causation remains unbroken when the intervening intentional act is reasonably foreseeable. While the precise force that caused Price’s fall is uncertain, an irate patron took issue with the caricatured.
-Supreme court: Chain of causation is intact (third-party tortfeasor is not superseding) when a third party’s intervening conduct is foreseeable.
The Eggshell Plaintiff Rule – Pace v. Ohio Department of Transportation
1. Case Heading:
Parties: Individual (a passenger of the struck vehicle) and (owner and operator of the snowplow)
Year: 1991
Court: Ohio District
2. Disposition: Judgment is rendered in favor of the plaintiffs.
3. Holding: the necrosis of the tissues in finger was caused by a lack of circulation, which resulted from the swelling occasioned by an impact to that finger and plaintiff’s pre-existing diabetic condition.
4. Issue: Did ODOT’s negligence proximately caused the amputation of Pace’s finger?
5. Procedural History: Pace sued for loss of finger, loss of wages, future economic value, and pain and suffering.
6. Facts: A snowplow by ODOT struck a vehicle. Pace, a passenger, struck the small finger of his left hand against the interior of the vehicle. He also sustained various injuries to neck and back. Hospital records indicate the finger was swollen as a sprain. At Kaiser emergency room, physicians diagnosed the finger as infected and could not contain the scope or degree of infection. The tissues of the finger became necrotic, and at St. Luke’s hospital, the finger was amputated.
8. Reasoning: Am Juris 281- one who violates the duty of exercising due are not to injure others may be compelled to respond in damages for all the injuries which he inflicts. The defendant takes the plaintiff as he finds him (thin skull) or (eggshell skull) rule.
Restatement 2d- the negligent actor is subject to liability for harm to another although… it makes the injury greater than that…
Suspension of the flow of oxygen to the damaged cells as well as the accumulation of cell debris... can lead to necrosis.
ODOT argues that the necrosis was caused by Pace’s heroin addiction and infection by injecting needle. Pace failed to control diabetes.
Court: Pace has ended drug abuse well before and skin of the finger was not punctured but unrelieved pressure had built up. Experts did not find causal relationship between failure to control diabetes and the infection. Even if Pace controlled diabetes, injury does not heal well due to reduced circulation in the extremities.
-Pace is a key exception to foresight rule. Exceptions are medical malpractice, eggshell rule, rescuer rule.
Damages – Calva-Cerqueira v. US
Single payment rule: single, lump sum award for all damages incurred in the past up to trial and in the future.
Primary areas of personal injury damage recovery: (1) Earnings Losses, past and future; (2) Medical Treatment Expenses, past and future; and (3) Physical pain and mental suffering, past and future.
1. Case Heading:
Parties: Individual (injured in car crash) and country (employer of the bus driver in the crash)
Year: 2003
Court: District of Columbia District
6. Facts: The Smithsonian Institution bus was driving in excess of the applicable 25 mph speed limit and drove through the red light, hitting Calca-Cerqueira’s car. Calva-Cerqueira suffered from paralysis, decreased sensation in the left side of his body and is wheelchair bound. Dr. Naidich found that Calva suffered extensive brain tissue damage that permanently altered the configuration of the brain, including the cortex, brain stem, and cerebellum, resulting in impairment of higher cortical functions, neurocognitive deficits, and multiple neuromuscular disabilities with paralysis, paresis, and contractures of the musculoskeletal system in the torso, head, and four extremities. The injury rendered him quadriparetic. He lacks the ability to plan and to foresee. He will require psychiatric assistance for the rest of life.
8. Reasoning: In the DC, the primary purpose of compensatory damages is to make the plaintiff whole. For damages for the future consequences of a tort, the plaintiff must prove by a reasonable certainty that the future consequence would have occurred or will occur. Court should award damages for future medical expenses when the expenses are reasonable and necessary.
The court awards $5m for pain and suffering, $.9m for past medical expenses, $2.5m for future lost wages, and $15.4m for future medical and related expenses. The court reduces it to $20m based on Calva’s claim. The court determines future lost earnings on the basis of potential earning capacity, based on individual characteristics such as age, sex, socio-economic status, family characteristics, criminal behavior, academic record, intelligence and dexterity.
Plaintiff had problems with the past abuse of substances, the present abuse of marijuana, and a diagnosis of depression.
In discounting a lump-sum award for future damages to present value, the time value of money and the effects of inflation are considered.
-Federal Torts Claims Act case; the defendant is the federal government.
-nominal, compensatory (fairly & adequately compensate), and punitive damages.
-Court have a gatekeeping function of remitting or additurs to the damages to adjust the amount.
-Collateral source rule: prevents an injured party’s damages from being reduced because the injured party has received compensation from some source other than the defendant. Applies when: (1) the source of the benefit is independent of the tortfeasor; or (2) the plaintiff contracted for the possibility of a double recovery.
-Arguments for CSR: defendant should pay for careless conduct and not get a windfall. Plaintiff paid for collateral benefit or should enjoy beneficence of gift. Personal injury damages do not fully compensate. Calculating collateral benefit deductions may further complicate litigation.
-Arguments against CSR: avoids double recovery. Encourages settlement. Reduces cost of accident liability.
-Rule of avoidable consequences: plaintiff generally has a duty to mitigate special damages, such as seeking reasonable medical care, if so required by their injuries. Defendant may not be held responsible to compensate for harm that would have been reduced or eliminated. Not necessary to undergo excessively painful treatment or treatment involving significant risk of injury or death.
Wrongful Death – Krouse v. Graham
Wrongful death statutes: statutes covering loss to dependents.
Survival statutes: (1) provision was made for the survival of a tort claim against a deceased tortfeasor by allowing the death claim to be maintained against the estate of the tortfeasor; and (2) …personal injury claim of a deceased victim in the name of his estate for the damages that accrued up to the date of the death.
At first, the awards were restricted to pecuniary losses; over the years, the awards were extended to compensation to family members for loss of consortium.
1. Case Heading:
Parties: Individuals (present inside the struck car or family) and individual (driver of the car)
Year: 1977
Court: California State Appellate
2. Disposition: Reverse the judgment and remand the case for further proceedings.
3. Holding: Instruction permitting recovery for those nonpecuniary damages properly set forth the elements of damage recoverable.
5. Procedural History: Benjamin and Krouse children were awarded $300kfor Elizabeth’s wrongful death, Benjamin was awarded 52k for his injuries and emotional suffering, and Mladinov was awarded $90 for her injuries. Graham appeals the jury instruction on recovery from loss of consortium and mental and emotional distress.
6. Facts: Graham’s vehicle struck the Krouses’ parked car. Elizabeth Krouse was killed and Benjamin Krouse and Mladinov were injured.
8. Reasoning: Graham asserts that nonpecuniary losses were wrongly allowed, but courts uniformly allowed the losses in the past century. California case law has not restricted wrongful death recovery only to those elements with an ascertainable economic value.
-Wrongful death statutes do not create new torts. Plaintiff must prove a recognized tort against the decedent.
-WD: Compensable losses: expenses related to death, anticipated financial contributions, loss of consortium.
-Survival statutes: compensable losses: medical expenses prior to death, funeral expenses, loss of earnings between time of injury and death, and pain and suffering.
-mental anguish, loss of companionship and society.
Race and Ethnicity Fairness – McMillan v. City of NY
1. Case Heading:
Parties: Individual (injured in a crash of a ferryboat) and city (operator of ferryboat)
Year: 2008
Court: New York State District
3. Holding: Reliance on race-based statistics in estimating life expectancy for purposes of calculating damages is rejected in computing life expectancy and damages.
4. Issue: Whether “racially” based statistics and other compilations may be relied upon.
5. Procedural History:
6. Facts: MacMillan became a quadriplegic after a crash of a ferryboat.
8. Reasoning: Boas: classification of mankind is more or less artificial.
One drop rule: black for anyone who has known African ancestors.
DNA technology finds little variation among races; humans are genetically almost identical.
Life expectancy tables are based on historical data and thus on OMB’s archaic racial analysis, instead of the nuanced reality of racial heritage in the US.
[African-Americans of advantaged urban areas… white residents of urban poor areas.]
Wheeler Tarpeh-Doe v. US: the court held it inappropriate to incorporate current discrimination resulting in wage differences between the sexes or races or the potential into a calculation for damages resulting from lost wages.
Court rejected on equal protection grounds race based discrimination. Equal protection demands the claimant not be subjected to a disadvantageous life expectancy estimate solely on the basis of a racial classification.
Gender Fairness – Reilly v. US
1. Case Heading:
Parties: Individual (baby) and country (employer of Navy physician)
Year: 1988
Court: Federal Appellate
2. Disposition: Affirm the district court’s judgment.
3. Holding: Refuse the government’s suggested assumption that a woman, invariably, works less, and therefore, earns less than her male counterpart.
5. Procedural History: The trial judge awarded $8900 for future medical care, $1100 for future earning capacity loss, and $1000 for future pain and suffering. US appealed, alleging that work-life table to determine the number of years worked in the future was not used.
6. Facts: Peter Reilly was on active duty with the Navy. Donna Reilly was admitted to Newport Naval Hospital. After some six hours in labor, the electronic monitor indicated a dramatic deceleration in fetal heart rate, indicating a need to perform a C-section. The physician removed the monitor and performed a vaginal delivery that required the application of a vacuum/suction instrument to the baby’s head. The baby was born with severe brain damage.
8. Reasoning: US argues Heather would have worked 28 years instead of 48 years from BLS table.
Tables are mere guides and not inflexible rules.
Punitive Damages – Mathias v. Accor Economy Lodging, Inc.
Punitive damages are awarded where actions involved highly serious misconduct coupled with an anti-social state of mind. The aggravated misconduct can be intent to harm, recklessness, fraud, oppression, malice, or outrageous conduct. Owen defines: punitive damages are appropriate for conduct that is conscious or reckless disregard of the rights of others, and that constitutes an extreme departure from lawful conduct.
The purposes are to punish reprehensible conduct and deter future similar misconduct. The juries consider: (1) the likelihood at the time that serious harm would arise from the misconduct; (2) the degree of the defendant’s awareness of the likelihood; (3) the profitability of the defendant’s misconduct; (4) the duration of the misconduct and any concealment; (5) the attitude and conduct of the defendant upon discovery of the misconduct; (6) the financial assets and income of the defendant; and (7) the total deterrent effect of other punishment imposed upon the defendant.
1. Case Heading:
Parties: Individuals (hotel residents injured by bed bugs) and corporation (owner and operator of the Motel 6 chain)
Year: 2003
Court: Federal Appellate
2. Disposition: Affirm the judgment of the trial court.
3. Holding: A person who causes bodily harm to or endangers the bodily safety of an individual by any means, commits reckless conduct if he performs reckless the acts which cause the harm or endanger safety, whether they otherwise are lawful or unlawful.
5. Procedural History: The jury awarded $186000 punitive and $5000 compensatory damages to the plaintiffs.
6. Facts: In 1998 EcoLab, the extermination service, discovered bedbugs in several rooms and recommended spraying every room but was refused. The next year, bedbugs were discovered but only that room was sprayed. In 2000, the motel’s manager noticed refunds being given and reports of bugs biting. The manager reported to her superior that the motel be closed and sprayed but was refused. The management acknowledged that there was a major problem with bedbugs and they were chasing them from room to room. Desk clerks were instructed to call them ticks. Mathias checked into the motel room classified as “do not rent until treated.”
8. Reasoning: Accor argues it is at worst guilty of simple negligence -> meritless because gross negligence, of recklessness in the strong sense of an unjustifiable failure to avoid a known risk, is present.
Accor’s failure to warn guests or to take effective measures to eliminate the bedbugs amounted to fraud and probably to battery -> it was a willful and wanton conduct.
A standard principle of penal theory: the punishment should fit the crime in the sense of being proportional to the wrongfulness of the defendant’s actions, though the principle is modified when the probability of detection is low.
Another penal precept: defendant should have reasonable notice of the sanction for unlawful acts, so that he can make a rational determination of how to act; there have to be reasonably clear standards for determining the amt.
Third precept (the core of the Aristotelian notion of corrective justice) sanctions should be based on the wrong done rather than on the status of the defendant; a person is punished for what he does, not for who he is.
The punitive damage in the case limits the defendant’s ability to profit from its fraud by escaping detection and prosecution. If a tortfeasor is caught only half the time he commits torts, he should be punished twice as heavily in order to make up for the time he gets away.
A person who causes bodily harm to or endangers the bodily safety of an individual by any means commits reckless conduct if he performs recklessly the acts which cause the harm or endanger safety, whether they are lawful.
Comparative Fault – Hoffman v. Jones
Contributory negligence arises when the unreasonable conduct of the plaintiff contributes to the plaintiff’s harm. Under the defense, the plaintiff’s recovery is barred because of the plaintiff’s own conduct. The defendant must prove by a preponderance of the evidence that the plaintiff fell below the relevant standard of care, and the breach was a cause-in-fact and proximate cause of the plaintiff’s injury. The courts allowed the defense where the defendant’s conduct was negligent, created the concept of the last clear chance (defendant had last clear chance to take care), and not permitted where the plaintiff’s fault was based on a statute.
Comparative fault is where both a plaintiff and a defendant are at fault, they should share the responsibility. Pure: negligent plaintiff recovers regardless of defendant’s degree of fault. Modified: negligent plaintiff recovers only if their fault is less than or equal to 50%.
1. Case Heading:
Year: 1973
Court: Florida
4. Issue: Whether the court should replace the contributory negligence rule with the principles of comparative negligence.
7. Rule: Butterfield v. Forrester- contributory negligence is a bar to recovery.
8. Reasoning: Abandon the contributory negligence theory because the initial justification for establishing it is no longer valid. It was adopted to promote growth of industries, but modern customs favor the individual, not industry.
Comparative negligence is more equitable system of determining liability and more socially desirable method.
-Dissent: we should follow Mis, Wis, Ark statutes; what majority is doing is by courts, not by legislature.
Percentages of Fault – Wassell v. Adams
1. Case Heading:
Parties: Individual (hotel resident and victim of rape) and individual (owner of motel)
Year: 1989
Court: Federal Appellate 7th circuit
2. Disposition: Affirm the judgment of the district court.
5. Procedural History: The jury returned an award of $850,000 for Susan, but the jury assigned 3% blame for the defendant. The district judge did not set aside the verdict.Susan appealed the decision.
6. Facts: Susan Marisconishchecked into the Ron-Ric motel in September 1985 for the graduation of her fiancé, Michael Wassell, who was graduating from a nearby naval-training station. The Ron-Ric was owned by Wilbur and Florena Adams and was located a few blocks away from a dangerous urban area. The Adamses did not warn Susan about the dangers of the area. One evening, Susan went looking for apartments in the area. After returning to the room, Susan locked the door and fell asleep. At 1:00 a.m., Susan was awoken by a knock at the door. Believing that her fiancé might be knocking, Susan opened the door. Instead, there was another man standing outside. Susan eventually let the man inside. After the man’s intentions became clear, Susan attempted to escape, but the man dragged her back into the room and raped her. There was no telephone or alarm system in the room that would have allowed Susan to contact someone for help.
8. Reasoning:
-should fault be: how careless (degree of negligence)? Causal connection? Moral blameworthiness?
Assumption of Risk – Murray v. Ramada Inns, Inc.
Assumption of risk: consent to risk as a defense in intentional torts.
Express assumption of risk: one gives explicit written or oral permission to release another from an obligation of reasonable care.
-Contract law, public policy (if affected w pub int; Tunkl factors), defendant’s conduct (if reckless or intentional)
Implied consent to risk can be inferred from a party’s conduct and the circumstances. Assumption of risk is subjective and looks to the plaintiff’s state of mind. The test is: (1) knowledge of the risk, (2) appreciation of the risk, (3) voluntary exposure to the risk.
-plaintiff knowingly, freely chose to face the danger posed by the careless driver. Subjective test: state of mind?
1. Case Heading:
Parties: Individuals (family of the deceased diver) and corporation (owner of the motel)
Year: 1988
Court: Louisiana State Supreme
4. Issue: Does the defense of assumption of risk as a complete bar to recovery survive the legislative adoption of comparative fault?
5. Procedural History: Ramada asked the Court to instruct the jury on the assumption of risk. The judge denied the request. The jury assessed the plaintiff’s negligence at 50%. The defendant appealed.
6. Facts: Murray and two of his brothers were doing shallow water dives in the pool at Ramada. After two dives, Murray made a third dive and struck his head on the bottom of the pool. Murray suffered instant paralysis and died five months later. There were no lifeguard and sign warning against diving into the shallow end of the pool. Murray knew how to dive and knew danger of diving. A sign read No life guard swim at own risk.
8. Reasoning: Assumption of duty describes plaintiff’s conducts of: a form of contributory negligence (vast majority of cases; adjudged by comparative fault principles), deny recovery on the ground that the plaintiff expressly agreed to release the defendant from liability (handful of cases), and bar recovery by plaintiffs who have opted to place themselves in situations involving virtually unpreventable risks (few cases).
Early assumption of risk cases said the plaintiff could not recover because he had actually consented to it.
Contributory negligence defense called for an objective inquiry into whether the plaintiff’s conduct fell below the standard required of a reasonable man of ordinary prudence under the circumstances. Assumption of the risk is a subjective test, asking whether the plaintiff actually knew of the risk and voluntarily confronted the danger.
Common law categories
(1) Express assumption of risk: the plaintiff expressly contracts with another not to sue for any future injuries which may be caused by that person’s negligence.
(2) Implied primary assumption of risk: plaintiff has made no express agreement to release the defendant from future liability, but he is presumed to have consented to such a release because he has voluntarily participated in a particular activity or situation which involves inherent and well known risks.
(3) The plaintiff is said to assume the risk of the defendant’s negligence. The plaintiff is barred from recovery on the ground that he knew of the unreasonable risk created by the defendant’s conduct and voluntarily chose to encounter that risk.
Defendant urges that the plaintiffs’ decedent assumed the risk. It also constitutes contributory negligence, since a reasonable, prudent person… would not have engaged in shallow water diving. A miscalculation of the risk constitutes contributory negligence. Defendant argues that the decedent had knowledge of the danger. Defendants owed a duty to all potential users of the pool to operate that facility in a reasonably safe fashion.
-applying subjective test, it cannot be argued that Murray assumed the risk of dying.
Assumption of Risk – Cheong v. Antablin
1. Case Heading:
Parties: Individual (skier) and individual (skier)
Year: 1997
Court: California State Supreme
2. Disposition: Affirm the judgment of the Court of Appeal.
3. Holding: A skier owes a duty to fellow skiers not to injure them intentionally or to act recklessly, but a skier may not sue another for simple negligence.
5. Procedural History: The trial court granted summary judgment for the defendant, because a collision is an inherent risk of downhill skiing, and in a case of primary assumption of risk, it is an absolute bar to recovery. Cheong appealed, arguing that he and Antablin were not coparticipants in the sport. The Appeals Court affirmed.
6. Facts: Cheong and Antablin are longtime friends and experienced skiers who skied together at Alpine Meadows. They collided and Cheong was injured. Antablin states he felt he was skiing too fast and turned right in an effort to slow down and collided. Cheong sued Antablin for general negligence.
7. Rule: Knight – the plaintiff sued for injuries suffered during an informal touch football game.
8. Reasoning: Cheong and Antablin were coparticipants in the sport, and Antablin did not act so recklessly as to bring him outside the bounds of the sports activity, and accordingly the defense of primary assumption of the risk operates to bar his action.
(1) primary assumption of risk: those instances in which the assumption of risk doctrine embodies a legal conclusion that there is no duty on the part of the defendant to protect the plaintiff from a particular risk. Completely bars the recovery.
(2) secondary assumption of risk: those instances in which the defendant does owe a duty of care to the plaintiff but the plaintiff knowingly encounters risk of injury caused by the defendant’s breach of that duty. Is merged into the comparative fault scheme, and the trier of fact, in apportioning the loss, may consider the relative responsibility of the parties.
As a general rule, persons have a duty to use due care to avoid injury to others, and may be held liable if their careless conduct injures another person; this does not apply to coparticipants in a sport, where conditions or conduct that otherwise might be viewed as dangerous often are an integral part of the sport itself.
Participant in an active sport breaches… if the participant intentionally injures another player or engages in conduct that is so reckless as to be totally outside the range of the ordinary activity involved in the sport.
Concur: I would analyze the issue as a question of duty. I would resolve under the traditional doctrine of voluntary assumption of risk.
-complete bar -> this is a limited duty issue.
Assumption of Risk – Riley v. US
1. Case Heading:
Parties: Individual (got into an auto accident partly due to mailbox) and nation
Year: 2007
Court: Federal Appellate 8th Circuit
2. Disposition: Affirm the judgment of the district court.
5. Procedural History: Riley sued the US, alleging the USPS negligently placed and maintained and failed to relocate the mailboxes. The district court found that the sovereign immunity applied, and thus, it lacked subject matter jurisdiction.
6. Facts: In 2002, Riley’s car was stopped on Christopher Drive, waiting to turn onto U.S. Highway 63. Mailboxes obscured his view of traffic. Believing the road was clear, Riley started onto the highway. A pickup truck broadsided his vehicle, causing serious injuries. Before the collision, the county sheriff and a deputy — residents near Christopher Drive — complained to the Postmaster about the location of the mailboxes. The deputy sheriff presented the Postmaster a petition, signed by many residents, requesting they be moved. The Postmaster refused, citing the extra cost. After Riley’s injuries, the USPS received letters and another petition. The relocation of the mailboxes was then approved.
7. Rule:
8. Reasoning: The US is immune from a suit unless it consents, but exceptions apply. The test (called Berkovitz) to determine exception is: (1) the conduct at issue must be discretionary, involving an element of judgment or choice, and (2) the judgment at issue is the kind that the discretionary function exception was designed to shield.
->(1) the USPS’s decision on where to place the mailbox was discretionary. The Green Book provisions are guidelines and not mandatory. (2) The judgment of where to locate the mailboxes is of the kind that the discretionary function exception was designed to shield. FTCA has no dangerous condition exception.
-(1) because separation of powers
Meaning of Intent – White v. Muniz
Intentional torts relate to the purpose or desire to invade the legally protected interests of another.
The trespass action applied in situations where the forcible injuries occurred immediately after the wrongful act. The writ of “trespass on the case” then covered indirect injuries. Trespass became the umbrella for intentional torts and case became the tort of negligence.
Intent is measured by a subjective standard (state of mind), while negligence is measured by an objective std. Court and juries have to rely on circumstantial evidence to determine the defendant’s state of mind. “the evidence is compelling that the actor knew the consequences of his conduct, even if he swears otherwise.”
A person acts with the intent to produce a consequence if: (a) the person has the purpose of producing the consequence; or (b) the person knows to a substantial certainty that the consequence will ensue from the conduct.
Transferred intent is a type of scope of liability rule making the actor liable for invasions of interests beyond the express intent.
The intentional tort of battery protects: (1) the interest in physical integrity (freedom from harmful contacts); and (2) a dignitary interest (freedom from offensive bodily contact).
Assault deals with protection of the mental state of individuals to be free of wrongful apprehension. It protects against threats of harmful or offensive contact and threats of false imprisonment. (reasonably to apprehend imminent…)
1. Case Heading:
Parties: Individual (employee of the assisted care facility) and individual (a resident and an estate of the facility)
Year: 2000
Court: Colorado State
2. Disposition: Reverse the judgment of the court of appeals and remand the case for reinstatement of the jury verdict in favor of White.
3. Holding: Regardless of the characteristics of the alleged tortfeasor, a plaintiff must prove that the actor desired to cause offensive or harmful consequences by his act. The plaintiff need not prove that the actor intended the harm that actually results.
4. Issue: Does an intentional tort require some proof that the tortfeasor not only intended to contact another person, but also intended that the contact be harmful or offensive to the other person?
5. Procedural History: The jury returned a verdict in favor of the defendant.Plaintiff appealed, claiming the jury instruction inaccurately stated the law that the defendant had to appreciate the offensiveness of her conduct. The court of appeals reversed.
6. Facts: Everly suffered from Alzheimer’s and struck Muniz when she tried to change Everly’s diaper. Everly died before the trial.
7. Rule:
8.Reasoning:Historically, battery required a subjective desire on the part of the tortfeasor to inflict. It was not enough that a person intentionally contacted another resulting in a harmful or offensive contact.
Some courts abandoned dual intent of contact and it be harmful or offensive and required only that the tortfeasor intended a contact that resulted in harmful or offensive touching. -> the actor could be held liable for battery because a reasonable person would find an injury offensive or harmful, irrespective of the intent to harm or offend.
White seeks the dual intent rule in mentally ill and Muniz argues a mere voluntary movement by Everly is intent. -> CO follows dual intent, reject Muniz’s argument, and find the jury instruction proper. The jury must find the actor intended offensive or harmful consequences.
Insanity is a characteristic, like infancy, that may make it more difficult to prove the intent element.
-all that the dual intent requires is that the defendant intended, not
Meaning of Intent – Doe v. Johnson
1. Case Heading:
Parties: Individual (acquired HIV) and individual (transmitted HIV)
Year: 1993
Court: Michigan State District
2. Disposition: Denies the motion to dismiss by Johnson.
3. Holding: Deny the defendant’s motion to dismiss the claim.
6. Facts: Johnson was sexually active, having multiple sexual contact and engaging in sexual intercourse with multiple partners. Doe asked Johnson to use condom, but Johnson refused. Doe and Johnson had a consensual sex. Johnson transmitted the HIV virus to Doe.
7. Rule: Restatement of Torts section 892B, Rule 12(b)(6)
8. Reasoning: Doe argues that Johnson knew or should have known that he was at high risk and should have (1) warned her about his past lifestyle; (2) informed her that he may have HIV; (3) informed that he did have HIV; (4) not engage in sexual contact with her; and (5) use a condom.
X consents to sex with Y, who knows X is ignorant of the fact that Y has a venereal disease, Y is subject to liability for battery. Johnson argues Doe failed to state a claim that Johnson intended to transmit or knew with substantial certainty, and the court denies.
-Substantial certainty: (a) the person acts with the purpose of producing that consequence; or (b) the person acts knowingly that the consequence is substantially certain to result. (subjective standard)
-Consensual means Johnson intended to make a contact. Single intent jurisdiction would hold J liable (contact is satisfied). Dual intent: (intent to make harmful or offensive contact) -> “I knew with substantial certainty that I might transmit HIV.” Plaintiff would win also in this test.
-harmful means to the reasonable sense of personal dignity
Hall v. McBryde
Types of transferred intent: (1) same victim, different intentional tort; intended assault -> but battery. (2) different victim, same intentional tort; intended battery of A -> but battery of P. (3) different victim, different intentional tort; intended assault of A -> but battery of P. (4) intent to harm personal property -> battery of P.
1. Case Heading:
Parties: Individual (neighbor living next door) and individual (fired loaded weapon).
Year: 1996
Court: Colorado Appellate Court
3. Holding: Aiming and firing a loaded weapon at the automobile deduces intent to put the youths in apprehension of a harmful or offensive bodily contact, and this is sufficient to satisfy the intent requirement for battery against Hall.
5. Procedural History: The trial court found no evidence that McBryde intended to shoot Hall and that he was shooting at the car instead of the youth.
6. Facts: McBryde noticed youths in car approaching the house. One of the youths began shooting towards the house and McBryde fired four shots toward the car. One bullet struck Hall, who lived next to the house, injuring abdomen.
8. Reasoning: If an act causes a harmful bodily contact to another, the actor is liable to such other as fully as though he intended so to affect him.
Vetter v. Morgan
-Assault is a completed tort, not an attempt or incomplete battery.
1. Case Heading:
Parties: Individual (driver) and individual (verbally harassed)
Year: 1995
Court: Kansas Appellate Court
3. Holding: Whether Morgan’s actions constituted an assault was a question of fact for the jury.
4. Issue: Did Morgan intend for Vetter to apprehend imminent harmful or offensive contact? Did Vetter actually and reasonably apprehend imminent harmful or offensive contact?
5. Procedural History: The trial court granted the motion for summary judgment to Morgan.
6. Facts: Vetter was alone at around 1am in her van before a stoplight. Morgan and Gaither drove up beside Vetter, screamed vile and threatening obscenities, shaked his fist, and made obscene gestures in a violent manner. Gaither revved the engine and moved the car back and forth. Morgan threatened to remove Vetter from her van and spat on the van door. Morgan stated he did not intend to scare, upset, or harm Vetter but to amuse his friends. Driving forward, Vetter steered her van sharply to the right, struck the curb, hit her head at the steering wheel and snap back, and fell to the floor of the van.
8. Reasoning: Words can constitute assault if together with other acts or circumstances they put the other in reasonable apprehension of imminent harmful or offensive contact with his person.
Vetter could reasonably have believed he would immediately try to carry out his threat. It is not necessary that the victim be placed in apprehension of instantaneous harm.
It is enough that Vetter believed that Morgan was capable of immediately inflicting the contact unless prevented by self-defense, flight, or intervention by others.
-words alone are insufficient to constitute an assault. Imminent apprehension is required. Words might cause infliction of emotional injury.
Assumption of Risk – Leichtman v. WLW Jacor Communications, Inc.
1. Case Heading:
Parties:
Year: 1994
Court: Ohio State Appellate
2. Disposition: Affirm the first and third counts of the complaint and reverse the second count that dismissed the battery claim.
5. Procedural History:
6. Facts: On the date of the Great American Smokeout, Leichtman was invited to appear on the WLW Cunningham radio talk show to discuss the harmful effects of smoking and breathing secondary smoke. Furman, another host, lit a cigar and repeatedly blew smoke in Leichtman’s face.
8.Reasoning:Tobacco smoke, as particulate matter, has the physical properties capable of making contact.
Emotional Distress – Brandon v. County of Richardson
1. Case Heading:
Parties: Individual (mother of the deceased) and county (employer of police officer Laux)
Year: 2001
Court: Nebraska State Appellate
2. Disposition: Affirm the district court’s judgment that the county had a duty to protect Brandon, that county was negligent in failing to discharge that duty, and that Brandon suffered predeath pain and suffering damages. Reverse the allocation of damages, because Nebraska law does not allow for allocation for acts of intentional tort-feasors, and the determination that Laux’s conduct was not extreme and outrageous. Remand element 3.
4. Issue: Did trial court err in dismissing IIED claim?
5. Procedural History: The district court found for Brandon and awarded economic and noneconomic damages, but it reduced the award, denied recovery on the IIED, and awarded nominal damages for loss of society, comfort, and companionship.
6. Facts: Brandon came to Richardson County due to legal troubles and presented herself as a man.Brandon dated Tisdel and was booked into the jail for forging a check, where Laux referred Brandon as it. Lotter and Nissen decided to show Tisdel that Brandon is transgender and beat and sexually assaulted Brandon. Brandon provided a written statement to the police and Olberding interviewed Brandon. Then, Laux questioned Brandon on the details in a graphic manner. The sheriff’s office was aware that Brandon’s life was threatened, based on the testimonies of Gutierres and Brandon’s sister, but did not provide protection or warn Lotter and Nissen. Brandon and two friends were found murdered. JoAnn sued for negligence, wrongful death, and IIED.
7. Rule:
8.Reasoning:To recover for IIED, a plaintiff must prove that (Rstm2d 46(1)): (1) there has been intentional or reckless conduct; (2) the conduct was so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency and is to be regarded as atrocious and utterly intolerable in a civilized community; and (3) the conduct caused emotional distress so severe that no reasonable person should be expected to endure it.
The district court found that Laux’s conduct was not extreme and outrageous. Court: as a matter of law, it was.
Conduct is extreme and outrageous if: the relationship between the parties and the susceptibility of the plaintiff to emotional distress are important factors to consider. Conduct, otherwise considered merely rude or abusive, may be deemed outrageous when the defendant knows that the plaintiff is particularly susceptible to emotional distress. Extreme and outrageous character may also arise from the abuse of a position of power.
Laux developed a negative attitude toward Brandon because of her gender identity disorder. Brandon was in a vulnerable emotional state at the time of the interview. Laux used crude and dehumanizing language and used bad tone.
The extreme and outrageous character of the conduct is important evidence that severe emotional distress existed. Such conduct is important evidence that Brandon suffered as a result of Laux’s conduct. (remand element 3)
Dobbs markers of outrageous conduct: 1) abusing positions of power, 2) targeting known vulnerabilities or susceptibilities, 3) repeating undesirable acts or behavior, and 4) threatening or committing acts of violence.
-outrageousness is an objective standard.
Infliction of Emotional Distress – Graham v. Guilderland Central School District
1. Case Heading:
Parties: Individual (African-American student) and government (employer of the high school teacher Birchler)
Year: 1998
Court: New York State Appellate
2. Disposition: Affirm the judgment of the trial court.
3. Holding: Given the circumstances, the trial court rightly concluded that the conduct at issue cannot be characterized as utterly reprehensible.
4. Issue:
5. Procedural History: The trial court granted defendants’ motion to dismiss the complaint for failure to state a cause of action. Plaintiff appealed.
6. Facts: Graham was a student in English Studies taught by Birchler. While discussing Homosexual Awareness Assembly, a student asked why not call them faggots. Bichler responded by pointing to Elizabeth and why not call her a nigger and asked Graham to tell what it feels like to be called a nigger. Elizabeth and her parents sued the District with IIED.
8. Reasoning: To state a cause of action for IIED, the conduct must be extreme and outrageous, and transcend all bounds of decency and be regarded as atrocious and utterly intolerable in a civilized community.
Graham argues that Elizabeth is young and the only African-American in the class, and thus, vulnerable to derogatory comments of this nature, and Birchler had a heightened duty as a teacher and role model to refrain.
Court: Birchler’s remarks were intended to convey his strong disapproval of such epithets and not extreme or outrageous.
Dissent: Birchler’s disregard and invasion of Graham’s feelings and emotions was reckless.
False Imprisonment – WalMart Stores v. Cockrell
1. Case Heading:
Parties: Individual (suspected of shoplifting) and corporation (store that employs Navarro)
Year: 2001
Court: Texas State Appellate
2. Disposition: Affirm the judgment of the trial court.
5. Procedural History: The jury returned a verdict finding assault and false imprisonment of Cockrell. Awarded $300000 to Cockrell for past mental anguish.
6. Facts: Cockrell and his parents went to a Walmart store. Cockrell stayed for five minutes and was leaving when he was apprehended by Navarro, a loss-prevention officer. At the manager’s office, Navarro told Cockrell to pull his pants down and Cockrell put his hands between shorts and underwear, pulled them out, and shook them. Nothing fell out. Navarro told Cockrell to take off his shirt. Cockrell raised his shirt and revealed a large bandage over liver transplant site. Navarro told Cockrell to take off the bandage and it revealed the wound. Cockrell was let go.
7. Rule:
8. Reasoning: Elements of false imprisonment: (1) a willful detention, (2) performed without consent, and (3) without the authority of law.
H.E. Butt Grocery Co. v. Saldivar: a clerk told an assistant manager that Saldivar took a pair of sunglasses and removed the sales tag. The armed security detained Saldivar at the back room but released her after the manager determined she did not steal. Saldivar sued for false imprisonment, jury returned verdict in her favor, and the court affirmed because a rational jury could find that HEB did not reasonably believe a theft occurred and lacked authority.
Cockrell testified he was not free to leave when Navarro stopped him. -> willful detention without consent.
Navarro saw Cockrell standing close to a rack of clothes, looking around, and with a bulge under shirt. -> a rational jury could have found that Navarro did not reasonably believe a theft had occurred and lacked authority.
Shopkeeper’s privilege: grants an employee the authority of law to detain a customer to investigate the ownership of property in a reasonable manner. With a probable cause to arrest, do so and contemporaneously search.
Navarro’s contemporaneous search was unreasonable in scope, because he had no probable cause to believe that Cockrell had hidden any merchandise under the bandage.
Parkway Co. v. Woodruff: mental anguish damages award requires evidence of a high degree of mental pain and distress that is more than mere worry, anxiety, vexation, embarrassment, or anger. There must be evidence that the amount is fair and reasonable, and appellate perform a meaningful review. -> Cockrell passes.
-Shopkeeper’s privilege: 1) defendant has reasonable grounds to believe that plaintiff has stolen or is trying to steal goods; 2) detention is reasonable in manner; and 3) reasonable in duration. Even if 1 was not satisfied and the need to examine 2 or 3 is not existent, court examined them because it was concerned by Navarro’s bandage incident.
Consent – Hellriegel v. Tholl
Defense of express consent
1. Case Heading:
Parties: Individual (parent of the injured by trying to be thrown into Lake Washington) and individual (friends who tried)
Year: 1966
Court: Washington State
2. Disposition: Affirm the judgment of the trial court.
4. Issue: (1) was the contact harmful or offensive? (2) did plaintiff give consent?
5. Procedural History: The trial court ruled in favor of defendants because (1) the actions were not such as to constitute an offensive touching of his person and (2) the actions were consented to by his participation in the horseplay and his statement.
6. Facts: Hellriegel and friends were throwing around a pillow and grass and talked about throwing people into the lake. Someone talked about throwing Hellriegel into the river and Hellriegel dared the person to do it and three friends tried to throw Hellriegel into the river. Mike slipped or lost his balance and fell on the back of Hellriegel’s head and pushed it forward. Hellriegel’s neck was broken and his body paralyzed.
8. Reasoning: Did the words and actions of Dicka amounted to consent to engage in the horseplay? The words were invitation to try, and thereby assumed the risk that he might be injured. Hellriegel argues, if he gave a consent, it was consent to being thrown into the lake and not to have his neck broken. -> court: he consented to rough and tumble horseplay.
Is there evidence of any intentional act which could be called offensive contact committed by respondents beyond the limits of consent? -> Court says no, because the contact that broke Dicka’s neck was accidental.
-“you couldn’t throw me in the lake even if you tried.”
-implied consent: the risk of error fall on the victim in so far as the statement of the victim is ambiguous and the defendant could have reasonably interpreted it as consent.
Defenses and Privileges – Reavis v. Slominski
1. Case Heading:
Parties: Individual (dental assistant and a victim of sexual assault) and individual (employer of the plaintiff)
Year: 1996
Court: Nebraska State
2. Disposition: Affirm the district court’s refusal to grant the defendant motions for a directed verdict. Reverse the verdict on the sexual assault claim and remand for a new trial.
5. Procedural History: The jury returned a verdict in favor of Reavis on the sexual assault cause of action and in favor of Slominski on the intentional infliction of emotional distress cause of action.
6. Facts: Reavis worked as dental assistant at Slominski’s. Slominski fondled Reavis on many occasions but Reavis could not say anything because she needed to work. When Reavis told to stop, Slominski did not comply. Reavis married and Slominski continued to touch her. Slominski said if she told anyone she would lose her job and marriage. They began to have sexual intercourse, and although Reavis said no, she felt she had no choice. Reavis was not physically forced but could not quit because she needed money. Years later, Reavis was reemployed by Slominski and, although she declined, she had another intercourse with Slominski. Reavis’ husband was upset and they sought counseling. Reavis attempted suicide by ingesting sleeping pills.
8. Reasoning: Reavis introduced evidence that childhood abuse affected her ability to refuse unwanted sexual contact as an adult.
Aspects of to the effectiveness of consent: (1) abnormality on the part of the alleged victim, and (2) knowledge on the part of the alleged attacker. The lack of the victim’s consent is not an element of the crime when the victim is incapable.
Reavis argues that abnormality did not incapacitate her understanding elements of sex but incapacitated resisting unwanted sexual relations.
Slominski argues that Reavis failed to prove that he had any knowledge of such incapacity.
Did Slominski know that Reavis had an abnormal inability to refuse? Lack of knowledge of the cause of such abnormal inability does not negate knowledge of the abnormality itself.
The jury was instructed on apparent consent only, but Reavis had presented evidence that a consent was not effective. The district court admitted the evidence regarding effective consent and should have instructed the jury on it.
Self-Defense – Bradley v. Hunter
Parties: Individual (a patron and a shooting victim) and individual (daughter of owner and worker at Honey-dripper)
Year: 1982
Court: Louisiana State Appellate
2. Disposition: Affirm the judgment of the trial court.
3. Holding: Under the circumstances of the case, Aurila, as a reasonable person, could have believed in good faith that it was necessary for her to shoot to prevent bodily harm to her and/or her mother.
5. Procedural History: The trial court granted defendants’ motion for a directed verdict, dismissing suit.
6. Facts:Aurila had trouble with Bradley in two previous occasions and told him not to come. Bradley came into Honey-dripper to purchase a soft drink. Aurila refused to serve and Ora offered it but Bradley refused. Bradley threatened and cursed Aurila. After Bradley left, Aurila picked up the revolver and stood on the porch. Bradley walked rapidly toward Aurila, cursing and threatening her. Aurila told Bradley not to come and fired warning shots but Bradley kept coming. A shot struck Bradley in the head and killed him. J.W. had threatened Aurila two weeks before that he would get her. J.W. previously shot people, spent time in jail, and was belligerent.
8. Reasoning: Roberts v. American Employers Ins. Co.: where a person reasonably believes he is threatened with bodily harm, he may use whatever force appears to be reasonably necessary to protect against the threatened injury.
Brasseaux v. Girouard: amid a boundary dispute, P was with four armed men and shot D 35 feet away.
->Aurila was without four men, the fence, or truck as a protection.
-The law requires only that one take a reasonable action, not the most reasonable (that may be calling 911).
-proportionality: deadly force only justified when defendant perceives victim is threatening imminent death or serious bodily injury.
Self-Defense – Juarez-Martinez v. Deans
1. Case Heading:
Parties: Individual (a migrant farmworker residing in a provided house) and individual (owner of Nash County farm)
Year: 1993
Court: North Carolina State Appellate
2. Disposition: Affirm the judgment of the trial court.
5. Procedural History: The trial court granted plaintiff’s motion for a directed verdict on the issue of self-defense and on defendant’s counterclaim for assault. The jury returned a verdict awarding plaintiff actual and punitive damages. The trial court denied defendant’s motion for JNOV and a new trial.
6. Facts:Deans was angry because Juarez-Martinez was not working. Deans entered Juarez-Martinez’s residence holding an eight-inch steel tractor hitch pin. Deans called Juarez but received no response. Deans entered the bedroom and poured a beer from a bottle on Juarez’s face. Juarez says he attempted to get up but Deans repeatedly hit him with the metal pin. Deans says Juarez jumped up, Deans jumped backward, and Juarez attacked Deans. Deans was held down and struck Juarez with the metal pin until he freed himself and escaped.
8. Reasoning: Deans argued: (1) defenses of affray and self-defense and (2) counterclaims for compensatory and punitive damages for assault and malicious prosecution. Jury was not instructed in self-defense.
Court: Deans aggressively and willingly instigated this conflict.
Deans argues: he withdrew from the conflict. An act of withdrawal must be so clear that the other combatant will know danger has passed and any further action by this other will take the form of vengeance. -> not withdrawal.
Court: Juarez conducted self-defense not assault. The instruction on landlord-tenant relationship was proper.
Defense of Property – Katko v. Briney
1. Case Heading:
Parties: Individual (intruder of the farmhouse) and individual (owner of an uninhabited farmhouse)
Year: 1971
Court: Iowa State
2. Disposition: Affirm the judgment of the trial court.
4. Issue: Whether an owner may protect personal property in an unoccupied boarded-up farm against trespassers and thieves by a spring gun capable of inflicting death or serious injury.
5. Procedural History: The jury returned a verdict in favor of plaintiff, awarding actual and punitive damages. The trial judge overruled defendant’s motion for JNOV and a new trial and entered judgment on the verdict.
6. Facts:Briney had boarded up the windows and doors to stop the intrusions. He posted no trespass signs and set a shotgun trap in the north bedroom. The shotgun pointed at the bedroom door and was rigged to fire when the door was opened. The gun was lowered to hit the legs. It could not be seen from outside and no warning was posted. Katko observed the farmhouse for years and considered it abandoned. Prior, Katko and McDonough went to the farmhouse and took old bottles and fruit jars as antique. On the second trip, they removed a board from a glassless window and entered. Katko opened the north bedroom door and his right leg was blown away by the shotgun.
8. Reasoning: Katko plead guilty to larceny.
Briney argues the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief, in exceptions to the instructions 2, 5, and 6. Court: the instructions were proper.
Allison v. Fiscus – Allison broke into Fiscus’s warehouse to steal and a trap of dynamite detonated and injured A. Court stated whether trap was justified as a reasonable and necessary force against a trespasser conducting felony should be submitted to the jury. Ohio Supreme Court recognized the damages.
Strict Liability – Rylands v. Fletcher
Strict liability: Engaging in certain highly dangerous activities.
In early times, an injured party could sue, provided an appropriate writ (strict liability) existed.
In the 1800s, the common law rejected the writ system and required proof of fault as a basis for recovery.
Strict liability for harm caused by wild and livestock animals, strict liability for abnormally dangerous activities, and some product liability claims survived the move toward fault-based liability.
Domestic animals owners are liable once they know or should know of the animal’s dangerous disposition.
1. Case Heading:
Year: 1860s
Court: Hose of Lords
2. Disposition: Agree with the Court of Exchequer.
3. Holding: (Lord Cairns) strict liability is where the defendant was making a non-natural use of the property which is defined as introducing into the close real property that which in its natural condition was not in or upon it.
5. Procedural History: The lower court held that Fletcher could not recover because there was no nuisance, trespass, or negligence. The Court of Exchequer (Judge Blackburn) ruled that strict liability should apply, stating that “the person who, for his own purposes, brings on his land, 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, he is prima facie answerable for all damage from escape.
6. Facts: Rylands built a cotton mill and a reservoir on his property. Fletcher owned the neighboring property for mining, which was the predominant land use in the area. Water from the reservoir went to abandoned mine shafts on Rylands’ property and flooded Fletcher’s mineshafts.
Strict Liability – Klein v. Pyrodyne Corp.
US: treat strict liability in light of the nature of the defendant’s activity. Rstm1d: Strict liability on those engaging in an ultrahazardous activity: (a) necessarily involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. 2d: abnormally dang
1. Case Heading:
Parties: Individual (injured when an aerial shell went astray) and corporation (pyrotechnic company, set up, discharged)
Year: 1991
Court: Washington State
4. Issue: Are pyrotechnicians strictly liable for damages caused by fireworks displays?
5. Procedural History: The trial court granted summary judgment on Pyrodyne’s motion on the products liability claim. The court granted summary judgment in favor of Klein on the issue of strict liability.
6. Facts: Pyrodyne was hired to set up and discharge the fireworks. An aerial shell at a public fireworks exhibition exploded near Klein and injured him. Klein sues for product liability and strict liability.
8. Reasoning: Klein argues the activity was abnormally dangerous and strict liability applies. (rstm2d 520)
Whether abnormally dangerous is a question of law. Factors: 1) existence of a high degree of risk of some harm to the person, land or chattels of others. 2) likelihood that the harm that results from it will be great. 3) inability to eliminate the risk by the exercise of reasonable care. 4) extent to which the activity is not a matter of common usage. 5) inappropriateness of the activity to the place where it is carried on. And 6) extent to which its value to the community is outweighed by its dangerous attributes. Several of the factors may be required.
The question is whether the risk created is so unusual, either because of its magnitude or because of the circumstances surrounding it, as to justify the imposition of strict liability for the harm that results from it, even though it is carried on with all reasonable care.
1,2,3 arepresent in a firework display. 4, common usage, is also violated.
The dangerousness of fireworks displays is evidenced by the elaborate scheme of administrative regulations with which pyrotechnicians must comply. License, rules, regulations
Pyrodyne argues that if the regulations are complied with, the risk inherent can be eliminated. Court: reduced.
Common usage: customarily carried on by the great mass of mankind or by many people in the community.
Pyrodyne argues its liability is cut off by the manufacturer’s negligence, which acted as an intervening force.Rstm 522 – liable although it is caused by the unexpectable innocent, negligent or reckless conduct of a 3rd person.
Court rejects both Pyrodyne that any intervention relieves and rstm that no intervention relieves -> sometimes
Intervening acts of 3rd persons relieve from strict liability only if those acts were unforeseeable in relation to the extraordinary risk created by the activity. ->Pyrodyne case was foreseeable.
-if superseding cause breaks the chain of causation and the injury becomes unforeseeable, not liable.
-to recover on ADA, plaintiff must be the right kind of victim; a bystander, not a participant.
Property Tort – Burns Philp Food, Inc. v. Cavalea Cont’s Freight, Inc.
Trespass to land: oldest and least controversial tort liability without fault. The core case is an actor physically invading land lawfully possessed by another. It is immaterial whether the invader took reasonable care to prevent it. All that matters is whether the actor set out to make or remain in contact with the land and whether the actor did in fact.
1. Case Heading:
Year: 1998
Court: 7th circuit
2. Disposition: Vacate the judgment and remand to limit damages for unjust enrichment and calculate damage. Burns intentionally placed the fence where it was and its innocent is irrelevant (“strict liability”).
4. Issue: Does Illinois condition damages on the landowner’s notice to the trespasser?
5. Procedural History: The district court ruled that Burns could recover for taxes but Cavalea could not recover for fence encroachment, because Cavalea did not notify Burns about the encroachment, based on elemental justice. Judge gives no damage award because Burns was innocent and had no notice from Cavalea.
6. Facts: Cavalea and Burns each bought several parcels of land on industrial real estate in Chicago. In 1986, real estate records were changed to reflect it, but Burns mistakenly paid property taxes on Cavalea’s land. Cavalea refused to pay and Burns sued in restitution to obtain reimbursement. Cavalea counterclaimed that Burns built a fence that encroached onto its parcel.Burns constructed a fence. The surveyor to fix the border for the fence did the job wrong and one end of the fence was inside Cavalea’s land and the other in Burns’. In 1995, Cavalea learned from survey that some of its land was on the other side of the fence but did not notify Burns about it. In 1996 Cavalea ripped out the fence and appurtenances without Burns’ leave and placed a large container box at the property line, interfering with the use of Burns’ loading dock. Cavalea claims it could have stored trailers and containers, and Burns claims Cavalea’s places were consistently empty.
8.Reasoning:Trespass is a strict liability tort and the obligation to notify is inconsistent with it, but.
Burns argues notice-to-trespassers requirement that landowner who consented to entry may not complain until the consent has been revoked. Court: trespass is entry without consent and the consent and trespass cannot coexist.
Knowledge of a fence’s existence is not equivalent to consent. Cavalea did not consent to the construction, and Burns did not seek anyone’s consent. Burns built under a claim of right. Burns does not seek express or implied license or adverse possession. Cavalea is entitled to damages.
Tort of trespass if: (1) the defendant intentionally invades or occupies a swath of land, and (2) the plaintiff owns or possesses the swath in question. Physicality requirement is also present.
Ad coelum rule: owns the property of space up to the heavens, but inconsistent with modern reality.
Failure to leave when consent has been withdrawn or the duration has expired is a trespass. Secondary when at direction.
-1) enters or causes an entry onto land. 2) the land is lawfully possessed by another. 3) intended to enter or cause entry onto the land.
Vincent v. Lake Erie Transp. Co.
1. Case Heading:
Parties: (dock owner) and (owner of the steamship moored to the dock)
Year: 1910
Court: Minnesota Supreme Court
2. Disposition: Affirm the judgment.
3. Holding: those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted.
5. Procedural History: The court found for Vincent.
6. Facts: The Steamship Reynolds owned by Lake was moored to Vincent’s dock in Duluth. While unloading, a storm developed and became violent. One or two boats entered the harbor that night, but the navigation was practically suspended until the morning when the storm subsided. Reynolds signaled for a tug to tow, but none could be obtained. The lines holding the ship to the dock were kept fast and the wind and waves struck the vessel’s starboard quarter, throwing it against the dock and resulting in damage to the amount of $500.
8. Reasoning: Those in charge of the dock were not required to use the highest intelligence. Nothing more was demanded of them than ordinary prudence and care.
Lake contends that because its conduct was rendered necessary under conditions over which it had no control, it cannot be held liable.
The situation was one in which the ordinary rules regulating property rights were suspended by forces beyond human control and such injury must be attributed to the act of God.
This is not a case where life or property was menaced by any object or thing belonging to the plaintiff, the destruction of which became necessary to prevent the threatened disaster. The defendant prudently and advisedly availed itself of the plaintiffs’ property for the purpose of preserving its own more valuable property.
Dissent: if the boat was lawfully in position when the storm broke, and the master could not have left that position without subjecting his vessel to the hazards of the storm, then the damage was the result of an inevitable accident.If the master was in the exercise of due care, he was not at fault. Dock owner takes the risk of damage.
-keep ship moored (prudent) let steamship drift away (imprudent) navigate storm (imprudent)
Thyroff v. Nationwide Mut. Ins. Co.
Nuisance protects landowners against neighbors who generate noises, noxious smells, and other ongoing conditions that make it difficult or impossible for owners to enjoy or use their own properties.
Conversion concerns interferences with ownership of personal possessions such as cars, equipment, and animals.
1. Case Heading:
Parties: (insurance agent) and (employer)
Year: 2007
Court: NY Supreme Court
2. Disposition:
3. Holding: the type of data that Nationwide allegedly took possession of — electronic records that were stored on a computer and were indistinguishable from printed documents — is subject to a claim of conversion in New York.
4. Issue: is a claim for the conversion of electronic data cognizable under New York law?
5. Procedural History: The district court dismissed the claim, claiming that the complaint failed to state a cause of action for conversion because Thyroff did not allege that Nationwide exercised dominion over the electronic data to his exclusion and it was undisputed that Nationwide owned the AOA system. The Second Circuit determined that the issue was unresolved in New York and certified the question.
6. Facts: In 1988, Thyroff entered into an agent’s agreement, where Nationwide leased computer hardware and software, called office automation (AOA) system, to facilitate the collection and transfer of customer information. Thyroff also used the system for email, correspondence and data storage which were automatically uploaded. In 2000, Nationwide terminated Thyroff as an agent. Nationwide repossessed the AOA and denied Thyroff access to and retrieval of other information. Thyroff sued in USDC for WDNY, claiming conversion of his other information.
8. Reasoning: …
Trover was aimed at a person who had found goods and refused to return them to the title owner.
Conversion is an intentional act of dominion or control over a chattel which so seriously interferes with the right of another to control it that the actor may justly be required to pay the other the full value of the chattel.
It is the strength of the common law to respond, albeit cautiously and intelligently, to the demands of commonsense justice in an evolving society.
It is the information memorialized in the document that has intrinsic value regardless of whether the format in which the information was stored was tangible or intangible.
Conversion involves an actor: (1) intentionally interacting with personal property lawfully possessed by another in a manner that is inconsistent with the other having superior possessory rights in that item; and (2) through such interaction, completely depriving the possessor of possession, or causing an interference with possession so substantial as to warrant the possessor in treating it as a complete deprivation.
Copeland v. Hubbard Broadcasting, Inc.
A state’s trespass law will require plaintiffs to prove absence of permission as part of the prima facie case
1. Case Heading:
Parties: (whose house was filmed) and (employer of student who secretly filmed the house)
Year: 1995
Court: Minnesota Court of Appeals
2. Disposition: Reverse the summary judgment on the trespass claim.
4. Issue: Did the district court err in granting KSTP’s motion for summary judgment on the homeowners’ trespass claim?
5. Procedural History: The district court granted KSTP’s motion for summary judgment because Johnson did not exceed the geographic boundaries of the Copelands’ consent and the Copelands did not expressly limit their consent to Johnson’s educational or vocational goals.
6. Facts: Hubbard’s KSTP broadcast an investigative report on veterinarian Ulland, who was treating Copeland’s cat. Copeland gave permission to Ulland to bring a student but the student was a KSTP employee and was secretly videotaping. The two brief video portions filmed inside Copeland’s house, and Copeland sued for trespass.
8.Reasoning:Whether a possessor of land has given consent for entry is, when disputed, a factual issue. The record indicates that consent was given only to allow a veterinary student to accompany Dr. Ulland.
First, permission must be given freely by a person who is competent to grant it. Second, permission by definition involves communication of leave to enter or remain. Third, assuming permission has been granted explicitly or implicitly, it immunizes only those trespasses that fall within the scope of consent, either spatially or temporally.
Sturges v. Bridgman
1. Case Heading:
Parties: (physician who lives in the house behind the back wall) and (confectioner and occupyer of the house)
Year: 1879
Court: California Supreme Court
2. Disposition: Affirm.
5. Procedural History: Granted injunction.
6. Facts: In the rear of Bridgman’s house is a kitchen with two mortars. Sturges’s house has a garden in the rear and is separated from Bridgman’s by a party wall or a back wall. Sturges built a consulting room in the garden. Bridgman’s use of mortars inconvenienced Sturges in using the consulting room. Bridgman contents he acquired the right by uninterrupted use for more than twenty years. The noise did not cause trouble before building the consulting room.
8. Reasoning: whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances.
Strict Liability – Escola v. Coca Cola Bottling Co.
Theories of recovery for persons suffering injuries caused by defective products: (1) implied warranty of merchantability and (2) negligence.
Under UCC, sellers provide a warranty that their goods are merchantable. If a product was not fit for ordinary purposes and caused injury, the buyer can recover without proving fault of the seller. -> strict liability.
Seller can limit liability (1) by disclaiming an implied warranty or expressly limiting the remedies; (2) no privity of contract (the injured was not a purchaser) and does not qualify as a third-party beneficiary; (3) buyer fails to give prompt and full notice of the claim; or (4) product is merchantable because it matched industry design standards.
402A (rstm 2d) extended the strict liability to products in a defective condition unreasonably dangerous to the user or consumer. -> consumer expectations test: the product must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the knowledge common to the community as to its characteristics.
The principle change was that all sellers in the marketing chain (wholesalers, retailers, manufacturers) could be liable for defective products. Applied to users and buyers but omitted foreseeable bystanders.
Rstm 2d uses strict liability as the overarching culpability standard. Rstm 3d proposes a strict liability defectiveness standard only for manufacturing defect cases and when product design was dangerously unfit to perform its own intended purposes (product malfunction defects); other design and warning defects are negligence.
-privity: direct contract with the seller
1. Case Heading:
Parties: Individual (waitress in a restaurant) and corporation (bottles and delivers Coca Cola)
Year: 1944
Court: California State
2. Disposition: Affirmed.
3. Holding: res ipsa loquitur properly applied to the facts.
5. Procedural History: The jury found for Escola.
6. Facts: Escola, a waitress, was injured when a bottle of Coca Cola broke in her hand. Escola alleges that Coca Cola was negligent in selling bottles, with excessive pressure of gas or by some defect in the bottle, was dangerous and likely to explode.
8.Reasoning:Concurring: manufacturer incurs an absolute liability when an article laced on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human.
…
The manufacturer’s liability should be defined in terms of the safety of the product in normal and proper use and should not extend to injuries that cannot be traced to the product as it reached the market.
-no coordination can exist among the defendants as in res ipsa loquitur.
-there might be other causes for the injury, such as when the bottle was sitting for 36 hours.
-procedural fairness, administrative efficiency, greater product safety, compensation
Strict Liability – Greenman v. Yuba Power Products, Inc.
1. Case Heading:
Parties: Individual (a user of a Shopsmith, a power tool) and corporation (retailer and manufacturer of Shopsmith)
Year: 1963
Court: California State
2. Disposition: Affirm the judgment of the trial court.
3. Holding: To establish the manufacturer’s liability it was sufficient that plaintiff proved that he was injured while using the Shopsmith in a way it was intended to be used as a result of a defect in design and manufacture of which plaintiff was not aware that made the Shopsmith unsafe for its intended use.
5. Procedural History: The jury returned a verdict in favor of plaintiffs of $65000 on negligence and breach of express warranties.
6. Facts: Greenman saw a Shopsmithdemonstrated by a retailer and studied a brochure. Greenman’s wife bought one for him. Greenman bought attachments to use the Shopsmith as a lathe and used it without difficulty, but the Shopsmith suddenly flew out of the machine and struck Greenman on the forehead and injured him.
8. Reasoning: Inadequate set screws were used to hold parts of the machine together. Other more positive ways of fastening the parts of the machine together existed. -> manufacturer negligently constructed; statements were untrue; statements were express warranties; and the injuries were caused by their breach.
A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.
Liability is not one governed by the law of contract warranties but by that of strict liability in tort.
Restatement (Second) of Products Liability 402A (1964)
-Manufacturing defect: imperfection, shortcoming, or abnormality in a product that departs from its design specifications and prevents the product from safely performing its intended function. The product is compared to the manufacturer’s own standards or specifications to determine if there is a difference that makes the product less safe. Under 402A, proving that a product failed to perform safely in its normal use is an alternative way of establishing defect.
-Design defect: safety hazards in the design could reasonably have been eliminated. A design defect can be found if a reasonable, safer, cost-efficient design was technologically feasible when the product was sold that would not unduly impair the overall utility of the product. Under 402A, courts use either of two tests. (1) the consumer expectations test: whether the product is more dangerous than the ordinary consumer would expect. (2) risk-utility test: whether there is a safer, feasible, cost-effective alternative design that does not impair the usefulness of the product.
-Warning and instruction defects: manufacturer fails to warn consumers of a material risk of danger in the use of the product, or the warning given is inadequate. Under 402A, courts use negligence principles considering explicitness of the dangers presented, the clarity of the statements, the manner of presentation, and the persons the warning is addressed.
Restatement (Third) of Products Liability (1998)
Strict products liability facilitates: accident reduction, safety representations, compensation, administrative efficiency.
Design Specification – Welge v. Planters Lifesavers Co.
1. Case Heading:
Parties: Individual (purchaser of a jar of peanuts) and corporation (manufacturer of the jar product)
Year: 1994
Court: Federal Appellate
2. Disposition: Reverse the judgment of the trial court and remand the case for further proceeding.
3. Holding: A seller who is subject to strict products liability is responsible for the consequences of selling a defective product even if the defect was introduced without any fault on his part by his supplier or by his supplier’s supplier.
5. Procedural History: The trial court granted summary judgment for the defendants on the ground that Welge failed to exclude possible causes of the accident other than a defect.
6. Facts: Godfrey bought a jar of peanuts for Welge at a K-Mart store. To obtain a rebate, Godfrey used an Exacto knife to remove the label that contained the bar code. Godfrey placed the jar on top of the refrigerator. Welge removed the plastic seal from the jar, uncapped it, took some peanuts, replaced the cap, and returned the jar to the top of the refrigerator. Later, Welge again removed the plastic cap took out peanuts, replaced the cap, and as he pushed the cap down on the open jar the jar shattered. Welge’s right hand was severely cut and permanently impaired. Welge brought products liability suit in federal district court against Brockway(manu), Planters(manu), and Kmart(reta).
7. Rule:
8. Reasoning: A non-defective jar does not shatter when normal force is used to clamp its plastic lid on. The question is when the defect was introduced.
Planters argue that Godfrey took a knife to the jar. Court: it is common and harmless, and a defendant cannot defend against a products liability suit on the basis of a misuse that he invited.
Planters argue that it is always possible that the jar was damaged while it was sitting unattended on the top of the refrigerator. Court: the plaintiff in a product liability suit is not required to exclude every possibility of the defect.
The experts could not find the fracture that precipitated the shattering and when the defect happened.
The probability that the defect was introduced by one of the defendants is very high.
Strict-liability element in modern product liability law comes from the fact that law is liable for defects in his product even if those defects were introduced at some anterior stage of production.
Design Defects – Leichtamer v. American Motors Corp.
Legal tests: (1) consumer expectations test; (2) risk-utility test
Aspects of design defect: (1) conceptual definition of design defectiveness; (2) kinds of proof allowed; and (3) instructions for the jury
Consumer expectations was developed to deal with unexpected latent defects (manufacturing defects) and product malfunctions (design defects disabling intended functions safely). Allegations of excessive danger led to risk-utility test.
1. Case Heading:
Parties: Individual (passengers of a vehicle that pitched-over) and corporation (car manufacturer)
Year: 1981
Court: Ohio State Supreme
2. Disposition: Affirm the judgment of the Court of Appeals.
5. Procedural History: The jury returned a verdict in favor of the plaintiffs, awarding compensatory and punitive, and the Court of Appeals affirmed.
6. Facts: The Vances were seated in the front of Jeep CJ-7 and Leichtamers on the back. They rode to the Hall of Fame Four-Wheel Club and its course consisted of hills and trails about an abandoned strip mine. They drove over a 33-degree slope hill and 70-foot long terrace without incident, but as they drove over the second 30 degree slope, the rear of the vehicle raised up and the vehicle landed upside down. The Vances were killed, Carl Leichtamer sustained a depressed skull fracture, and Jeanne Leichtamer became a paraplegic. Leightamers blamed the displacement of the roll bar for permanent trauma to the body.
7. Rule:
8. Reasoning:There was no defect in the way the vehicle was manufactured; no departure from specifications. Leichtamer argues the sheet metal housing upon which the (factory-installed) roll bar was attached was weak. Also, the advertised use of the vehicle involved great risk of forward pitch-overs.
In second collision between Leich and the vehicle, American argues only negligence applies and strict liability should not have applied and Leich argues design defect applies. -American says roll bar protects from side-rolls.
Authority allows strict liability and negligence for design defects. A consumer injured by an unreasonably dangerous design should have the same freedom as one injured by a manufacturing defect. The interest of society in product safety would be served by allowing strict liability in a roll bar device when unreasonably dangerous.
In design defects, a product that causes or enhances an injury is considered defective. Unreasonable danger (dangerous to an extent beyond the expectations of an ordinary consumer when used in an intended or reasonably foreseeable manner) is essential to establish strict liability.
The plaintiff must prove by a preponderance of the evidence that the injury enhancement was proximately caused by a defective product unreasonably dangerous to the plaintiff.
For consumer expectations test, a plaintiff must prove: (1) the defendant manufactured or sold the product; (2) the product was unchanged from the date of sale or that any changes were reasonably foreseeable; (3) the product was used in a reasonably foreseeable manner; (4) the product did not perform as safely as an ordinary consumer would have expected; (5) the plaintiff was harmed; and (6) the product’s design was a substantial factor in causing the harm.
Crashworthy: lack of an adequate safety feature exacerbated the injuries.
-defendant says: ads did not speak to the quality of the product. One may not see the ad. Court: consumer expectations test is what an ordinary consumer saw, not what the particular person saw.
Design Defects – Campbell v. General Motors
1. Case Heading:
Parties: (injured when thrown off the seat) and (manufacturer of the bus)
Year: 1982
Court: California Supreme Court
2. Disposition:
3. Holding: The appellant was entitled to a jury determination concerning whether the bus satisfied ordinary consumer expectations.
6. Facts: Campbell alleges that the City driver negligently caused the bus to suddenly lurch, jerk, jolt, and abruptly stop, throwing Campbell against interior parts of the bus and to the floor. Campbell alleges the seat lacked handrails or guardrails within reasonable proximity and General is strictly liable for the damages she sustained.
7. Rule:
8. Reasoning: Campbell testified about the accident (use of the product) and introduced photographic evidence of the design features. Consumer expectations test: the jury considers the expectations of a hypothetical reasonable consumer.
If the product is within the common experience of ordinary consumers, plaintiff provides evidence concerning (1) his or her use of the product; (2) the circumstances surrounding the injury; and (3) the objective features of the product which are relevant to an evaluation of its safety.
-objective test
-if the seats were absent, open and obvious danger rule may apply and manufacturer not held strictly liable.
Design Defects – Floyd v. Bic Corp.
1. Case Heading:
Parties: Individual (minor child burned by a butane lighter) and corporation (manufacturer of butane lighter)
Year: 1992
Court: Georgia State District
2. Disposition: Grant partial summary judgment for the defendant.
4. Issue: Did Bic have a duty to manufacture a child-proof lighter?
5. Procedural History:
6. Facts: Minor child was burned as the result of a defective or negligently designed adjustable butane lighter.
8. Reasoning: Floyd indicated its intention to call expert witnesses on attractiveness of fire and lighters to children and child safety measures for adjustable butane lighters. Bic moved for partial summary judgment because the claim indicated that “defective” or “negligently designed” means it is not child proof.
Jurisdiction considering child-proofing relied upon the open and obvious rule and found manufacturers not liable for failure to make adult products child proof. Few courts that found such duty adopted risk-utility balancing test.
That lighter will create a flame and can be dangerous when used by children is open and obvious. -> holding
Problems with the consumer expectations test: open and obvious dangers; children, bystanders, and claimants other than the purchaser; whether test is objective or subjective; whether it is normative or descriptive; and with products involving complex safety balancing.
Some courts ask jury to use the risk-utility or “reasonable manufacturer’s test,” not reasonable consumer’s expectations test.
Risk-Utility Test – Valk Manufacturing Co. v. Rangaswamy
1. Case Heading:
Parties: Individual (wife of driver of an auto) and corporation (manufacturer of the snowplow hitch attached to truck)
Year: 1988
Court: Maryland State Appellate
2. Disposition: Affirm the judgment of the trial court.
5. Procedural History: The jury awarded the plaintiffs and the defendant’s motion for JNOV or new trial was denied.
6. Facts: Rangaswamy pulled up to the intersection and stopped. He looked both ways and accelerated into the intersection and collided with a dump truck with a snowplow hitch mounted on its front, with no snowplow attached. The lift arm protruded inside the Rangaswamy vehicle and Rangaswamy was killed of multiple injuries to the head and chest.
8. Reasoning: To recover under strict liability in tort, plaintiff must establish that: (1) the product was in a defective condition at the time it left the possession or control of the seller; (2) it was unreasonably dangerous to the user or consumer; (3) the defect was the cause of the injuries; and (4) the product was expected to and did reach the consumer without substantial change in its condition.
Risk-utility test: product is defective as designed if the risk or danger of the product outweighs the product’s utility. Whether a product is reasonably safe is determined by (Wade factors; balancing factors and not all need to be satisfied): (1) the usefulness and desirability of the product-its utility to the user and to the public as a whole; (2) the safety of the product-the likelihood that it will cause injury, and the probable seriousness of the injury, (3) the availability of a substitute product which would meet the same need and not be as unsafe; (4) the manufacturer’s ability to eliminate the unsafe character of the product without impairing its usefulness or making it too expensive to maintain its utility; (5) the user’s ability to avoid danger by the exercise of care in the use of the product; (6) the user’s anticipated awareness of the dangers inherent in the product and their avoidability because of general public knowledge of the obvious condition of the product, or of the existence of suitable warnings or instructions; (7) the feasibility on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.
County engineer: design of the hitch was unreasonably dangerous. Hitch served no practical purpose when not pushing a snowplow blade but would magnify the resulting damage.
Valk: steel lift arm was protruding not because of design defect but because of the County to utilize the safety features, where one would lower the lift armto a flush position. Court: as a counterargument, in the trade, the quick disconnect hose costs $7 and facilitates removal of cylinder and lift arm. (i.e. feasible, safer alternative designs)
Problems with the risk-utility test: cost of litigation, overemphasis of economic consideration and undervaluing human concerns, and balancing incomparable or unquantifiable factors.
Most courts identify the tort as strict products liability but apply risk-utility negligence, in safety adequacy design defect cases.
-even if not flushing was not a misuse, it does not matter because it was foreseeable.
-consider only risks that were foreseeable; could it have been reduced by an alternative design? If yes, defendant is liable. If not, State of the Art design.
-hindsight approach: impute to the manufacturer’s actual knowledge of the product’s risks; would a reasonable manufacturer with this knowledge have sold a product with this design?
Argues: difference between negligence and defectiveness was that sellers could be responsible for defects that became known only by hindsight in strict liability and by reasonable foresight in negligence. -> rejected by courts.
Hindsight is only crucial in a very small percentage of cases. Juries with contrary evidence would be entitled to find that reasonable design engineers would have been aware. When harmful risk was unforeseeable or unknowable, courts shy away from using hindsight approach and are reluctant to impose liability for unforeseeable risks. ->require foresight both in strict products liability and negligence.
Risk-Utility Test – Vautour v. Body Masters Sports Industries
1. Case Heading:
Parties: Individual (user of a leg press machine) and corporation (manufacturer of the machine)
Year: 2001
Court: New Hampshire State Appellate
2. Disposition: Reverse and remand; the trial court erroneously granted motion for directed verdict.
3. Holding: The evidence was sufficient to establish a prima facie case.
5. Procedural History: The trial court granted a motion to dismiss for failure to introduce evidence sufficient to make out a prima facie case.
6. Facts: Vautour was using a leg press machine and moving his feet down to do calf raises. He did not have the upper stops engaged and his knee fell toward his chest and injured his feet.
8. Reasoning: Body argues that the risk-utility test implicitly requires Vautour to offer evidence of a reasonable alternative design (“Requirement”). Commentators argue the Requirement deters suit because of the cost of obtaining expert testimony.
Exceptions to the Requirement are when the product design is manifestly unreasonable. Expert testimony is not required when the feasibility of a reasonable alternative design is obvious and understandable to laypersons.
Court: Requirement places too much emphasis on one of many possible factors in risk-utility test and decline rstm. Vautour presented sufficient evidence that the machine was unreasonably dangerous and could be less dangerous.
Warning Defect – Nowak v. Faberge USA, Inc.
Manufacturers have a duty to warn users of latent risks and also risks that the users may not fully appreciate. They also have a duty to provide instructions on how to safely use the product.
Warnings function as: reduce accidents by influencing users to act more carefully than they would if they did not know the risks, and provide risk information to users so that they can make an informed choice on the use of or exposure to the product. Warnings and instructions must be adequate to deal with the dangers presented.
In warning defect cases, the risks need to be reasonably foreseeable.
1. Case Heading:
Parties: Individual (sibling of the injured) and corporation (manufacturer of Aqua Net Hair Spray)
Year: 1992
Court: Pennsylvania State District
2. Disposition: Deny the defendant’s motions for JNOV or for a new trial.
3. Holding: The warnings given were inadequate.
5. Procedural History: The jury found that the valve system was defective and did not contain adequate warnings. The jury awarded the plaintiff. The jury did not find design defective.
6. Facts: Nowak tried Aqua Net Hair Spray but the product came out in spurts and wouldn’t spray. The product included warning in a lesser size and prominence in the back. She believed she can remove the contents into a pump bottle and use it. She tried to remove the top with a can opener but was unsuccessful and punctured the side of the can. The spray came in contact with an open flame on a nearby gas stove and caused serious burns to her head and body.
8. Reasoning: Malfunction theory: a plaintiff may prove a defect in a product with evidence of the occurrence of a malfunction and with evidence eliminating abnormal use or reasonable secondary causes for the malfunction.
The malfunction was the failure of the vale assembly and no evidence indicates abnormal use that caused it. Secondary cause would be potential clogging of the valve but Faberge was responsible for this cause.
Misuse of puncturing the can occurred after the malfunction. The misuse must be extraordinary, and whether it was foreseeable is considered retrospectively from the harm to the negligent act. -> warning letters indicate foreseeable.
Failure to adequately warn: liable where warning is not prominent and not calculated to attract the user’s attention to the nature of the danger due to its position, size, or coloring of its lettering. The adequacy is a question of fact for jury, and expert testimony is admissible on the issue of adequacy.
Wilcox: can received disproportionate use by teenagers and needed a more explicit warning mindful of teenagers’ inclination not to follow instructions. Can should advise on what to do with malfunction, write explicit warning, warning not be in the back among other words, and warning be a different color.
Tanyzer: warning was not conspicuous, prominent, or not buried within the text.
Causation: liability for failure to warn exists when sufficient evidence indicates that a warning might have made a difference.
-heeding presumption: presumption plaintiff would have heeded adequate warning had one been provided. Plaintiff can rebut by showing that plaintiff already knew of risks, indifferent to warnings, or admitted they didn’t read warning.
Macrie v. SDS Biotech
1. Case Heading:
Parties: (squash packer) and (fungicide manufacturer)
Year: 1993
Court: NJ Appellate
2. Disposition: Reverse and remand.
3. Holding: When adequate warnings are necessary to prevent a product from causing a high risk of grave physical harm, the failure to warn is defective even if warning may be difficult or expensive. Where a jury could find the foreseeable exposure would threaten them with serious physical harm, the jury could determine that the danger warranted unusually strenuous efforts to warn and instruct.
5. Procedural History: The trial court granted summary judgment to SDS’s claim that Iulianetti’s conduct was foreseeable but it could not practically provide Macrie with a warning.
6. Facts: SDS sold Bravo 500, a fungicide, to Iulianetti. The fungicide had an EPA-required warning that warned against skin contact. Iulianetti sprayed the fungicide on butternut squash. Macrie’s employer bought the squash and had Macrie repack the squash into cartons. Particles of the fungicide settled on Macrie’s skin and entered his lungs. Macrie sued SDS for a failure to provide a warning to others in the distribution chain.
8. Reasoning: -manufacturers should pursue extra efforts.
Warning Defect – Ramirez v. Plough, Inc.
1. Case Heading:
Parties: Individual (used SJAC and contracted Reye Syndrome) and corporation (manufacturer of SJAC)
Year: 1993
Court: California State Supreme
2. Disposition: Reverse the judgment of the Court of Appeal and affirm the trial court’s judgment.
3. Holding: Warnings were compliant with FDA statute.
5. Procedural History: The trial court granted summary judgment for defendant. The Court of Appeal reversed, stating that the adequacy of the warning and its reasonableness is a triable issue of fact.
6. Facts: Ramirez exhibited cold-like symptom when he was less than four months old. His mother gave him three SJAC tablets over a two-day period. At the hospital, the doctor advised her to administer Dimetapp or Pedialyte but she continued to administer SJAC. Ramirez developed Reye syndrome that caused severe neurological damage. Packages of SJAC displayed warning about Reye syndrome in English, which was unable to be read by Ramirez’s mother. Ramirez sought compensatory and punitive damages from negligence, products liability, and fraud.
8. Reasoning: Plough argues it was under no duty to label with Spanish. Ramirez argues Plough relied on Hispanics as important segment of the market.
-requiring Spanish might be onerous to require other languages.
Defenses – Whitehead v. Toyota Motor Corporation
1. Case Heading:
Year: 1995
Court: Supreme Court of Tennessee
2. Disposition:
3. Holding: Affirmative to both questions.
4. Issue: Can the affirmative defense of comparative fault be raised in a products liability action based on strict liability in tort? If yes, is the defense applicable to an enhanced injury case where it is undisputed that the alleged defect in the defendant’s product did not cause or contribute to the underlying accident?
5. Procedural History: USDC ED of Tennessee certified questions.
6. Facts: Whitehead was driving a 1988 Toyota pickup truck and the truck crossed the center line of the road and collided head-on with a vehicle in the opposite direction, injuring Whitehead. Whitehead sued Toyota, claiming that his injuries were enhanced beyond had the truck been more crashworthy and that the seatbelt was defective.
8. Reasoning: (1) so long as a plaintiff’s negligence remains less than a defendant’s negligence the plaintiff may recover, and the damages are reduced in proportion.
Reasons for the adoption: (1) to encourage greater care in the manufacture of products that are distributed to the public and (2) to relieve injured consumers from the burden of proving negligence on a manufacturer’s part.
(2) comparative fault principles will apply to enhanced injury cases in which the defective product does not cause or contribute to the underlying accident. Enhanced injuries are the portion of the total damages for which the manufacturer is potentially liable, or “products liability.” The question in (2) is the same as in (1).