Briefs for All Torts Cases Assigned by Professor Heriot

Torts

Professor Heriot

Briefs

Vosburg v. Putney

50 N.W. 403 (1891)

PROCEDURAL HISTORY:  Defendant appeals decision of lower court.

FACTS:  The defendant kicked the plaintiff in the leg while in class at school.  The kick occurred after the class had been called to order.  After the kick the plaintiff suffered unforeseen consequences.  The plaintiff’s leg had been previously injured and it was healing until the defendant’s kick permanently damaged the leg.

ISSUE:  In order to recover damages, must the plaintiff prove that the defendant intended cause the consequences resulting from the initial contact?

HOLDING:  No, in order to recover, the plaintiff does not have to prove that the defendant intended cause the consequences resulting from the initial contact.

RULE:  To recover damages in a batter the plaintiff needs to show that the defendant committed an unlawful act or that the defendant had an unlawful intention to produce the harm incurred.

RATIONALE:  The plaintiff only needs to show that the defendant intended for his foot to hit the plaintiff’s knee.  Essentially if the intended act is unlawful, then the intention to commit it must also be unlawful.  Once it is proved that the defendant committed a battery, he is liable for all injuries resulting from his act.

DISPOSITION:  NA

Garratt v. Dailey

279 P.2d 1091 (1955)

PROCEDURAL HISTORY:  Court ruled in favor of defendant and plaintiff appeals.

FACTS:  Brian Dailey (D), a five year old child, was visiting his adult aunt, Naomi Garratt (P).  The defendant then pulled a chair out from under the plaintiff.  The plaintiff fell to the ground and injured herself.  The plaintiff prints suit for damages against defendant.

ISSUE:  Must intent to cause harm be present to recover for damages arising from a battery action?

HOLDING:  No, intent to cause harm does not have to be present in order to recover for damages arising from a battery action.

RULE:  The intent necessary for battery is present when a person acts in a matter in which he knows the result will occur with substantial certainty

RATIONALE:  In the case at hand the defendant knew with substantial certainty that by pulling the chair out from underneath the plaintiff that she would fall to the ground.  This is enough to establish the intent necessary for battery.

DISPOSITION:  Issue remanded for trial with new instructions to the jury.

Fischer v. Carrousel Motor Hotel

424 S.W.2d 627 (Tex. 1967)

PROCEDURAL HISTORY:  Fisher sued Carrousel Motor Hotel for batter.  The trial court rendered judgment not withstanding the verdict in favor of the defendant.  The Court of Civil Appeals affirmed.      

FACTS:  Fisher was a mathematician working for NASA who was attending a meeting at the Carrousel Motor Hotel.  During the meeting a buffet style lunch was provided for the attendees.  As Fisher stood in the buffet line holding his plate he was approached by an employee of the hotel.  The employee, Mr. Flynn, snatched the plate from Fisher’s hand and shouted that a Negro could not be served in the club.  Fisher testified that he was not actually touched, but he was embarrassed and hurt by the comments.

ISSUE:  Does the intentional grabbing of the plaintiff’s plate constitute a battery?

HOLDING:  Yes, the intentional grabbing of the plaintiff’s plate constitutes a battery.

RULE:  Battery constitutes not only contacts which do actual physical harm, but also for those which are offensive and insulting.

RATIONALE:  The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person like actual contact with the body.  Personal indignity is the essence of an action for battery.  Contact can therefore be acts which are offensive and insulting and not merely acts that do actual harm physical harm.

DISPOSITION:  The judgment of the Court of Civil Appeals is reversed and the plaintiff is awarded $900 with interest.

Leichtman v. WLW Jacor Communications, Inc.

634 N.E.2d 697 (Ohio App. 1994)

PROCEDURAL HISTORY:  The plaintiff, Ahron Leichtman, filed a complaint for battery against the defendant’s WLW Jacor Communications, Inc.  The trial court dismissed the complaint and the plaintiff appealed. 

FACTS:  Leichtman, a nationally known anti-smoking advocate was invited to appear on the WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking and breathing second hand smoke.  While in the studio Mr. Furman, an employee of the station and WLW talk show host, lit a cigar and repeatedly blew smoke in Leichtman’s face.

ISSUE:  Did the defendant commit a battery when he intentionally blew cigar smoke into Leichtman’s face?

HOLDING:  Yes, the defendant committed battery when he intentionally blew cigar smoke into Leichtman’s face.

RULE:  Contact which is offensive to a reasonable sense of personal dignity is offensive contact.

RATIONALE:  Contact which is offensive to a reasonable sense of personal dignity is offensive contact.  Offensive can be interpreted to mean disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insult.  Furthermore, tobacco smoke can be considered a particulate matter and so it has the physical properties capable of making contact.  Therefore, when Furman blew smoke in Leichtman’s face he committed a battery. 

DISPOSITION:  The court reversed the decision of the trial court.

O’Brien v. Cunard Steamship Co.

154 Mass. 272, 28 N.E. 266 (1891)

PROCEDURAL HISTORY:  Plaintiff alleged negligence and harmful battery against the defendant.  The trial court directed verdicts for defendant on both counts.  Plaintiff appeals the trial court’s decision. 

FACTS:  The plaintiff was a passenger aboard a ship from Queenstown to Boston.  During the voyage the ship’s surgeon was set to perform routine smallpox vaccinations to assist in aiding the passengers through quarantine.  About 200 passengers were lined up in the hold waiting to be examined and vaccinated.  After examination plaintiff was given the smallpox vaccine.  Plaintiff contends that she had already been vaccinated and furthermore that she did not consent to the vaccination. 

ISSUE:  In the absence of verbal indication, may one’s overt acts and conduct constitute privileged consent?

HOLDING:  Yes, in the absence of express verbal consent, silence and overt acts may constitute privilege consent.

RULE:  Consent may be implied by an actor’s conduct.

RATIONALE:  Circumstances may be such that verbal consent is not needed to create a privilege.  Despite the fact that the defendant did not verbally give consent, the doctor reasonably assumed from the defendant’s actions that she wanted the vaccination. 

DISPOSITION:  The trial court’s verdict is affirmed.

Barton v. Bee Line, Inc.

238 App. Div. 501, 265 N.Y.S. 284 (1933)

PROCEDURAL HISTORY:  Plaintiff appeals from an order setting aside the verdict of a jury in her favor and ordering a new trial.

FACTS:  The plaintiff, a fifteen year old girl, was traveling as a passenger in Bee Line’s carrier.  The chauffer then engaged in sex with the plaintiff.  Plaintiff contends that the chauffer forced his person upon her.  The defendant claims that the plaintiff consented to sex.

ISSUE:  Should a consenting female under the age of eighteen have a cause of action if she has full understanding of the nature of her act?

HOLDING:  No, a female under the age of eighteen has no cause of action against a male with whom she willingly consorts, if she knows the nature and quality of her act.

RULE:  A female under the age of eighteen has no cause of action against a male with whom she willingly consorts, if she knows the nature and quality of her act.

RATIONALE:  The court fears that incapacity to consent may be improperly abused by females.  Furthermore, the court reasons that it would be against public policy to reward underage women for consenting to an illegal act.

DISPOSITION:  The verdict of the trial court is affirmed.

Bang v. Charles T. Miller Hospital

251 Minn. 427, 88 N.W.2d 186 (1958)

PROCEDURAL HISTORY:  Appeal from an order of the district court denying plaintiffs’ alternative motion to vacate the dismissal of their action against defendant for a new trial.

FACTS: Plaintiff went to a doctor complaining of urinary symptoms.  The doctor recommended that a cystoscopic examination be performed.  Without asking plaintiff for consent, the doctor performed the surgery and in the process severed the spermatic cords rendering the plaintiff sterile.  The operation could have been performed another using another method that would not sever the spermatic cords, but would produce a risk of infection.  The plaintiff was not given a choice between these alternative surgeries. 

ISSUE:  Whether the evidence presented a fact question for the jury as to whether plaintiff consented to the severance of his spermatic cords when he submitted to the operation.

HOLDING:  Yes, the evidence presented a fact question for the jury as to whether the plaintiff consented to the severance of his spermatic cords when he submitted to the operation.

RULE:  Where a physician or surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be informed of the alternative possibilities and given a chance to decide before the doctor proceeds with the operation.

RATIONALE: The patient in the case at hand should have the opportunity to decide whether he would like to risk the chance of infection with one type of surgery, or if he would like to be infertile by another surgery.  

DISPOSITION:  The order of the district court is reversed and a new trial granted.

Kennedy v. Parrot

243 N.C. 355, 90 S.E.2d 754 (1956)

PROCEDURAL HISTORY:  The trial court entered judgment of involuntary non suit, the plaintiff excepted and appealed. 

FACTS:  The plaintiff consulted the defendant as a surgeon.  The defendant diagnosed the plaintiff with appendicitis and recommended an operation to which the plaintiff consented.  During the operation the doctor discovered some large ovarian cysts and drained them.  In the process of puncturing the cysts, the doctor cut a blood vessel.  Shortly after the surgery, and as a result of the cut blood vessel, the plaintiff developed phlebitis in her leg. 

ISSUE:  When a patient consents to an operation, may a doctor remedy additional and previously undiscovered problems that he finds without additional consent of the patient?

HOLDING:  Yes, when a patient consents to an operation, a doctor may remedy additional and previously undiscovered problems that he finds during the course of the surgery without additional consent of the patient.

RULE:  Where an internal operation is indicated, a surgeon may lawfully perform, and it is his duty to perform such operation as good surgery demands, even when it means an extension of the operation further than was originally contemplated, and for so doing he is not to be held liable for damages as for an unauthorized operation.

RATIONALE:  The puncture of the cysts was consistent with normal surgical procedure practiced within the medical field.  Furthermore, when operating, both the patient and the doctor know that the exact condition of the patient cannot be finally and definitely diagnosed until after the patient is unconscious and an incision made.  In addition, unexpected things may arise during the operation and the doctor must act according to his best judgment and skill.  Thus, a surgeon is ordinarily justified in believing that his patient would have consented to such a procedure.

DISPOSITION:  The judgment of the trial court is affirmed.

Hackbart v. Cincinnati Bengals, Inc.

601 F.2d 516 (10^th Cir. 1979)

PROCEDURAL HISTORY:  Plaintiff sued defendant for damages.  The trial court found for the defendant, and plaintiff appeals.

FACTS: Plaintiff was a defensive back during a game between the Cincinnati Bengals and the Denver Broncos.  During the course of the game Charles Clark, a player for the Cincinnati Bengals stepped forward and struck a blow with his right forearm to the back of plaintiff’s head.  The blow had sufficient force to cause both players to fall forward to the ground.  The referees did not see the blow and no foul was called.  Plaintiff experienced continued pain and was subsequently released from the Broncos.  It was later discovered that the plaintiff had a serious fracture in his neck.

ISSUE:  Does an injury which one football player inflicts intentionally upon another football player during the course of a professional football game give rise to liability?

HOLDING:  Yes.  An injury which one football player inflicts intentionally upon another football player during the course of a professional football game gives rise to liability.

RULE:  An actor is liable for conduct that is so reckless as to be outside the bounds of ordinary activity of the sport.

RATIONALE:  The general rules and customs of football do not approve of the intentional striking of others.  Although football is a violent sport by nature, intentionally striking an opponent is beyond the scope of the game. 

DISPOSITION:  The decision of the lower court is reversed and the cause remanded for a new trial.

Courvoisier v. Raymond

23 Colo. 113, 47 P. 284 (1896)

PROCEDURAL HISTORY:  The trial court decided in favor of the plaintiff and the defendant has appealed.

FACTS:  Mr. Courvoisier was asleep above his jewelry store when he was awakened by several people demanding to be let into the store.  After the warning the aggressors broke several signs above the store and entered the building through another entrance.  Courvoisier expelled the intruders from the building and in so doing ended up outside.  Courvoisier fired a shot into the air to frighten the aggressors away.  The shots attracted a police officer who approached Courvoisier.  Courvoisier shaded his eyes and fired at the officer, wounding him.  The wounded officer brought suit against Courvoisier.

ISSUE:  May a person justify the use of self defense if he wasn’t being immediately threatened with death or bodily harm but if he reasonably believed that he was being threatened?

HOLDING:  Yes, a person is justified in the use of self defense in cases where he wasn’t being threatened with death or serious bodily harm if he reasonably believes that he is in such danger.

RULE:  In order to justify a plea of necessary self defense, a defendant must satisfy that he acted honestly in using force and that his fears were reasonable under the circumstances and that the means used for the self defense are reasonable. 

RATIONALE:  A person using force as self defense does not actually have to be in danger, as long as he reasonably believes he is in danger. 

DISPOSITION:  The decision of the lower court is reversed and the issue remanded for a new trial.

Katko v. Briney

183 N.W.2d 657 (Iowa 1971)

PROCEDURAL HISTORY:  The trial court ruled in favor of the plaintiff, awarding $20,000 actual and $10,000 in punitive damages. The defendant submitted a motion for a judgment notwithstanding the verdict and a motion for a new trial.  The trial judge overruled both motions and the defendant appeals.

FACTS:  The defendant’s owned a farm house that had been uninhabited for several years.  The plaintiff, thinking the farmhouse was abandoned, broke into the house to take some old jars and bottles that he believed were antiques.  Upon entering the house, the plaintiff triggered a 20-guage spring gun which fired and seriously injured his leg. 

ISSUE:  May a person use deadly force to protect his property?

HOLDING:  No, a person may not use deadly force to protect his property.

RULE:  Reasonable force may be used to protect ones property, but the use of deadly force is not permitted.

RATIONALE:  The court reserves the use of deadly harm for instances of self defense.  In the case at hand the use of a spring gun by the defendant’s to protect the barn was not reasonable or justified.

DISSENT:  The defendant’s intention was to use the spring gun to frighten intruders.  Therefore the defendant’s should be liable for negligence and not absolute liability.

DISPOSITION:  The lower court’s decision is affirmed.

Ploof v. Putnam

81 Vt. 471, 71 A. 188 (1908)

PROCEDURAL HISTORY:  Plaintiff brought suit against defendant and the trial court issued a demurrer to the complaint. The plaintiff appeals the decision of the lower court.

FACTS:  Defendant owned a dock on an island in Lake Champlain.  Plaintiff was sailing on the lake when a sudden storm arose jeopardizing the plaintiff and his boat.  In order to save the boat from destruction, the plaintiff moored the boat on the dock.  The defendant then unmoored the boat from the dock.  After becoming unmoored the plaintiff’s boat was driven ashore and damaged.

ISSUE:  May the necessity of the circumstances justify a trespass on another’s land?

HOLDING:  Yes, necessity of the circumstances may justify a trespass on another’s land. 

RULE:  Necessity will justify entries upon the land of another and interferences with personal property that would otherwise have been trespasses.

RATIONALE:  Necessity has long been recognized as a doctrine within the law.  Furthermore, the doctrine of necessity is especially applicable when it is applied to the preservation of human life.  In the case at hand it is clear that Ploof needed to take a course of action to preserve his life.  The only question of law remaining is whether there were other natural objects aside from the defendant’s dock that he could have used to secure his boat. 

DISPOSITION:  Judgment affirmed and causer remanded to the trial court to determine whether there was a necessity or not.

Vincet v. Lake Erie Transportation Co.

109 Minn. 456, 124 N.W. 221 (1910)

PROCEDURAL HISTORY:  The case was originally tried in the district court and the defendant’s motion for a directed verdict was denied.  Following the denial a jury awarded damages to the plaintiff.  The defendant’s then motioned for a judgment notwithstanding the verdict.  The defendant’s motion was denied and the defendant appeals.

FACTS:  The defendant’s steamship was moored on plaintiff dock for the purpose of unloading cargo.  By the time the discharge of cargo was completed the winds had picked up and the boat was unable to me moved.  As a result of the high winds and the positioning of the boat, the boat repeatedly struck the dock.  Plaintiff sued defendant for the damage to the dock.

ISSUE:  Are plaintiffs entitled to compensation where the defendant used the plaintiff’s property for the purpose of preserving its own more valuable property?

HOLDING:  Yes, a plaintiff is entitled to compensation when the defendant uses the plaintiff’s property to preserve its own more valuable property.

RULE:  Although necessity may require the taking of private property, jurisprudence requires that compensation be made.

RATIONALE:  The owners of ship chose to preserve the ships integrity at the expense of the dock.  Since the people in charge of the vessel deliberately and by their direct efforts held her in such a position that damage to the dock resulted, the owners of the boat are responsible for the extent of the damages.

DISSENT:  If the boat was positioned lawfully at the time of the onset of the storm, then it is not within the exercise of due care to risk additional damage to the boat by attempting to reposition the boat during the course of the storm.  If moving the boat during the storm does pose a hazard, then the damage to the dock is merely the result of an inevitable accident and the owner of the boat is not at fault.

DISPOSITION:  The decision of the lower court is affirmed.

Brown v. Kendall

60 Mass. 292 (1850)

PROCEDURAL HISTORY:  The trial court returned a verdict for the plaintiff and the defendant appeals alleging exceptions.

FACTS:  Two dogs, one belonging to the defendant and one belonging to the plaintiff, were fighting with each other.  The defendant took a four foot long stick and began beating the dogs in an attempt to stop them from fighting.  In his attempt to break up the dogs, the defendant accidentally struck the plaintiff in the eye with the stick. 

ISSUE:  May a plaintiff recover for an unintentional accident in which the defendant is not at fault and where the defendant uses reasonable care?

HOLDING:  No, a plaintiff cannot recover for an unintentional accident in which the defendant is not at fault and where the defendant uses reasonable care.

RULE:  The plaintiff must show that the intention was unlawful or that the defendant was in fault to hold the defendant liable for negligence.

RATIONALE:  The plaintiff cannot recover if at the time of the accident both the plaintiff and the defendant were using reasonable care, if the defendant was using reasonable care but the plaintiff was not, or if both the plaintiff and the defendant were using reasonable care.

DISPOSITION:  The decision of the trial court is reversed and the cause is remanded for a new trial.

United States v. Carroll Towing Co.

159 F.2d 169 (2d Cir. 1947)

PROCEDURAL HISTORY:  N/A

FACTS: The employee stationed to watch a barge left the barge unattended for a substantial period of time.  During the employee’s absence, the barge broke loose and sank, losing all of its cargo.

ISSUE:  Is it negligent to leave a barge unattended during the working hours of the daylight?

HOLDING:  Yes, it is negligent to leave a barge unattended during the working hours of the daylight.

RULE:  The proper rule for determining liability is depends on whether or not the burden of preventing harm is greater than the risk of harm multiplied by the severity of the injury sustained if the harm occurs. 

RATIONALE:  According the general rule established above, liability is established when the burden of preventing harm is greater than the risk of harm multiplied by the severity of the injury sustained if the harm occurs.  In the case at hand, leaving the barge unattended for such a long period of time was a sufficient risk to establish negligence.  It is reasonable to conclude that given the risks at hand, a barge should be attended at least during the daylight hours.

DISPOSITION: N/A

Washington v. Louisiana Power and Light Co.

555 So. 2d 1350 (La. 1990)

PROCEDURAL HISTORY:  The trial court awarded plaintiffs damages in a wrongful death suit.  On appeal the court set aside damages.  Certiorari is granted to review the judgment of the court of appeals.

FACTS:  The decedent was electrocuted when the antenna form his CB radio came into contact with the defendant’s uninsulated 8,000 volt transmission line.  Five years before the deadly contact, the antenna came into contact with the line while the decedent was moving it, causing burns on the hand of the decedent and the decedent’s son. 

ISSUE:  Was the risk poised by the positioning of the power line unreasonable?

HOLDING:  No, according to the Carroll Towing formula, the risk poised by the electric company’s positioning of the power line was not unreasonable.

RULE:  When the product of the possibility of escape multiplied by the gravity of the harm exceeds the burden of precautions, the risk is unreasonable and the failure to take those precautions is negligence.

RATIONALE:  The decedent had previously been wounded by contact with the power line and since the wounding the decedent took extra care in moving the antenna.  Weighting the risks and what not, it is clear that the product does not outweigh the burdens or costs of the precautions of relocating or insulating the power line.  The possibility of an accident was slight, and the precaution against such slight risks was costly and burdensome.

DISPOSITION:  The judgment of the court of appeals to set aside damages is affirmed.

Martin v. Herzog

228 N.Y. 164, 126 N.E. 814 (1920)

PROCEDURAL HISTORY:  The trial court found the plaintiff without fault and the defendant negligent.  The defendant appealed and the court of appeals reversed the trial court’s decision.  The plaintiff appeals the decision of the court of appeals.

FACTS: Plaintiff was driving along a road with her husband in a horse drawn buggy without lights.  Defendant was driving along the same road in an automobile.  While rounding a curve in the road, the defendant’s automobile hit the plaintiff’s buggy, killing the plaintiff’s husband.

ISSUE:  Does violation of a statute put in place to protect human lives constitute per se negligence?

HOLDING:  Yes, the violation of a statue enacted specifically to protect human lives constitutes per se negligence.

RULE:  Violation of a statute enacted to protect human lives constitutes per se negligence.

RATIONALE:  To disregard or disobey the regulations prescribed by law for the protection of one’s own safety is tantamount to failing to meet the due standard of diligence required by law.  By not placing a light on the buggy, the plaintiff endangered the safety of herself, her husband, and the defendant.

DISPOSITION:  The decision of the court of appeals is affirmed.

Tedla v. Ellman

280 N.Y. 124, 19 N.E.2d 987 (1939)

PROCEDURAL HISTORY:  Appeal from the decision of the court of appeals.

FACTS:  While walking along a highway the plaintiffs were struck by a passing automobile operated by the defendant.  One of the plaintiff’s who was a deaf-mute was killing in the accident.  At the time of the accident it was dark and the accident was due solely to negligence on the part of the defendant.  There is a statute providing that pedestrians must keep to the left of oncoming traffic.  The plaintiffs did not observe this statutory rule and were walking along the other side of the road.

ISSUE: May the violation of a statute which fixes no definite standard of care which would under all circumstances protect life be excused if under the circumstances it is reasonable for the defendant to disobey the statute in order to protect his/her safety?

HOLDING:  Yes, it is reasonable for a defendant to disobey a statute which fixes no definite standard of care that would under all circumstances protect life if it is reasonable to ensure ones own safety under the circumstances.

RULE:  Where a statutory rule of conduct fixes no definite standard of care which would under all circumstances tend to protect life, limb or property but merely codifies or supplements a common law rule, which has always been subject to limitations and exceptions; or where the statutory rule of conduct regulates conflicting rights and obligations in a manner calculated to promote public convenience and safety, then the statute, in the absence of clear language to the contrary, should not be construed as intended to wipe out the limitations and exceptions which judicial decisions have attached to the common-law duty; nor should it be construed as an inflexible command that the general rule of conduct intended to prevent accidents must be followed even under conditions when observance might cause accidents.

RATIONALE:  It is not per se negligence to deviate from a statute if such deviance is reasonable and the deviance is likely to prevent-rather than cause- the accident seeking to be prevented by the statute. 

DISPOSITION:  The judgment is affirmed.

Brown v. Shyne

242 N.Y. 176, 151 N.E. 197 (1926)

PROCEDURAL HISTORY:  Plaintiff sued defendant for damages resulting from medical care the plaintiff received from the defendant.  The trial court ruled in favor of the plaintiff, the court of appeals affirmed.  Defendant appeals the decision of the court of appeals.

FACTS:  Plaintiff was a patient of the defendant, who was a chiropractor.  As a result of the defendant’s services, plaintiff became paralyzed and she brought suit against the defendant for negligence.  Defendant did not have a license to practice medicine. 

ISSUE:  Does violation of a statue that requires a license to practice medicine constitute negligence towards a patient injured by the practitioner?

HOLDING:  No, violation of a statue that requires a license to practice medicine does not constitute negligence towards a patient injured by the practitioner.

RULE:  Breach or neglect of duty imposed by statute or ordinance may be evidence of negligence only if there is a logical connection between the proven neglect of statutory duty and the alleged negligence. 

RATIONALE:  The statute in question was intended to protect against the injury of a careless or unskilled practitioner.  Unless the plaintiff’s injury was caused by carelessness or lack of skill, the defendant’s failure to obtain a license was not connected with the injury. 

DISSENT:  The defendant’s actions were prohibited by law and it is improper for the court to treat the defendant as if he was a doctor when he was not licensed to practice medicine.  The very reason that it is illegal to practice medicine without a license is to protect people from the exact thing that happened in this case.  The violation of the statute is the direct and proximate cause of the injury.  The courts are affording protection which the legislature denies.

DISPOSITION:  The judgment of the lower court is reversed a the matter remanded for a new trial.

Trimarco v. Klein

56 N.Y.2d 98, 436 N.E.2d 502 (1982)

PROCEDURAL HISTORY:  The trial court entered judgment for the plaintiff.  The Appellate division reversed the decision of the trial court.  The Court of Appeals reversed and ordered a new trial.

FACTS:  The plaintiff, a tenant in an apartment owned by the defendant, was severely injured when a glass shower door shattered as he stepped out of the shower.  The plaintiff alleged that the landlord was negligent in failing to provide a door made of shatterproof safety glass.

ISSUE:  Does evidence of custom effect what constitutes reasonable conduct?

HOLDING:  Yes, evidence of custom effects what constitutes reasonable conduct.

RULE:  When proof of an accepted practice is accompanied by evidence that the defendant conformed to it, this may establish due care and, contrariwise, when proof of a customary practice is coupled with a showing that it was ignored and that this departure was a proximate cause of the accident, it ma serve to establish liability.

RATIONALE: Reasonable care is what defines negligence.  Custom and typical practice may be used in order to shed light into what ‘reasonable care’ may be.  In the case at hand, evidence of custom may be admitted to show a lack of due care.  It must be noted that evidence of a common practice or usage is still not necessarily a conclusive or compelling test for negligence. 

DISPOSITION:  The court reversed and ordered a new trial.

The T.J. Hooper

60 F.2d 737 (2d Cir.), cert. denied, 287 U.S. 662 (1932)

PROCEDURAL HISTORY:  Appeal from petitioner.

FACTS:  The operator of a tug boat was sued for the value of two barges and their cargo.  The barges and the cargo were lost at sea during a storm.  The plaintiff alleges that the tug was unseaworthy in that it was not

ISSUE:  Is the defendant act negligently by not equipping a tug with a radio?

HOLDING:  Yes, despite custom to the contrary, the defendants acted negligently when they failed to equip their tug with a radio.

RULE:  Custom does not necessarily establish a duty of reasonable care.

RATIONALE:  The fact that it was not customary for tugs to have receivers does not excuse the owners from liability.  The cost of losing a tug and a barge full of cargo in a storm is relatively high.  Meanwhile the cost to install a receiver is minimal.  Therefore it would be reasonable, regardless of custom, to install receivers on the tugs.

DISPOSITION:  Decree affirmed.

Helling v. Carey

83 Wash. 2d 514, 519 P.2d 981 (1974)

PROCEDURAL HISTORY:  The jury found for the defendants.  The appellate court affirmed and the plaintiff appeals.

FACTS:  The defendant had given the plaintiff a routine eye examination.  During the examination the defendant did not administer a glaucoma test.  Later the plaintiff lost a substantial amount of her eyesight due to the onset of glaucoma.  The plaintiff was 32 years old and expert testimony was given to stating that the test for glaucoma is not routinely given to persons under the age of 40.

ISSUE:  Did the defendant’s compliance with the standard of the profession, which does not require the giving of a routine pressure test to people under 40, insulate them from liability when the plaintiff has lost most of her vision due to the failure of the defendants to give the pressure test to the plaintiff?

HOLDING:  The reasonable standard that should have been followed under the circumstances was the timely giving of the pressure test and that by failing to do so; the defendant’s were negligent in the causing of plaintiff’s near blindness.

RULE:  The court may determine the standard of reasonable care despite the fact that the customary practices of a profession would serve to render the practitioner immune from liability.

RATIONALE:  The risk of suffering from loss of eyesight due to glaucoma is great.  On the other hand, the test for glaucoma is quick, painless, and relatively simple to administer.  The court determines that given the gravity of the possible harm, it is negligent to not administer the glaucoma test to patients under a certain age based upon preexisting ophthalmology customs.

DISPOSITION:  Judgment reversed and the matter remanded for a new trial.

Boyer v. Iowa High School Athletic Ass’n

260 Iowa 1061, 152 N.W.2d 293 (1967)

PROCEDURAL HISTORY: After a verdict for the plaintiff, the defendant appeals.

FACTS:  The plaintiff was a spectator at a basketball game under management of the defendant.  The bleachers collapsed and the plaintiff was injured.

ISSUE:  May the doctrine of res ipsa loquitur be applied?

RULE:  The two foundation facts for permitting a finding of negligence on the part of the defendant from the application of the res ipsa loquitur doctrine are: exclusive control and management by the defendant of the instrumentality which causes the injury, and the occurrence is such as in the ordinary course of things would not happen if reasonable care had been used.

RATIONALE:  The management of the bleachers was under sole control of the defendant and it can be said that bleachers do not ordinarily collapse.  Therefore the doctrine of res ipsa loquitur may be applied to establish negligence on the part of the defendant.

DISPOSITION:  Decision of the lower court is affirmed.

Shutt v. Kaufman’s, Inc.

165 Colo. 175, 438 P.2d 501 (1968)

PROCEDURAL HISTORY:  The jury decided in favor of the defendant.  Plaintiff’s motion for a new trial was denied and the plaintiff sued upon writ of error.

FACTS:  Plaintiff was a customer at a shoe store.  When the plaintiff sat in a chair, it bumped a display case which caused a metal shoe stand to fall over striking the plaintiff in the head.

ISSUE:  Under the circumstances, should there have been any instructions given in reference to the doctrine of res ipsa loquitur?

HOLDING:  No, there should not have been any res ipsa loquitur instructions.

RULE:  Res ipsa loquitur is not applicable in cases where the plaintiff has the means available to establish negligence on the part of the defendant.

RATIONALE:  If negligent acts can be proven, then res ipsa loquitur is not applicable.

DISPOSITION:  The trial court’s judgment is affirmed.

City of Louisville v. Humphrey

461 S.W.2d 352 (Ky. Ct. App. 1970)

PROCEDURAL HISTORY:  Trial court awarded damages to Humprey in a wrongful death suit.  The city appeals the decision of the trial court.

FACTS:  Mr. Humphrey was intoxicated and wandering around the city near his home when he was arrested by the police.  After the arrest, the arresting officers delivered him to the booking clerk and he was then detained in the basement of the jail.  Mr. Humphrey was later moved to the third floor of the jail and he began to fall down and collapse.  After the collapse, he was dragged to the drunk tank.  There may or may not have been another person in the drunk tank besides Mr. Humphrey.  In the morning Mr. Humphrey was unable to be awakened and was pronounced dead at the arrival of the hospital.

ISSUE:  Is there probative evidence that an employee of the city inflicted injuries on the deceased, or that a fellow prisoner did so, and if so, that the city was negligent with respect to the infliction of his injuries by a fellow prisoner.

HOLDING:  No, there is not probative evidence that an employee of the city inflicted injuries on the deceased, or that a fellow prisoner did so, and therefore the city is not negligent with respect to the infliction of injuries. 

RULE:  Res ipsa loquitur is not applicable in instances where the injury may have been caused by somebody other than the defendant.

RATIONALE:  The evidence and the circumstances come close to creating an inference that Mr. Humphrey received his injuries after his arrest and while he was in custody of the city police.  The evidence does not however, establish a sufficient res ipsa loquitur claim.

DISPOSITION:  The judgment of the lower court is reversed.

Escola v. Coca Cola Bottling Co.

24 Cal. 2d 453, 150 P.2d 436 (1944)

PROCEDURAL HISTORY:  Jury decided in favor of the plaintiff.  The defendant appeals that decision.

FACTS:  The plaintiff was a waitress in a restaurant who was injured when a bottle of Coke that she was carrying exploded in her hand.  It was said that the bottle was over pressurized. 

ISSUE:  Are the requirements for res ipsa loquitur met?

HOLDING: Yes, the requirements for res ipsa loquitur are satisfied.

RULE:  Res ipsa loquitur can be applied if the plaintiff can prove that the defendant had control of the instrument, not during the time of the accident, but during the time of the negligent act and that the condition of the instrumentality had not been changed after it left the defendant’s possession.

RATIONALE:  The bottle was defective while it was under the control of the defendant and it was defective when the defendant relinquished control of it.  Furthermore there is a quick and simple way to test for over pressurization.  Bottles of carbonated liquid do not ordinarily explode.  Therefore there is sufficient evidence to show that the bottle would not have caused an injury to the plaintiff if due care had been used.

CONCURRING:  (Traynor) The risk should be allocated to the manufacturer because they are in the best position to bear the burden.  A manufacturer should incur absolute liability when an article that he places on the market proves to have an injury causing defect.

DISPOSITION:  The judgment of the lower court is affirmed.

Hoyt v. Jeffers

30 Mich. 181 (1874)

PROCEDURAL HISTORY:  The trial court entered a judgment for the plaintiff and the defendant appeals.

FACTS:  Defendant owned and operated a steam saw mill located 233 feet from a hotel owned by the plaintiff.  On August 17, 1870, the hotel was damaged by fire.  Plaintiff sued defendant claiming that the fire was caused by sparks emitted from the chimney of defendant’s mill, and that the defendant was negligent in permitting sparks to escape from the chimney.

ISSUE:  Were circumstantial facts surrounding the nature of the factory and the emission of sparks enough to submit a claim to the jury that the cause of the fire was due to sparks from the defendant’s factory?

HOLDING:  Yes, the evidence at hand is such that it would be reasonable to submit to the jury the question of fact of whether or not the fire that damaged the plaintiff’s house was caused by emission of sparks from the defendant’s factory.

RULE:  The weight of evidence must be such that it produces a reasonable belief of causation in order for the question of causation to be submitted to the trier of fact.  The possibility of causal connection between two events must be sufficient enough to create a jury question.

RATIONALE:  The facts presented and the evidence presented would strongly tend to produce a reasonable belief that the cause of the fire that burned down the hotel was from a spark emanating from the mill.

DISPOSITION:  Judgment affirmed.

Smith v. Rapid Transit Inc.

316 Mass. 469, 58 N.E.2d 754 (1945)

PROCEDURAL HISTORY:  Trial court directed a verdict for the defendant and the plaintiff appeals. 

FACTS:  At 1:00 A.M. on February 6, 1941 plaintiff was driving an automobile on Main Street in an easterly direction.  Plaintiff observed a bus coming toward her at about 40 miles per hour.  The bus forced the plaintiff to turn to the right and as a consequence hit a parked car.

ISSUE:  Is there evidence for the jury that the plaintiff was injured by a bus of the defendant that was operated by one of its employees in the course of his employment.

HOLDING:  No, there is not evidence for the jury that the plaintiff was injured by a bus of the defendant.  The most that can be said of the evidence is that perhaps the mathematical chances somewhat favor that a bus of the defendant caused the accident.  This was not enough to rule out the possibility that a charter bus or some other bus may have been the actual cause of the accident. 

RULE:  A proposition is proved by preponderance of the evidence if it is made to appear more likely or probably in the sense that actual belief in its truth, derived from the evidence, exists in the mind or minds of the tribunal notwithstanding any doubts that may still linger there.

RATIONALE:  It is not conclusive which bus forced the plaintiff off the road.  At most, it is only a mathematical probability that the defendant’s bus forced the plaintiff off of the road.  As such, it is not enough to establish causation.

DISPOSITION:  Exceptions overruled. 

Summers v. Tice

33 Cal. 2d 80, 199 P.2d 1 (1948)

PROCEDURAL HISTORY:  Each of the two defendants appealed from a judgment against them.  The appeals have been consolidated.

FACTS:  On November 20, 1945, plaintiff and defendants were hunting quail on an open range.  Each of the defendants was armed with a 12-guage shotgun loaded with shells containing 7.5 size shot.  Prior to going hunting plaintiff discussed safe hunting procedure and stressed care when shooting.  In the course of hunting plaintiff proceeded up a hill, thus placing the hunters at points of a triangle.  The view of defendants with reference to plaintiff was unobstructed and they knew his location.  Defendant Tice flushed a quail which flew between plaintiff and defendants.  Both defendants shot the quail which was in the plaintiff’s direction.  The plaintiff was hit by shot in the eye and the upper lip.  It is not known which defendant shot the plaintiff, but it is known that the shot was from one defendant or the other only. 

ISSUE:  Can a judgment against two defendants stand when it is known that one or the other defendant caused the harm, but it is not known which defendant caused the harm?

HOLDING:  Yes, a judgment against two defendants will stand when it is clear that one or the other defendant caused the harm, but when it is unclear as to which defendant caused the harm.

RULE:  When either one of two people cause harm to the plaintiff they are both liable unless one of the defendants can prove otherwise.  If this is the case, then the defendant has the burden of proving that the other defendant was the sole cause of the harm.

RATIONALE:  It would be unfair to deny the injured person a remedy for the harm caused upon him or her because he or she cannot prove how much damage each negligent party did, when it is certain that between the negligent parties they did all the harm.  Furthermore, the burden of proof should not be on the plaintiff, but should be on the defendants to prove who among them is responsible for the harm caused.

DISPOSITION:  Decision of the lower court is affirmed.

Ybarra v. Spangard

25 Cal. 2d 486, 154 P.2d 687 (1944)

PROCEDURAL HISTORY:  The trial court entered judgments of non suit as to all defendants and plaintiff appealed.

FACTS:  Plaintiff went in for routine surgery to have his appendix removed.  After the surgery plaintiff complained of pain in his arm.  The surgery had nothing to do with his arm.  During the surgery he was unconscious and under the care of multiple doctors and hospital staff, none of whom could be expressly held responsible as an individual for negligence.

ISSUE:  Does the number or relationship of the defendants alone determine whether a jury may draw an inference of negligence?

HOLDING:  No, the number or relationship of the defendants alone does not determine whether a jury may draw an inference of negligence.

RULE:  Negligence may be inferred upon all of the people caring for a patient during a surgery.

RATIONALE:  That patient was under the control, at one time or another, of several different doctors, nurses, and hospital employees.  Plaintiff was unconscious during the surgery and therefore it would be unreasonable to place the burden of proving which specific actor was negligent in causing the harm. 

DISPOSITION: The judgment of the trial court is reversed.

Dillon v. Twin State Gas & Electric Co.

85 N.H. 449, 163 A. 111 (1932)

PROCEDURAL HISTORY:  The trial court ruled in favor of the plaintiff.  Defendant appealed the trial court’s decision.

FACTS:  The plaintiff was sitting on a girder of a bridge near some electrical wires.  Normally the electrical wires are not charged during the daytime hours.  The plaintiff lost his balance and in order to save himself from falling upon the rocks below grabbed the electrical wires.  The wires happened to be charged with electricity when the plaintiff grabbed them and he was subsequently electrocuted.  If the plaintiff had not grabbed the wires he would have fallen into the river below and been killed or seriously injured.

ISSUE:  When assessing the value of damages for death or resultant harm to a person, should the court take into consideration potential harms which may reduce the value of the damages?

HOLDING:  Yes when assessing the value of damages for death or resultant harm to a person, the court should take into consideration potential harms which may reduce the value of the damages.

RULE:  The probable future of a plaintiff bears on liability as well as damages. 

RATIONALE:  The value of life of the plaintiff in this case was greatly diminished because he would have died if not from electrocution by the wires than from the fall from the bridge to the rocks below.  If the plaintiff had not died, he would have at least been seriously injured.  This is taken into account when assessing damages owed to the plaintiff by the defendant.

DISPOSITION:  Exception overruled.

Kingston v. Chicago & N.W. Ry.

191 Wis. 610, 211 N.W. 913 (1927)

PROCEDURAL HISTORY:  Defendant seeks review of prior decision in favor of plaintiff.

FACTS:  The plaintiff’s property was destroyed by a fire. The fire started at two separate locations, but then combined before reaching the plaintiff’s property.  It is known that one of the parts of the fire began at Chicago & N.W. Ry, but the cause of the origin of the second half of the fire is unknown.

ISSUE:  If the acts of two concurrent defendants are responsible for the destruction of one property, are both defendants responsible for all of the damage?

HOLDING:  Yes, when the acts of two concurrent defendants are responsible for the destruction of one property, both defendants liable for all of the damage.

RULE:  When two or more negligent acts on the part of the defendants cause harm to the plaintiff, each defendant is individually responsible for all of the damages.

RATIONALE:  Either fire in its own right would have destroyed the plaintiff’s property.  It would not be fair to the plaintiff to hold one tortfeasor less responsible.

DISPOSITION:  The judgment of the lower court is affirmed.

In re Polemis & Furness, Withy & Co.

[1921] 3 K.B. 560

PROCEDURAL HISTORY: NA

FACTS:  A ship was carrying flammable goods to Casablanca.  While discharging the cargo at port in Casablanca, a heavy plank fell into the cargo hold and caused an explosion.  The explosion caught the vessel on fire and completely destroyed her.  The owners claimed the value of the vessel from the charterers, alleging that the loss of the vessel was due to negligence of the charterers’s servants.

ISSUE:  Are the damages claimed by the plaintiff too remote for recovery?

HOLDING:  No, the damages claimed by the plaintiff are not too remote for recovery.

RULE:  If an act itself if negligent, then the person guilty of the negligent act is equally liable for all its natural and proximate causes, whether they could have foreseen them or not.

RATIONALE:  Since putting the planks over the hold was a negligent act in and of itself, whether or not the resulting explosion was foreseeable is immaterial to the defendant’s liability. 

DISPOSITION:  NA

Palsgraf v. Long Island R.R.

162 N.E. 99 (N.Y. 1928)

PROCEDURAL HISTORY:  The Supreme Court ruled in favor of the plaintiff and the defendant appeals from a judgment of the Appellate Division of the Supreme Court.

FACTS:  Plaintiff was waiting on a platform for a train to arrive.  While waiting two men ran to catch a train which was pulling out of the station.  A guard on the train helped to push them men on the train.  One of the men had a package with him.  The package contained fireworks and when it fell to the tracks it exploded.  The explosion caused some scales to fall upon the plaintiff.

ISSUE:  Did the defendant have a duty to the plaintiff?

HOLDING:  No, the defendant did not have a duty to the plaintiff.

RULE:  In order for a duty of care to another to arise, the risk of harm must be reasonably perceived.

RATIONALE:  The guard had no way of knowing the contents of the bag.  Without any perception that one's actions could harm someone, there could be no duty towards that person, and therefore no negligence for which to impose liability. The risk to be perceived defines the duty to be obeyed.

DISSENT:  The dissenters argue that the court is too narrow.  The dissenters cite Polemis and argue that negligence should apply to the proximate results of one’s actions.  Palsgraf’s injury could be directly linked to the action of the defendant.

DISPOSITION:  Reversed.

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

[1961] A.C. 388 (P.C. Aust.)

PROCEDURAL HISTORY: Defendants appeal decision of lower court.

FACTS:  Defendants had carelessly discharged oil from their ship while it was berthed in Sydney harbor.  After their ship had set sail, the oil was carried by the wind and tide to the respondent’s wharf.  A supervisor ordered that his workman do no welding or burning in the area until further orders.  The supervisor made some inquiries with the manager of the Cal Tex Oil Company, where the Wagon Mound was berthed.  This, coupled with his own knowledge satisfied him that the oil was not flammable.  He instructed his men to continue welding.  Two days later, the wharf was destroyed in a fire. 

RULE:  A defendant is liable only for those consequences of his conduct that are reasonably foreseeable at the time he acts.

RATIONALE:  The court overrules the Polemis decision stating that the precedent set fourth by Polemis is unreasonable and illogical.  Liability should flow for only the consequences that are reasonably foreseeable.

DISPOSITION:  Appeal allowed.

Ryan v. New York Central R.R.

35 N.Y. 210 (1866)

PROCEDURAL HISTORY:  Appeal by the plaintiff of a judgment of nonsuit.

FACTS:  The defendants set fire to their woodshed.  The plaintiff’s house, situated a distance of 130 feet from the shed, took fire from the heat and sparks and burned down completely. 

ISSUE:  Is the owner of a building that catches fire liable to the owner of another building that burns down as a consequence of the fire originating at the defendant’s residence?

HOLDING:  No an owner of a building that catches fire is not liable to the owner of another building that burns down as a consequence of the fire originating at the defendant’s residence

RULE:  Harm caused by negligence must be proximate in order for the plaintiff to merit a recovery.

RATIONALE:  The damages incurred as a result of the fire at defendant’s property are not an immediate or proximate cause of the harm.  The damages to the plaintiff’s property are too remote to sustain a cause of liability on the part of the defendant.  It would be too expensive to instill a system where one who starts a fire negligently is responsible for every other property that burns down as a result of the fire.

DISPOSITION:  Judgment barring plaintiff’s recovery is affirmed.

Berry v. Sugar Notch Borough

43 A. 240 (Pa. 1899)

PROCEDURAL HISTORY:  In an action for trespass for personal injuries the verdict and judgment was for the plaintiff.  The defendant now appeals.

FACTS:  The plaintiff was running his car on the borough street in a violent wind storm.  As he passed under a tree, it was blown down, crushing the roof of the car and causing the plaintiff’s injury.  At the time of the accident, the car was traveling faster than what the borough permitted.

ISSUE:  Does the fact that the plaintiff was running his car at a speed in excess of that permitted by the borough negate his right to recovery?

HOLDING:  No, the fact that the plaintiff was running his car at a speed in excess of the speed permitted by the borough does not negate his right to recovery.

RULE:  If a plaintiffs actions are the cause or contribute to the accident for which the plaintiff seeks redress, his recovery will be barred.

RATIONALE:  Although the plaintiff was guilty of speeding, his speed did not contribute or cause the accident.  As such, the defendant is liable for the damages sustained by the plaintiff.

DISPOSITION:  Judgment affirmed.

Brower v. New York Central & H.R.R.

103 A. 166 (N.J. 1918)

PROCEDURAL HISTORY:  Trial court decided in favor of the plaintiff, defendant appeals. 

FACTS:  A horse drawn wagon was hit by a train.  In the accident the horses were killed and the wagon was destroyed.  The contents of the wagon were scattered about and probably stolen.  There were two railroad detectives on the freight train to protect the property it was carrying against thieves.  The detectives did nothing to prevent the theft of plaintiff’s property.

ISSUE:  Was the defendant’s negligence not the proximate cause of plaintiff’s loss because of an intervention by a third party (thieves)?

HOLDING:  Yes, despite the fact that a third party (thieves) intervened, the defendant’s negligence was the proximate cause of plaintiff’s loss. 

RULE:  The act of a third person intervening and contributing to a condition necessary to the injurious effect of the original negligence will not excuse the first wrongdoer, if such an act ought to have been foreseen. 

RATIONALE:  The negligence which caused the collision rendered the driver of the wagon unable to protect his property.  The fact that the railroad employed two detectives to protect its property means that the railroad could reasonably foresee that portable property left unguarded could be made off with. 

DISSENT:  (Garrison) Garrison claims that the theft of the goods was not a proximate cause of the accident.  The collision merely afforded an opportunity for a theft to occur.  The intervention of independent criminal actors defeats the proximate cause claim.

DISPOSITION:  The judgment of the lower court is affirmed.

Wagner v. International Ry.

133 N.E. 437 (N.Y. 1921)

PROCEDURAL HISTORY:  The jury found for the defendant.  The plaintiff appeals the decision of the lower court.

FACTS:  Plaintiff and his cousin were riding in a train when the plaintiff’s cousin was thrown out onto a trestle.  Plaintiff then began to search for his cousin’s body.  In searching for his cousin’s body plaintiff fell through the trestle. 

ISSUE:  May a plaintiff recover for injuries sustained during a rescue attempt?

HOLDING:  Yes, a plaintiff may recover for injuries sustained during a rescue attempt.

RULE:  Danger invites rescue, where the negligent act of the defendant has put one in peril and where another is in the process of attempting to rescue the person in peril; the defendant is liable for injuries sustained by the rescuer.

RATIONALE:  Danger invites rescue.

DISPOSITION:  Judgment of the trial court is upheld.

Waube v. Warrington

216 Wis. 603, 258 N.W. 497 (1935)

PROCEDURAL HISTORY:  Defendant appealed decision by the Circuit Court for Shawano County, which had previously found for the mother of the child and the plaintiff.

FACTS:  Plaintiff was looking out the window of her house watching her child cross the highway, and witnessed the negligent killing of the child by the defendant.

ISSUE:  May the mother of a child who, although not put in peril or fear of physical impact, sustains the shock of witnessing the negligent killing of her child, recover for physical injuries caused by such fright or shock.

HOLDING:  No, a plaintiff may not recover for physical injuries sustained by one as a result of the shock of witnessing another’s danger when he or she is out of the range of ordinary physical peril.

RULE:  In order to recover for physical injuries sustained as shock by a result of witnessing another’s danger, the plaintiff must be in the range of ordinary physical peril. 

RATIONALE:  The liability for injuries sustained by those outside of the zone of danger is out of proportion to the culpability of the negligent tortfeasor and as such would put an unreasonable burden upon users of the highway that would have no sensible or just stopping point. 

DISPOSITION:  Order reversed and cause remanded with directions to sustain the demurrer.

Dillon v. Legg

68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968)

PROCEDURAL HISTORY:  The trial court granted the defendant’s motion for judgment on the pleadings.  Plaintiff appeals the decision of the lower court.

FACTS:  The defendant negligently struck the plaintiff’s daughter with his automobile.  The plaintiff witnesses her infant’s death and subsequently sued the defendant for emotional distress.

ISSUE:  Would a negligent driver who causes the death of a young child reasonably expect that the mother is near and would, as a result of the accident, suffer emotional trauma?

HOLDING:  Yes, a negligent driver who causes the death of a young child would reasonably expect that the mother is near and would, as a result of the accident, suffer emotional trauma.

RULE:  The court may consider factors bearing on whether the harm incurred was reasonably foreseeable, and if so, the zone of danger rule does will bar recovery for negligent infliction of emotional distress.

RATIONALE:  No set rule can determine liability in all such tort cases.  Rather the court will establish guidelines to determine liability on a case by case basis.  The court may use the following guidelines: (1) whether the plaintiff was located near the scene of the accident as opposed to being located a distance away from the accident, (2) whether the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence, (3) whether the plaintiff and the victim were closely related, as contrasted by the absence of any relationship or the presence of only a distant relationship.

DISPOSITION:  The court reversed the judgment of the trial court.

Thing v. La Chusa

48 Cal. 3d 644, 771 P.2d 814, 257 Cal. Rptr. 865 (1989)

PROCEDURAL HISTORY:  The trial judge granted the defendants’ motion for summary judgment, which was reversed by the court of appeal. 

FACTS:  The plaintiff’s son was injured in an automobile accident that the plaintiff did not witness.  Plaintiff was near the scene and when plaintiff heard of the accident rushed to the scene where she saw her bloody and unconscious child whom she thought to be dead.  She brought suit for emotional harm suffered as a result of witnessing her injured son.

ISSUE:  May a mother who did not witness an accident in which an automobile struck and injured her child recover damages from the negligent driver for the emotional distress she suffered when she arrived at the accident scene. 

HOLDING:  No a mother who was not present at the scene of the accident in which her son was injured cannot recover for emotional

RULE:  A plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff (1) is closely related to the victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress—a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances.

RATIONALE:  Plaintiffs seeking to recover should be limited to those who, because of their relationship, suffer the greatest amount of emotional distress.  Thing was not present and did not witness the accident injuring her son.  Finding out about the accident and learning about its consequences does not establish an action against plaintiff for negligence.

CONCURRING OPINION:  The Dillon decision is ill conceived in theory and unfair in practice.  The guidelines established by Dillon are too flexible and will lead to arbitrary and irrational distinctions.

DISSENTING OPINION:  The rules established by the court in this case are far too rigid and directly oppose the flexible guidelines set fourth by the court in Dillon.  Such treatment will lead to arbitrary decisions.

DISPOSITION:  Judgment of Court of Appeals is reversed.

Burgess v. Superior Court

2 Cal. 4^th 1064, 831 P.2d 1197, 9 Cal. Rptr. 2d 615 (1992)

PROCEDURAL HISTORY:  The trial court granted summary judgment in favor of the defendant.  The intermediate appellate court reversed.  [Defendant appeals.]

FACTS:  The plaintiff underwent a cesarean section, during which she was under a general anesthetic.  As she left the recovery room, she was told that something was wrong with her baby, and was given additional sedatives.  The baby suffered permanent brain and nervous system damages as a result of oxygen deprivation.  The plaintiff felt distress about the condition of the baby for the first time several hours later when she awoke from the sedative.

ISSUE:  Can a mother recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery?

HOLDING:  Yes, a mother can recover damages for negligently inflicted emotional distress against a physician who entered into a physician-patient relationship with her for care during labor and delivery if her child is injured during the course of the delivery

RULE: Any negligence during delivery which causes injury to the fetus and resultant emotional anguish to the mother breaches a duty owed directly to the mother.

RATIONALE:  There is a strong emotional and physical connection between a mother and her child.  Thus the mother’s emotional well being is strongly connected to the health of the child.  As a result, any negligence during the delivery which causes injury to the fetus and resultant emotional distress on the part of the mother breached a duty owed directly to the mother. 

DISPOSITION:  The court affirmed the intermediate court of appeals decision reversing summary judgment for the defendant.

Feliciano v. Rosemar Silver Co.

401 Mass. 141, 514 N.E.2d 1095 (1987)

PROCEDURAL HISTORY:  Trial court granted summary judgment in favor of the defendant.  Plaintiff appeals the judgment of the trial court.

FACTS:  Loss of consortium claim by the plaintiff after her husband suffered injuries while on the job.

ISSUE:  May a party recover for loss of consortium when they are not legally married, but otherwise hold themselves out to be married in every other respect?

HOLDING:  No, a party may not recover for loss of consortium when they are not legally married, even if they otherwise hold themselves out to be married in every other respect.

RULE: Recovery for loss of consortium applies to a legal spouse only.

RATIONALE:  Marriage is an institution that the court seeks to uphold and promote.  Liability cannot be extended without limit.  One such limit to liability would be to restrict recovery for loss of consortium to legally married couples only.

DISPOSITION:  Judgment affirmed.

Barber Lines A/S v. M/V Donau Maru

764 F.2d 50 (1^st Cir. 1985)

PROCEDURAL HISTORY:  The Tamara sued the Donau Maru and her owners for negligence.  The district court denied recovery and the plaintiffs appealed.

FACTS:  In December 1979 the ship Donau Maru spilled fuel oil into Boston Harbor and the spill prevented a different ship, the Tamara, from docking.  The Tamara had to unload her cargo at a different dock.  In doing so, the Tamara incurred extra costs for labor, fuel, transport, and docking. 

ISSUE:  May a plaintiff recover in a tort action for purely consequential financial losses?

HOLDING:  No, a plaintiff may not recover in a tort action for purely consequential financial losses.

RULE:  Plaintiffs cannot recover for negligently caused purely consequential economic losses, even when foreseeable, except under specific circumstances.

RATIONALE:  Tort actions based solely on economic losses represents a slippery slope.  Such a policy would mean that there could be a large number of different plaintiffs each with somewhat different claims which would in turn drastically raise the cost of simple tort actions.  Furthermore liability and fault are often disproportionate. 

DISPOSITION:  Judgment affirmed.  Decision of the district court is upheld in favor of the defendants.

People Express Airlines, Inc. v. Consolidated Rail Corp

100 N.J. 246, 495 A.2d 107 (1985)

PROCEDURAL HISTORY:  The trial court entered summary judgment for the defendant.  The appellate division reversed.  Defendant appeals the decision of the trial court.

FACTS:  The defendant’s alleged negligence caused a dangerous chemical to escape from a railway tank car, resulting the in the evacuation from the surrounding area of persons whose safety and health were threatened.  The plaintiff, a commercial airline, was forced to evacuate its premises and suffered an interruption of its business operations with resultant economic loss.

ISSUE:  Is negligent conduct that interferes with a plaintiff’s business and results in purely economic losses unaccompanied by property damage or personal injury compensable in tort?

HOLDING:  Yes, negligent conduct that interferes with a plaintiff’s business and results in purely economic losses unaccompanied by property damage or personal injury is compensable in tort under specific circumstances.

RULE:  A) A defendant owes a duty of care to take reasonable measures to avoid the risk of causing economic damages, aside from physical injury, to particular plaintiffs or plaintiffs comprising an identifiable class with respect to whom defendant knows or has reason to know are likely to suffer such damages from its conduct.  B) A defendant who has breached his duty of care to avoid the risk of economic injury to particularly foreseeable plaintiffs may be held liable for actual economic losses that are proximately caused by its breach of duty.

RATIONALE:  The dangerous nature of the defendant’s activities and the foreseeability of the harm establish enough of a cause to pursue damage claims based on the economic losses of the plaintiff.  Furthermore, the rule stating that damages cannot be claimed unless there is physical contact has been subject to many exceptions and contemporary law compels a thorough examination of the facts when considering liability.

DISPOSITION:  The judgment of the Appellate Division is modified, and as modified, it is affirmed.  Case is remanded.

Butterfield v. Forrester

11 East. 60, 103 Eng. Rep. 926 (K.B. 1809)

PROCEDURAL HISTORY: Action on the case for obstructing a highway.

FACTS:  The defendant was making some repairs to his home and as a result had placed a pole across the road.  Plaintiff was riding his horse very quickly and as a result hit the pole and injured himself. 

ISSUE:  May a plaintiff who does not use ordinary care recover for an injury caused by defendant’s negligence?

HOLDING:  No, a plaintiff who does not use ordinary care cannot recover for an injury caused by the defendant’s negligence.

RULE:  A plaintiff may not recover where his lack of due care contributed to the accident.

RATIONALE:  NA

DISPOSITION:  Rule refused.

Davies v. Mann

142 Eng. Rep. 588 (1842)

PROCEDURAL HISTORY:  Plaintiff sued defendant for damages.  The trial court held for the plaintiff in the amount of 40s.  The defendant’s attorney moved for a new trial based on the plaintiff’s contributory negligence.

FACTS:  The plaintiff had shackled the legs of his mule and set it to graze near a road.  The defendant was driving a horse drawn cart at a high speed and hit the plaintiff’s mule, killing it.

ISSUE:  May a defendant’s lack of due care permit recovery by the plaintiff when the plaintiff is also negligent?

HOLDING:  Yes, a defendant’s lack of due care may permit recovery by the plaintiff even when the plaintiff has been shown to be negligent.

RULE:  A plaintiff who has negligently subjected himself to a risk of harm from the defendant’s subsequent negligence may recover for the harm caused if immediately preceding the harm the defendant is negligent in failing to utilize with reasonable care and competence his opportunity to avoid the harm.

RATIONALE:  Despite the fact that the plaintiff was negligent in shackling the feet of his mule, this negligence does not preclude an award of damages since the defendant was negligent in driving his horses too fast.  In this case, the defendant’s negligence overrides the plaintiff’s negligence.  This has become known as the last clear chance doctrine.

DISPOSITION:  The new trial was denied.

Meistrich v. Casino Arena Attractions, Inc.

 31 N.J. 44, 155 A.2d 90 (1959)

PROCEDURAL HISTORY:  The trial court found for the defendant.  The Appellate Division reversed.  Defendant appeals the decision of the Appellate Division.

FACTS:  Plaintiff was injured by a fall while ice skating on a rink operated by the defendant. 

ISSUE: Is the trial court’s charge with respect to assumption of risk erroneous?

HOLDING:  Yes, the trial court’s charge with respect to assumption of risk is erroneous.

RULE:  Assumption of risk is only a defense in contributory negligence cases. 

RATIONALE:  Assumption of risk is a part of contributory negligence and as such the issue is whether a reasonably prudent person man exercising due care would have either incurred the risk, having incurred the risk, would he have acted in the manner in which plaintiff acted.  

DISPOSITION:  Decision of the Appellate Court is affirmed.

Knight v. Jewett

3 Cal. 4^th 296, 834 P.2d 696, 11 Cal. Rptr. 2d 2 (1992)

PROCEDURAL HISTORY:  Plaintiff sued the defendant for personal injuries.  The defendant moved for a summary judgment and the trial court granted the judgment.  The plaintiff appealed and the decision of the trial court was upheld by the Court of Appeal.

FACTS:  Plaintiff injured her hand in a collision with the defendant during a touch football game. The plaintiff contends that the defendant ran into her from the rear, knocked her down, and stepped on her hand.  The defendant claims that he collided with the defendant in an unsuccessful attempt to intercept a pass.

ISSUE:  Did the defendant’s conduct in the course of the touch football game breach any legal duty of care owed to the plaintiff?

HOLDING:  No, the defendant’s conduct in the course of the touch football game did not breach any legal duty of care owed to the plaintiff.

RULE:  A participant in an active sport breaches a legal duty to care to other participants—i.e. engages in conduct that properly may subject him or her to financial liability—only 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.

RATIONALE:  In a case in which an injury has been caused by both a defendant’s breach of legal duty to the plaintiff and the plaintiff’s voluntary decision to engage in an unusually risky sport, the application of comparative fault principles will not operate to relieve either individual of responsibility for his or he actions.

DISPOSITION:  The judgment of the Court of Appeal, upholding the summary judgment of the trial court, is affirmed.

Rowland v. Christian

69 Cal. 2d 108, 443 P.2d 651, 70 Cal. Rptr. 97 (1968)

PROCEDURAL HISTORY:  Appeal from an order of the trial judge granting the defendant’s motion for summary judgment.

FACTS:  The plaintiff was a social guest in the defendant’s apartment.  The plaintiff asked to use the bathroom, and while he was in the bathroom, a cracked handle of a water faucet broke in his hand, causing severe injuries.  The defendant was aware that the handle was cracked, and had so informed her landlord and had asked that it be replaced, but she did not warn the plaintiff of the condition of the handle.

ISSUE:  May a licensee recover for damages that result from defendant’s negligence?

HOLDING:  Yes, licensee may recover for damages that result from the defendant’s negligence.

RULE: Where the occupier of land is aware of a concealed condition involving in the absence of precautions an unreasonable risk of harm to those coming in contact with it, the trier of fact can reasonably conclude that a failure to warn or to repair the condition constitutes negligence.

RATIONALE:  The old tort rules based on distinctions between trespassers, licensees, and invitees is archaic and based on feudalism.  A new approach where a man’s life or limb does not become less worthy of protection by the law nor la loss less worthy of compensation under the law because he has come upon the land of another without permission or with permission but without business purpose.

DISSENT:  The court has undermined many years of tort law but in the process has failed to provide guiding legal principles to replace what they have undermined.  The court’s decision has stepped into legislative duties.

DISPOSITION:  Judgment reversed.

Erie R. Co. v. Stewart

40 F.2d 855 (6^th Cir. 1930), cert. denied, 282 U.S. 843 (1930)

PROCEDURAL HISTORY:  Plaintiff recovered a judgment in the District Court for injuries.  Defendant appeals the decision of the District Court.

FACTS: Plaintiff was a passenger of an automobile when the automobile was hit by an oncoming train owned and operated by the defendant.  The train company employs a watchman, but at the time of the accident, the watchman was not present and as a consequence failed to give any warning of the oncoming train. 

ISSUE:  Was there a positive duty owed to the plaintiff in respect to the maintenance of a watchman on the railroad, and would breach of such a duty justify a charge of negligence?

HOLDING:  Yes, a positive duty was owed to the plaintiff in respect to the maintenance of a watchman on the railroad, and breach of such a duty would justify a charge of negligence.

RULE:  A party who voluntarily assumes a duty not required by law may be deemed negligent if he discontinues performance of the duty without proper notice. 

RATIONALE:  By providing a watchman free of charge, the railroad imposed a duty upon itself to warn passengers of the danger.  Once motorists had come to rely on the watchman, the railroad must give due notice before removing the watchman. 

DISPOSITION:  The judgment of the District Court is affirmed.

Tubbs v. Argus

140 Ind. App. 695, 225 N.E.2d 841 (1967)

PROCEDURAL HISTORY:  This appeal arises as a result of demurrer to appellant’s Second Amended Complaint which was sustained and judgment entered thereon upon the failure and refusal of the appellant to plead over.

FACTS:  The appellant was riding as a guest passenger in the right front seat of an automobile owned and operated by the appellee when it was driven over the curb and into a tree.  After the accident the appellee abandoned the automobile and did not render reasonable aid and assistance to the injured appellant. 

RULE:  IF the actor knows or has reason to know that by his conduct, whether tortuous or innocent, he has caused bodily harm to another such as to make him helpless and in danger of future harm, the actor is under a duty to exercise reasonable care to prevent further harm.

RATIONALE:  The appellant received her injuries as the result of negligence on the part of the appellee.  Therefore the appellee had a duty to help the appellant. 

DISPOSITION:  The judgment of the lower court is reversed.

Tarasoff v. Regents of the University of California

17 Cal. 3d 425, 551 P.2d 334, 131 Cal. Rptr. 14 (1976)

PROCEDURAL HISTORY:  The superior court sustained defendant’s demurrer and plaintiff appeals.

FACTS:  Prosenjit Poddar killed Tatiana Tarasoff on October 27, 1969.  Two months prior to the murder, Prosenjit Poddar confessed his intentions to a psychologist employed by the University of California Berkeley.  The psychiatrist informed the police who briefly retained and then released Prosenjit Poddar.

ISSUE:  Did the doctor patient bond create a duty to warn the plaintiffs?

HOLDING:  Yes, the doctor patient bond creates a duty to warn the plaintiffs.

RULE:  If a therapist is aware or should be aware that a patient of his poses a real threat of danger to a third party, there is a duty to warn the third party.

RATIONALE:  If a threat exists then the therapist’s actions are held to normal negligent standards.  The professional relationship between the therapist and the patient creates such a duty.

CONCURRING AND DISSENTING: (Mosk) Most concurs with the outcome of the case, but criticizes the fact that the court holds the duty of care to the professional standard.

DISSENT: (Clark) Clark cites policy considerations arising from doctor patient confidentiality.  Clark argues that the rule imposed by the court violates this confidentiality in that it requires doctors to disclose patients who they feel are a threat.

DISPOSITION:  NA

Peters v. Archambault

361 Mass. 91, 278 N.E.2d 729 (1972)

PROCEDURAL HISTORY:  Defendant’s are appealing and order of the trial court.

FACTS:  The defendant’s purchased a home which they did not know encroached significantly on the property of the plaintiff.

ISSUE:  May a landowner compel the removal of a structure that encroaches upon his land?

HOLDING:  Yes, a landowner may compel the removal of a structure that encroaches upon his land.

RULE:  A landowner may compel the removal of a structure which encroaches upon his land even when the encroachment is unintentional or negligent or the cost of removal is substantial in comparison to the injury suffered by the owner of the lot suffering from the encroachment.

RATIONALE:  The invasion on the land was substantial and the remedy employed is consistent with Massachusetts law. 

DISSENT: (Tauro) Tauro claims that the court has interpreted the existing case law too narrowly. 

DISPOSITION:  Trial court’s decision is affirmed.

Adams v. Cleveland Cliffs Iron Co.

602 N.W.2d 215 (Mich. App. 1990)

PROCEDURAL HISTORY:  Circuit court ruled in favor of plaintiffs and awarded them damages for trespass. The defendants appeal the decision.

FACTS:  Plaintiffs lived near Empire Mine.  The mine operated continually and the plaintiffs complained of noise, dust, and vibrations.  The mine is the areas largest civilian employer. The damage caused by the particulates is minimal and at all times the amount of particulates in the air was less than the maximum levels allowable for safety.

RULE:  The law of trespass in Michigan does not cover airborne particulates, noise, or vibrations, and that a complaint alleging damages resulting from these irritants falls under the nuisance doctrine.

RATIONALE:  Noise and vibrations are not tangible, and therefore they cannot be considered trespasses.  The doctrine of nuisance provides an adequate remedy for instances described in the case as hand, and therefore trespass does not need to be invoked.  This way the boundary between trespass and nuisance remains clear.

DISPOSITION:  The decision of the trial court is reversed and remanded.

Davis v. Georgia-Pacific Corp.

251 Or. 239, 445 P.2d 481 (1968)

PROCEDURAL HISTORY:  Plaintiffs secured a judgment against defendant for trespass.  The defendant appeals the decision.

FACTS:  Plaintiffs own a residence in Toledo. After plaintiffs moved in to their home, defendant began the operation of a paper plant close by the plaintiff’s residence.  Plaintiffs contend that the smoke, noise, odors, vibrations, fumes, and gases made their home uninhabitable

RULE:  In a trespass case the social value of defendant’s conduct, its efforts to prevent the harm and other circumstances that tend to justify an intrusion cannot be considered by the trier of facts.

RATIONALE:  Considering the social value of defendant’s conduct is only reasonable in nuisance cases, not trespass cases.

DISPOSITION:  Judgment for compensatory damages is affirmed.  Judgment for punitive damages is reversed.

Waschak v. Moffat

379 Pa. 441, 109 A.2d 310 (1954)

PROCEDURAL HISTORY:  This appeal is from a judgment of the Superior Court refusing to enter judgment non obstante verdicto for defendants in an action for trespass and affirming the judgment of the Court of Common Pleas of Lackawana County in favor of the plaintiffs.

FACTS:  Gas a fumes from an anthracite coal operation damaged the paint on the plaintiff’s home.

ISSUE:  Is there liability or nuisance when the social utility of the defendant’s alleged unintentional harmful conduct outweighs the gravity of the harm caused?

HOLDING: No, there is no liability or nuisance when the social utility of the defendant’s alleged unintentional harmful conduct outweighs the gravity of the harm caused.

RULE:  No liability may be imposed on the defendants where a nuisance arises that is unintentional, not caused by any act of the defendants, and arises merely from the normal and customary use of their land without negligence, recklessness, or ultrahazardous conduct.

RATIONALE:  The defendant’s chose to live where they did to be close to where they worked.  Thus they are subject to an annoyance which they have freely chosen to assume.  Furthermore, the unintentional nature of the nuisance

DISSENT: (Musmanno) The defendant’s actions were arguably intentional and the health risks posed by the smoke outweigh the social utility.

DISPOSITION:  Judgment is reversed and a judgment in favor of defendants non obstante verdicto is entered. 

Boomer v. Atlantic Cement Co.

26 N.Y.2d 219, 257 N.E.2d 870, 309 N.Y.S.2d 312 (1970)

PROCEDURAL HISTORY:  Plaintiffs bring action against defendant to enjoin defendant from operation of its business.

FACTS:  The defendant operates a large cement plant. In the course of the operation of the plant, dirt, smoke, and vibrations affected the surrounding neighborhoods.  The people living nearby the plant brought suit for an injunction of operation of the plant.

ISSUE:  May the court award damages instead of an injunction in a nuisance action?

HOLDING:  Yes, a court may award damages instead of an injunction in a nuisance action.

RULE:  When enjoining an activity would produce economic a huge economic loss, a court can choose to award permanent damages rather than an injunction in remedying a nuisance claim.

RATIONALE:  If the court were to order the cement plant enjoined then almost 300 people would lose their jobs as the result.  This is disproportionate to the harm caused.  The court reached a conclusion where the cement plant could continue to operate, yet at the same time the residents being affected by the nuisance would be compensated.

DISPOSITION:  Order of appellate division reversed.

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

108 Ariz. 178, 494 P.2d 700 (1972)

PROCEDURAL HISTORY:  Lower court issued a judgment to enjoin Spur Industries, and as a result of the judgment, they appeal.

FACTS:  Spur operates a large cattle ranch.  Del Webb has developed a large retirement community near the vicinity of Spur’s ranch.  Over the years as Del Webb’s community has grown, it has encroached upon Spur’s land to the point where the odor from Spur’s cattle has become troublesome.

ISSUE:  1. May Spur be enjoined from operating the feed lot?  2.  Must Del Webb indemnify Spur?

HOLDING: 1. Yes, Spur may be enjoined from operating the feed lot.  2.  Yes, Del Webb must indemnify Spur.

RULE:  If a party “comes to a nuisance” already in existence, it may enjoin the nuisance, but in doing so it must pay a reasonable amount to facilitate the cost of abating the nuisance and moving it elsewhere.

RATIONALE:  Spur had lawfully operated his business for many years before Del Webb began developing its retirement community.  It would not be fair for Del Webb to take advantage of low property prices around the ranch (presumably due the smell) and then force the ranch to shut down.  

DISPOSITION:  The order of the lower court is reversed in part and affirmed in part.

Fletcher v. Rylands

L.R. 1 Exch. 265 (1866)

PROCEDURAL HISTORY: The action was tried at the Liverpool Summer Assizes and verdict was found for the plaintiff.  A court appointed arbiter stated the case to the Exchequer.  In the Exchequer two judges voted for the defendant and one for the plaintiff.  The plaintiff then appealed to the Exchequer Chamber, the next higher court.

FACTS:  The defendant built a reservoir on his land.  Although the defendant took all the precautions possible, neither he nor the engineers he hired realized that there were mine shafts below ground.  As a consequence the water from the reservoir flooded the plaintiff’s property.  The plaintiff brought suit against the defendant for damages incurred. The court found the defendant free from blame, placing responsibility on the hired engineers.

ISSUE: Is absolute duty imposed on one who has brought something potentially dangerous onto his land?

HOLDING:  Yes, a person who has brought on his land and kept there something dangerous is responsible for all of the natural consequences of its escape.  The case at hand is similar to cases involving animals. 

RULE:  A person who brings or collects anything upon his land for his own purposes and which is likely to cause harm is responsible for all of the damages which are the natural consequence of its escape.  

RATIONALE:  The general rule in the law is that an owner of property who brings something onto his property which is not normally there is obliged to remedy the damage which ensues if he does not succeed in confining it to his own property.

DISPOSITION:  The Exchequer Chamber reversed the 2-1 ruling in favor of the defendant, and ruled in favor of the plaintiff.

Rylands v. Fletcher

L.R. 3 H.L. (1868)

PROCEDURAL HISTORY:  This action was tried at the Liverpool Summer Assizes and verdict was found for the plaintiff.  A court appointed arbiter stated the case to the Exchequer.  In the Exchequer two judges voted for the defendant and one for the plaintiff.  The plaintiff then appealed to the Exchequer Chamber, the next higher court. After the Exchequer Chamber ruled in favor of the plaintiff, the defendant appealed. 

FACTS:  The defendant built a reservoir on his land.  Although the defendant took all the precautions possible, neither he nor the engineers he hired realized that there were mine shafts below ground.  As a consequence the water from the reservoir flooded the plaintiff’s property.  The plaintiff brought suit against the defendant for damages incurred. The court found the defendant free from blame, placing responsibility on the hired engineers.

ISSUE:  Is absolute duty imposed on one who has brought something potentially dangerous onto his land?

HOLDING:  Yes, a person who has brought on his land and kept there something dangerous is responsible for all of the natural consequences of its escape.  The case at hand is similar to cases involving animals. 

RULE:  A person who brings or collects anything upon his land for his own purposes and which is likely to cause harm is absolutely liable for all of the damages which are the natural consequence of its escape.  

RATIONALE:  The defendants were acting at the risk of their own peril.  If in the course of their actions they injured the plaintiff’s, the defendant’s would be liable. 

DISPOSITION:  The court upheld the decision of the Exchequer Chamber, ruling for the plaintiff.

Turner v. Big Lake Oil Co.

128 Tex. 155, 96 S.W.2d 221 (1936)

PROCEDURAL HISTORY:  Plaintiff sued the defendant for damages and the trial court found in favor of the defendants.  Plaintiff appealed and the appellate court affirmed.  Plaintiff appealed the decision of the Court of Appeals. 

FACTS:  The defendants are an oil company which produces salt water as a byproduct of its refining process.  The defendant constructed large ponds in order to store the excess amount of salt water.  The water leaked from the ponds and damaged the turf of the plaintiffs land. 

ISSUE:  Whether or not negligence is required to hold the defendant liable for damages resulting from the destruction or injury to property occasioned by the escape of salt water from ponds constructed and used by the defendant in the operation of their oil wells.   

HOLDING:  Yes, negligence is required to hold the defendant liable for damages resulting from the destruction or injury to property occasioned by the escape of salt water from ponds constructed and used by the defendant in the operation of their oil wells.

RULE:  Negligence is required to hold the defendant liable for damages resulting from the destruction or injury to property occasioned by the escape of salt water from ponds constructed and used by the defendant.

RATIONALE:  Texas, unlike England, has a much shorter supply of natural water.  As such, the use of land for storing water is commonplace and therefore storing water in reservoirs or artificial ponds is considered a natural use of the land.  As a consequence, in cases where water from the defendant’s land damages the plaintiff’s property, the defendant must be negligence in order for the plaintiff to successfully sue for damages.  

DISPOSITION:  The court upheld the appellate court decision, ruling in favor of the defendants. 

Siegler v. Kuhlman

81 Wash. 2d 448, 502 P.2d 1181 (1972)

PROCEDURAL HISTORY:  The trial court ruled in favor of the defendants refusing to grant the plaintiff’s request for an instruction of res ipsa loquitur and strict liability.  On appeal the court affirmed the trial court’s judgment for the defendants.  The plaintiff appeals the appellate decision. 

FACTS:  Carol J. House, a seventeen year old girl, was driving home from her after school job when her car came upon a pool of several thousand gallons of spilled gasoline.  The gasoline was from an overturned truck-trailer that had been transporting a full trailer of gasoline as freight.  The car ignited the gasoline killing Carol.  What caused the trailer to spill or the gasoline to ignite is unknown. 

ISSUE:  Should strict liability be applied to the commercial transportation of gasoline along a public highway?

HOLDING:  Yes, strict liability should be applied to the commercial transportation of gasoline along a public highway.

RULE:  Strict liability should apply to the transportation of commercial quantities of highly volatile and flammable substances upon public highways because transportation of dangerous materials is an activity which poses a great risk of harm to defenseless users of the highway. 

RATIONALE:  First, carrying gasoline as freight is an inherently dangerous activity.  Thus, the transportation of gasoline along the public highways is analogous to the impounding of waters and strict liability is applicable under the Fletcher doctrine.  A second argument for strict liability stems from the fact that gasoline is a highly flammable substance and it is likely that any evidence from the wrongdoing which could prove negligence will be destroyed.

CONCURRING OPINION:  In addition to the court’s holding, there is also an economic rationale behind applying strict liability towards these types of cases.  Commercial transporters should be liable because they are better able to bear the burden of the costs incurred by application of strict liability.  The commercial carrier can pass the cost onto its customers, or if the accident is due to a manufacturing defect the owner of the trailer is better apt to pass the cost onto the manufacturer.  

DISPOSITION:  The decision of the court of appeals is reversed and the court remands the case to the trial court on the issue of damages. 

Foster v. Preston Mill Co.

44 Wash. 2d 440, 268 P.2d 645 (1954)

PROCEDURAL HISTORY:  The trial court granted a verdict for the plaintiff and defendant appeals.

FACTS:  Plaintiff owns and operates a mink farm.  Defendant operates a logging operation on an adjacent tract of land.  The defendant was building a road by blasting to clear a path through the road.  Plaintiff claims that the vibrations from the blasting occurring during the whelping period caused the female minks to eat their children.  Plaintiff is seeking to recoup financial losses suffered as a consequence of the female minks eating their children.

ISSUE:  Is the risk that any unusual vibration or noise may cause wild animals, which are being raised for commercial purposes, to kill their young, one of the things which makes the activity of blasting ultra-hazardous?

HOLDING:  No, vibrations and noises that cause commercially raised wild animals to kill their young is not one of the things that make blasting an ultra hazardous activity.

RULE:  Strict liability only applies to circumstances where the harm caused is a result stemming from that which makes the harm causing activity ultra-hazardous.

RATIONALE:  As with instances of proximate harm, the court is seeking to restrict the application of strict liability in cases involving abnormally dangerous activities. 

DISPOSITION:  The court reversed the decision of the lower court and held in favor of the defendant.

Jones & Laughlin Steel Corp. v. Pfeiffer

462 U.S. 523, 103 S. Ct. 2541

PROCEDURAL HISTORY: The Supreme Court held in favor of the plaintiff.  The court of appeals affirmed.

FACTS:  Plaintiff was injured in the course of his employment while working for defendant as a loading helper on the defendant’s coal barge. 

ISSUE:  What is the appropriate method for the calculation of damages to a person who has been permanently disabled?

HOLDING:  Damages are calculated by estimating the lost earnings of the employee at the appropriate discount rate.  Inflation should also be factored into the award for damages.  The award should also be distributed in one lump payment.

DISPOSITION:  Judgment of court of appeals is vacated and the issue is remanded.

Seffert v. Los Angeles Transit Lines

56 Cal.2d 498, 364 P.2d 337, 15 Cal. Rptr. 161

PROCEDURAL HISTORY:  Trial court awarded damages to the plaintiff for pain and suffering.

FACTS:  Plaintiff was trying to catch a bus and while attempting to get onto the bus the doors prematurely closed.  Plaintiff was caught in the doors and as a result was carried along by the bus and seriously injured.  Her injury was both permanent and disfiguring.

ISSUE:  Was the judgment for damages so large as to shock the conscience and give rise to the presumption that the award was the result of passion or prejudice on the part of the jurors?

HOLDING:  No, the judgment for damages was not large enough to shock the conscience and give rise to the presumption that the award was the result of passion or prejudice on the part of the jurors

RULE: An appellate court can interfere on the ground that the judgment is excessive only on the ground that the verdict is so large that, at first blush, it shocks the conscience and suggests passion, prejudice or corruption on the part of the jury.

RATIONALE:  The plaintiff suffered extreme amounts of pain and suffering.  Pain and suffering are hard to quantify, and as such an award of damages for pain and suffering will only be overturned if it is so high as to shock the conscience of the court.  In the case at hand the plaintiff suffered from permanent and disfiguring injuries, of which she was embarrassed.  The award therefore is not in excess of reason and the trial court’s judgment stands.

DISSENT: (Traynor)  The court should have shown more restraint in doling out damages.  Awarding a specified sum for pain and suffering is highly based on conjecture.  The method in which the amount due to the plaintiff was calculated increases the possibility for error.

DISPOSITION:  The trial court’s judgment was affirmed.

Frost v. Porter Leasing Corp.

386 Mass. 425, 436 N.E.2d 387

PROCEDURAL HISTORY:  Plaintiff appeals from the ruling of the appeals court.

FACTS:  Frost was injured in a motor vehicle accident.  He and his wife sued the other driver for medical expenses and pain and suffering, among other things.  Frost received medical benefits from a union health plan.  The health provider intervened on behalf of Frosts claim, claiming a right of subrogation as to damages plaintiff might recover for medical expenses.

ISSUE:  Does a group insurer which provides medical and hospital expense benefits to an insured have a right of subrogation in a recovery by the insured against a tortfeasor for personal injuries even though the group insurance policy contains no express provision entitling the insurer to subrogation rights?

HOLDING:  No, the insurer has no right, in the absence of a subrogation clause, to share in the insured’s recovery against the tortfeasor.

RULE:  In the absence of a subrogation agreement between the insurer and the insured, an insurer that has paid medical or hospital expense benefits has no right to share in the proceeds of the insured’s recovery against a tortfeasor.

RATIONALE:  Subrogation rights are implied to prevent unwarranted compensation and to facilitate sound distribution of compensation resources.  I.e. the problems in administering such a system.

CONCURRING:  Rejects the claim that subrogation presents substantial problems with respect to insurance payments made for medical expenses incurred as the result of injuries caused by a third party wrongdoer.

DISPOSITION: NA

Welge v. Planters Lifesavers Co.

17 F.3d 209 (7^th Cir. 1994)

PROCEDURAL HISTORY:  Trial court granted a motion of summary judgment in favor of the defendants.  Plaintiff appeals the decision of the trial court.

FACTS:  Plaintiff was handling a jar of peanuts when it broke unexpectedly in his hand causing him serious injuries.

ISSUE:  Does the plaintiff in a product liability suit have to eliminate every possibility that the defect which led to the accident was caused by someone other than the defendants?

HOLDING:  No, in a product liability suit the plaintiff does not have to eliminate every possibility that the defect which led to the accident was caused by somebody other than the defendants.

RULE:  An accident itself can be evidence of liability if it is the kind of accident that would not have occurred but for a defect in the product and if it is reasonably plain that the defect was not introduced after the product was sold.

RATIONALE:  The facts of the case establish to a virtual certainty that the accident was not due to mishandling after the purchase of the jar, but rather due to a defect that had been introduced earlier.  Considering the nature of the accident, it can be found that liability on the part of the manufacturer is a viable question of fact.

DISPOSITION:  The decision of the trial court is reversed and the issue remanded.

Prentis v. Yale Manufacturing Co.

365 N.W.2d 176 (Mich. 1984)

PROCEDURAL HISTORY:  Plaintiff brought suit alleging negligence and breach of implied warranty.  The trial court found in favor of the defendant.  The trial court’s decision was reversed by the appellate court.  

FACTS:  Plaintiff was employed as a foreman at a parts department of an automobile store.  While operating a forklift manufactured by Yale Manufacturing Co. the forklift experienced a power surge and as a result plaintiff was thrown to the ground.  Plaintiff was aware that when the forklift was low on battery power it was prone to surges.  At the time of the accident plaintiff was aware that the forklift was low on power.  As a result of the fall, plaintiff sustained several fractures to his right hip.

ISSUE:  In a products liability action against a manufacturer, based upon defective design, should the jury only need be instructed on a single unified theory of negligent design?

HOLDING:  Yes, in a products liability action against a manufacturer, based upon defective design, the jury only need be instructed on a single unified theory of negligent design.  That theory is a pure negligence, risk-utility test where liability is predicated upon defective design.

RULE: A manufacturer has a duty to use reasonable care in designing his product and guards it against a foreseeable and unreasonable risk of injury and this may even include misuse which might reasonably be anticipated.

RATIONALE:  The court cites four main points to support it’s rationale for using a risk-utility negligence standard:  (1) Design defects are well documented and plaintiffs should be able to learn the facts surrounding the design process.  (2) A negligence standard would reward the careful manufacturer and provide an incentive for making safer products.  (3) A verdict for the plaintiff goes against the entire line of products distributed by the manufacturer and in order to allow this the plaintiff should be required to pass the higher threshold of a fault test required by negligence.  (4) A fairness argument in that the customers of a careful manufacturer will not pay for the negligence of the careless.

DISPOSITION:  The judgment of the court of appeals was reversed (the trial court’s decision was affirmed). 

Vautour v. Body Masters Sports Industries, Inc.

784 A.2d 1178 (2001)

PROCEDURAL HISTORY:  The Superior Court granted a motion for a directed verdict in favor of the defendants and the plaintiffs appeal.

FACTS:  This is a products liability case arising out of an injury that the plaintiff received while working out using the defendant’s leg press machine.  The plaintiff was doing calf raises without the upper stops engaged.  During the exercise the weight sled slid rapidly up to his chest, bending his knees and injuring him.

ISSUE:  (1) Must a plaintiff show that there could have been a reasonable alternative design in order to recover in a products liability action?  (2) Did the trial court erroneously grant the defendant’s motion for a directed verdict upon the plaintiffs’ strict liability design defect claim?

HOLDING:  (1) No, a plaintiff does not need to show that there could have been a reasonable alternative design in order to recover in a products liability action.  (2) Yes, the trial court erroneously granted the defendant’s motion for a directed verdict upon the plaintiffs’ strict liability design defect claim.

RULE:  A risk-utility test is the proper measure for determining whether a plaintiff may recover in a design defect case.

RATIONALE:  The requirement that the plaintiff prove that there must be a reasonable alternative design is unfeasible because it is too difficult to prove.

DISPOSITION:  The decision of the lower court was reversed and remanded.

Potter v. Chicago Pneumatic Tool Co.

694 A.2d 1319 (Conn. 1997)

PROCEDURAL HISTORY:  The defendants appeal from the judgment rendered by the jury in favor of the plaintiffs.

FACTS:  The plaintiffs were employed as electric boat grinders.  Their duties included grinding down the welds and smoothing metal surfaces.  The plaintiffs used various pneumatic hand tools.  After a twenty five year period of using the tools, the plaintiffs suffered from vascular and neurological impairment in their hands.  The plaintiffs’ symptoms are consistent with hand arm vibration syndrome.

RULE:  In order to determine whether a manufacturer is liable for harm, the proper standard to be used is a consumer expectations based risk utility test.

RATIONALE:  The plaintiff has the burden of proving that the design was unreasonably dangerous based on ordinary consumer expectations.  Relying on the proof of a reasonable alternative design is too burdensome.

CONCURRING:  The concurring opinion agrees with the court’s outcome, but is fearful that the court’s dicta will create a new test of complex products. 

DISPOSITION:  The court reversed the lower court's judgment and ordered a new trial.

Soule v. General Motors Corp.

882 P.2d 298 (Cal. 1994)

PROCEDURAL HISTORY:  The trial court ruled in favor of the plaintiff, the defendant appealed and the Court of Appeals affirmed. The defendant appeals the decision of the Court of Appeals.

FACTS:  Plaintiff was driving a 1982 Camaro on a rainy day when she was hit by an oncoming car.  As a result of the collision, plaintiff was badly injured.  One of her ankles had to be fused together by an orthopedic surgeon, and as a result she was permanently disfigured. 

RULE:  Use of the consumer expectations test is not applicable where the evidence does not permit an inference that the product’s performance did not meet the minimum safety expectations of its ordinary users.  As a result, the jury should be given instructions that the risk-benefit test for determining liability for design defects should be used.

RATIONALE:  An injured person should not be barred from proving a defect in the product’s design because he or she cannot show that the reasonable minimum safety expectations its ordinary consumers were violated.

DISPOSITION: The judgment of the Court of Appeal, upholding the trial court judgment in favor of plaintiff, is affirmed.

O’Brien v. Muskin Corp.

463 A.2d 298 (N.J. 1983)

PROCEDURAL HISTORY: NA

FACTS:  The plaintiff dove into a swimming pool and sustained injuries.  The defendant dived, uninvited, into the pool and hit his head on the bottom.  The pool was an above ground pool that was filled to be a little over three feet deep.   

ISSUE:  May a jury be given sufficient leeway to find an entire product line defective?

HOLDING:  This depends.  Heriot sees both sides of the argument here.

RULE:  A product may embody the state-of-the art and still fail to satisfy the risk utility equation.

DISPOSITION:  Court affirmed the appellate court decision.

Anderson v. Owens-Corning Fiberglass Corp.

810 P.2d 549 (Cal 1991)

PROCEDURAL HISTORY:  Trial court entered judgment in favor of the defendants.  Plaintiff moved for a new trial and the Court of Appeal granted a new trial.  The Supreme Court granted review.

FACTS:  The plaintiff was a worker who is suing defendants for their failure to warn.  The plaintiff alleges that he suffers from asbestosis as a result of exposure to tiles, cloths, and floor tiles.

ISSUE:  May a defendant in a strict liability case based upon a failure to warn present evidence of the state of the art?

HOLDING:  Yes a defendant in a strict liability case based upon a failure to warn may present evidence of the state of the art.

RULE:  A defendant in a strict products liability case based upon a failure to warn of a risk of harm may present evidence of the state of the art, i.e. evidence that the particular risk was neither known nor knowable by the application of scientific knowledge available at the time of manufacture and or distribution.

DISPOSITION: Judgment of the Court of Appeal is affirmed.

Union Pump Co. v. Allbritton

898 S.W.2d 773 (Tex. 1995)

PROCEDURAL HISTORY:  Trial court granted summary judgment to the defendant.  The court of appeals reversed and remanded.

FACTS:  Allbritton was injured when she slipped off of a pipe rack.  The rack was wet and slippery due to a fire that had just been extinguished.

ISSUE:  Whether the condition, act, or omission of which a personal injury plaintiff complains was, as a matter of law, too remote to constitute legal causation?

HOLDING:  No, there was no legal causation as a matter of law.

RULE:  A plaintiff’s injuries in a products liability case must result from the proximate cause of the defendant’s negligence in order to recover.

RATIONALE: The fire had been extinguished and the forces generated by the fire had come to rest.  The pump fire did not more than create the condition that made Allbritton’s injuries possible.

DISPOSITION: The judgment of the court of appeals is reversed. 

610 F.2d 149 (3d Cir. 1979)

PROCEDURAL HISTORY:  Jury returned a verdict in favor of the plaintiff.  Defendant appeals the denial of a motion for a new trial.

FACTS:  Plaintiff was installing electrical control equipment in an oil refinery.  While working on the installation the plaintiff pushed against a metal bar on the equipment which then gave way. Plaintiff fell 10 feet and severely injured his spine.  It is said that the defendant was negligent in failing to weld the metal bar appropriately to the device the plaintiff was installing.

ISSUE:  Whether a comparative negligence statute may be applied and, if so, to what extent, in an action for personal injuries brought under twin theories of strict product liability and common law principles of negligence.

HOLDING:  A system of pure comparative fault should be applied to Restatement §402A actions in the Virgin Islands.

RULE:  Once it is found that the defendant is liable because his product is defective, the damage award may be reduced by the percentage of fault incurred by the plaintiff.

RATIONALE:  Fault is ascribed to the defendant once his product is found to be defective.  The manufacturer should not be responsible for the negligence of the plaintiff or those who use their products.

DISPOSITION:  The court of appeals affirmed.

Baxter v. Ford Motor Co.

12 P.2d 409 (Wash. 1932)

PROCEDURAL HISTORY:  The trial court took the case from the jury and entered judgment for the defendants.  The plaintiff now appeals.

FACTS:  Plaintiff purchased a Model T Ford and upon purchase the seller insisted the windshield glass was shatterproof.  While driving the car a pebble flew into the window and blinded the plaintiff’s left eye and damaged the sight to his right eye.

ISSUE:  May a plaintiff recover for a breach of express warranty when no privity of contract exists?

HOLDING: Yes, a plaintiff may recover for a breach of express warranty when no privity of contract exists.

RULE:  Privity of contract is not required for a plaintiff to recover on an action for breach of express warranty.

RATIONALE:  It would be unjust to recognize a rule that would permit manufacturers of goods to create a demand for their products by representing that they possess qualities which they, in fact do not possess, and then, because there is no privity of contract existing between the consumer and the manufacturer, deny the consumer the right to recover if damages result from the absence of those qualities, when such absence is not readily noticeable.

DISPOSITION:  Reversed and cause remanded for a new trial.