TORTS (Rules of Law)

Concurrent causes: Inclusive as the "but for" test is, it nonetheless rules out one kind of cause which the courts have generally held does constitute a true cause in fact. This is the situation where two events concur to cause harm, and either one would have been sufficient to cause substantially the same harm without the other. To provide for this case, it is generally stated that each of these concurring events is a cause of the injury, insofar as it would have been sufficient to bring that injury about. In this case, D negligently causes a forest fire. The fire merges with another fire of unknown origin, and the combined fires burn P's property. Held, even though P's property would have been burned had D never caused the first fire, that fire must still be regarded as a "material and substantial element" in P's damages, and D is therefore liable for the entire damage.

ANDERSON v. MINNEAPOLIS RY.

Strict liability is only imposed for those injuries resulting as the natural consequence of that which makes an activity ultrahazardous. In this case, mother mink, frightened by blasting, killed their own kittens.

FOSTER v. PRESTON MILL

A landlord is under a duty to take precautions to protect tenants from foreseeable criminal acts committed by third parties. (MINORITY RULE)

KLINE v. 1500 MASS AVE

A person may not recover for unintentionally-caused "pure economic loss" unaccompanied by physical damage. In this case, (D)'s ship collided with another vessel causing toxic fumes to escape and endanger sea life. (P) suffered economic loss due to the closing of the waterway; however, he suffered no physical damage to any property. (D) successfully moved for summary judgment on the basis that no damages are recoverable in maritime tort without physical damage.

M/V. TESTBANK

A landlord is not under a general duty of care to social guests of his tenants to remedy defective conditions on his land. Most courts have also held that the landlord is liable only where the lessee does not know that the repairs were negligent or abandoned. In this case, (P) went to premises over which (D) was a landlord as a social guest of the tenants. While there, he slipped and fell on the front steps of the premises, injuring himself. The lessee here obviously knew of the dangerous condition of the steps. (P) filed this personal injury action against (D), but the trial court concluded, as a matter of law, that (D) was under no duty to to make the proposed repairs or maintain the premises in a safe condition. Borders (P) appealed.

BORDERS v. ROSEBERRY

The rule of strict liability for the escape of stored water does not apply where the injury results from an act of God, which the owner had no reason to anticipate. In this case, (D) owned a hydroelectric plant and built a dike on a river. A hurricane caused the river to overflow, damaging (P)'s land. (P) brought an action based on both strict liability and negligence.

GOLDEN v. AMORY

Definition: The tort of "false imprisonment" is defined as the intentional infliction of a confinement. In this case, P, a 67-year-old retiree, is checked into the D nursing home by his nephew. After three days, P decides he wants to leave, but as he walks out, D's employees catch him and lock him up. P tries several more escapes, but each time he is brought back to the home. After more than six weeks, he finally escapes. Held, P was falsely imprisoned, and may recover compensatory and punitive damages.

Big Town Nursing Home

In a failure-to-warn theory of strict liability, knowability of the risk according to the state-of-the-art evidence at the time of distribution is relevant. In this case, (D), an asbestos manufacturer, sought to admit evidence regarding the knowability of the risks of asbestos exposure at the time of the distribution. Strict liability would become absolute liability if manufacturers were required to warn about risks that were unknowable at the time of distribution.

ANDERSON v. OWENS-CORNING FIBERGLAS

Not judged by results: To make this showing, the plaintiff cannot simply show that the defendant's conduct resulted in a terrible injury to her. Rather, she must show that the defendant's conduct, viewed as of the time it occurred, without the benefit of hindsight, imposed an unreasonable risk of harm. In this case, D, a water company, installs water mains in the street, leading to fire hydrants. Twenty-five years after D does so, a hydrant in front of P's house springs a leak caused by the expansion of freezing water, during a winter of unprecedented severity. As a result, P's house is flooded. Held, D's conduct was not negligent because the risk of such a heavy frost was so remote as not to be the kind of risk an ordinary prudent person would guard against in doing the work.

BLYTH v. BIRMINGHAM WATERWORKS

As to a licensee, the owner of premises is only required to warn his guest of any hidden dangers of which the owner has knowledge. "(P) and (D) were officers and members of a Masonic Lodge. In August 1977, (P) visited (D) at his house for the purpose of discussing Lodge business. While he was there, (P) was attacked by (D)'s disturbed adult son and injured. He brought suit against the elder (D) alleging that as a landowner, he was negligent in failing to protect (P) from a dangerous condition upon the premises, namely his son, who had a history of mental illness. The trial court, holding that (P) was a licensee, rather than an invitee, held that (D) had not breached any duty toward his guest. Accordingly, he directed a verdict for (D). (P) appealed. Held, although his son had a history of mental illness, there is no evidence suggesting that (D) knew or could have known that (P)'s visit that night would result in an attack.

BARMORE v. ELMORE

Joint and several liability will not be applied when pure comparative negligence is adopted. In this case, (P) was injured in an accident with a vehicle under the control of New (D). A third, unidentified vehicle was also involved. (P) sued (D). The jury found Bartlett (P) nonnegligent and (D) 30 percent responsible. New Mexico was a pure comparative negligence state. Bartlett (P) argued that under joint and several liability, (D) should pay all damages. The trial court refused to enter judgment, but ordered a new trial. (D) sought an interlocutory appeal.

BARTLETT v. NEW MEXICO WELDING SUPPLY

A tortfeasor bears responsibility for all damages proximately caused by tortious conduct, even if the damages appear disproportionate to the tortious conduct. In this case, (P) was a bodybuilder involved in an accident caused by the negligence of Jeckovich (D). (P) physical injuries were minor, but he suffered an apparently total psychological breakdown, becoming psychotic. At trial, several mental health professionals opined that (P), who had a traumatic childhood, had used bodybuilding as a coping mechanism, and when his routine was disturbed, he fell apart. Held, a defendant takes a plaintiff as he finds him, and injuries seemingly excessive in comparison to the cause of harm will be compensable, if proven.

BARTOLONE

All that is necessary to be a joint tortfeasor is to have encouraged or aided in the harm-producing activity. However, the defendant must take some active part in the activity which causes the harm. Mere presence or knowledge of the conduct of another person which may cause harm is not enough to establish liability, for there is no duty for observers to take affirmative action to prevent a tort. In this case, individuals who were party to a motor vehicle race on a highway were tortfeasors acting in concert and each participant was liable for harm to a third person arising from tortious conduct because he has engaged in and induced the wrong.

BIERCYZYNSKI v. RODGERS

The defense of assumption of risk is interchangeable with the concept of contributory negligence and, as such, is merged into the principles of comparative negligence.In this case, several cases were consolidated, all involving the defense of assumption of risk. The principal question concerned the validity of the defense after the case of Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973), which adopted the principles of comparative negligence in Florida. The court was asked to rule that assumption of risk, as an affirmative defense, was no longer viable after the Hoffman decision.

BLACKBURN v. DORTA

A social host may be liable for furnishing alcohol to an intoxicated guest. (MINORITY RULE). In this case, (D) was a guest at (D) home. (D) furnished alcohol to (D) beyond the point of intoxication. (D) later was in an accident with (P), who sued both (D) and (D). In terms of causation, that court found it foreseeable that serving alcohol to an intoxicated guest may cause an accident.

GWINNELL

It is not enough for the expert to say that he would have handled the matter differently from the defendant; he must testify that the defendant's conduct departed from all courses of conduct accepted by some portion of the profession. In this case, D, a surgeon, sets a fracture of P's ankle by attaching the bone fragments with a metal screw. Seven years later, P returns, complaining of pain in the ankle. D inspects the ankle and bandages it, but does not make an x-ray. Two years later, P again returns to D complaining of pain, but D does nothing of consequence. Shortly thereafter, X, another physician, performs the surgery to remove the screw, and D recovers. At the trial of P's suit against D, P's expert medical witness testifies that he would have taken an x-ray when P returned to him after seven years, but the expert does not state that D's failure to do so was necessarily a failure to give proper medical care. Held, on appeal, P failed to produce the requisite expert evidence on negligence. It is not enough that P's expert witness said he would have taken the x-ray — what was required was an allegation that not taking it was improper medical care.

BOYCE v. BROWN

Sudden insanity is defense: insanity that strikes completely without warning can be a defense. But even in such a court, the exception will not apply where the defendant had some forewarning of the looming insanity. In this case D, driving her car, suddenly becomes convinced that God is taking hold of the steering wheel. As the car nears a truck, D steps on the gas "in order to become air-borne because she knew she could fly because Batman does it." She collides with the truck, driven by P, who sues D's insurance company. The verdict is for P, and D appeals. Held, the traditional rule that insanity is no defense to negligence is too broad. This rule is motivated by several policy considerations: (1) Where loss must be borne by one of two innocent persons, the one who caused the loss should bear it; (2) Persons interested in the insane defendant's estate (if she has one) should be induced to restrain and control her; and (3) An insanity defense may lead to false claims of insanity to avoid liability. However, where the insanity strikes suddenly and without forewarning, so that the defendant has no chance of avoiding the danger, the rule that insanity is no defense is unjust. In the present case there was some evidence that D had had similar delusions previously, and the jury could have concluded that she should have been forewarned of the danger that delusions would strike her while driving. Therefore, the verdict for P will not be overturned.

BREUNIG

An employer can be held liable when an employee leaves work early and foreseeably causes an accident while driving home. In this case, (D), an employee, became ill at work after she inhaled fumes from pesticide sprayed at the employment facility, at employer's request, the night before. (D) grew dizzy and left work early, declining the suggestion from one of her supervisors that she see the company doctor. While driving home, (D) rear-ended (P) car, which was stopped at a red light. (P) sued (D) for negligence and employer for vicarious liability as (D)'s employer, claiming that (D) was acting within the scope of her employment when the accident occurred. Employer eventually responded with a motion for summary judgment based in part on a denial that (D) was acting within the scope of her employment when she rear-ended (P). The trial court granted summary judgment for employer, and (P) appealed.

BUSSARD v. MINIMED

The defense of contributory negligence states that a plaintiff who has not used reasonable care to avoid an accident recover for injury caused by the accident. In this case, (D) was making some repairs on his house and put up a pole across a road. However, passage was still possible. (P) was riding very fast on the road, did not see the pole, and ran into it. He fell with his horse and was injured. There was no evidence of his being intoxicated. There was evidence that it was possible to see 100 yards away at the time of the accident and that, had (P) not been riding so fast, he might have seen and avoided the pole.

BUTTERFIELD v. FORRESTER

The doctrine of res ipsa loquitur (which in English means "The thing speaks for itself") allows the plaintiff to point to the fact of the accident, and to create an inference that, even without a precise showing of how the defendant behaved, the defendant was probably negligent. In this case, P is walking in the street past D's shop, when a barrel of flour falls on him from a window above the shop. In P's suit against D, his evidence demonstrates only these facts, and shows nothing about any actual acts by D or his employees. Held, P has presented enough evidence to justify a verdict for him. "A barrel could not roll out of a warehouse without some negligence, and to say that a plaintiff who is injured by it must call witnesses from the warehouse to prove negligence seems . . . preposterous. . . . It [is] apparent that the barrel was in the custody of the defendant who occupied the premises, and who is responsible for the acts of his servants who had the control of it; . . . the fact of its falling is prima facie evidence of negligence, and the plaintiff who was injured by it is not bound to shew that it could not fall without negligence, but if there are any facts inconsistent with negligence, it is for the defendant to prove them."

BYRNE v. BOADLE

Extended privilege: However, some cases, including the one in the following example, have extended the privilege of detention to cover detentions occurring in the area immediately around the store. In this case, (recovery of property) P makes several purchases at the D Store, after which she walks towards her car in the parking lot next to the store. D's store detective stops her en route, and motions to her to return to the store. After P returns, D accuses her of shoplifting (based on information from a third person), and demands to see the contents of her purse. P submits to the search of her purse, produces sales slips for the items she bought, and is released. She then sues for false imprisonment. Held, the detective had a privilege to make a reasonable detention to investigate. Furthermore, he had the right to exercise this privilege after P had left the store's premises, while she was still nearby. Such an extension was reasonble, because "a merchant may not be able to form the reasonable belief justifying a detention for . . . investigation before a suspected person has left the premises."

Bonkowski v. Arlan's Department Store

A regular customer of a business establishment who enters the establishment but does not buy anything is considered to be an invitee. In this case, (D) operated a cigar stand and lunch counter at which (P) was a regular customer. (P) entered the cigar stand, loitered there for about 15 minutes without making a purchase and then went to use the toilet. On his way to the toilet, (P) stepped into an open trap door and was injured. The toilet was open to the public. (D) demurrer was sustained, and Campbell (P) appealed.

CAMPBELL v. WEATHERS

Balancing test: To tell what a reasonable person would have done in a particular situation, the courts have developed a "balancing test" as a rough guide. Liability exists if:B < L x P where B equals the burden which the defendant would have had to bear to avoid the risk, L equals the gravity of the potential injury, and P equals the probability that harm will occur from the defendant's conduct. In this case, P's barge, docked at a pier, broke away from its moorings due to D's negligence in shifting the lines that moored it. D, however, argued that P was also negligent in not having an employee on board the barge, and that, according to the rules of admiralty, the damage should be divided between D and P according to their respective degrees of negligence. Held (on appeal), it is burdensome, to a degree, to have an employee on board at all times. However, there was wartime activity going on in the harbor, and ships were coming in and out all the time. Therefore, the risk that the mooring lines would come undone, and the danger to the barge and to other ships if they did, was sufficiently great that P should have borne the burden of supplying a watchman (unless he had some excuse for his absence) during working hours.

CARROLL TOWING

The adoption of comparative negligence does not require the abolition of joint and several liability. In this case, Jasper was killed while using a product made by(D). (D) contended that Jasper's employer was partially negligent, and that since Illinois had adopted comparative negligence, the doctrine of joint and several liability had also been abolished, and any judgment against it should be reduced by the percentage of fault attributable to the employer.

CONEY v. JLG INDUSTRIES

Emergency: The defendant must follow the standard of care that a reasonable person would exercise "considering all of the circumstances." One of the circumstances of a particular case may be that the defendant was confronted with an emergency, and was forced to act with little time for reflection. If this is so, the defendant will not be held to the same standard of care as one who has ample time for thinking about what to do; instead he must merely behave as would a reasonable person confronted with the same emergency. But if the emergency was caused by the defendant's negligence, the fact that the emergency leads the defendant into an accident will not absolve him of liability. In such a situation, it is the initial negligence leading to the emergency, not the subsequent response to the emergency, that makes the defendant negligent. In this case, Cab Driver, who drives a cab for the D cab company, is suddenly accosted one day by a thug, who jumps into the cab, puts a gun to the cab driver's back, and tells him to step on it. Meanwhile, a number of pedestrians start shouting, "Stop, thief!" The thug tells Cab Driver that the latter will "suffer the loss of his brains" if he does not obey the thug's orders. Cab Driver then jams on the brakes, puts on the emergency brake, and, leaving the motor running, jumps out. The cab keeps on rolling, and injures P. Held, Cab Driver did not behave negligently, and D is therefore not liable (as it would be under the doctrine of respondeat superior, infra, p. 324, if Cab Driver had been negligent). "If under normal circumstances an act is done which might be considered negligent, it does not follow as a corollary that a similar act is negligent if performed by a person acting under an emergency, not of his own making, in which he suddenly is faced with a patent danger with a moment left to adopt a means of extrication.

CORDAS v. PEERLESS TRANSPORTATION

The last clear chance doctrine is that where plaintiff's negligence has put him in a dangerous position and defendant discovers plaintiff's danger and fails to use due care to avoid injuring plaintiff, plaintiff's negligence will not bar his recovery. In this case, (P) fettered the forefeet of his ass and turned it onto a public highway. It was grazing off the side of the road when (D) wagon, which was coming at a fast pace, knocked it down and killed it.

DAVIES v. MANN

Contact not causing dispossession: On the other hand, suppose D merely makes contact with the chattel, without taking the chattel out of P's possession. (This interference with plaintiff's use or enjoyment is called "intermeddling.")D is liable for intermeddling only where some harm to the chattel, or some interference with P's use and enjoyment of the chattel, occurs. lnterference with computers: At least one court has found trespass to chattels of the "intermeddling" variety where the defendant interfered remotely with the plaintiff's computer system. Malicious hacking, the sending of unwanted "spam" e-mails, and similar interferences with other people's computers may lead to findings of trespass to chattels. In this case, P (Compuserve) offers Internet access to its many subscribers. D is in the business of sending unsolicited e-mail advertisements to hundreds of thousands of Internet users, many of whom are subscribers to P's service. P has tried repeatedly and unsuccessfully to block D from sending bulk e-mail to P's subscribers. Now, P claims that D, by swamping P's system with these unwanted messages, has committed trespass to chattels (with the chattel being P's computer systems). Held, for P. Even though D has never "dispossessed" P from its computer systems, interference or intermeddling that does not amount to dispossession can nonetheless result in liability for trespass to chattels. Here, D's vast electronic mailings commandeered the disk space and processing power of P's computers, making those resources unavailable to P's subscribers. Therefore, the value of the equipment to P was diminished even though there was no physical damage. Furthermore, D's unwanted intrusions damaged P's business reputation by making its service less desirable to its customers. Consequently, the trespass to chattels is actionable despite the lack of dispossession or physical damage. D is therefore enjoined from sending any further unsolicited advertisements to any e-mail address maintained by P.

CompuServe v. Cyber Promotions

Where control passed from D well before the accident: One common scenario in which the court's abandonment of the strict "exclusive control" requirement will still leave the plaintiff with a hard-to-surmount task of showing that any negligence is probably the responsibility of the defendant is the scenario in which there has elapsed a long period of time between the point when the defendant last had any control or influence over the instrument that caused the accident, and the moment when the accident occurred. Generally, the longer the period between these two events, the harder it will be for the plaintiff to make the required showing that any negligence was more likely than not the responsibility of the defendant. In this case, the Ps (P1 and P2, a husband and wife respectively) buy a minivan that was originally manufactured by DaimlerChrysler, and that is now sold to them as "used" by D (the Ricky Smith car dealership). Three years after the Ps buy the minivan, while P1 is cleaning its insides, the front airbags suddenly deploy and injure him. Held, for D: the trial court was correct in ruling that on these facts, the Ps failed to satisfy the requirement that causes other than D's negligence be sufficiently eliminated.

DAIMLER CHRYSLER

To recover for emotional damages, P must show: P was in the "zone of danger" AND P suffered physical symptoms from the distress and distress proximately cause by D conduct In this case, a car driven negligently by (D) careened off the road and sheared off a utility pole, causing an electrical explosion that damaged (P)s' house. Though there was no physical impact on either (P) or her son (P), both suffered extensive emotional distress, which manifested itself in severe nervousness. As a result, (P) and (P) filed this action against (D) for negligent infliction of emotional distress. Although such an action is not traditionally permissible absent proof of some "physical impact" (absent here) on the injured party, court found sufficient to raise a jury question of fact as to whether the nervous condition of the (P) was caused by (D), and reversed the directed verdict against P.

DALEY v. LACROIX

Duty to investigate: Even where a certain fact is not known to members of the community at large, or to the defendant herself, she may be under a duty to end her ignorance. A driver who senses that something is wrong with his steering wheel, for instance, would have a duty to find out what the problem is before an accident is caused. In this case, as D's car is passing P's car, D has a blowout, causing a collision. There is evidence at trial that D's tires were badly worn. Held, D was under a duty to know of the condition of the tires (whether he in fact knew or not), and was also under a duty to know that worn tires are dangerous.

DELAIR v. McADOO

An intervening act will not serve as a superseding cause, relieving the defendant of liability, where the risk of the intervening act occurring is the very same risk that rendered the defendant negligent. In this case, (P) was severely injured while working at an excavation site constructed by Felix (D), when an automobile driven by Dickens (D), an epileptic, careened onto the site. The very reason that Felix's (D) conduct was negligent was that it created a risk of injury due to automobile accidents. Thus, the fact that the risk materialized in a somewhat different fashion than anticipated or that the intervening actor was also negligent, could not serve to absolve Felix (D) of liability as the proximate cause of (P)'s injuries.

DERDIARIAN

Mistake known or induced by defendant: But if the defendant knew of the plaintiff's mistake, or induced that mistake (as by lying to the plaintiff), then the mistake would vitiate the consent. In this case, P, a woman in labor, summons D1, a doctor, to her house to help her in child birth. To help carry certain essential items, D1 brings with him D2, who is young, unmarried, and not a doctor; these facts are known to D1 but not to P. P permits D2 to be present during the birth, and to hold her hand. Held, P's consent to D2's presence and contact is ineffective, because it was a mistake induced by D1's and D2's deceit. Therefore, P may recover against both.

DeMay

Damages: At common law, the plaintiff who could show that a trespass had occurred was entitled to receive nominal damages where no actual harm occurred, whether the trespass was intentional, negligent or accidental. In this case, D enters P's land with a surveyor and chain carriers. They survey the land, and D claims it as his own, but does not mark any trees, cut any bushes, or cause any other physical harm to the property. Held, P may recover against D for the trespass, even though there was no actual harm. He is entitled to nominal damages. "From every . . . entry against the will of the possessor, the law infers some damage; if nothing more, the treading down the grass or herbage, or as here, the shrubbery."

Dougherty v. Stepp

An injury to a mother that results in injuries to a later-conceived child does not establish a cause of action in favor of the child against the original tortfeasor. In this case, (P) grandmother ingested (DES) while pregnant with (P) mother, Patricia, in 1960. Allegedly, this ingestion led to latent damage to Patricia's reproductive system while being formed in utero. Patricia's injuries, in turn, resulted in congenital defects suffered by (P), who was born prematurely. (P) brought a personal injury action against (D), the drug's manufacturer. The trial court dismissed, refusing to recognize a cause of action in favor of a child for injuries suffered as a result of a preconception tort committed against the mother. Proximate cause is a policy decision, a recognition that at some point cause in fact becomes so attenuated that liability should not be recognized, either because of unforeseeability, the intervention of other acts, or the conduct of a third party. Here, (P) was injured as a consequence of injuries to her mother's reproductive system; she was not herself exposed to DES. Therefore, she had no cause of action against (D). (But liability does extend to grandmother and mother, who was exposed in utero, to DES).

ENRIGHT v. ELI LILLY

Defense of valid arrest: Of course, if a party asserting legal authority in fact has the right to make an arrest, this will serve as a defense to a false imprisonment claim. (The general rules governing when arrests may be validly made by police officers and private citizens are discussed infra, p. 80. Must be for stated offense: But the arrest must, to constitute a defense, be for the offense that the arresting officer says it is for, not for some other offense that the officer could have cited but didn't. In this case, D, a policeman, suspects P of violating a municipal ordinance against letting dogs run without leashes. He asks P, who is sitting in her parked car, for her driver's license. She refuses (but tells him her name and address), and he tells her that she must produce the license or go to jail. She refuses again, and he arrests her. Held, P was falsely imprisoned. No statute requires a citizen to produce her driver's license upon demand (except when she is driving and the demand relates to her car or driving conduct). Nor can the "leash" law furnish a defense, because it is clear that D arrested P for failing to produce her license, not for violating the leash law.

Enright v. Groves

An act of suicide is a superseding cause in negligence law precluding liability when actor is sane. However, in this case the suicide was the result of an "irresistible impulse" caused by traumatic organic brain damage, and P could recover.

FULLER v. PREIS

Extends to personal effects: A battery may be committed not only by a contact with the plaintiff's body but also by a contact with her clothing, an object she is holding, or anything else that is so closely identified with her body that contact with it is as offensive as contact with the body would be. In this case, P, who is black, is attending a luncheon at the Brass Ring Club, located in D hotel. As P is standing in line waiting for his food, one of D's employees snatches the plate from P's hand, and shouts that because P is Black, he cannot be served in the club. P is not actually touched, nor is he frightened. He is, however, highly embarrassed. Held, P has suffered a battery. "The intentional snatching of an object from one's hand is as clearly an offensive invasion of his person as would be an actual contact with the body." Furthermore, P can recover compensatory damages for his mental suffering, even though there was no physical injury.

Fisher v. Carrousel Motor

Some evidence required: Although, courts will be relatively quick to find that there is enough evidence of causation to entitle the plaintiff to go to the jury, some real evidence of causation is nonetheless required. As courts sometimes put it, a "mere suspicion" that the defendant's negligence caused the plaintiff's injuries will not suffice. In his case, D1 (Bacon) is visiting a ranch owned by his wife's grandmother (D2). While D1 is carrying a loaded rifle towards the ranch house, he trips on or near the stairs leading to a deck adjacent to the house. As he trips, the rifle goes off, fatally shooting P (another guest at the ranch), who is on the deck. P's estate sues both D1 and D2. D1 declares bankruptcy and is dismissed from the case. The suit proceeds against D2 alone, on the theory that D2's negligent maintenance of the deck stairs was a cause in fact of the accident. In his deposition, D1 states that "I don't remember if I tripped or if I was just clumsy or if I missed the step or hit it or whatever." There is no other evidence bearing on whether the condition of the stairs had anything to do with the gun's going off. The trial judge grants summary judgment in favor of D2, and P appeals. Held (on appeal) for D2. "A suspicion, regardless of how particularized it may be, is not sufficient to sustain an action or defeat a motion for summary judgment." Here, P has "offered no substantial evidence that any condition on the property . . . caused [D1] to stumble and fall immediately before his rifle discharged . . . ." Therefore, as a matter of law P cannot prove cause in fact against D2, and P is not entitled to a jury trial.

GENTRY v. DOUGLAS HEREFORD RANCH

"Substantial certainty": An occurrence is obviously "intentional" if the actor desires to bring it about. But tort law also calls it intentional if the actor didn't desire it, but knew with substantial certainty that it would occur as a result of his action. In this case, Brian Dailey, five years old, pulls a chair out from under P as she is sitting down. The evidence at trial shows that he did not desire that she hit the ground, but that he may have known with substantial certainty that she was trying to sit, and would hit the ground. Held, on remand, the trial court found that Brian knew with substantial certainty that P was trying to sit when he pulled the chair away, and that there was therefore the intentional tort of battery.

Garratt v. Dailey

Must be actual damages: Most courts hold that a trespass to chattels occurs only where the plaintiff can prove some actual harm. In other words, in contrast to the rule for trespass to land, the plaintiff is not entitled to nominal damages where he merely shows that the defendant has touched his property. In this case, P, a four-year-old girl, climbs on the back of Toby, a dog owned by D. P pulls the dog's ears, and the dog snaps at her nose. P sues for damages for the bite. D contends that under local law, P may not recover if P was a trespasser, and that P was in fact committing a trespass to chattels at the time she was bitten. Held, P can recover. She did not commit trespass to chattels, because there was no showing by D that the dog was harmed in any way.

Glidden

In order to recover damages resulting from the intentional infliction of emotional distress, a plaintiff must show that the distress suffered by him was "severe." In this case, (P) was a lifelong stutterer, was very self-conscious about the fact and, hence, also suffered from bad nerves. (P) charged that (D), a supervisor at the plant, "maliciously and cruelly" ridiculed him, causing him acute nervousness and resulting in an increase in his stuttering. Furthermore, (P) charged that (D2) had ratified (D1)'s conduct. P admitted that both his speech impediment and nervous conduct existed prior to his subjection to (D)'s insults. However, he contended, (D)'s conduct served to aggravate his problems. While this might be true, there is no evidence that such aggravation reached the level of severity required by the law governing the tort of intentional infliction of emotional distress. Absent such evidence, an action cannot lie.

HARRIS v. JONES

Objective standard for professional: The standard of care for one who engages in a business, occupation or profession is objective, not subjective. Thus the defendant's own training and experience are irrelevant in determining whether she behaved with due care (at least where she does not hold herself out as a specialist); the issue is whether the defendant matched the standard of care commonly found among other members of the same profession. In this case, D, a professional pilot, is piloting a small plane when it crashes shortly after takeoff, killing P. Held (on appeal), the trial judge was wrong to instruct the jury that negligence should be measured by reference to the care and skill of an ordinary prudent pilot "having the same training and experience as [D]." Instead, an objective standard, the "minimum standard generally applicable to all pilots," should have been applied.

HEATH v. SWIFT WINGS

No - Colleges and universities are under no affirmative duty to regulate the private lives of their students. In this case, (P)'s 17-year-old daughter was enrolled as a freshman in college and assigned to a dormitory. During her freshman year, the University exercised no control over her comings and goings at the dormitory. She began staying away from it, soon became associated with criminals, was seduced, and became a drug user. Her parents demanded that the University return her to them but school officials could not. This action was soon thereafter filed against the University (D) by the parents (P) alleging that the school's negligent failure to perform supervisory duties had resulted in the damage to the (P)s' daughter. The University (D) thereupon made a motion for judgment (in their favor) on the pleadings. Court found for (D).

HEGEL v. LANGSAM

Increased risk, followed by actual damage: Suppose that the defendant's conduct cannot be shown to have necessarily caused a later event to come about, but can be shown to have increased the risk that that later event would happen, and the later event does in fact happen. In this case, P consults the Ds, a group of doctors. The Ds fail to diagnose P as having lung cancer. The correct diagnosis is later made, but P dies of the disease. The parties agree that had the Ds promptly diagnosed P, he would have had a 39% chance of survival, and that with the delay in diagnosis his chances dropped to 25%. The Ds argue that since P would probably have died anyway, their negligent delay in diagnosis was not the cause in fact of his death. Held, for P. On these facts, a jury could reasonably find that the Ds caused P's death. "Medical testimony of a reduction of a chance of survival from 39% to 25% is sufficient evidence to allow the [causation] issue to go to the jury." (But P can recover only for direct items of damage due to premature death, such as lost earnings and additional medical expenses, not for emotional suffering, loss of consortium, etc.)

HERSKOVITS

The invitor or one who has control of an instrumentality has the legal obligation to aid a helpless person, even if he did not cause the original situation in which the helpless person finds himself. In this case, (P), a six-year-old boy, went with his mother to go shopping at the (D) department store. (P) fell on the escalator in the store and as a result, he got his fingers caught in the escalator. (D) did not immediately stop the escalator but kept it running and as a result Hicks (P) was hurt severely. After an unreasonable time, (D) did stop the escalator. (D) was found liable and moved for a new trial. (D) was an invitor and had control of the instrumentality causing harm; it had a duty to affirmatively act and to exercise reasonable care to avoid aggravation of the injury. However, (P) is entitled to recover only for the injuries that resulted when (D) had the duty to act but failed to do so for an unreasonable time.

HICKS

A defendant may not claim that she is not an actual cause of the plaintiff's injury merely because some other person's negligence also contributed to that harm; each of several joint tortfeasors will be held liable for the entire harm. In this case, P is a passenger in a car driven by D1. On a stormy night, the car crashes into an unlit truck which has been parked in the middle of the road by D2. There is evidence that D1 was negligent in not seeing the truck, and that D2 was negligent in leaving it parked where and how he did. Held, D2 should not be dismissed from the case merely because the accident would not have happened without D1's negligence. "Where separate acts of negligence combine to produce directly a single injury each tortfeasor is responsible for the entire result, even though his act alone might not have caused it.

HILL v. EDMUNDS

Good results not guaranteed: The professional will not normally be held to guarantee that a successful result will occur. She is liable for malpractice only if she acted without the requisite minimum skill and competence, not merely because the operation, lawsuit, etc. was not successful. Specialists held to a higher standard: Where the defendant holds herself out as a specialist in a certain portion of her profession, she will be held to the minimum standards of that specialty (which will obviously be higher than those of the profession at large). This will be true, for instance, for an ophthalmologist or a tax lawyer. In this case, the Ds, lawyers, handle a suit for P against an out-of-state insurance company. They make service on the company by serving the State Insurance Commissioner. The trial judge holds that the service is valid. At that point, the Ds elect to stand by this method of service, and not to serve the defendant again by alternate means. The defendant appeals, and it is held that the service was invalid. Under local procedural rules, P is thenceforth barred from bringing a new suit against defendant, since the statute of limitations has run. P then sues the Ds for malpractice.Held, it was widely assumed by lawyers throughout the state that service on the Insurance Commissioner would suffice; therefore, the Ds were not negligent in failing to use an alternate form of service, even though this later turned out to have been a strategic error. A lawyer is not liable for a "mere error of judgment, or for a "mistake in a point of law which has not been settled by the court of last resort . . . and on which reasonable doubt may be entertained by well-informed lawyers.

HODGES v. CARTER

Reckless or intentionally-harmful conduct beyond the usual bounds: The final category consists of conduct that not only violates the rules of the sport, but constitutes a flagrant violation by means of actions that are unrelated to the normal method of playing the game, and that are done without any competitive purpose. Scenarios where D intends to physically harm his opponent (or recklessly disregards the danger of such harm), without any bona fide belief that D is advancing his own team's competitive interest, are typical of this category. If the case falls into this category, most courts allow a tort suit (typically one for battery) to be brought by the injured player against the opponent who committed the violation, and/or the teams that employed that opponent. In this case, P plays for the Denver Broncos NFL team, and "Booby" Clark plays for D (the Cincinnati Bengals team). During the course of a game between the two players' teams, after a play has ended and while P is kneeling, Clark hits P on the back of the head and neck with his forearm, badly injuring him. Clark is found at trial to have acted "out of anger and frustration," but "without a specific intent to injure" P. P sues D for the tortious act committed by its employee (Clark). The trial court, sitting without a jury, rules that as a matter of law, professional football is a "business which is violent in nature," and that penalties and expulsion from the game (neither of which were imposed by the officials here) are the sole available sanctions; therefore, the court finds D non-liable. Held (on appeal): for P — case remanded for a retrial. The rules of the NFL prohibit the intentional striking of blows, and the general customs of the sport also prohibit such conduct. These principles "are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another." The trial judge was incorrect to assume that because football involves violence, "all reason has been abandoned"; it cannot be the case that "the only possible remedy for the person who has been the victim of an unlawful blow is retaliation.

Hackbart v. Bengals

Plaintiff's desire to clear himself: However, if the plaintiff's confinement is due solely to his own desire to clear himself of suspicion, there is no false imprisonment. Thus, in the usual case where a suspected shoplifter submits to a search or remains for questioning at the store, the existence of false imprisonment will turn on whether the plaintiff submitted to the search or questioning solely to clear himself, or, rather, submitted at least in part because of the threat of implied force. In this case, P, a newly-hired store clerk in the jewelry department of D store, is accused by another employee of stealing a watch. P attends a meeting for less than an hour in the store manager's office, during which she denies having taken the watch and takes a lie detector test, which supports her innocence. P later claims that this interrogation session constituted false imprisonment. Held, for D. A jury could properly find that P was not unlawfully restrained against her will. She was not told she could not leave, and no threats, whether of force or otherwise, were made to compel her to stay. She admitted that she wanted to stay and clarify the situation.

Hardy v. LaBelle's

Air space: At common law, it was said that "cujus est solum ejus est usque ad coelum" — the one who owns the soil owns all the way to heaven. In other words, the property owner owned the air space above the land, and she could recover in trespass against someone who put telephone wires over it, fired shots across it, or otherwise entered it. In this case, D hunts ducks by standing on X's land and shooting over P's land. No bullets land on P's land. Held, for P. D, by firing over P's land, interfered with the "quiet, undisturbed, peaceful enjoyment of the plaintiff," and committed a trespass to the land.

Herrin v. Sutherland

Possession obtained by fraud: If the wrongdoer obtains possession by fraud, most courts hold that his possession is wrongful from the beginning, and that the owner, if she discovers the fraud promptly, may use reasonable force to recover possession. In this case, P buys a stove on credit from the Ds, by lying about his credit-worthiness. The Ds discover this soon after he has taken away the stove, and go after him, overtaking him about two miles away. He refuses to give back the stove, and draws a knife to protect it. One of the Ds then forcibly holds him down, while the other takes the stove. Held, P gained possession of the stove fraudulently, and the Ds were therefore permitted to use reasonable force to retake the stove.

Hodgeden v. Hubbard

The fact that the kind of damage which an act might probably cause was not the damage anticipated is immaterial so long as the resulting damage is directly traceable to the negligent act, and not due to independent cause having no connection with the negligent act. In this case Furness chartered a ship from its owners. It carried a cargo of petrol and benzine. While unloading in Casablanca, a heavy plank fell into the hold setting off a spark which ignited petrol vapor. The resulting explosion completely destroyed the Polemis. Arbitrators found that while a spark resulting from the dropping of the plank would not be reasonably foreseen, the dropping of the plank was due to negligence of Furness's servants. Also found was that some damage could be reasonably anticipated from the dropping of the plank. Held, it is immaterial that the spark could not be reasonably anticipated; the act of dropping the plank itself was negligent. If the act would or might probably cause damage, the fact that the damage it in fact causes is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact directly traceable to the negligent act, and not due to the operation of independent causes having no connection with the negligent act, except that they could not avoid its results.

IN RE POLEMIS

Strict liability will not be imposed against the manufacturer of a toxic chemical for accidents occurring during transportation. In this case, (D), manufacturer of a dangerous chemical, was held strictly liable when a quantity of it spilled during transportation.

INDIANA HARBOR v. AM CYANAMID

When a spouse has actual knowledge or special reason to know of the likelihood that his or her spouse is engaging in sexually abusive behavior against a particular person, the spouse has a duty of care to take reasonable steps to prevent or warn of the harm and a breach of that duty constitutes a proximate cause of the resultant sexual abuse of the victim. In this case, two young girls spent substantial period of time with their neighbor at his horse barn. The man, (D), sexually abused the girls. The girls' parents (P) brought suit against the man and his wife (D) for damages, arguing that the wife's (D) negligence rendered her liable for their injuries as well. In an amended answer, the wife (D) argued that she owed no duty of care to the plaintiffs, that any alleged negligence on her part was not the proximate cause of the injuries and that any damages were the result of a third party whose actions were beyond her control. The court found that D's negligence was proximate cause of Ps' injuries.

J.S. and M.S.

In the context of a medical malpractice lawsuit based upon a foreign object being left inside the body, res ipsa loquitur is applicable only if the object is unintentionally left in a patient following an operative procedure. If an object is intentionally left in a patient following a procedure, general medical malpractice law applies, and a plaintiff must prove that: (1) the doctor's conduct deviated from standard medical practice and (2) that deviation was the proximate cause of the harm. In this case, doctor intentionally left a guide wire in the patient after it became dislodged, and additionally while doctor led the operation, there were other medical personnel involved (nurses, etc.), and he did not necessarily have exclusive control over the wire.

JAMES v. WORMUTH

This case held that when a tort is committed by the concurrent negligence of two or more individuals who did not intentionally inflict injury, contribution should be required of the co-tortfeasor even though no joint judgment was obtained by the plaintiff. *Courts are split but MAJORITY RULE is NO CONTRIBUTION. In this case, while riding as a passenger in driver (D)'s car, Langland was injured when it collided with taxi driver's (P)'s taxi. Langland was a personal friend of driver (D), and so she did not sue him; however, she did sue taxi driver (P), who filed a third-party complaint against driver (D) (making him a defendant and himself a plaintiff for purposes of this case) in an action to determine if driver's (D) negligence was a sole or contributing factor in the causation of Langland's injuries.

KNELL v. FELTMAN

Expert testimony: Sometimes expert testimony may be necessary to prove actual causation by the defendant. This is frequently true in medical malpractice cases, where the jury has no knowledge of its own which would permit it to conclude that the defendant's treatment caused the plaintiff's injury. In his case, P, a guest in D's hotel, cuts his forehead on a piece of glass which falls from a broken transom. The injury does not heal, and two years later, a physician tells P that a skin cancer has developed at the point of injury. Two medical experts testify at the trial; one states that there is a remote possibility that a skin cancer could develop from such a wound, and the second declares there is "no causal connection" between P's injury and the cancer. Held, for D on the issue of liability for the cancer. A mere possibility that the cancer to P was the result of the injury does not provide the requisite causal connection. The jury should not have been permitted to find D liable for the cancer, since the causes of cancer are outside the experience of laymen, and the only relevant medical evidence, that of the two experts, indicated that it was highly unlikely that the injury caused the cancer.

KRAMER SERVICE

Calculation of burden: the burden which the defendant would incur in order to avoid the risk, is itself a function of not only the cost to him, but also the broader social utility of the conduct which he would have to forego. Hence the courts attempt, in effect, to answer the question: "Would society be better off if all defendants in the position of D were permitted to act as D did, or were instead required to change their conduct so as to avoid the kind of risk which resulted in injury to P?" Only if the answer to this question is that defendants in D's position should be required to change their conduct will the cause of action for negligence lie (assuming that the other requirements are met). In this case, D Railroad maintains a railway turntable (a rotating platform with a track for turning a locomotive) near a publicly traveled path. P, a child, discovers that the turntable is unlocked, climbs on it, and while playing on it with a group of children gets his foot caught between the rails and severed at the ankle joint. Held, it was negligent of D not to keep the turntable locked and guarded. The business of railroading is facilitated by the use of turntables, so the public good demands that their use not be entirely outlawed, since their utility is out of proportion to the occasional injuries which result. But the burden of keeping the turntable locked is so small that the danger of not doing so outweighs this burden.

KRAYENBUHL

Property owners frequently make use of various mechanical devices to protect their property. These include barbed wire, glass shards on top of walls, vicious watchdogs, and spring guns (guns rigged mechanically to go off when the premises are entered.) The general rule regarding such devices is that the owner is privileged to use them only if he would be privileged to use a similar degree of force if he were present and acting himself. Thus to the extent that the devices are likely to cause serious bodily harm, and are therefore to be considered deadly force, they may be used only to protect against serious injury to the inhabitants, or, possibly, to protect against breaking and entering felonies in a dwelling. Trespasser: Thus if an electrified fence causes serious injury to a trespasser who has no intent to enter the house, the owner will be liable since he would not have been privileged to use such deadly force personally against the trespasser. Reasonable mistake: And regardless of whether the property owner's intent was to protect his home against dangerous felonies (e.g. armed robbery), his right to use the mechanical device in a particular case will be measured by considering whether deadly force could have been used against that particular intruder. Thus an electrified fence intended to guard only against burglary but which nonetheless severely injures a casual trespasser (not to mention a person with a privilege to enter, e.g. the postman) will give rise to liability. Spring gun case: The most important case involving mechanical devices is one concerning a spring gun, described in the following example. In this case, D owns an unoccupied boarded-up farmhouse. Because the house has been broken into many times and robbed of various household items, D conceals a shotgun in the bedroom, and connects it to the bedroom doorway in such a way that a person entering that room will discharge the gun. P, with a friend, breaks into the house, in order to steal some bottles and fruit jars which they think are antiques. When P enters the bedroom, the gun goes off, and part of his leg is blown away by the blast. P sues for his injuries, wins in a jury trial, and D appeals. Held, on appeal, D is liable. A property owner may not use deadly force to defend his property against a trespasser, unless the latter is committing a felony of violence, or is endangering human life by his act. And what a property owner may not do directly, he may not do indirectly by a spring gun or other mechanical device. A dissent argues that D should be liable only if P shows that D intended to shoot anyone who entered the bedroom. The dissent contends that P has not met that burden, and points out that, in fact, D testified that he was only trying to "frighten" intruders, not to shoot them.

Katko

Inherently dangerous objects: This "no hindsight" principle is also illustrated by cases in which potentially dangerous objects are left lying around. Some objects (e.g. a shotgun) are so dangerous that it is negligence to leave them lying around without special handling (e.g., unloading the shotgun.) But other objects pose less of a danger, and it will not be negligence to leave them around even if it turns out that, unexpectedly, they cause harm. The risk is to be evaluated as it reasonably appeared before the accident. In this case, D1 leaves a golf club lying in the backyard of his house. D2, D1's 11-year-old son, swings the club in order to hit a stone, and in doing so strikes P in the jaw and chin. P sues both D1 and D2 on a negligence theory. Held, for D1. A golf club is not so "obviously and intrinsically dangerous" that by leaving it on the ground D1 committed negligence. But D2 was negligent in the way he swung the club.

LUBITZ v. WELLS

An employer who fails to provide specified safeguards or precautions will not be insulated from liability for injuries caused by the negligence of an independent contractor. In this case, the brakes on (D) automobile failed causing his automobile to collide with (P) automobile."(D) had his brakes overhauled by an independent contractor mechanic, Peter Evanchick, only three months before, and that Evanchick's negligent repair effort had been the cause of the accident. Certain duties are nondelegable and the duty involved in the conduct of a dangerous activity, like driving a car or the satisfaction of a statutory duty, like the one here, are such duties. However, it's not strict liability - a tortfeasor may escape liability by showing that he exercised due care in the performance of his "nondelegable" duty.

MALONEY v. RATH

Refusal to leave as trespass: Even if the defendant had permission to enter the plaintiff's land, it will be a trespass if he refuses to leave when the permission is terminated. Similarly, if the defendant is authorized to put an object on the plaintiff's land, but then refuses or neglects to remove it when he is supposed to, there will be a trespass. In this case, P gives the D Board of Road Commissioners permission to put a snow fence on P's property parallel to a road running past P's farm. D agrees that at the end of the winter, the fence will be removed. At the end of the winter, D removes the fence, but leaves behind an anchor post. P's husband, driving a mowing machine, hits the post, is thrown to the ground, and dies. Held, D committed a trespass by not removing the anchor post, and is liable to P for the damages she sustained by loss of her husband.

Rogers v. Board of Road Commissioners

Two classes of persons protected: A statute may be held to have been intended to protect both the public at large as well as a particular class of individuals. If so, its violation may be negligence per se if the plaintiff belongs to the particular class. In this case, P, sitting in the D Bar, becomes innocently enmeshed in a barroom brawl, and is injured. An administrative regulation provides that no tavern operator "shall permit or suffer any loud, noisy, disorderly or boisterous conduct, nor permit any visibly intoxicated person to enter or remain upon his premises." Held, this regulation, and the statute under the authority of which it was promulgated, were intended to protect not only the interest of the community at large in peace and quiet, but also barroom customers from the "carnage of the barroom brawl." Therefore, P fell within one of the classes of persons to be protected by the act, and violation by D constitutes negligence in itself.

MAR-CAM

Contributory negligence per se: The defendant may, in an appropriate case, demonstrate that the plaintiff's violation of a statute constitutes contributory negligence per se. Generally speaking, the rules are the same for asserting contributory negligence per se as for defendant's negligence per se. When a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is "negligence per se." That is, by showing the violation of the safety statute, P is deemed to have made sufficient proof of negligence that she is automatically entitled to get to the jury on the issue of negligence. Furthermore, the defendant will not be permitted to show that the legislature set an unduly high standard of care — the legislature's choice of standard is effectively binding on the court. In this case, P drives a buggy after dark without lights, in violation of a New York criminal statute requiring lights. The buggy collides with D's automobile, and P is killed. The trial judge instructs the jury that it may consider the lack of lights as some evidence of negligence, but not as conclusive on the question of negligence. Held, in an appellate decision by Judge Cardozo, "We think the unexcused omission of the statutory signals is more than some evidence of negligence. It is negligence itself." Since there was evidence at trial that the absence of lights was causally related to the accident, P's violation was necessarily contributory negligence, and he may not recover.

MARTIN v. HERZOG

The rescue doctrine may be invoked in products liability cases. The rescue doctrine imposes a duty on the tortfeasor towards the rescuer on the basis that it is foreseeable that a person will come to the rescue of a person placed in danger by the tortfeasor's conduct. The doctrine also negates the presumption that the rescuer assumed the risk of injury by undertaking the rescue as long as he did not act rashly or recklessly. In this case, (P) was driving on the interstate when the car in front of him, a Suzuki, swerved off the road and rolled. He stopped to render assistance and found the driver of the car badly injured. A state trooper stopped and asked (P) to place flares along the road. After the accident was cleared, (P) was walking along the roadway back to his car when he was struck by a hit-and-run driver. He and his wife (P) brought suit against the driver and passenger of the Suzuki for negligence, the State for the trooper's negligence, and American car manuf. (D) for its allegedly defective car. Here (P) introduced sufficient evidence to obtain rescuer status.

MCCOY v. AMERICAN SUZUKI

Inference of someone's negligence: The plaintiff mustdemonstrate that the harm which befell her does not normally occur except through the negligence of someone. This is true of, for instance, falling elevators, escaping gas or water from utility mains, the explosion of boilers, etc. The plaintiff is not required to prove that such events never occur except through someone's negligence; all she has to do is to show that most of the time, negligence is the cause of such occurrences. In this case, P is driving behind a truck driven by D. As the truck goes over some railroad tracks, a heavy spare tire comes out of its cradle underneath the truck and falls to the ground. The truck's rear wheels then cross over the spare, throwing the spare into the air. The spare crashes through P's windshield, injuring him badly. P sues D on a res ipsa theory. Held, for P. "We conclude that the spare tire escaping from the cradle underneath the truck . . . is the type of accident which, on the basis of common experience and as a matter of general knowledge, would not occur but for the failure to exercise reasonable care by the person who had control of the spare tire."

MCDOUGALD v. PERRY

Contributory negligence abolished as a defense in this case, where (P) was involved in an auto accident with (D). Both were intoxicated. (P) sued for personal injury. The jury found both parties equally negligent. Based on a contributory negligence instruction, the jury returned a defense verdict. (P) appealed.

MCINTYRE v. BALENTINE

The use of guns or firearms is not an ultrahazardous activity as required for strict liability. In this case, a stray bullet injured a man after it ricocheted from a nearby gravel pit during firearms practice by law enforcement officers.

MILLER v. CIVIL CONSTRUCTORS

Disclosure of doctor's research interests: Normally, the disclosure that must occur for informed consent is disclosure of the risks to the patient. But some court have required another type of disclosure: disclosure of any research or financial interest that the doctor may have in the proposed procedure. In this case, D, a physician, removes P's spleen. P consents to the operation, having been told by D that the operation will be beneficial for P's medical condition (which is true). D then uses cells from P's removed spleen to establish a "cell line" which D, and the university for which he works, patent and license to others for profit. P sues D and the university for negligence (failure to obtain informed consent), among other claims. Held, if at the moment of the operation D intended to use the cells for research, and failed to disclose this fact to P, P has a claim against D for failure to obtain informed consent. "A physician who adds his own research interests [to the risk-reward calculation] may be tempted to order a scientifically useful procedure or test that offers marginal, or no, benefits to the patient." Therefore, the existence of such an interest is a fact that a reasonable patient would want to know.

MOORE v. REGENTS OF THE UNIVERSITY OF CA

Landowners whose property is adjacent to public sidewalks or highways owe a duty of reasonable care to for the protection of those off the premises from artificial conditions on the premises. In this case, (D) was engaged in the operation of a baseball park located. One day, while walking, (P) was struck with a foul ball emanating from this park. (P) thereupon filed this action for personal injuries. At trial, it was adduced that in the course of the average game, some two to three foul balls normally got out of the park, landing on East Thirtieth Street. Though (D) was aware of this, it took few precautions to protect pedestrians there during any of 68 games played during the season.

SALEVAN v. WILMINGTON BANK

The correct standard of care for malpractice has always been the level of skill of the minimally qualified member in good standing, not the average member. Exception where negligence obvious to lay person (if a doctor amputates the wrong leg, injures the patient's shoulder during an appendectomy. "Standards of the community": Until the last few decades, doctors and other professionals were almost always held to be bound by the professional standards prevailing in the community in which they practiced (or similar communities), not by a national professional standard. As professional education has become more uniform nationally, however, more and more courts have abolished the "local standards" rule. In such jurisdictions, the plaintiff may now fulfill his burden of producing expert testimony by calling on an expert from outside the community (who may be more willing to testify). Such an expert can testify that the defendant's conduct failed to match minimum national standards. Abolition of the local standards rule has been particularly common where the defendant is a specialist. In this case, P goes to D, a medical laboratory in Washington, D.C., to be tested for a urinary infection. The test is given to P while he is standing. P has an adverse reaction to the test, and faints, striking his head. At trial, P offers expert testimony from a witness from Michigan who testifies that the "national standard of care" is to give the test with the patient sitting down. Held (on appeal), at least as to board-certified physicians, hospitals, medical laboratories, and other health care providers, "the standard of care is to be measured by the national standard." Any major disparities between urban and rural medical care (the rationale for the "community standard" rule) have largely disappeared in modern times. Also, the community-standard doctrine is bad because it "tends to immunize doctors from communities where medical practice is generally below that which exists in other communities from malpractice liability."

MORRISON v. MACNAMARA

Even though injury may result from a negligent act, liability for that injury is limited to the risk reasonably to be foreseen. This case overruled In re Polemis, Ct. of Appeals, 3 K.B. 560 (1921). One is responsible for the reasonably foreseeable or probable consequence of his negligent acts. The old rule of responsibility for all damage, foreseeable or not as long as some damage was reasonably foreseeable, was found unjust and harsh.

MORTS DOC (WAGON MOUND NO. 1)

An independent contractor is one who performs a service for another, free from control and direction of his employer in all matters connected with the performance of the service, except for the end result. In this case, (D), a newspaper deliverer, got into an argument with (P), one of his customers. The argument culminated in (D) striking (P), allegedly causing her injury. She brought suit for assault and battery against both (D) and the Oklahoma Publishing Co. (D), publisher of the newspaper that (D) had been delivering. At trial, the court sustained Oklahoma Publishing's (D) motion for summary judgment, which contended that (D) was an independent contractor, and thus Oklahoma Publishing (D) could not be charged with vicarious liability for his actions.

MURRELL v. GOERTZ

Insane persons are liable for their torts: Insane people do not automatically escape liability for committing intentional torts. In this case, P, a registered nurse, is charged with the care of D, an insane person. During a fit of rage, D strikes P on the head with the leg of a piece of furniture. P sues for assault and battery. Held, for P. If an insane person is capable of forming an intent to do a harmful act, he may be held liable for the intentional tort just as a normal person would be. The fact that insanity may have been the cause of the intent is irrelevant. Here, the jury could reasonably find that D was capable of intending to strike P. Note: As indicated by the McGuire court, an insane person may be incapable of forming the necessary intent. This is particularly likely to be the case with respect to a tort requiring an unusual degree of intelligence or rationality, such as deceit. In that event, the insane person would not be liable.

McGuire v. Almy

Surgery: The scope-of-consent issue frequently arises in cases involving surgery. As in other contexts, the rule is that the plaintiff patient's consent, if it is to one particular kind of surgery for one particular purpose, will not constitute consent to another, substantially different, surgical procedure. In this case, P visits D, an ear specialist. D tells P that she has a diseased right ear, and needs an operation. She consents to such an operation. After D administers the anesthetic, D decides that P's right ear is not seriously enough diseased to need surgery, but that her left ear is; he therefore operates on it, without obtaining P's specific permission for this operation. P sues for battery, and D raises the defense that she consented. Held, P did not consent. No emergency threatened P's life or health. Therefore, there was a technical battery, despite the fact that the operation benefitted P. (However, a new trial should be held as to damages, since the jury's finding of $14,322.50 was excessive.)

Mohr

Keys left in car: The significance of how the "type of risk" question is resolved is illustrated by cases where keys have been left in a parked car, in violation of a statute requiring that keys not be so left, and a theft, and an ensuing accident, have resulted. Where the court has construed the purpose of the statute as being to guard against reckless driving by thieves, negligence per se has been found; where it has been found to be for some other purpose, there has been no such automatic liability. Purpose to guard against theft: Where the court has construed the purpose of the statute as being specifically to guard against theft (and/or reckless driving by thieves), negligence per se has been found. In this case, because "incidents of stolen or 'borrowed' motor vehicles frequently shock the readers of the daily press," the legislature must be deemed to have had a "recognition of the probable danger of resulting injury consequent to permitting a motor vehicle to become easily available to an unauthorized person through violation of the statute in question."

NEY v. YELLOW CAB

The keeper of a vicious domestic animal known to be dangerous cannot interpose contributory negligence as a defense to relieve him of his strict liability as an insurer. In this case, (P) was kicked by (D)'s horse when he went into the pasture to feed his own horse.

SANDY v. BUSHEY

A trial court must permit a jury to consider whether the risks of injury so outweighed the utility of the product's design so as to render it defective. In this case, (P) contended (D) manufactured a pool with a design defect rendering it strictly liable for injuries he incurred after diving into it. The court instructed the jury only to consider whether (D) had provided adequate warnings of the potential danger of diving in the pool. The jury found (P) contributorily negligent, barring his recovery. He appealed, contending the trial court erred in not allowing the jury to consider whether the risk of injury outweighed the utility of using vinyl in the pool to render the design defective.

O'BRIEN v. MUSKIN CORP

Objective manifestation: If it reasonably seemed to the defendant that the plaintiff consented, consent will be held to exist regardless of the plaintiff's subjective state of mind. That is, it is the objective manifestations by the plaintiff that are taken into account — a not surprising rule, since defendants are not mind readers. Manifestations: These objective manifestations may be not only words spoken by the plaintiff, but any other conduct or even lack of conduct, by him. The test is whether a reasonable person in the position of the defendant would believe that the plaintiff had consented to the invasion of his interests. In this case, as passengers are about to leave a ship owned by the D Ship Co. after a transatlantic voyage, they are told that they may not enter the U.S. unless they have a certificate to show that they have been vaccinated. They are also told that X, a doctor employed by D, will vaccinate anyone who wishes to have this done. P stands in line with the other passengers, and tells X that she has already been vaccinated before. He says that there is no mark and that she should be vaccinated again. She says nothing, and holds up her arm, whereupon he vaccinates her. P sues D for battery, and D claims that P consented. Held, for D. It reasonably appeared to X that P consented to the vaccination. Therefore, P is deemed to have consented, regardless of the actual state of her mind. "If the plaintiff's behavior was such as to indicate consent on her part, [the doctor] was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings."

O'Brien v. Cunard S.S.

To determine whether an employee acted within the scope of his employment under the "slight deviation" rule, courts ask whether the employee was acting on a frolic or a detour. A detour is within that scope, but a frolic is not. Several specific fact-questions inform the "slight deviation" analysis: what the employee intended, when and where the deviation occurred, how long the deviation lasted, what the employee's typical work responsibilities were, what incidental actions the employer reasonably expected from the employee, and how much latitude the employee enjoyed in his work. In this case, a reasonable juror could conclude that driving a personal car to deliver sports tickets to one's fellow employees during working hours, and turning one's personal car into a service station to get a maintenance estimate while delivering the sports tickets during working hours, are actions within the scope of an employee's employment.

O'SHEA v. WELCH

"Negligence per se doctrine": Most courts follow the general rule that when a safety statute has a sufficiently close application to the facts of the case at hand, an unexcused violation of that statute is "negligence per se." That is, by showing the violation of the safety statute, P is deemed to have made sufficient proof of negligence that she is automatically entitled to get to the jury on the issue of negligence. Furthermore, the defendant will not be permitted to show that the legislature set an unduly high standard of care — the legislature's choice of standard is effectively binding on the court. In this case, D owns a drugstore. His clerk sells a bottle of poison to P without labeling the bottle "poison," as required by statute. P, not knowing that the bottle contains poison, drinks the contents, and dies. Held, D is negligent because he violated the standard of care imposed upon him by statute. P's action is not "statutory"; it is simply based on conduct by D which, because of the statutory duty of labelling, is deemed by the court to constitute "negligence per se."

OSBORNE v. McMASTERS

One who is knowledgeable of a risk and can reasonably prevent it is liable for damages resulting from his failure to do so. In this case, (P) two ships were damaged when oil negligently discharged from Overseas Tankship (U.K.) Ltd.'s (Overseas) (D) ship, the Wagon Mound, spread across the water and later caught fire. The court balanced what a reasonable man would foresee against the burden of obviating the risk an found that Overseas (D) should have known that despite the small chance of fire, a risk did exist, and as it was relatively easy to obviate that risk, it should have done so. The court distinguished from an earlier case on grounds that the trial court made findings of fact that Overseas (D) should have known of the risk. Because the risk was known, the damage was foreseeable, and Overseas (D) failed in its duty to remove the risk.

OVERSEAS TANKSHIP (WAGON MOUND NO. 2)

A landlord must exercise ordinary care toward his tenants and toward others on the premises with the tenants' permission. (MINORITY RULE). In this case, (P) was assisting Blattner, a tenant in (D) building, in moving some furniture. He was injured when a balcony railing upon which he was leaning collapsed. The railing had dry rot and should have been replaced. At trial, (P) was termed a licensee of (D). Accordingly, the jury returned a verdict for (D), finding that he had no knowledge that the railing was defective. (P) appealed, contending that (D) should have been held to a higher standard of care.

PAGELSDORF v. SAFECO

The risk reasonably to be perceived defines the duty to be obeyed. In this case, (P) was injured on Long Island R.R. Co.'s (LIRR) (D) train platform when LIRR's (D) servant helped a passenger aboard a moving train, jostling his package, causing it to fall to the tracks. The package, containing fireworks, exploded, creating a shock that tipped a scale onto (P). Held, just because the act was inadvertent does not impose liability. In the abstract, negligence itself is not a tort. The range of the duty is limited by the range of danger. The risk reasonably to be perceived defines the duty to be obeyed, thus, P could not recover.

PALSGRAF

"But for" test: In the vast majority of situations, the defendant's conduct is the (or a) cause of the plaintiff's injuries if it can be said that "Had the defendant not so conducted herself, the plaintiff's injuries would not have resulted." This formulation is sometimes known as the "sine qua non" or "but for" test. In this case, a car driven by P, while crossing railroad tracks, is hit by a train belonging to D railroad company. Neither the car nor the train driver could see the other until very shortly before the accident, because of a warehouse that blocked their views. The train was traveling 12 m.p.h. faster than the railroad's speed limit. P sues D for negligence. Held, for D. Even though D's employees behaved negligently in driving over the speed limit, the excess speed was not a cause in fact of the collision. Even at the speed limit, the train could not have braked before going through the crossing, given the short warning the train operators had. And P's assertion that had the train been traveling more slowly, he might have had enough time to drive off the tracks, is "pure conjecture." Since the excess speed was not a "substantial factor" in bringing about the accident, D is not liable.

PERKINS

Causality: Because of the requirement of proximate cause , the plaintiff must show that he would probably have declined the treatment had full disclosure been made. (If the patient would have undergone the treatment even had full disclosure of the risks been made, the lack of informed consent could not have been a proximate cause of the injury.) Some courts have held that what counts is what decision the patient himself would have made (whether a reasonable decision or not), not what some hypothetical "reasonable patient" would have done had full disclosure been made. In this case, (P) testified that she would not have undergone surgery had (D) advised her of the risks. The jury must have disbelieved her since it rendered a verdict for (D).

SCOTT v. BRADFORD

Imposition of new duty not existing at common law: Normally — and in all of the cases we have considered so far — the statute merely defines the precise contours of negligence, and does not impose a duty where no duty existed at common law. For instance, in the very typical case of negligence per se based upon a driver's violation of the traffic statute (e.g., speeding or failure to signal) the driver already had a common-law duty to drive with the care of a reasonable person, and the sole function of the negligence per se doctrine is to specify that a particular type of conduct automatically constitutes a failure to use reasonable care. But in a few instances, the legislature enacts a statute whose effect is not merely to redefine precisely what constitutes reasonable care, but instead to impose an entirely new duty. This can happen for instance, when the statute imposes a duty to act where, at common law, the standard "no duty to act" would otherwise apply. Most courts are quite hesitant to apply the negligence per se doctrine where the statute creates a brand new duty — such as a duty to take affirmative action — that would not exist at common law. In this case, a Texas statute requires any person having cause to believe a child is being abused to report the abuse to authorities, and makes the knowing failure to do so a misdemeanor. The Ps' two children, B and K, attend a day-care center operated by X. The Ps allege that the children have been sexually abused by X, and that the Ds, who are X's friends, observed the abuse and failed to report it to the authorities. Therefore, the Ps claim, the Ds are civilly liable because their figure to make the report required by the statute constituted negligence per se. Held, for the Ds. Where a statute imposes a duty that does not correspond to any duty existing at common law, this is a factor weighing against the application of the negligence per se doctrine. Furthermore, the statute here is relatively vague (it applies where the circumstances give "cause to believe" that abusive conduct "may be" taking place, both vague concepts). Lastly, the application of negligence per se here would impose "immense potential liability" against a "broad class of individuals whose relationship to the abuse was extremely indirect." Therefore, the negligence per se doctrine should not be applied to failure to notify authorities under the statute.

PERRY

Even assuming a special relationship exists between a state university and its students, the university does not have a duty to warn students of the potential for third party criminal acts where the university does not know, or cannot reasonably foresee, that students will fall victim to third party criminal harm. In this case, after a shooting incident on one of its state university campuses where two students were shot, which was followed by a mass shooting, the Commonwealth of Virginia ("the Commonwealth") (D) contended that it did not have a duty to warn state university students of the potential for third party criminal acts where, even assuming there was a special relationship between the Commonwealth (D) and its student, the Commonwealth (D) did not know, or could not have reasonably foreseen, that students would fall victim to third party criminal harm.

PETERSON

Warnings: One of the ways the risks of conduct can be reduced — usually without reducing the social benefits of the conduct very much — is by giving warnings of danger. The fact that D gave a warning of dangers to P in particular, or to the public in general, is thus a factor that will tend to make it at least somewhat less likely that D will be found negligent if the danger that was warned of results in an accident. Failure to warn can itself be negligent: If D fails to give a warning of a danger that he knows about, and the warning could have been easily given, the mere failure to warn can itself constitute negligence. "A defendant whose conduct creates a risk of physical harm can fail to exercise reasonable care by failing to warn of the danger if: (1) the defendant knows or has reason to know: (a) of that risk; and (b) that those encountering the risk will be unaware of it; and (2) a warning might be effective in reducing the risk of physical harm." Warning to a third person: Typically, the defendant's negligent failure to warn will consist of a failure to warn the plaintiff. But sometimes, it will be negligence for the defendant to fail to warn a third person of a danger. That can happen, for instance, if the situation is one in which the defendant has a duty to make reasonable efforts to prevent a third party's wrongdoing , and the defendant fails to warn the third party against the misdeed. In this case, D is driving a pickup truck, with P seated in the middle of the front seat and X in the passenger seat. All are 16. As a prank, X reaches over to yank the steering wheel. The truck veers, but regains course. D, instead of warning X not to pull this prank again, laughs the incident off. 30 seconds later, X yanks the wheel again, this time causing a collision that injures P. Held, a reasonable jury could find that it was negligent for D not to either warn X after the first episode or otherwise try to avoid a recurrence.

PIPHER v. PARSELL

Liability for a defectively designed product shall be based on a pure negligence analysis. In this case, (P), operating a forklift manufactured by (D), was injured and brought a products liability action against (D) on a design defect theory. In a design defect situation, the question is whether a manufacturer made prudent design choices. For this reason, a design defect analysis is necessarily one of negligence.

PRENTIS v. YALE

Remembrance not required: Even in courts requiring awareness of confinement, only awareness at the time of confinement, not necessarily the ability to remember the confinement, is all that is required. In this case, P is picked up by the police of D city in a drunken condition. Rather than arrest him, they drive him out of town to an abandoned golf course and leave him there to "sleep it off." Held, for P. He would not be entitled to recover if he had not been aware of the confinement at the time it took place. But while P no longer has any recollection of his confinement (due either to the alcohol he imbibed or the injuries he suffered), he certainly was conscious of it at the time it was actually taking place. P's responsiveness to police commands, his conversation in the car and his request to be let off elsewhere illustrate such consciousness.

Parvi v. City of Kingston

The publication of information that does not amount to literary property, scientific invention, or secret plans formulated for the conduct of commerce, without an actual physical conversion of the documents containing the information, does not amount to conversion.

Pearson v. Dodd

Proof of "but for" aspect: The plaintiff does not have to prove with absolute certainty that had it not been for the defendant's conduct, the injury would not have occurred. All he has to do is to show that it is probable that the injury would not have occurred without the defendant's act. In this case, P, a 250 lb. woman, falls down an unlit staircase outside of the waiting room of D Railroad. P argues that D's failure to light the staircase was the actual cause of her injury; D contends, however, that P might have fallen even had the stairs been brightly lit. Held, P has adequately established actual cause. " . . . Where the negligence of the defendant greatly multiplies the chances of accident to the plaintiff, and is of a character naturally leading to its occurrence, the mere possibility that it might have happened without the negligence is not sufficient to break the chain of cause and effect between the negligence and the injury.

REYNOLDS

A manufacturer will be strictly liable for manufacturing defects where (1) (D) is engaged in the business and manufactured and sold a product in a defective condition; (2) product reached the ultimate consumer without substantial change in its condition; and (3) the defective condition caused (P) physical injuries in a foreseeable way. In this case, (P) contended that (D) had manufactured a vehicle with a defective braking system.

RIX v. GM

The standard of care applicable to people with handicaps is that they must take those precautions that ordinary, reasonable persons would if they were similarly handicapped. In this case, "X, who is blind, operates a news concession stand in a government building, under a special program operated by D (the State of Louisiana). As X is taking a short trip to the bathroom in the building, he bumps into P, who is injured. X is not using his cane at the time, even though he had it with him in the concession stand. P asserts that X was negligent in not using the cane, and that this negligence should be imputed to D. Held, for D. A blind person must "take the precautions, be they more or less, which the ordinary reasonable man would take if he were blind." Since X had worked in that particular building and location for three and a half years, knew the way to the bathroom, and always relied on his "facial sense" rather than his cane for these short trips to the bathroom, his conduct met the "reasonable person" standard.

ROBERTS v. STATE OF LOUISIANA

An exception to the special rules for children is that where a child engages in a potentially dangerous activity that is normally pursued only by adults, he will be held to the standard of care that a reasonable adult doing that activity would exercise. (driving a car, operating a motorboat, and even to playing golf.) Suppose the activity is potentially dangerous, but not one that is usually engaged in by adults rather than children. Some courts have held that the adult standard of care should be triggered whenever the activity is significantly hazardous, even if it is one which is frequently engaged in by children. In this case, it was held that snowmobiling is an "inherently dangerous" activity for which the adult standard should apply, even though children often engage in it.

ROBINSON v. LINDSAY

An injured person's status as a trespasser, licensee, or invitee will not be determinate as to liability, although the status may have some bearing on the question of liability. (MINORITY VIEW).

ROWLAND v. CHRISTIAN

The defense of assumption of risk requires that the plaintiff has voluntarily encountered the risk, and the risk is not assumed where the defendant has left the plaintiff no reasonable alternatives. Voluntariness cannot be assumed where no reasonable alternative exists. In this case, (P) was a tenant of Commercial Realty Co. (D). Commercial Realty Co. (D) provided an outhouse for the use of its tenants. (P) went to use the outhouse and fell through a trap door in the floor, thereby sustaining injuries. (P) testified that the floor was in bad condition. Commercial Realty Co. (D) appealed the denial of its motion for nonsuit and its motion for a directed verdict.

RUSH v. COMMERCIAL REALTY

Damages can be awarded only when the injury is immediate and not the remote result of defendant's negligence. In this case, (P) home in Syracuse was destroyed by a fire that spread from New York Central R.R. Co.'s (Central's) (D) woodshed, which had been ignited by a spark from Central's (D) train engine either through careless management or insufficient condition. (P) house was 130 feet from the shed. Several other houses were destroyed. Held, liability would extend only to the owner of the first structure, that is, Central's (D) own woodshed. All other damage was remote. To hold defendant liable for all resulting damage would be to create a liability too great for any individual; all persons run some risk as to their neighbor's conduct.

RYAN

A person using his land for a dangerous, non-natural use is strictly liable for any damage to another's property resulting from such non-natural use. In this case, (D), mill owners, built a reservoir on their land. The water escaped through an abandoned coal mine shaft and flooded an adjoining mine owned by (P).

RYLANDS v. FLETCHER

Mistake does not absolve an actor from liability for the harm caused by his intentional act. In this case, while hunting wolves, the appellants (D) spotted the appellee's (P) dog. Due to the dog's striking resemblance to a wolf, they mistakenly killed it. The appellee (P) sued the appellants (D) to recover the value of the dog, and the trial court awarded the appellee (P) $50 in damages. The appellants (D) appealed, arguing that they should not have been held liable for the harm caused by their conduct because they had acted in good faith.

Ranson v. Kitner

A clear and explicit express exculpatory clause in an agreement can excuse a defendant's negligence. In this case, a fitness-club customer injured her right shoulder during her initial evaluation on the club's weight machines. She and her husband sued the club for negligence. The club moved to dismiss, arguing that she had assumed all risk for any injuries sustained at the club by signing an agreement that contained an express exculpatory clause.

SEIGNEUR

A landowner owes a duty of care to a trespasser only after he or she has discovered the presence of the trespasser. In this case, while (P) was walking on St. Paul & Duluth Ry. Co.'s (D) railroad track, his foot slipped and became stuck in the rail. He was unable to get it out before the train ran over his foot. The train crew did not see (P) until the train was almost upon him and it was too late to stop. (P) filed suit, but the court directed a verdict for St. Paul & Duluth (D). (P) appealed.

SHEEHAN

The "double fault and alternative liability" theory has occasionally been extended to situations involving three or more parties. Thus if the plaintiff cannot prove which of three or more persons caused her injury, but can show that all were negligent (or produced a defective product), the court may cast upon each defendant the burden of proving that he did not cause the injury. If a given member of the class of defendants is unable to prove that he did not cause the injury, the court may well require him to pay that percentage of the plaintiff's injuries which the defendant's sales of the product bore to the total market sales of that type of product. This is known as the "market share" theory of liability. In this case, (P)'s mother took (DES) while pregnant with (P). The drug was designed to prevent miscarriages. Many years after (P) was born, it was discovered that the drug was inadequately tested by all of its manufacturers and that it caused cancer of female human reproductive organs in the children of DES users. (P) became a victim of this cancer, and brought this action against five of the manufacturers of DES (D). DES prescriptions were filled from multiple manufacturers, and many pharmacies did not keep track of which manufacturer's drug filled which prescription. Therefore, (P) could not prove that Abbott (D) or the other four defendants (D) manufactured the drug taken by her mother. The trial court dismissed the action and (P) appealed.

SINDELL

Abusive language that causes mental anguish is not enough to maintain a cause of action for emotional distress. In this case, while shopping in (D) store, (P) inquired into the price of an item and was met with a rude and malicious reply by a store employee. The remark upset (P) mentally and allegedly caused a heart attack. (D) agent only refused to help (P) in a rude manner and made an adolescent comment about her bodily odor. This is enough to cause only little distress in the reasonable person. In order to recover, there must be severe emotional distress as an outgrowth of the conduct.

SLOCUM v. FOOD FAIR

Advances in technology: The technological "state of the art" at a particular moment is, similarly, relevant to what constitutes negligence. For instance, the defendant's failure to take action to prevent a certain known risk might be either negligent or non-negligent, depending upon whether technology exists that could reduce that risk. Consequently, conduct that would be non-negligent in earlier times may have become negligent today due to technological advances. In this case, in the 1920's, little technology was available to keep cars from running off roadways. Therefore, it might not have been negligent for a municipality that built a road to fail to install guardrails strong enough to keep a car from leaving the roadway or crossing over into the other lane. Not negligence to fail to construct road barriers sufficient to keep car on road. But today, guardrail technology has probably advanced sufficiently that installation of a 1920's-style guardrail (or none at all) would be negligent.

SNOHOMISH COUNTY

Showing that negligence was defendant's: The plaintiff must also show, again by a preponderance of evidence, that the negligence was probably that of the defendant. Older "exclusive control" standard: In older cases, this requirement is usually expressed by stating that the plaintiff must demonstrate that the instrumentality which caused the harm was at the relevant times within the "exclusive control" of the defendant. In this case, during the great V-J celebration, P is walking on the sidewalk next to D Hotel, when she is hit by a falling armchair. P proves no other facts at trial. Held, "A hotel does not have exclusive control, either actual or potential, of its furniture. The guests have, at least, partial control." Therefore, P has failed to establish the requirement for res ipsa. ["Modern "other causes eliminated" standard: However, modern cases have usually abandoned the traditional requirement that the "instrumentality" that caused the harm be shown to have been within the "exclusive control" of the defendant. The modern cases usually don't refer to "control" at all, and instead say merely that the circumstances must be such that any negligence was probably that of the defendant rather than attributable to the plaintiff or third parties.]

ST. FRANCIS HOTEL

A complaint based on mental suffering caused by the outrageous conduct of defendant will be sustained if there was no privilege to act in such a manner. (D) had collected rubbish from a certain brewery while he was not a member of (P) association. This action prompted (P) to threaten to inflict bodily harm on (D), ruin his truck, or destroy his business unless he joined the ranks of their membership and paid them dues. (P) sued to collect on notes it had forced Siliznoff (D) to sign, and he counterclaimed for damages for the emotional distress caused by the Association's (P) threats. Court found for (D).

STATE RUBBISH COLLECTORS

Effect of res ipsa: The usual effect of the application of res ipsa is, as we have seen, to permit an inference that the defendant was negligent, even though there has been no direct, eyewitness evidence that he was. In this respect, res ipsa is merely a doctrine that sanctifies the use of a particular kind of circumstantial evidence. The consequence of the doctrine's application is that the plaintiff has met her burden of production. In this case, P is a guest in a tractor-trailer driven by D. D loses control of the truck, it overturns, and crushes P to death. P sues, and at trial D is unable to explain what caused the accident. Nonetheless, the jury finds for D, and P appeals. Held, the case was a proper one for res ipsa loquitur, since the vehicle was under D's control, and vehicles usually don't suddenly run off the road without negligence. But application of the doctrine merely means that the jury could find negligence, not that it was required to. Therefore, its verdict in D's favor will not be overturned.

SULLIVAN v. CRABTREE

Generally, the plaintiff must bear the burden of proving actual causation. In one situation, however, the court may thrust this burden on the defendant (or defendants) with "clearly established double fault and alternative liability." Burden shifts where the plaintiff can show that each of two persons was negligent, but that only one could have caused the injury. In this situation, it is, according to most courts, up to each defendant to show that the other caused the harm. In this case P, D1, and D2 go hunting together. D1 and D2, at the same time, negligently fire at a quail, and P is struck by one of the shots. It is not known from which gun the bullet was fired. Held, the burden is on each of the defendants to show that it was the other's shot which hit P. The defendants "brought about a situation where the negligence of one of them injured the plaintiff, hence it should rest with them each to absolve himself if he can." Otherwise, P might be left remediless.

SUMMERS v. TICE

Justification as a "catch-all" defense: Even if the defendant's conduct does not fit within one of the conventional defenses discussed above, he may be entitled to the general defense of "justification," a "catch-all" used where there are good reasons for exculpating the defendant for what would otherwise be an intentional tort. In this case, on the last day of the school year, P, 14 years old, is a passenger on a school bus owned by D1, and driven by D2. The 65 to 70 students aboard are in a boisterous and exuberant mood, and a number of them break windows and lights, and cause other damage to the bus. D2, after failing to restore order, bypasses several scheduled stops and takes the children to a police station. P, who did not take part in any of the destruction, sues for false imprisonment. Held, the Ds should have been allowed to introduce evidence of justification. D2, the driver, had a duty to "take reasonable measures for the safety and protection of . . . the passengers and the property," and his conduct may have constituted such reasonable measures.

Sindle v. NYC Transit Authority

Public necessity: The privilege of public necessity exists wherever interference with the land or chattels of another is necessary, or reasonably appears necessary, to prevent a disaster to the community, or to a substantial number of people. In this case, a fire is raging in the houses within the immediate vicinity of P's house, and P is removing goods from it. Although the fire has already passed over P's house, D, the Fire Warden of San Francisco, determines that there is a danger that the fire will spread elsewhere, and in order to prevent this, orders P's house blown up. P sues for the damage to his property. Held, for D. His conduct was privileged, in order to prevent the spread of the fire. "At such times [of emergency], the individual rights of property give way to the higher laws of impending necessity."

Surocco v. Geary

A doctor bears a duty to exercise reasonable care and warn potential victims about known violent tendencies or intentions of a patient. In this case, a mental outpatient at a University of California (U.C.) (D) Hospital, Poddar disclosed his intention to kill X because she had spurned his romantic advances. The psychologist who learned of this intention, Dr. Moore, notified both the campus police and three staff psychiatrists; but, after a cursory investigation, it was decided that no action to confine Poddar was necessary. X was not warned of Poddar's intentions. Two months later, Poddar shot and killed X. At his trial, it was learned that Poddar had discontinued his treatment at the U.C. (D) hospital after the incident two months earlier. X's parents (P) thereupon filed this action against U.C. (D) alleging that the hospital's negligent failure to warn X of Poddar's intention had caused her wrongful death. This appeal followed.

TARASOFF

The general American rule is that a landowner has no duty to protect persons outside his property from natural conditions existing on the property. However, liability has been assessed where the landowner knew of the structural defects of a tree and failed to take reasonable precautions against resulting damage. In this case, (P) suffered injuries when her car, on a dark and windy January evening, struck a tree, which had fallen across the highway from (D)'s adjacent property. The trial court, noting that there was no evidence suggesting (D) could have reasonably known about the tree's hazardous condition before it fell, directed verdict for Olsen (D). Verdict affirmed.

TAYLOR v. OLSEN

The statute of limitations for a medical malpractice action for negligently performed surgery runs not from the date of the injury, but from the time that the patient discovers, or should have reasonably been expected to discover, the injury. In this case, over three years after (D), a physician, performed an operation to sterilize (P), she discovered that the operation was a failure.

TEETERS v. CURREY

To recover for emotional damages, if P was a bystander, P must be closely related, present at scene, and personally observed event. In this case, (P)'s son was injured when an automobile driven by (D) struck him. Informed of the accident by her daughter, (P) ran to the scene and saw her son lying bloody and unconscious in the road. (P) sued (D) for emotional distress. Court dismissed the action because (P) had not actually observed the accident.

THING v. LA CHUSA

Custom: In litigating the defendant's negligence, one thing that either side may point to is custom, that is, the way a certain activity is habitually carried out in a trade or a community. The plaintiff may try to show that the defendant did not follow the safety-motivated custom that others in the same business follow, or the defendant may try to show that he exercised due care by using the same procedures as everyone else in the trade. Not conclusive: However, such evidence of custom is not conclusive. Thus, the fact that everyone else in the defendant's industry does a certain thing the same way the defendant did it does not mean that that way was not unduly dangerous, if there are other factors so indicating. Advances in technology: The technological "state of the art" at a particular moment is, similarly, relevant to what constitutes negligence. For instance, the defendant's failure to take action to prevent a certain known risk might be either negligent or non-negligent, depending upon whether technology exists that could reduce that risk. Consequently, conduct that would be non-negligent in earlier times may have become negligent today due to technological advances. In this case, P, a tenant in an apartment owned by D, is badly cut when the glass on the apartment's shower door breaks. At trial, P shows that it has been the custom, for nearly 25 years, to use plastic or safety glass rather than ordinary glass in shower doors. Held, the trial court properly admitted this showing of custom. "Proof of a common practice aids in formulating the general expectation of society as to how individuals will act in the course of their undertakings. . . ." A showing that certain conduct is customary in a particular trade demonstrates that it is practical and can be readily carried out.

TRIMARCO v. KLEIN

Transferred intent: In all kinds of intentional torts, the doctrine of "transferred intent" may apply. This doctrine holds that as long as the defendant held the necessary intent with respect to one person, he will be held to have committed an intentional tort against any other person who happens to be injured. In this case, D sees Smith and X on D's shed. D throws a stick at Smith or X, and accidentally hits P. Held, assuming that D used an unreasonable degree of force, he is liable to P, even though it was not P he was trying to hit.

Talmage v. Smith

The mere fact that an intervening act was unforeseen will not relieve the defendant guilty of primary negligence from liability unless the intervening act is something so unexpected or extraordinary as that it could not or ought not to be anticipated. In this case, through R.R.'s (D) negligence, a tank car full of gasoline derailed and its valve broke, allowing gasoline to run into the street. Duerr then struck a match, igniting the vapor and causing an explosion that injured (P). There was conflicting evidence as to whether Duerr lit the match deliberately to cause a fire or innocently to light his cigar. In this case, if the lighting of the match was deliberate or malicious, it could not or ought not to have been foreseen that such a thing would be done for such evil purpose. If R.R. (D) could not have reasonably anticipated or guarded against a malicious act, it would not be liable.

WATSON

To recover damages for intentional infliction of emotional distress that is the result of defendant's injury of a third person, the plaintiff must show that defendant reasonably anticipated mental stress would be inflicted on the plaintiff. In this case, (P) witnessed the beating of her father by (D), which caused her mental anguish. Taylor's (P) presence at the scene of the assault was unknown to (D) and he had no intent to inflict the severe emotional upset on (P).

VALLELUNGA

Mental attributes: The ordinary reasonable person is generally not deemed to have the particular mental characteristics of the defendant. For instance, the defendant is not absolved of negligence because he is more stupid, hot-tempered, careless or of poorer judgment than the ordinary reasonable person. In this case, D builds a hay rick (a device for drying hay) near the edge of his property. P is afraid that the stack will ignite, burning his nearby cottages. He repeatedly warns D, but D says he will "chance it." The hay spontaneously catches fire, and the resulting conflagration destroys P's cottages. Held, D is not entitled to a jury instruction that he is not negligent if he acted in good faith and according to his best judgment, and that he should not be penalized for not being of the highest intelligence. Such a standard would be "as variable as the length of the foot of each individual," and would be impossible to administer. Instead, an objective standard, the prudence of an ordinary person, must be applied.

VAUGHN v. MENLOVE

Actual damage: But if the defendant causes actual damage to the plaintiff, private necessity provides only a limited privilege — the defendant has the right to interfere with the plaintiff's property rights, but she must pay for the damage she causes the plaintiff. That's exactly what makes private necessity a more limited privilege than public necessity. In this case, D's boat is discharging cargo at P's dock when a storm arises. Because of the severity of the storm, D is unable to move his boat and has his employees moor it tightly to the dock. During the storm, the boat repeatedly knocks against the dock, damaging the latter. P sues D for the damage to the dock. Held, D had a right to use the dock to protect its property. However, it also had an obligation to compensate P for the damage caused to P, since D's act was an intentional one and the source of the danger was not an object belonging to P. "Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so . . . necessity, in times of war or peace, may require the taking of private property . . . ; but under our system of jurisprudence compensation must be made."

Vincent v. Lake Erie Trans. Co.

An invitee retains the status of an invitee only as long as he remains on that part of the premises to which the land occupier's invitation extends. In this case, (P) entered (D)'s grocery store and made a purchase. He then asked about a box and was told to go to the back room. While looking for the box in the back room, which was dark, (P) fell through an unseen stairwell and was injured. Following a court judgment for (D), (P) appealed.

WHELAN v. VAN NATTA

Most courts apply "single intent" standard: the single intent standard. Thus the Third Restatement says that "The intent required for battery is the intent to cause a contact with the person of another. The actor need not intend to cause harm or offense to the other." Rest. 3d (Intent. Torts, Tent. Dr. 1), § 102. The case set out in the following example is one of the best-known cases following the majority single intent standard. In this case, P (Mrs. Wagner) is standing in line at a K-Mart store when she is attacked by X (Mr. Giese), a mentally-disabled patient who is under the care of the state, and who is being supervised at the store by state employees. P sues D (the state) on a negligence theory, for failing to control X's behavior. D defends on the grounds that X's conduct was a battery, and that the state has never waived its immunity from suits premised on failure to prevent a battery. (Both sides agree that if X's conduct constituted a battery, D will win on its immunity claim.) P argues that the dual intent standard should be applied, so that X would have the required intent only if he were shown to have intended to inflict harm or offense on P's body. P further argues that X's mental incompetence prevented him from forming this intent to inflict harm or offense. D counters by arguing for the single intent rule, under which the only intent that X had to have was an intent to make a bodily contact (an intent that P implicitly conceded that X was able to form). Held, for D. Since X possessed the only intent required for battery (intent to make a bodily contact), X's conduct constituted a battery, thereby triggering D's sovereign immunity.

Wagner v. State

Ordinary and reasonable contacts: Thus if A gently pushes past B in a crowded subway, or taps him on the shoulder to ask directions, no battery will be found even if it turns out that B is unduly sensitive and was in fact offended by the touching. In this case, D1 (Rosen) is a teacher at a public high school run by D2 (the Indianapolis public-school system). P is the mother of a student at the high school. While P is at the school dropping off homework for her daughter, a fire drill starts. D1 is escorting her class down the stairs, and finds several people (including P) blocking the students' access to the exit. Because it is noisy, and because P has her back towards D1, P cannot hear D1 when D1 tells her to move. Therefore, D1 touches P's shoulder or back to get her attention, turns her 90 degrees so she faces the exit, and tells her to move because it is a fire drill. P ends up falling down the stairs. P sues D1 and D2 for battery. Held, on appeal, for D1 and D2. Battery occurs in Indiana only when the defendant not only intentionally touches the plaintiff, but does so in a "rude, insolent or angry manner." As a leading hornbook puts it, "In a crowded world, a certain amount of personal contact is inevitable and must be accepted . . . such as a tap on the shoulder to attract attention . . . or a casual jostling to make a passage." As that hornbook goes on to say, unless the defendant knows something about the plaintiff's particular sensitivities, "The test is what would be offensive to an ordinary person not unduly sensitive as to personal dignity." Here, an individual in Ps position — standing in the middle of a stairway during a fire drill — could expect that "a certain amount of personal contact would be inevitable," making D1's touching of P's shoulder or back and turning her around not "rude, insolent, or angry." Therefore, no jury could properly have found a battery, and the trial judge's refusal to give a battery instruction was correct.

Wallace v. Rosen

Present ability to commit harm: The defendant must have what appears to the plaintiff to be the present ability to commit the threatened contact. Just as there is no assault if the defendant's words indicate that the threatened harm will not take place imminently, so there will be no assault if it is apparent to the plaintiff that the defendant does not have the ability to commit the threatened harm immediately. See Rest. 2d §29, Comment b. In this case, P comes into a telegraph office managed by D, and reminds D that he is under contract to fix her clock. D, standing behind the counter, says "if you will come back here and let me love you and pet you, I will fix your clock." D then leans forward across the counter, attempting to touch P. Held, it is a question for the jury whether or not the counter was so wide that D could not have leaned over and touched P. (By implication, if the counter was so wide that D could not have touched P, there could be no assault, even though P may have worried that D would come around the counter and chase her.)

Western Union Telegraph Co. v. Hill

Duty to aid in escape or release: It may happen that the plaintiff consents to an initial confinement (thus negating the tort — see infra, p. 58). If so, there will nonetheless be a false imprisonment if the defendant is under a duty to release the plaintiff, or to help him escape, and does not do so. See Rest. 2d, §45. In this case, D induces P to sail with him from Syria to America, promising to let P off the boat as soon as it arrives in the U.S. The boat arrives at a U.S. port, but D refuses to give P a row boat so that she can leave the yacht. Held, P committed false imprisonment, since he had implicitly agreed to furnish P with whatever was necessary (here, a row boat) to enable her to leave the yacht.

Whittaker v. Sandford

Since neither husband nor wife is liable for the torts perpetrated against the other, the spouse cannot be held on contribution theory to pay damages for injury to the other spouse because, in order for a right of contribution to exist, there must be coexistent liability. In this case, wife (P) was injured as a result of the negligence of both her husband (D) and the cab company. Wife (P) sued cab company (D); and cab company (as P) cross-claimed against husband (D) for contribution for any sums recovered by the plaintiffs against it.

YELLOW CAB v. DRESLIN

A claim of strict liability may be defeated if the defendant can show that an intervening superseding event or another sole proximate cause resulted in the plaintiff's injury. In this case, (P) brought suit on behalf of her deceased father's estate against Ford Motor Co. (D) and other defendants for injuries sustained by the father when he ran across the freeway in an attempt to retrieve an allegedly defective tire assembly that fell off the back of her van. Held, even if the defective tire was a proximate cause of Chang's injuries, his conduct in running across the freeway constituted an intervening, superseding cause. In addition, (P) decision not to fix the allegedly defective assembly 30 days earlier constituted an intervening superseding cause as well.

YUN

Greater risk of harm: A violation by a person may be excused if compliance would have "involve[d] a greater risk of physical harm to the actor or to others than noncompliance." In this case, P, a pedestrian, declines to walk on a snow-covered sidewalk, and instead uses a portion of the street through which pedestrians have beaten a path. D, a driver, hits P from the rear. A statute provides that "where sidewalks are provided, it shall be unlawful for pedestrians to walk upon the main travelled portion of the highway." Held, P is entitled to show that using the road was safer than using the sidewalk. Violation of the statute merely establishes a rebuttable presumption of negligence. The presumption may be rebutted by, inter alia, a showing that compliance would have involved a greater risk of harm.

ZENI v. ANDERSON