Torts Cases

Farhrendorff v. North Homes

Facts: Counselor in group home made inappropriate sexual advances to a resident in a group home. Holding: Vicarious liability is jury issue, because this abusive act is a well-known hazard of this enterprise. (Foreseeable)

Tunkl v. Regents of University of California

•*Facts:* Contract released the hospital from all kinds of liability for negligent or wrongful acts of employees. •*Issues:* *Contract of adhesion?* o Yes. He needed the treatment and so had to sign it. *Why didn't the court enforce this contract, especially given the clear language?* o Hospital releases = Unenforceable K's of adhesion ♣ Unfair bargaining power = made at time of hospital admission ♣ Essential services = emergent medical care ♣ Duty to public = special public interest in providing necessary healthcare *Why do hospitals continue to have patients sign releases such as this one?* Papers are worthless but they don't know that! We can sue whenever.

Palsgraf v. Long Island Railroad

*Breach of Duty* = railway employee shoving person aboard a train *Actual harm* = injury to P from a falling scale on other end of platform *Majority (Cardozo):* -No negligence (duty or breach of duty) -The plaintiff and the type of injury need to be foreseeable to the defendant (within zone of danger) *Dissent (Andrews):* -D owes general duty to all surrounding people. -The br/D was a proximate cause because there was a direct connection and a substantial factor. *Majority of courts adopt:* *a.* The focus of Andrews that this is decided based on proximate cause *b.* The analysis of Cardozo that liability does not extend to unforeseeable Ps and unforeseeable types of injuries. -Breach of duty is railway employee shoving person aboard a train, person dropped box of fireworks which exploded. -Actual harm is injury to P from a falling scale on other end of platform *Holding:* *Majority (Cardozo):* No breach of duty, the plaintiff and the type of injury need to be foreseeable to the D - not in zone of foreseeable injury *Dissent (Andrews):* D owes general duty to all surrounding people, breach of duty was a proximate cause because there was a direct connection (no intervening causes) and a substantial factor *Majority of courts adopt* -Focus of Andrews that this is decided based on proximate cause, not breach of duty -Analysis of Cardozo that liability does not extend to unforeseeable P's and unforeseeable types of injuries

Lincoln Electric Co. v. McLemore *******

*Discovery rule: (1) All elements of tort present; (2) P discovers or should have discovered: (a) she is injured; and (b) D had a causal role or there was enough chance that the D was connected to the injury to require further investigation.* Facts: McLemore shows slowness in his hand and was diagnosed as having Parkinsonism that it may be related to his welding., so he stopped welding. Later found out to have manganism, rather than Parkinsonism. Tries to sue co. for exposure to chemicals.

Edgewater Motels v. Gatzke

*Dual Purpose Doctrine: Can work and do things for your benefit or pleasure while multitasking and doing things for the intent of the employer.* Facts: Gatzke was an employee of Walgreens who was supervising the opening of a Walgreen-owned restaurant. He stated at P's hotel while on a supervising trip. Lived at the motel at Walgreen's expense. Remained on call 24/7. The night of the fire, Gatze was at bar discussing drinks for the restaurant and drinking himself. Went up to room, "probably" filled out an expense report and "probably" smoked a cigarette. Woke up to the room on fire, caused about $330,360 damage to motel Holding: An employer could be vicariously liable for its employee's negligent conduct if he is otherwise acting within the scope of his employment.

Miller v. Warren

*Even though it isn't conclusive, complying with a law is evidence that you weren't negligent, and violating a law is evidence that you were negligent. So the jury can consider it as a factor in determining negligence.* Facts: The Millers were staying in Warren's motel when there was a fire. They were injured. They sued for negligence. The Millers argued that were no smoke alarms which could have alerted them to the fire. Warren argued that the local fire code did not require smoke alarms. Therefore, since he complied with the law, he couldn't be held negligent. Holding: The Court found that if Warren knew that there was a risk of fire, and a reasonable person would have installed smoke alarms, then Warren can be found negligent even though he met the requirements of the regulation. Basically, this case said that he standard for negligence is different from the standard for legal culpability, and just because you are complying with the law, that not proof that you aren't acting negligently. Conversely, just because you have broken a law, that doesn't automatically mean that you are negligent.

Derdiarian v. Felix Contracting

*Facts* D set up a hot kettle in area where there was oncoming traffic. There was a wooden baracade and one flag master and the lanes were narrowed into one as they did work. Someone forgot to take their meds and had an epilepsy attack. He ran into the barrier and Derdarian who was a worker got sprayed with the 400 degree liquid and survived the fire ball. * According to P's expert, what were the breaches of duty?* ♣ Unsafe work site: barrier should cover the entire width of the excavation. There should have been two flagmen. Warning signs should have been posted that only one lane of traffic was up ahead. ♣ Also, there was a violation of an ordinance that imposed upon a construction "perimeter" safety duties. *Issues:* o Were the plaintiff and the type of injury foreseeable? ♣ Yes. Boiling kettle of oil. Derdiarian near by working. A car breaks the barricade and BOOM. Holding: *The cause is intervening but not superseding.* Why? -Although the driver intervened and without that intervention, no Boom, a jury could find that Felix did not safeguard the construction site. A hazard that should have been taken care of and was foreseeable. *The precise manner of the event doesn't need to be foreseeable.* Felix could have foreseen a car entering the improperly protected work place and causing serious harm. Natural, foreseeable result. Intervening act was the risk that could have been prevented. *Foreseeability rule can lead you astray, what is the scope of risk created?* *Foreseeable to have drivers on the road. Certain percentage will drive in a negligence way. Pushing a kettle over would be outside the breach of duty created by the defendant.*

Marcus v. Staubs

*Facts*: D took minors to party, and his friend brought liquor. The girls drank and stole a car to go home. Allegedly, D refused to go back to party and pick them up at their request. One of the girls drove recklessly while intoxicated. *Issue:* Should criminal act by one of girls be an intervening and superseding cause? *Holding:* jury should decide issues of proximate cause. —Br/D (providing alcohol and leaving girls at party without transportation back) may have been a reasonably foreseeable cause leading to the criminal actions.

Hymowitz v. Eli Lilly

*Facts*: DES drug: manufacturers acted in parallel in developing and marketing. . Generation later, found out all the impacts. Filed a class action suit against defendants . Difficult for Ps to identify the manufacturer of their mother's DES. . Couldn't remember who the manufacturer was. Oftentimes pharmacy records aren't available 20-25 years later. *Relies on "national market share" approach.* Base it upon the national market share. Whatever percentage they're producing, they will be liable for it. *HYPO:* if one or more of the D's were able to identify which drug was taken by the Plaintiff. Then this wouldn't apply! The But for cause rule would be applicable and whatever drug manufacturer is identified, 100% liable. Burden of proof shifted like in Sommer. And then if can't prove, then national market share. Why national market share rather than the state's? Many of these instances are brought in federal court rather than state court. You can have a larger class action suit. Everyone in the same suit and apportion it based on market share if they win. Practicality and uniform outcome. *Why is the holding inconsistent with but-for cause* Inconsistency with the burden of proof. Shifting like in Sommer. When we talk about corrective justice (you should be responsible for the injury you cause) we don't know if any of the defendants caused the injury. Erodes corrective justice. From a moral standpoint that is the basis for the but for cause rule. This doesn't feel very satisfactory. Piecemeal based on risk. A lay viewpoint of the world. *Why is the holding not altogether consistent with basing liability on proportionate causation?* We shall allow recovery based on the amount of risk imposed by the defendant. Not similar to proportionate causation because they are seeing what percentage each put out in supply into the market. BUT if scientific purist, this is not exact and not really connected to the amount of people who are impacted negatively. *HYPO:* producing 30% on the national market, and you're injured in MA, does that reflect the risk imposed on the person. Doesn't impact directly a single manufacturer on a single plaintiff. *Why is this practical?* The procedure isn't as pristine, but the reason for class action lawsuits is for efficiency. This seems like a natural lawsuit to bring and trying to come up with something that is able to provide remedies. Causal tendency, the empirical information is based upon risk and very large studies that said if you took DES these are your risk and the type of deformities and cancers you see. Very empirical info. Hymowitz can also be brought for strict liability: strict product liability. Easier than causation or showing negligence along the way.

Bexiga v. Havir Manufacturing

*Facts:* P injured operating power punch press Expert testimony says 2 basic types of safety devices known in industry at time of manufacture and sale (push button and guardrail) P was negligent in how he operated machine *Holding:* o Contributory negligence defense unavailable to manufacturer of power punch as a matter of law. o Policy reasons justification: predictability of risk - reasonable foreseeability, vulnerability of P o D's duty to anticipate P's negligent behavior based on D's knowledge of P's vulnerability ♣ Risk inherent in repetitious use of machinery ♣ Vulnerable P ♣ Non-reciprocal risk

Pohl v. County of Furnas

*Facts:* *P argument:* Worn and not properly reflective sign; too close to curve. *D argument:* P was speeding, and P would not have gone off road at lower speed. • Contributory negligence requires showing of "but-for" and "proximate cause" • Standard of appellate review: unless clear error; supported by credible evidence. -State's negligence: not have a proper reflective sign -P's negligence: driving too fast o Trial court apportioned 40, 60 fault so crt of appeals will allocate based on that *Third Restatement approach (not adopted by a majority of states)* Assign percentages based on "responsibility" of each person: state of mind and strength and nature of risk creation *Strength of causal connection includes consideration of:* o Circumstances surrounding the misconduct o Each person's abilities and disabilities o Each person's state of mind: awareness, intent, or indifference with respect to the risks • Gives fact finder lots of leeway in determining fault

Ventricelli v. Kinney System Rent A Car

*Facts:* D leased a car to P. P pulled over and tried with a passenger to shut the lid. They were in a parking space out of the way of traffic. Suddenly a car that also was parked shot from behind them and ran into plaintiff. *What was the alleged br/D?* ♣ Creating an unsafe driving condition so that P would have to pull over and fix it. Renting a car with a trunk defect. *But-for cause* ♣ Would likely not have pulled over there and been hit but for the trunk defect. •*Text*: *"a condition, not a cause"* — *if D's negligence creates a condition by which injury was possible (bus stopped in traveling lane) and a subsequent independent act causes the injury, the existence of such condition is not the proximate cause of injury.* *"termination of risk"*—*D's conduct creates a risk, but the risk was no longer existent.* •*Holding:* Language in opinion—get some sense of the court, some breach of duty by leasing car but in the end is not proximate cause. It was not foreseeable for the collision when both cars were parked. *Why did Judge Fuchsberg dissent?* *Dissent* Type of harm foreseeable based on D's negligence. Breach of duty created risk, and continued until actual injury of the plaintiff. Perfectly predictable that someone would want to fix the defective trunk and get injured doing so. Intuition is different, that P is not in zone of safety. Enduring some heightened risk. And that risk is associated with breach of duty.

Marshall v. Nugent

*Facts:* o What was the breach of duty? ♣ Nugent was a truck driver who went into Marshalls lane which was stopped and he was walking, causing him to swerve and hit the plaintiff. *Causation analysis:* o But for cause? ♣ But not for the original oil truck driver, then Nugent would not have had to swerve and Marshall wouldn't have been on the road. *o Intervening/superseding cause? What if P's actions were unforeseeable?* *Holding:* There has to be a limit to the "but for" test. This is the issue of proximate or legal cause.Defendant's negligence constituted an irretrievable breach of duty to the Plaintiff. Though Defendant's act of cutting the corner and forcing Plaintiff off the road was over and done with, Plaintiff's injuries were still a direct consequence of Defendant's initial act. Defendant's negligence resulted in a traffic problem in a dangerous blind spot. When Plaintiff had to get out of the car, he was subject to risks of injury. * It is not decided, however, if Plaintiff was also negligent in his attempt to direct traffic. The jury should decide whether Plaintiff should be barred by his contributory negligence. •Why do we want to encourage P to take the action which he did? •How do we harmonize Marshall with Ventricelli? o In Marshall, there was a rescue, danger invites rescue, so as a policy rule want people to be altruistic and mitigating harms from accident. o Can argue that in Ventricelli, there was a defective trunk and he might be mitigating a risk, BUT courts will not generally call that a rescue. So look at foreseeability in an ordinary way.

Summers v. Tice

*Facts:* 3 hunters were hunting together. Two negligently fired guns in direction of P, which severely injured P's eye. P could not determine which D fired the shot that caused the severe eye injury. *Holding:* Shift burden of proof on causation to co-defendants, which allows them to absolve themselves individually on causation. o Summers is different than Landers and Anderson, since one of D's breach of duty could not have caused actual harm o Possible rationales for shifting burden of proof to D's: ♣ Acting in concert as hunting party ♣ Both D's were negligent, and very negligence obscured who caused P's eye injury ♣ Acts like res ipsa to smoke out evidence form D's who are more likely to hold necessary info

Betts v. Crawford

*Facts:* A housekeeper was working for D several hours a week. She was carrying bundled sheets to be laundered and tripped on stairs and suffered serious injuries. *Procedure:* *What were the jury instructions at issue?* Trial court instructions to jury were given about comparative negligence and that all persons owed a duty of care, homeowners owe a duty of care to those on their premises. o D tried arguing that a servant assumes all the risks in the house *Issues:* *1. Why is this a case about "implied" assumption of risk?* *2. What is meant by the court when it concludes that assumed risk is now merged into the comparative negligence system?* ♣ Maybe based upon relative comparisons of negligence on both sides, she can recover. Not apply implied assumption of risk as a complete bar. *3. Is this case at odds with Stinnett v. Buchele (painter injured when fell off roof of barn)?* ♣ Sues employer, not going to let him prevail with breach of duty. Different because the Painter was the best chooser. There, the painter was a professional, D was a farmer, and based on information costs, the painter was the best chooser. In Betts case, there was some responsibility for D to maintain some order in house to minimize risk. ♣ Comparative negligence, therefore, not complete bar based on assumption of risk.

Crumpton v. Humana

*Facts:* Crumpton had surgery on Feb. 8, 1879. She alleges injuries when nurse tried lowering her into hospital bed on Feb. 11. She filed suit 3 years later. •*SOL "accrues" (begins to run) at time of injury. Also coincides with breach of duty.* •When was P's injury ascertainable? *•Why shouldn't the SOLs be "tolled" (be suspended) since D was negotiating with P?* o Don't want to stop the clock when negotiations are in place b/c otherwise could be stretching out the time period indefinitely and goes against statute of limitations. Want to encourage negotiations. o Court is really mad at P's attorney. Everything was easy to identify, yet still filed statute of limitations too late. Most mal practices are from statute of limitation violations.

Abrams v. City of Chicago

*Facts:* D failed to send ambulance for P who was pregnant and had contractions 10 minutes apart. Instead, a friend provided a ride for P in a car. She drove through a red light and was hit by a speeding driver who had been drinking and using cocaine. *Breach of duty:* failure to send an ambulance to plaintiff. *Issue:* Was D's failure to send an ambulance a proximate cause? Not foreseeable that the private driver would be speeding through a red light and then someone intoxicated and drinking alcohol hits them.

Shearin v. Lloyd

*Facts:* D, a surgeon, left a sponge in P after operating to remove his appendix in July 1951. P returned for check ups and complained of pain near incision. D told P he'd be alright and in Nov. 1952, D admitted something was wrong. X ray showed a sponge, which was removed in Nov. 1952, but a knot in incision rose up and burst and he suffered repeated infections. So finally ended relations and sued in Nov. 1955. o What was the medical malpractice? o Why didn't P discover this before the SOL period ended? •*Traditional rule:* • *SOL accrues (begins to run) at time of breach of duty or injury*--- so when sponge was left in the body. • *Modern rule: "Discovery rule"* •*When P discovers, or reasonably should discover, both the injury and D's role in causing it.* —When X-ray saw the sponge and D warned P he would need to do more procedures.

Dyer v. Maine Drilling and Blasting

*Facts:* Damage to home by blasting of rock nearby. *Holding:* Adopted Restatement 2nd recommendation of strict liability for abnormally dangerous activities. (not necessary to show negligence) *Policy*: Even if not negligent, companies engaged in blasting activity should pay their own way.

Doughty v. Turner Manufacturing

*Facts:* Doughty was injured in his work at a factory owned by Turner when a cover over a cauldron of molten hot liquid fell in and caused an explosion, propelling the liquid toward him. It was not known that the cover would explode when it fell in the liquid. Turner was found liable at trial and damages awarded, which they appealed. *What would be the expected harm in this situation?* Splashed *Which of these were foreseeable:* o Plaintiffs: Yes o Type of harm: Yes, Burned o Manner in which occurred: No o Extent of harm: No. Bigger. o Can Doughty be harmonized with Hughes? *The court thinks that the harm cannot be totally unforeseeable*

Faul v. Jelco

*Facts:* Employee was paid "zone pay" because he worked at a remote worksite, but was not given compensation for travel time or expenses. *Holding:* *No vicarious liability on employer because of low degree of employer control:* 1. Outside of scope of employment because only given zone pay that increased general wages, but did not provide for travel time or expenses. 2. Commute to work was not a "special hazard" created by work. 3. Instead of focusing on the employer's benefit, this jurisdiction focuses on the degree of the employer's control. o Here, employer doesn't have much control over the time in which employee is traveling to and from work. So to commute to and from work isn't a special hazard or benefit like Hinman. So negligent action is not within scope of employment. *focused on control rather than benefit *because of nature of multifactorial test, part of our argument is going to be to argue why it is better to focus on control, etc.

Lasley v. Combined Transport

*Facts:* P killed when truck pilled load on freeway and car crashed into D's truck, causing fire. *Holding:* Actions of both parties are substantial factors. Evidence of driver's intoxication does not change causation analysis because expert testify accident would not have resulted in fire if D was not stationary. Was the intoxication relevant to the issue of apportionment of fault? YES. Both defendants' breaches of duty were necessary but neither was a sufficient cause: Combined Transport failed to show that Clemmer would not have killed plaintiff if the plaintiff's pick up was moving. Clemmer's intoxication was not relevant to establishing causation, although it was relevant to determining degree of fault.

Stelluti v. Casapenn Enterprises

*Facts:* P signed express K at gym. Express K: discharge all "claims or causes of actions" and covered "sudden and unforeseen malfunction of equipment." Bike broke during cycling class and get hurt. *What was the alleged br/D by the health club?* Negligently maintaining and setting up the bike and failing to properly instruct Stelluti able to be covered under the exculpatory clause? *What is a contract of adhesion? What kind of judicial scrutiny does this trigger?* Contract of adhesion means you were coerced into signing it, not a valid contract. The court says in this case there was a voluntary joining, consideration in payment, and thinks it is a voluntary contract and will enforce it. Interpreted the contract terms in a literal way to the disfavor of D. *What is the difference between mere negligence versus reckless or gross negligence?* Express contract: discharge "all claims or causes of action" and covered "sudden and unforeseen malfunction of equipment". Express waiver - enforceable even if "take or leave it" and in a standardized form -- because it involved discretionary activities. • But because it was a contract of adhesion, the court will subject it to close scrutiny. • No waiver if D was aware of dangerous condition and failed to remedy or properly maintain bike = reckless and gross negligence. o Even though contract in its terms is broad and generalized, the court refuses to extend the definition to include reckless and gross negligence. D must be specific about it.

O'Banner v. McDonald's Corp.

*Facts:* Plaintiff slipped and fell in McDonald's bathroom and sued McDonald's Corporation for injuries. *Holding:* P would have had to show that he did rely on the apparent agency in going to the restaurant where he was allegedly injured. *Actual agency?* —Only if McDonalds actually owned the restaurant, but it is a franchiser/franchisee relationship o *Franchiser* —normally no vicarious liability. o *Estoppel "versus" Apparent Agency:* *(1) "but for" detrimental reliance, "versus"* • There are some courts that say in order for there to be liability, estoppel must apply where there is detrimental reliance. Wouldn't have gone into the bathroom but for thinking it was a McDonalds with decent bathrooms. *(2) "reasonable belief" of agency ?* •A belief that someone has that McDonalds owns the place, and want to sue someone. Some courts think this is enough.

Hughes v. Lord Advocate

*Facts:* Post Office workers were working underground and left the manhole unattended surrounded with kerosene lamps while on break. Plaintiff Hughes, an 8 year old boy, was playing at the unattended site and knocked over a kerosene lamp, which resulted in a huge explosion that threw him down the manhole. He suffered severe burns and sued Defendant. Defendant argued it was not the proximate cause of the injuries. The higher court disagreed and found for Plaintiff on appeal. *Holding:* Yes. Three different judges agreed that the Plaintiff's burns were foreseeable, even though the manner in which they occurred was not. Where the cause of an accident was a known source of danger, namely the kerosene lamp, but injury is caused in a unique way which could not have been foreseen, there is no defense to negligence. *This case stands for the proposition that foreseeable injuries or harm that are caused in a unique, unforeseeable manner are still considered within the scope of risk a defendant has a duty to protect plaintiffs from.*

Salinetro v. Nystrom

*Facts:* Salinetro goes for x-rays when she was pregnant, which she didn't know about. She has to have an abortion and finds out fetus was dead. *Holding:* No, not negligent. Appellants did not make a prima facie case for medical malpractice since, even if Nystrom's failure to inquire as to whether Salinetro was pregnant at the time of her examination, this failure was not the but-for cause of her injury.

Moorman Manufacturing v. National Tank

*Facts:* Steel grain storage tank gradually developed a crack over 10 years after manufacture. *Economic loss vs. tort liability:* Whether a consumer could recover under a strict liability in tort theory for solely economic loss. Did the damage hurt property or other people? 1. Nature of injury: contract vs. tort—if there is a problem with the quality of their product that involved injury with the product itself. Seems like should have negotiated this out based upon quality and wear and tear. Contract problem, not tort problem. Whereas, if tank suddenly collapsed and injured surrounding property (unexpected, sudden) that feels more like tort. 2. Nature of defect and manner by which it occurred *Held, can't bring a suit in solely economic loss based on strict liability.* This is an economic loss subject to contract law (rather than tort): 1. Nature of injury: quality problem with product 2. Nature of defect and manner by which it occurred: repair for deterioration. *Customers can contract for price/quality trade-off. Only in cases where this falls short and there is something unexpected and unreasonable and damage beyond property of product itself that you have tort law.*

Christensen v. Royal School

*Facts:* The defendant school district and principal were accused of being negligent in hiring and supervising a teacher who had sex with a 13 y.o. student. *Holding: * The defendants cannot rely on the contributory negligence of the P for voluntarily engaging in sex. Child does not have a duty *P lacks the legal capacity to consent and is under no duty to protect herself from being abused.*

Hammerstein v. Jean Development West

*Facts:* What was the breach of duty by the hotel? They created an unreasonable risk with fire alarm going off. Was the gangrenous infection of the plaintiff's foot foreseeable? I don't think so. *Which of these were foreseeable:* o Plaintiffs: Yes, hotel guest o Type of harm: Yes, hurt his ankle and foot. o Manner in which occurred: Yes, going down stairs o Extent of harm: No, thin skull rule.

Rylands v. Fletcher

*Law:* *A person who for his own purposes brings on his lands and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril, and, if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape.* *Facts:* Defendant built a pond on his land. The water seeped down old, unfilled mine shafts and flooded the neighbor's mine. *Holding:* English courts concluded there should be strict liability because if somebody has a non-natural use of the land and caused direct damage to a neighbor's property, then there should be strict liability.

Honda of America Mfg. v. Norman

*Law:* *To prove a design defect, plaintiffs must show that (1) there was a safer alternative; (2) the safer alternative would have prevented or significantly reduced the risk of injury, without substantially impairing the product's utility; (3) the safer alternative was both technologically and economically feasible when the product left the control of the manufacturer.* *Facts:* Karen (Norman) was driving her car with a friend when she backed up accidentally down a boat ramp into the Bay. Her passenger got out safely since she didn't wear a seatbelt but Karen's seatbelt was automatic and locked her into the seat. She couldn't reach the emergency release button (she also was intoxicated). (mysteriously she was found in back seat, only testimony is passenger that she heard she was stuck). *Holding:* Jury could not have reasonably found alternative seatbelt design would have prevented or significantly reduced risk of Karen's death without imposing equal or greater risk of harm. Also, Normans failed to prove a two-release button design was technologically and economically feasible and thus a safer alternative.

Delaney v. Reynolds

*Minority Ruling* *Facts:* D-police officer routinely stored loaded gun unlocked in bedroom. P shot herself after firing twice without the gun going off. *What was D's alleged breach/Duty?* Alleged breach of duty was the risk that he created by having his gun loaded and unlocked in his house where his girlfriend, who he knew to be depressed and have substance abuse problems, knew the location. Risk that she would cause intentional injury to herself was foreseeable. *What was the holding?* Reynolds was negligent in leaving gun loaded and unlocked in his house despite the self inflicted or intention suicide attempt. That is not an intervening and superseding cause in this case. *Why is it contrary to the view of a majority of courts?* Majority of courts hold it to be an ironclad rule, subject to limited exceptions, that suicide or an intentionally self-inflicted injury is an intervening and superseding cause as a matter of law.

Thompson v. Kaczinski

*Not the majority, lack of foreseeability not proximate cause normally. Using more causal tendency principles from Restatement* *Facts:* Storm caused trampoline parts to be moved from yard to road. P lost control of car. *Holding:* D had common law duty to avoid obstructing road Yes. Reasonable standard of care to those on the road, and the trampoline went into the road because it wasn't tethered and there are storms that time of year. The harm to P could be found by a reasonable jury to be within the scope of risk (range of harms) created by the br/duty by D. Up to the jury to decide if it was reasonable a storm would come by and injure someone coming by. *Third Restatement:* Risk standard = within scope of risk created by br/duty. Proximate cause says scope of risk created, not relying solely on foreseeability. D's br/duty created range of harms P's harm was within this range, even if there may be some lack of clarity about foreseeability. *THIS case is not the majority.* Traditional definition of risk rule is different. What the 3rd restatement is trying to do is create a notion of causal tendency. Case to get us to think about proximate cause even in cases when there is a lack of foreseeability in the storm. *Third Restatement:* Risk standard= D's conduct created range of risks. P's harm was within this range This third restatement approach is different than most courts. This case is to show us this, but remember it is just a minority of courts.

Dasha v. Maine Medical Center

*P did not purposely estop D from waiting 2yrs to get another opinion. SoL expired.* Dr diagnoses P with fatal brain tumor. On that diagnosis, surgery plus radiation would prolong life for short time, P chooses to do this. Treatment caused severe brain damage. 2yrs later, another doctor saw it was a small tumor and did not require that type of treatment. Sued (it was over 3yrs since original misdiagnosis). *Elements of Equitable Estoppel 1. Delay in filing an action that is induced by D 2. D misled P 3. P must have acted on information in good faith to the extent that he failed to pursue his action in a timely manner*

Butterfield v. Forrester

*Predecessor to negligence* *Facts:* •Negligent act: The defendant negligently blocked the road with a pole. The plaintiff violently rode his horse when it was becoming dark. •*Contributory negligence is a complete bar to P's recovery.* •*"Cheaper cost avoider"*(he was in best, last position to act non-negligently to avoid problem) or "unclean hands" (to award remedy, maybe want them to come with clean hands) •Same result might be achieved based on no "breach of duty" or "proximate cause"

Doe v. Maskell

*The discovery rule holds that a cause of action accrues when plaintiff knew or should have known that actionable harm has been done to him. Repression and forgetting are the same thing in a courts eyes. SoL expired.* Facts: 2 Ps allege were physically & sexually abused by school chaplains during late 60s and early 70s.Bring suit in 1994. Ps claim they repressed the memories until they came back in 1992.

Moore v. Hartley Motors

*•Facts:* Signed release for ATV safety course. Accident from ATV hitting rock hidden by high grass *Holding:* -Enforceable K based on public policy, its terms were clear and unambiguous o*However, court gave strict reading of scope of K: Thus, K only released D from:* ♣ Hazards inherent in riding ATVs ♣ Actions of ordinary negligence *Conclusion:* *reasonable presumption that course for beginners should not be unreasonably dangerous*

Collins v. Superior Air-Ground Ambulance Service

Ambulance transported P to and from rehab. center and when received by daughter she had broken leg and was dehydrated. 2 different D's had control. Holding: Traditionally, can't apply res ipsa w/ two parties but court allows. Why? Because one of the parties did it and court wants them to present evidence to contrary and prove it was the other.

Hill v. Sparks

D ran over and killed sister while driving machinery of which he was professional operator. Holding: Held, *actor with superior qualities must use them in reasonable manner under the circumstances.*

Doe v. Johnson

Facts: Johnson transmitted HIV to Jane Doe through consensual sexual contact. He didn't warn her that he might have it or use a condom. Holding: One who knows he has a venereal disease and knows his partner doesn't know, commits a tort by having intercourse, consensual or not.

Rodebush v. Oklahoma Nursing Homes

Facts: Nurse's aide at long-term care facility slapped resident. Aide was intoxicated and had a criminal record of battery. Issue: Should employer be vicariously liable for the employee's assault? Holding: *Ordinarily, the employer is not liable for an intentional assault by an employee. But here, the act was fairly and naturally incident (emotional response) to the business and arises within the scope of employment. (Foreseeable)* Policy: Done while servant was engaged in master's business, and arises from emotion naturally grew out of or incident to attempt to perform master's business. Difficult job, difficult patients, yet patients are vulnerable. SO based on context, it is foreseeable that the action by this employee would occur. Because of foreseeability, willing to impose strict liability.

Mavrikidis v. Petullo

Facts: Petullo drove dump truck through red light. It overturned and hot asphalt fell on P. Procedure: Jury found that Clar Pine Servicenter, who hired Petullo, should be vicariously liable because: a. Retained control over manner and means of performing work b. Inherently dangerous activity Holding: No vicarious liability - not enough control (only general supervision), not an inherently dangerous activity (just driving)

Barker v. Kallash

Facts: Plaintiff was 15 y.o. boy making pipe bomb filled with powder from firecrackers sold by a 9 y.o. defendant. It blows up on him and he is injured. He sues 9year old, parents, everyone. —Issue: Whether to hold the 9-year-old contributory negligent when 15 year old violated a criminal statute. • Why can't the plaintiff recover anything from this defendant? Would it make a difference if the defendant was an adult? • These are serious wrongs, don't want someone who substantially violates the law, to be able to point the finger and hide under contributory negligence. • Does this legal rule apply to all illegal activities engaged in by plaintiffs? No—serious crimes.

Right v. Breen

Facts: Plaintiff was in a car accident where his vehicle was hit from begin by the D. In his complaint, he claimed to suffered bodily injury because of the accident, but his complaint did not claim damage to his car. At trial, D presented evidence that P's injuries were from 5 previous car accidents. Holding: Defendant is right. *Conduct that is merely negligent, without proof of actual injury, it is not considered to be a significant interference with the public interest such that there is any right to complain of it.*

Gortarez v. Smitty's Super Valu

Facts: Store employee followed Hernandez around in store and concluded that H did not pay for an item before leaving store. The employee confronted H and began to search him without explanation. H's friend, Gortarez then struggled with this employee and the employee put G in a choke hold. G and H were only released after another employee confirmed that the item was left in the store. Holding: force was excessive and therefore didn't meet reasonableness requirement Immunity for detention by merchant and his/her employees of suspected shoplifter if: 1. Reasonable cause to believe that the person was a shoplifter 2. Purpose of detention must be limited to investigation by questioning or summoning law enforcement. Reasonableness is required for: Manner of detention & The length of time of the detention

Snyder v. Turk

Law: *An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) an offensive contact with the person of the other directly or indirectly results.* Facts: P a nurse sued D a dr who grabbed her during surgery for battery Holding: Yes. Since a reasonable mind could infer intent on the Defendant's part, the issue was one of fact for a jury.

Dillon v. Frazer

Law *"The trial court must grant a new trial absolute if the amount of the verdict is grossly inadequate or excessive so as to shock the conscience of the court and clearly indicates the figure reached was the result of improper motive (ex-passion). The failure of the trial judge to grant a new trial absolute in this situation amounts to an abuse of discretion and on appeal this Court will grant a new trial."* *Facts:* Dillon presented evidence of over $500,000 in damages as a result of the accident. While Frazer contested portions of Dillon's claim, unchallenged testimony at trial established the following damages: $10,518 in medical bills, $320.00 for EMS transportation to the hospital, $1,188 in physical therapy bills, and $18,000 in lost wages and overtime pay. This totals $30,026 in undisputed damages. *Holding:* We find the jury verdict of $6,000 irreconcilably inconsistent with the unchallenged evidence presented at trial. The disparity between the award and the admitted damages goes beyond a merely conservative award and suggests that the jurors were motivated by improper considerations.

Liriano v. Hobart Corp.

Law/Holding: *The duty to warn is not necessarily obviated merely because a danger is clear.* *Facts:* Workers' hand gets caught in meat grinder because safety guard was removed. *What two types of warnings could have been provided by D?* —General warning that it is an unsafe device. But argument that it is an inherently dangerous machine and it is obvious. Second, that there is an alternative option to the safety one. *Why doesn't the obviousness of the danger mean that there is no informational defect?* —There was a safety device and a safer way to handle that the reasonable person may not know. *Issue about whether the lack of warning caused harm to P.* While a general warning by the manufacturer about dangers would not be helpful due to the obviousness of the danger, there is an informational defect due to the lack of a specific warning about the importance of having the safety guard. Reject precedent: Lorenzzo v. Wirth (Big pile of coal in the street should warn plaintiff that there was a coal hole there to put coal nearby.) Justice Holmes for majority: Obvious to him. No negligence as a matter of law. Justice Knowlton: Not to foreigner. Negligence should be based on a factual determination by the jury. Judge Calabresi's re-interpretation of Martin v. Herzog: Regarding contributory negligence by P for not having the buggy's lights on: D showed "causal tendency" since P did not have his lights on during the evening along with the statutory violation, so the burden of proof shifted over to P to show the lack of but-for cause. —Calabresi came up with term causal tendency.

Landers v. East Texas Salt Water Disposal

Law: * the court adopts a new rule which states that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and (2) the injured party may proceed to judgment against any one separately or against all in one suit.* *Facts:* P had a small lake that he cleaned and stocked with fish. ETSWD dumped water into lake, and Sun Oil dumped salt water and oil into lake, nearly at the same time, killing P's fish. *Holding:* Yes. Both negligent. o One of Co-D's was but-for (polluted first), but P could not prove this. o Court created exception to but-for cause allowing P to recover o Argument in favor of Robicheaux: corrective justice, only responsible for harm you cause o Why did court overturn Robicheaux? ♣ Moral standpoint • Both D's were polluting, negligence by both D's o Each WOULD have been but-for cause, they just happened to be lucky that the other was also polluting • There was harm, don't want uncompensated P ♣ One party also caused damage to surrounding land, in addition to polluting •To the extent you can ID who caused this damage, it becomes a divisible injury and P can sue ID'd D for damages to collect directly for that amount in addition to damages based on fault apportionment for killing fish

White v. Muniz

Law: *A jury, as trier of fact, may conclude that a mentally deficient person is liable for tortious conduct; however, in so doing the jury must find that the actor intended offensive or harmful consequences.* (dual intent offensive conduct + intended offense) Facts: Nurse hit by Alzheimers patient

Bernier v. Boston Edison

Law: *A manufacturer is required to "anticipate the environment on which its product will be used, and it must design against the reasonably foreseeable risk attending the use in that setting."* Facts: This is an appeal of a United States District Court (Massachusetts) judgment in favor of Bernier (Plaintiff) in consolidated actions for injuries suffered when an automobile knocked over an electric pole and struck teenagers as they walked down a sidewalk. Holding: he court held that "[a]s designer or co-designer of the pole and in control of its maintenance, Boston Edison Company must anticipate the environment in which its product will be used, and it must design against the reasonably foreseeable risks attending the product's use in that setting," and thus bore liability in connection with the design and maintenance of the electric light pole. In essence, a manufacturer is expected to employ a design optimally suited to avert such risk, and that such risk should be the primary consideration during the design process.

Vincent v. Lake Erie Transportation

Law: *A party acting under private necessity is liable for damages incurred to the property of others.* Facts: Lake Erie Transportation Co. (Defendant) tied and prudently held its steamship to Vincent's (Plaintiff's) dock during a severe storm. In doing so, Defendant preserved its steamship at the expense of Plaintiff's dock. Plaintiff seeks compensation for the damage done to the dock and Defendant claims the privilege of private necessity. Holding: P entitled to compensation. In this case, Defendant prudently availed itself of Plaintiff's property for the purpose of preserving its own more valuable property. Plaintiff is entitled to compensation for the damage done to the dock.

Estate of Cilley v. Lane

Law: *A party does not have an affirmative duty to aid or warn another person in peril unless the party created the danger or the two people had a special relationship that society recognizes as sufficient to create a duty.* Facts: D did not render aid when ex-boyfriend (P) accidentally shot self on her property. Holding: Held, no duty as social host because P was trespasser at time of accident. Court refuses to adopt affirmative duty to seek medical assistance after witnessing injury to another—insufficient "relationship" and unlimited duty.

Chaffin v. Brame

Law: *A person is not bound to anticipate negligent acts or omissions on the part of others; but in the absence of anything which gives or should give notice to the contrary, he is entitled to assume and to act upon the assumption that every other person will perform his duty and obey the law and that he will not be exposed to danger which can come to him only from the violation of duty or law by such other person.* Facts: Defendant conceded negligence in parking his truck on the traveled portion of the highway at night without displaying lights or warning signals. He asserted, however, that the driver of the other vehicle was guilty of contributory negligence as a matter of law because he did not control his car sufficiently in order to stop within the range of the Plaintiff's driver's lights. Holding: The court ruled that Plaintiff had no reason to anticipate that the Defendant's truck had been left standing on the traveled portion of the highway ahead of him without lights or warning signals. He did everything possible to avert the collision as soon as the truck became visible, and thus Plaintiff was not guilty of contributory negligence as a matter of law.

Creasy v. Rusk

Law: *A person with mental disabilities is generally held to the same standard of care as that of a reasonable person under the same circumstances without regard to the alleged tortfeasor's capacity to control or understand the consequences of his or her actions.* Matrix for balancing factors to see if individual owes a duty to another: 1. relationship between parties 2.reasonable foreseeability of harm to the person injured 3. public policy concerns Facts: Carol Creasy (Plaintiff), a certified nursing assistant, sued Rusk (Defendant), an Alzheimer's patient, for injuries she suffered when Defendant kicked her while she was trying to put him to bed. Holding: In this case the exception applies because Public safety officials and caregivers are specifically hired to encounter and combat particular dangers, and by accepting such employment assume the risks associated with their respective occupations.

Knitz v. Minster Machine

Law: *A product design is in a defective condition to the user or consumer if (1) it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner; *or* (2) if the benefits of the challenged design do not outweigh the risk inherent in such design.* Facts: Appellant amputated fingers using a punch press and argued the device was inherently defective because a safety device was disconnected. *Consumer expectation test* may not be protective of worker if he does not know what to expect as in this case. However, an experienced worker may know and expect dangers. --So if you have an inexperienced worker, seems unfair. Because, then an experienced worker would be better to determine whether additional safety features should be added. Could the employer have foreseen that the employer or remover would remove safety devices? If not, then product misuse by consumer/employer *Risk/utility test* may be relied on by jury to determine if absence of additional safety devices results in the machine being "defective." *Holding:* The court applied the risk-benefit test and held that Appellee presented issues of fact, based on expert opinions, as to whether the press design was defective by allowing accidental tripping of the foot pedal control and in failing to provide a point of operation guard when the foot pedal was operative. Can bring suit based on negligence, but also strict liability theory there was a design defect the manufacturer should be strictly liable for.

Hale v. Ostrow

Law: *Actions need to be the case (not just a cause) of the P's legally cognizable harm* Facts: D's property had overgrown bushes. As P stepped out toward the street to avoid them, she fell on crumbled sidewalk owned by another. Holding: D was negligent. But-for the bushes, P wouldn't have walked onto the road and become injured

Pusey v. Bator

Law: *Although an employer is generally not liable for the negligent acts of an independent contractor, there is an exception to this rule which stems from the nondelegable duty doctrine. Nondelegable duties can be imposed on an employer where the performance of the work itself is inherently dangerous.* Facts: Grief brothers hired YSP to supply a security guard to periodically check in the building and parking lot. No other instructions in the manner. Two punks were in a parking lot and Security guard got his gun and then shot the guy in the back of the head. Didn't give instructions to which the manner in which to perform the job. Holding: Held vicariously liable due to non delegable duty doctrine. (Policy: two deep pockets? Also hire independent contractors for anything dangerous if no non-delegable rule. Encourages safety!). Certain dangerous activity that can't be delegated.

Stinnett v. Buchele

Law: *An employer cannot be required to guarantee an absolutely safe place of employment. An employer is required to take reasonable and prudent steps to ensure safety, and there is no responsibility for additional steps "where the employees' means of knowledge of the dangers to be incurred is equal to that of the employer."* Facts: This is an appeal from a farm employee, Stinnett (Appellant) challenging a grant of summary judgment to his employer, Buchele (Appellee) in an action by Appellant for injuries suffered when he fell off a barn, which was painting. Appellant maintained that the injuries were sustained during the course and scope of employment, the employer, Appellee, had a duty to provide a safe work environment, and as a result, he was entitled to the recovery of damages. Holding: There was no showing of any negligence on the part of Appellee arising solely out of the fact that he had asked Appellant to paint the barn roof.

McCarthy v. Olin Corp.

Law: *As a matter of law, a product's defect is related to its condition, not its intrinsic function.* Facts: P got on train and killed a lot of people with bullets designed to kill people/cause severe injuries Holding: No. Defendant could not be held strictly liable on the grounds that the ammunition was defectively designed and the design and manufacture of the bullets were inherently dangerous. The bullets were not in defective condition nor were they unreasonably dangerous for their intended use; they were purposely designed to expand on impact and cause severe wounding.

Cullison v. Medley

Law: *Assault is found where one intends to cause a reasonable apprehension of imminent harmful or offensive contact in another.* Facts: Plaintiff Cullison met a 16 year old girl in a parking lot then invited her to his home for a soda, which she declined. That night, she and her family came to Cullison's home, surrounded him, and verbally threatened him with bodily harm if he did not leave the girl alone while her father was armed with a holstered revolver. Cullison experienced mental trauma and distress as a result of the incident and sued for assault. Holding: Threatening language + threatening action would cause reasonable apprehension of imminent harm

Bowling v. Heil Co.

Law: *Contributory negligence of a plaintiff is not a defense when such negligence consists merely in a failure to discover the defect in the product, or to guard against the possibility of its existence.* Facts: Decedent was a friend of the person who borrowed a dump truck. He was crushed by it when it unexpectedly came down on him due to defective hoist. He reached underneath truck bed and pulled lever. 1. No privity requirement. 2. Assumption of the risk is a complete defense against strict liability suits. 3. Contributory negligence is not a complete defense, except when it amounts to an assumption of risk ("knowing contributory negligence"). -----Has been slimmed down to just "knowing contributory negligence" when they knowingly took a type of risk that is like assumption of risk. *Courts are divided on the application of comparative negligence to strict liability cases. So hard to come up with majority rule.* Holding: the Supreme Court of Ohio reinstated the judgment of the trial court, which had assessed the entire money judgment against appellee, having found comparative negligence and comparative fault did not apply to a strict products liability action and upholding the doctrine of joint and several liability.

McCann v. Wal-Mart

Law: *False imprisonment occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short.* Facts: In a false imprisonment case, Debra McCann (Plaintiff) contended that Wal-Mart Stores, Inc.'s (Defendant) employees stopped the McCanns as they were leaving the store, claiming that Plaintiff's children had been previously caught shoplifting, and could not re-enter the store. The employees detained Plaintiffs until a security officer determined that the children were not the children who had been caught previously. Holding: The court affirmed the lower court's decision, noting that Plaintiffs adequately proved the elements of false imprisonment.

Hinman v. Westinghouse Electric

Law: *Going and Coming Rule: employee's trip going to work and coming from work is ordinarily considered outside the scope of employment. General rule. However, Hinman creates an exception for when the trip benefits the employer, then employer can be vicariously liable.* *Exception:* When the trip benefits the employer as evidenced by employment contract and expanded labor pool. Facts: Plaintiff is a policeman who was struck by an employee of Westinghouse returning home from work. Union contracts provided for the employee payment of travel expenses according to distance. Employee hit P when going home from job site. Employer paid for *travel time* and expenses and *benefited from an expanded labor pool.* Holding: Employer should be held liable

Mohr v. Grantham

Law: *If an operation is performed without Plaintiff's consent, and the circumstances were not such as to justify its performance without consent, then the operation is wrongful and thus unlawful.* *Facts:* Plaintiff brought suit against Defendant for assault and battery. D operated on a different ear than agreed upon after deciding it was in worse shape during surgery. *Holding:* -Summary judgment for defendants because no but-for cause. -If P received non-negligent treatment, she would have had a 50-60% chance of a better outcome (less disability). -Based on causal tendency, which is what scientists and doctors estimate. Look at empirical studies with cases similar to this and come up with a percentage of those who come out better. Doctors don't really know what to do with "but for" cause Two approaches: 1. Substantial factor test 2. Actual harm is lost opportunity

T.J. Hooper

Law: *If the utility of a safety precaution outweighs the cost of the precaution, then it is negligent not to carry the safety precaution. An industry's general custom does not dictate the standard of care. The courts decide what is required of the parties.* Facts: Plaintiff's two barges, towed by Defendant's tugboats, were lost in a storm. Plaintiff sued Defendant for negligence for failing to equip the tugboats with reliable radios, which would have warned Defendant of the storm. Holding: Yes. Judgment for Plaintiff. * There is no statutory law on the subject applicable to tugs of Defendant's type. The standard of seaworthiness is not, however, dependent on the legislature. Rather, seaworthiness changes with advancing knowledge, experience, and the changed appliances of navigation. It is affected by new devices of demonstrated worth, which have become regular equipment by common usage. * At the time of the storm, radio broadcasting was widely used for the dissemination of information. The government issued weather reports twice a day and it was important information, which navigators would not afford to ignore. Ninety percent of the tugs were equipped with ratios. * There was a duty for Defendant to supply weather-receiving radio sets.

Wal-Mart Stores v. Wright

Law: *In a negligence action, the standard of conduct that the community demands must be an external and objective one, rather than the individual judgment, good or bad, of the particular actor. This door swings both ways. A parties own rules of conduct are not to serve as a legal standard.* Facts: -The customer was injured when she slipped and fell in an outdoor lawn-and-garden area of the discount retailer's premises. -At trial of her negligence lawsuit against the retailer, the retailer's procedures manual was admitted into evidence. Although there was plenty of evidence that not all the procedures were followed, it was not clear that they applied to outdoor areas. Holding: The court reversed the judgment and remanded the matter for a new trial.

Garratt v. Dailey

Law: *Intentionality is central to the tort of battery, and while a minor who has committed a tort with force is liable as any other would be, a plaintiff must establish that the defendant committed his or her act for the purpose of causing the harmful contact or with substantial certainty that such contact will result.* Facts: Five year-old Brian Dailey (Defendant) visited Naomi Garrett Plaintiff at her sister Ruth's home. The later contends that as she was about to sit on a lawn chair, Dailey pulled it out from under her causing her injury. The Superior Court for Pierce County (Washington) found in favor of defendant in an action for assault and battery and Plaintiff appealed. Holding: Need to get clarification, with instructions to make definite findings on the issue of whether Defendant knew with substantial certainty that Plaintiff would attempt to sit down where the chair had been. If so, the court was to change the judgment.

Hughes v. Magic Chef

Law: *Misuse is not an affirmative defense in a products liability action but is an element of the plaintiff's own case in which he must establish, by a preponderance of the evidence that the manner in which the product was used was foreseeable to the manufacturer* Facts: A defective pilot light did not light up after propane tank refilled. The stove exploded when plaintiff tried to turn it on due to gas build-up. Prima facie case: No defect, since the product was misused by the consumer. Burden of proof is on the plaintiff. If foreseeable product misuse, then the fact finder could conclude that the product was defective. Assumption of the risk: The plaintiff voluntarily and unreasonably encountered a known danger. *This court held that the issue of product misuse should be decided as part of the prima facie case, instead.* Don't relitigate the case for assumption of risk for misuse because wanted more consistent outcomes, and leave it to the P to not confuse the jury. Don't want to lodge product misuse in both affirmative defense and prima facie side. *Not a majority rule.* *Most courts allow defense of assumption of risk!!!*

Ploof v. Putnam

Law: *Necessity will justify entries upon land and interferences with personal property that would otherwise have been trespass.* Facts: To escape a storm, Ploof (Plaintiff) tied his boat to Putnam's (Defendant's) dock. Defendant untied Plaintiff's boat. Plaintiff and his family were injured and the boat was destroyed. Holding: o. Judgment affirmed and cause remanded. * Necessity will justify entries upon land and interferences with personal property that would otherwise have been trespass. The court gave a few illustrations to illustrate the doctrine of necessity: * A traveler on a highway, who finds it obstructed from a sudden and temporary cause, may pass upon the adjoining land without becoming a trespasser, because of necessity. Entry upon land to save goods, which are in danger of being lost or destroyed, is not a trespass. * Necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the land of another to escape from his assailant. One may sacrifice the personal property of another to save his life or the lives of his fellows. * In this case, Plaintiff entered the land of Defendant in effort to escape the storm and avoid injury. Defendant claims that Plaintiff could have tied his boat to natural objects with equal safety. However, the facts show that Plaintiff tied his boat to Defendant's dock to save the boat and the people in it. The requirements of the claim for necessity are complete. Yet, the rule of necessity cannot be held applicable irrespective of circumstances. The question of circumstances and natural objects is left for adjudication.

Surocco v. Geary

Law: *Otherwise tortious acts may be rendered non-tortious when necessity dictates that they be undertaken for the greater interests of society.* Facts: Defendant had Plaintiffs' house destroyed in an effort to save many more buildings from a fire. Plaintiffs sued to recover for the damages to his property. Judgment was entered for Plaintiffs, and the Defendant appealed. Holding: Yes. The judgment was reversed. The private rights of an individual in a house that is in danger of spreading flame to other houses and thus an entire city yield to the interest in protecting against such a spread. In such case, one is privileged to destroy the house to stop the spread.

Marshall v. Southern Railway Co.

Law: *P must be contributory negligent by meeting all elements of negligence. contributory negligence (bars recovery if P is negligent at all) is minority rule.* Facts: Defendant's train tracks had supports by a road; plaintiff ran into them because he was distracted by another driver's brights. Holding: P should have kept a reasonably careful lookout from D driving negligently.

Byrne v. Boadle

Law: *Plaintiff must persuade a jury that more likely than not the harm-causing event does not occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm, nor does the fact that the defendant raises possible non-negligent causes for the harm defeat plaintiff's effort to invoke res ipsa loquitur (Latin for "the thing speaks for itself). The key is that a reasonable jury must be able to find that the likely cause was negligence.* Facts: Byrne (Plaintiff) testified that he was walking along Scotland Road when he evidently lost consciousness. Witnesses testified that a barrel of flour fell on him. Neither Plaintiff nor any of the witnesses testified as to anything done by Boadle (Defendant) that could have led to the barrel falling. Holding: Court allowed case to proceed. A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. Initially, courts interpreted the control element narrowly, requiring the plaintiff to show that the defendant likely had "exclusive control" over the harm-causing instrumentality. This element has been liberalized and it is now enough for a plaintiff to get the issue to a jury on res ipsa loquitur if he can provide evidence showing that the defendant probably was the responsible party even if the defendant did not have exclusive control. Further, most jurisdictions no longer require the plaintiff to prove that he did not contribute to his harm.

Hagerty v. L. & L. Marine Services

Law: *Remove bar of res judicata and allow a later second suit if nature of injury is different (minority)*

Warren v. Jeffries

Law: *The conditions traditionally required for the application of res ipsa loquitur are: "an accident that normally does not happen without negligence; exclusive control of the instrumentality by the defendant; and absence of voluntary action or contribution by the plaintiff." In order for the Plaintiff to have the benefit of res ipsa loquitur, she must convince the jury that each of these factors more likely than not exists.* Facts: Defendant's car was parked on an incline at Plaintiff's home. Defendant gave Ms. Enoch, the child's mother, the keys to his car so that she could drive it to the store. The mother was in the house, while five children, including Enoch, climbed into the rear of the vehicle. No one touched any of the control mechanisms of the car. Enoch was the last to enter and when he closed the door something clicked in the front and the car started rolling backward in the direction of a large ditch. One of the older children opened the door and told the others to jump out. When the decedent jumped out he fell, and the front wheel ran over his chest. Holding: No. No sufficient proof of negligence was offered. All indications were that this was an accident.

Wagner v. State

Law: *The court finds that an actor only needs to intend to make contact with another and not intend harm or offense through his deliberate contact (single intent=offensive conduct only, minority rule)* Facts: P attacked by mentally ill guy while waiting in line at store. Sues state for not supervising him.

Baska v. Scherzer

Law: *The doctrine of transferred intent states that "the tort of battery and assault may be committed, although the person struck or hit by the defendant is not the one whom he intended to strike or hit."* Facts: P was hurt while trying to break up a fight between two boys are her daughter's party

Upchurch v. Rotenberry

Law: *The jury is the judge of the weight of the evidence and the credibility of the witnesses. An appellate court will not intrude into the realm of the jury by determining the credibility of a witness and making findings of fact. The jury is the judge of the weight of the evidence and the credibility of the witnesses.* Facts: The Oktibbeha County Circuit Court (Mississippi) entered judgment in favor of appellee Rotenberry in connection with a car accident in which appellant's son died. Appellant, the decedent's mother challenged the judgment denying her motion for judgment notwithstanding the verdict or for a new trial in her personal injury action. Holding: The court held that a reasonable and fair-minded jury could reach different conclusions of fact, and that it is the jury, not the court, which properly makes such determinations. In its opinion the Upchurch court provides a textbook explication of the respective roles of the court and jury with respect to determination of fact: "The resolution of disputed facts is a duty that devolves upon the jury sitting as finders of fact. They are charged with listening to the witnesses, observing their demeanor, and coming to their own conclusions of which evidence they find more credible. The system of jurisprudence has determined that citizen jurors, employing their native intelligence and collective life experiences, are best qualified to make those judgments. Absent some clear indication that the jurors in a particular case somehow ignored that duty, neither the trial court, nor an appellate court reviewing the record on appeal, are permitted to interfere in the conclusions reached by these jurors."

Stewart v. Motts

Law: *The standard of reasonable care applies to all negligence actions, i.e., the reasonable person must exercise care in proportion to the danger involved in his act, and that he or she must exercise such care not only for his own safety and the protection of his property but also to avoid serious injury to others* There is only one standard of care. There are various degrees of care. The degree should have been higher, but the standard is not changed. Facts: Plaintiff stopped at Defendant's auto repair shop to assist in repairing a car's fuel tank. The tank was unattached, and Plaintiff suggested pouring gasoline into the carburetor in an attempt to start the vehicle. The car backfired, and in the ensuing explosion Plaintiff suffered severe burns. At trial, Plaintiff requested a jury instruction directing the application of a standard of a "high degree" of care in instances of elevated danger. The judge declined, the jury found for Defendant and Plaintiff appealed.

Katko v. Briney

Law: *The value of human life and limb both to an individual and as a matter of public policy outweighs the potential damage to property. Thus, while a defendant may use reasonable force in defense of her property, he has no right to willfully and intentionally injure a trespasser in a manner that may result in loss of life or great bodily injury.* Facts: Marvin E. Katko (Plaintiff), filed an action for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun. The shotgun was set by Edward and Bertha Briney (Defendants), in a bedroom of an old farmhouse, which had been uninhabited for several years. Holding: The Supreme Court of Iowa affirmed the judgment because the use of spring guns to protect uninhabited property was not permissible.

U.S. v. Carroll Towing

Law: *There is no general rule to determine when the absence of an attendant will make the owner of the barge liable for injuries to other vessels if she breaks away from her moorings. If he is found to be liable for injuries to others, then he must reduce his damages proportionately, if the injury is to his own barge. Vessels invariably suffer accidents. The owner's duty, as in other similar situations, to prevent against resulting injuries is a function of three variables: (1) The probability of the kind of incident in question; (2) the gravity of the resulting injury; and (3) the burden of adequate precautions.* Facts: Appellant owned a barge, which was chartered by a railroad company. The barge, with a cargo of flour owned by the United States, was moored to the end of the pier. Appellant chartered a tug company, Carroll Towing Co. (Appellee) to drill out one of the barges. Appellee went aboard the barge and readjusted its mooring lines. The barge broke free of the mooring lines due to this readjustment. The Barge hit a tanker, and the tanker's propeller broke a hole in the barge. The barge careened, dumped her cargo, and sank. No one was aboard at the time. Appellee argued that is someone was aboard the barge to observe it leaking after it broke free, the cargo and the barge could have been saved. Holding: Appellants held partly liable. The court applied the "burden was less than the injury multiplied by the probability" formula and found that the burden of having an attendant aboard the barge was less than the gravity of injury of a runaway barge multiplied by the probability that the barge would break free if unattended. *B<PxL*

Brown v. Martinez

Law: *There is no privilege to use any force calculated to cause death or serious bodily injury when only property is threatened.* However this case was improperly decided: P was privleged Facts: Brown (Plaintiffs) brought an action for injuries sustained when shot while stealing watermelons. The District Court for McKinley County (New Mexico) ruled in favor of Martinez (Defendant), the property owner. Plaintiffs appealed. The central issue with regard to the use of force is always reasonableness, which is usually a question reserved for a jury. Certain precepts are central, however, the first being that the level of force employed must be appropriate to the circumstances. The law has always placed greater value on human life and safety that on property. As Professor Prosser has noted, a "person may use only the force reasonably necessary to overcome resistance and expel the intruder, and if in the process his own safety is threatened, he may defend himself."

McCollum v. D'Arcy

Law: *Time starts when the injury is discovered, so SoL did not expire. However, D's can argue P should have discovered earlier.* Facts: P sues parents 35 years later for sexual abuse. Alleges repressed memories.

Giles v. City of New Haven

Law: *To avail herself of the inference afforded by the res ipsa loquitur doctrine, a plaintiff must demonstrate that a defendant was responsible for the specific instrumentality that caused the event.* Facts: Plaintiff, the elevator operator filed a negligence action against the elevator installer to recover injuries he sustained when the elevator fell. The trial court granted a Motion for Summary Judgment and directed a verdict in favor of the elevator installer. The appellate court (Connecticut) reversed and remanded the case for a new trial. The elevator operator sought review. Holding: With respect to the doctrine of res ipsa loquitur (as clarified in the court's opinion), the Plaintiff was entitled to have a jury consider her claim that the Defendant's negligence was the cause of her personal injuries. In essence, upon the showing that the product or apparatus was one over which the defendant had complete control, and that the accident resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence, the doctrine of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence.

Thoma v. Cracker Barrel

Law: *To recover for injuries incurred in a slip and fall accident, plaintiff must show that the premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous condition. Notice of a dangerous condition may be established by circumstantial evidence, such as evidence leading to an inference that a substance has been on the floor for a sufficient length of time such that in the exercise of reasonable care the premises owner should have known the condition.* Facts: In a slip and fall case, the Circuit Court for Leon County (Florida) granted Cracker Barrell Restaurant (Appellee's) motion for summary judgment, dismissing Deborah Thoma's (Appellant's) complaint. Appellant challenged the order. Holding: No. Reversed and remanded. The court reversed the grant of summary judgment, holding that it was for a jury to decide whether appellant could establish by a preponderance of the evidence that Appellee created a dangerous condition in its restaurant.

Robinson v. Lindsay

Law: *When a child causes injury by engaging in dangerous or adult conduct, they are held to an adult standard of care.* Facts: The plaintiff, an eleven-year-old girl, lost the use of her thumb as a result of a snowmobile accident. The driver of the snowmobile was a thirteen-year-old boy.

Pipher v. Parsell

Law: *When actions of a passenger that interfere with the driver's safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver's duty to his passengers or the public* Facts: Plaintiff and another were passengers in Defendant's car. The other passenger yanked Defendant's steering wheel causing the car to swerve, but Defendant regained control and did not do anything about it. The passenger again yanked the wheel, causing the car to veer off the road and hit a tree, resulting in injuries to plaintiff. Plaintiff sued Defendant for negligence. Holding: Yes. A driver owes a duty of care to his passengers because it is foreseeable that they may be injured if, through in attention or otherwise, the driver involves the car he is operating in a collision. Driver should have known after first incident that passenger was a danger.

Santiago v. First Student

Law: *When actions of a passenger that interfere with the driver's safe operation of the motor vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver's duty to his passengers or the public.* Facts: Plaintiff alleged that in 1997, when she was in the eighth grade and being transported one of Defendant's school busses, it collided with a car. As a result of the collision, plaintiff claimed that the right side of her face hit the seat in front of her and she was injured. She sued Defendant for negligence. The trial court granted summary judgment for the Defendant and judgment was affirmed. Holding: No. Plaintiff was unable to describe any actions on the part of the driver of the unidentified car or the unidentified bus driver relating to the accident. Plaintiff could recall no details of the collision nor could she offer any witnesses who could. The plaintiff attempted to justify a lack of evidence to support her case by pointing to the nature of the accident. However, the fact that the plaintiff's case may be extremely difficult to prove does not relieve her of the burden of presenting sufficient evidence to demonstrate the existence of a material question of fact. The court found that to assign negligence to the Defendant based on the limited evidence on the record would impermissibly cross the line from reasonable inference and venture into the realm of rank speculation. Because the plaintiff could not meet that burden in this case, the defendant was entitled to summary judgment.

Lee v. Crookston Coca-Cola Bottling

Law: *When it could be inferred from circumstantial evidence that it is more probable than not that a product was defective when it left the manufacturer's hands the issue of liability should be submitted to the jury on strict liability theory.* *Facts:* Waitress was injured when a Coca-Cola bottle exploded in her hand. *Holding:* Court said trial court erroneously refused to submit Plaintiff's requested strict liability theory to jury. Was there a manufacturing defect in the product? —the coke bottle exploded. *How is this reliance on res ipsa for strict liability different than for proving negligence?*—in some situations we rely on indirect evidence that more likely than not there must have been negligence even though P doesn't present specific evidence for what the negligence is. Here, it is a different context. Here, we are using the doctrine of res ipsa to prove the product was defective in proving the product was defective when the manufacturer left. --What could have happened to the coke bottle when it left manufacturer into the stream of commerce—could have changed over time through other contact with it. --No evidence at restaurant there was environmental damage after coke bottle was released, court felt comfortable in applying res ipsa --Example of strict liability in manufacturing defect. With additional res ipsa reliance for how to find res ipsa.

Impson v. Structural Metals

Law: *Where a party violates a statute, he must present some legally substantial excuse or justification.* Facts:D's truck passed P's car within 100 feet of an intersection in violation of a statute. D's truck hit P's car. Holding: The court affirmed the trial court's ruling that there was no evidence offered of any legally acceptable excuse or justification. The violation was, as a matter of law, unexcused. Plaintiffs were thus entitled to a judgment. Restatement 2nd, Torts, section 288A: 5 Excuses 1. Actor's incapacity 2. Neither knows or should know of compliance 3. Unable to comply based on a reasonableness standard 4. Emergency not due to own misconduct Greater risk of harm

Van Camp v. McAfoos

Law: *Where an essential element of the cause of action is missing, the question is not what may be shown under the pleading but whether a cause of action has been pled.* Facts: Van Camp (Plaintiff) sued, alleging that Mark McAfoos (Defendant), while riding his tricycle collided with Plaintiff causing injury to her achilles tendon. The trial court sustained a motion to dismiss. Plaintiff appealed. Holding: The decision of the trial court was upheld, the Supreme Court of Iowa maintained that, while a child of "tender years: may be held liable in tort, the relevant precedents have fault as an essential element." That element was absent in this case.

Posas v. Horton

Law: *the emergency doctrine provides that a person confronted with a "sudden emergency" which he didn't cause and who acts with his best judgment is not guilty of negligence, even if his decision wasn't the best one, provided he acted like a reasonably prudent person would act when confronted with the same situation.* Facts: lady driving car, baby stroller, stopped suddenly. Was rear-ended by Horton. Holding: Horton was negligent by following to closely so doctrine doesn't apply

Martin v. Herzog

Law: Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another. Facts: The decedent (Plaintiff) was killed when Defendant's automobile crashed into Plaintiff's buggy. The accident was at night, when it was dark, and Plaintiff was operating his buggy without any lights, in violation of a statute. Defendant requested a ruling that the absence of lights on Plaintiff's buggy was prima facie evidence of contributory negligence. The trial court refused Defendant's request. The jury found Defendant liable and Plaintiff free from contributory negligence. The appellate court reversed the trial court's judgment. Plaintiff appealed the appellate court's ruling Holding: Appellate ruling sustained. The jury may not discount a breach of a statutory duty. The question of duty is a question of law. The jury is the trier of facts. Plaintiff wrongfully violated a statute intended for the protection of Defendant. Plaintiff is negligent per se. The only thing left to determine is causation and injury. If Plaintiff's failure to light the buggy was the cause of the accident, then it is contributory negligence.

Cohen v. Smith

Law: Offensive conduct doesn't have to cause bodily harm; can just be a violation of a plaintiff's personal integrity Facts: P filed suit against nurse and Hospital (D's) after the nurse observed and touched her naked body in violation of her religious beliefs.

Indiana Consolidated Insurance v. Mathew

Law: The central concept illustrated by this case is the sudden emergency doctrine which holds that when a person is confronted with an emergency not of his or her own making, he is expected to act in the same manner as that of the ordinary, prudent person and cannot be charged as negligent when acting in accordance with his or her best judgment. Facts: Appellee was attempting to start a riding lawnmower in his brother's garage when the lawnmower caught fire. Appellee tried, unsuccessfully, to extinguish the flames. He then ran to his home to call the fire department. He returned to discover the garage completely engulfed. Indiana Consolidated Insurance sued Appellee, alleging that he negligently breached the duty to exercise due care in starting the lawnmower and thus was liable for the resulting damages. Holding: Appellee was not negligent as he exercised the judgment of an ordinary, prudent person.

O'Guin v. Bingham County

Law: To make a prima facie claim for negligence per se, the following elements must be met: (1) the statute must clearly define the required standard of conduct; (2) the statute must have been intended to prevent the type of harm the defendant's acts or omissions caused; (3) the plaintiff must be a member of the class of persons the statute was designed to protect; and (4) the violation must have been the proximate cause of the injury. Facts: Plaintiff's children were playing in the Bingham County landfill when a wall collapsed and killed them. Plaintiffs sued the County under a negligence per se theory, arguing that the County's failure to fence the boundaries of the landfill, as required by state statutes and federal regulations, caused the children's deaths. Holding: Court held that this case met the requirements and reversed SJ.

Touchet v. Hampton

Law: Words do not constitute a threat to safety Facts: D went to P's office and beat him for 20 seconds after receiving threatening phone calls. Holding: Held, dismissal reversed; words written or spoken sometime prior do not actual or reasonably apparent threat to safety.

Ashcroft v. King

Patient only consented to blood transfusion if from family. Therefore, by using transfusion from other source, exceeded scope of consent.

Robins v. Harris

Prisoner can't consent to sexual relations

Kaplan v. Mamelak

Surgeon operated on the wrong disk during surgery and the patient sued. Because patient didn't consent to operation on disk operated on, exceeded consent.

Avila v. Citrus Community College District

•Facts: Baseball player hit by pitcher at baseball game •Issues: o What was meant by "primary assumption of risk"? ♣ *Primary assumption of risk—indicates no duty or no breach conception and complete bar from recovery effect.* oWhy were none of the 4 alleged breaches of duty held to be valid? a. Conducting a preseason baseball game b. Failure to supervise the pitcher c. Failure to provide umpires d. Failure to provide medical care •*Holding:* *Primary assumption of the risk by Avila (implied) since he was playing an inherently dangerous game where pitches will be thrown at him and have been known to hit people.* *Even if the pitcher intentionally threw at Avila, his conduct did not fall outside the range of ordinary activity involved in the sport. (pitchers sometimes do that for strategic reasons).* o School had no duty, cannot express them to be micromanaging