Torts with Halabi

Pegg v. Gray

-Case with 70ish acres of farm land. Neighbor allows hounds to trample the lan and leads to claim fo trespass -is this a trespass? -Yes Similar to Garratt v. Daily, the court states this is an instance of "constructive" knowledge, meaning the outcome is something the defendant SHOULD have known

Morgan v. Loyacomo

-Clothing store, the store clerk chased the plaintiff out of the store even though they did not steal anything Holding: it is not necessary to touch the plaintiff's body or even clothing-- knocking or snatching anything from the plaintiff's hand or anything connected with the person

Johnson v. Wills Memorial Hospital

-Decedent of P running around hospital yelling "help me" -forcibly returned to his room, escaped by slicing screen on window and found dead -Negligence here? No; the services provided by the hospital is different than the facility

United States v. Lawter

-Family's boat hit by waves off Key Biscane, Florida, sends all four family members into the water about 500 yards from shore. The waves were rough. Coast Guard sees the family in peril and attempts a rescue. Mrs. Lawter was not properly secured during the rescue attempt and falls back into the sea, suffering fatal injuries. Issue: was coast guard negligent? Holding: yes; anyone who attempts to do anything even gratuitously is negligent for the act that he has undertaken *Defendant's actions made the plaintiff worse off and the Plaintiff relied on their actions

Laidlaw v. Sage

-Man comes to deliver something, but lets Sage know he has a bag of dynamite. Sage slowly retreats and puts his assistant Laidlaw in from of him as a shield. Rule: if danger is present, the action is not seen to be an intentional tort-->evokes law of nature -"the law presumes an act or omission done in fear of danger, the act or omission is involuntary"

Weirum v. RKO General

-P is the family of person killed by two teenagers frantically searching for the Disc Jockey on a radio show owned by RKO General issue: was there a duty of care? Holding: Yes duty; liability for encouraging a particular group to engage in dangerous/reckless behavior. Under section 315, yes, D created an unreasonable risk of harm

Ellis v. Louisville & Nashville Ry.

-P responsible for maintaining that released sand onto defendants train tracks to keep the wheels from spinning. Clouds of dust/sand would accumulate and he could not help breathing it in. P contracted silicosis from his 25 years doing this *is D negligent for not providing a mask? No. D argues it is not custom to give masks, might argue it was not foreseeable the P would contract this illness

White v. University of Idaho

-Piano teacher walked up behind Carol White to demonstrate a move. -White says the touch was unwanted, even though Richard Neher (employed by university) says the move is pretty customary for a teacher

McNeil v. Mullin

-Road rage for the horse and buggies -both parties consent to the fight, damages brought against the defendant -can participants in a fight bring suit against one another? -The court says yes. Though consent was given by both, the court's idea is that it might deter future fights to come about because both parties are then susceptible to being sued.

Hart v. Geysel

-The professional boxers, the estate of one who died sues the defendant -Is this a battery/wrongful death claim? -Court says no -Not only did the plaintiff consent to the fight, he also profited from this legal activity, the court states it is not good public policy to allow people who consent AND engage in illegal activity to profit from their wrongdoings

Neal v. Neal

-Wife sues husband for battery, claiming he lured her into having sex with him under false pretenses (he was having an affair) -Is this a battery? -The court says no. They found it would not be within the court's interest nor power to allow the wife to avail herself of misconduct under claims of tort

Wiseman v. Schaffer

-the case of the towed car being stolen -jury found no negligence for Schaffer -is defendant liable for conversion? YES, even though he did not act in bad faith, he still exercised dominion over the vehicle he was towing for a period of time -If the defendant could have exercised even the smallest action to make sure no negligence occurred, they are responsible to do so. Example: even just to ask the driver's license number

Crabtree

-very first contact in the case was the man being escorted down could be considered a battery BUT it is a privileged interaction because of the context of the interaction

Battery Requirements

1. Defendant intends to make contact 2. Contact is made 3. Contact is offensive or harmful 4. Something "wrongful" (should be objective) Examples: intent to commit a different tort (Grimsley) -the touch violated a rule or norm (Vosburg) -intend to cause actual harm/offense (Polmatier) -the act offends a reasonable sense of dignity (White v. Idaho)

Negligence

1. Duty: defendant has a legal duty to exercise reasonable care 2. Breach of duty: defendant failed to exercise reasonable care 3. cause in fact: "But for" D's breach of duty, P would not have been harmed 4. Proximate Cause: it was foreseeable that D's failure to exercise reasonable care would cause harm 5. Damages: P suffered a legally cognizable harm *the only one determined as a matter of law (versus a matter of fact) is duty.

Tarasoff v. Regents of the University of California

1. Failure to detain a dangerous person 2. Failure to warn of a dangerous patient -October 27, 1969, Poddar kills Tarasoff issue: is there negligence via 3rd party relationship? Holding: yes, the psychiatrists are liable for their failure to inform and properly detain a man who wanted to kill a girl *no applicability between the campus police and Poddar.

Duties to licensees

1. Invitees, trespassers, or licensees? 2. special relationship hat makes an extra duty? 3. Duties that arrive from undertakings? --> if it's a trespasser, only have to alert to a unknown

the negligence standard

1. did the defendant owe the plaintiff a duty of care? 2. did the defendant breach that duty by failing to use reasonable care, acting as a reasonable person under the circumstances?

Trespass

1. enters land in the possession of the other or causes a thing or third party to do so OR 2. remains on the land OR 3. failing to remove something from the land *mistake of the person committing the trespass is not a defense

Intrusion under mistake

1. is in possession of the land or entitled to it 2. has the consent of the possessor or a third party who has the power to give consent on the possessor's behalf 3. has some other privilege to enter/remain on the land

Petition of Trans Pacific Fishing and Packing

3 crewmen wash hoverboard by wave off coast of Nicaragua. 2 men rescued, but suffered significant loss. One man died Issue: negligence under special relationships? Holing: yes; captain should have made stronger attempts to recuse the men because there is a special duty between employer and the employee

Percentage of courts that settle

95-97% of cases

Rylands v Fletcher

A landowner who puts his land to non-natural use is strictly liable for harm caused by that use "the person who for his own purposes brings on his land and collects and keeps there anything likely to do mischief if it escapes, must keep it in at his peril and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of his escape" -The P here id not ask to assume the danger of having a reservoir on the land *it does not matter if due care was given, the P has to be made whole

Dellwo v. Pearson

A minor operating an automobile, airplane, or speedboat is held to the general reasonable person standard (as opposed to a reasonable child standard) --> this is a minor's action to an adult and in Purtle it is two minors

Primary Assumption of Risk

A plaintiff understands and voluntarily agrees to accept the inherent risks of an activity

Petition of Kinsman Transit

A steamboat on river is turned loose because it pulls out the anchor. This causes significant flooding on the riverbanks. Issue: negligence? Holding: yes, under proximate causation. The ill placed anchor was the direct cause of the flooding on the river banks.

Desnick v. American Broadcasting Companies

ABC crew went with hidden cameras to a cataract surgery clinic where they requested eye exams. Videotaped physicians doing examinations and making recommendations Intrusion claim denied because the taping did not invade truly private affairs or conversations of the physicians

Restatement (Second) of Torts §520

Abnormally Dangerous Activities In deterring whether an activity is inherently dangerous, the following factors are to be considered: a) the existence of a high degree of risk of some harm to the person, land or chattels of others b) likelihood that the harm that results from it will be great c) inability to eliminate the risk by the exercise of reasonable care d) extent to which the activity is not a matter of common usage e) inappropriateness of the activity to the place where it is carried on; and d) extent to which its value to the community is outweighed by its dangerous attributes

Restatement §334

Activities Highly Dangerous to constant trespassers on limited area: -A possessor of land who knows, or from facts within his knowledge should know, that trespassers constantly intrude upon a limited area thereof, is subject to liability for bodily harm there caused to them by his failure to carry on an activity involving a res of death or serious bodily harm with reasonable care for their safety

Anderson v. Erie Ry. Co

Anderson bought a ticket to ride on D's railroad at reduced fare, but the contained a disclaimer. Train derailed and killed Anderson -Held for D. P assumed the risk of negligence by agreeing to ride at the reduced fare. If they wanted more safety precautions to be taken, the P had the option to purchase the more expensive ticket.

Res Ipsa Loquitur

Another way to prove negligence -From inferences drawn from all the circumstances, there could not have been a proper duty 1. The harm causing event was probably the result of negligence AND 2. the defendant was probably the culpable party --> res ipsa being applicable only means the burden shifts to the defendant to prove there is no negligence

Vosburg v. Putney

At school, George Putney reaches his toe over and touches Andrew Vosburg knee causing injury. BATTERY - was during class and violation of class rules. Issues: 1. Is the wrongdoer liable for all injuries here even if he could not ave foreseen them? 2. Is the rule "the intention to do harm is of the essence an assault? *Eggshell skull rule. You take your defendant as you find them. Procedural History: Trial curt and jury verdict found for Plaintiff Vosburg, awarded $2,800. Defendant appealed. Verdict was set aside and case remanded back to trial court on order of new trial. -On 2nd trial, jury returns a verdict on seven parts

Peterson v. Sorlien

Because P under "mind control" of cult lacked capacity to either consent or withhold consent for first 3 days of deprogramming and voluntarily remained for 13 more days, her constrain was voluntary and D not liable for FI.

Katko v. Briney

Because spring gun was set in unoccupied house, D was not privileged to use deadly/serious bodily harm force since life is more valuable than property.

Leichtman v. WLW Jacor Communications

Blowing of the cigar smoke into the plaintiff's face. -The court held the trial court improperly and inaccurately dismissed the claim of battery. No matter how trivial the occurrence, giving of consent does not excuse or give a defense for the actions.

Dillon v. Twin State Gas & Electric Co.

Boy fell off a girder on a bridge; grabbed a negligently exposed wire and was electrocuted; court held that if he would have died from the fall anyway, damages should be substantially reduced

Adams v. Bullock

Bridge that crosses above the trolley line, 12-year-old boy walks across bridge swinging wire, makes contact with trolley wire and shocks/burns him -the burden here is less than the loss as the probability of occurrence is incredibly small -Negligence is the failure to exercise ordinary or reasonable care; there is no negligence when defendant fails to foresee extraordinarily remote accidents

Edwards v. Honeywell

But for the dispatchers faultier, firemen would not have died is NOT a strong argument. Negligence to Honeywell? Most likely not

Harris v. Meadows

Car accident between P and D. D acknowledges she negligently made a left turn, but was P negligent? Holding: under contributory negligence, court says P is negligent and cannot recover for damages under the all or nothing rule

Steinhauser v. Hertz Corp.

Car accident, young girl in P's car suffers a schizophrenic episode. For D: foreseeability is not reasonable. For P: causation is clear--> the injury to the brain is the equivalent of a physical injury like a shattered leg bone.

Pridham v. Cash & Carry Building Center

Clerk at D's showroom negligently untied rope holding vinyl panels, causing large pile to fall on P. Doctor arrived, sees P cannot move his legs, put on a stretcher and into ambulance. Pn way to the hospital, the driver has a heart attack, drives into tree and kills P. -->YES liability here because the "law provides if the defendant is liable to the plaintiff-decedent, he is also liable for any other injuries resulting from normal efforts to third persons rendering care."

The T.J. Hooper

Coal barges lost in a storm while being towed by the petitioners two tugboats along New Jersey Issue: is there negligence because the tug boots did not carry radios? Holding: yes, the injury is of direct result to the unseaworthiness. There are precautions so imperative that even their universal disregard will not excuse their omission (this is the introduction of custom)

Escola v. Coca Cola Bottling Co.

Concurrence by Traynor argues for strict liability in tort for manufacturers of defective products; it is to the public interest to discourage the marketing of products having defects that are a menace to the public; it is to the public interest to place responsibility for injuries resulting from defective products on the manufacturer, since he is responsible for the products reaching the market

Negligence Per Se

Court may adopt as a standard for reasonable conduct 1. class of persons 2. particular interest 3. kind of harm 4. particular hazard If D's violation is outside the scope of risks --> can use Hand Formula to analyze Negligence Per Se

Guthrie v. Powell

Cow falls through ceiling onto woman -Res Ipsa is applicable here. The difference between this and Brauner is the likelihood of the occurrence. The probability here is closer o zero, making it more likely a res ipsa loquitur case

Lubin v. Iowa City

D city allowed its underground water pipes to stay in place until they break, even as they approached the end of their life. --> Strict liability to D. It is not the act of having water stored, but being negligent in replacing them as a they reach their age limit *Halabi says to think through the comments of negligence first and then to go to strict liability if it does not meet the components of negligence

Yazoo & Mississippi Valley Railroad Co. v. Gordon

D company has cattle awaiting connecting train. A steer escapes and gores P -Vicarious liability here because the steer is a domesticated animal, not a wild one

Cromhurst

D has a Yew tree (poisonous to horses) that overgrows on the P's property, whose horse eats t and dies. -Under the ruling in Rylands, D has a tree "likely to do mischief if it escapes"--> it did escape by growing over the property line and did cause mischief by killing the horse *prima facie for strict liability

Lordi v. Spiotta

D invited P and his song to D's "summer bungalow." Hot water heater was powered by natural gas, the son turned it on for the bath. As he's leaving the house, asks D to turn it off. D thinks he does, but does not. Later, D asks P's son to go start the water heater for another bath and he does. An explosion of the heater kills him. Issue: negligence? Holding: Yes; only liable here if the owner of the home knows or should have known of the water heater defects

Gambill v. Stroud

D is a surgeon about to perform surgery on the P's wife when they had to abort due to issues with the anesthesia and she suffered brain damage and cardiac arrest Issues: was Dr. Stroud negligent? Holding: No, the locality rule is acceptable here

DiPonzio v. Riordan

D left car running while getting gas, car rolls out of gear and hits P, breaking his leg. -NO negligence under proximate causation to the D because this injury is outside the scope of foreseeable injuries that would occur by the D not turning his car off at a gas station (example: fire, etc.)

Indiana Harbor Belt Railroad Co. v. American Cyanamid Co.

D transports hazardous chemicals. Their shipment arrives in Chicago and suffers a spill at P's rail yard. Nearby homes have to be evacuated and Illinois EPA called to clean up. *No strict liability to D The court is really saying if the homes surrounding the rail yards were more expensive, then strict liability would be applied --> court clearly got this wrong

Siegler v. Kuhlman

D's driver scheduled to transport over 8,000 gallons of gasoline, there's an accident, gas spills. O's decedent drives over gas and the oil ignites, engulfing her in flames and killing her *strict liability to D because transporting such large quantities of gasoline is highly and abnormally dangerous --> distinguished from Indiana Harbor: there are many more highway hazards than there are railroad hazards.

McIntyre v. Balentine

D's tractor collides wit P's truck. P was speeding, but D was intoxicated. Tennessee adopts comparative negligence rule, either "pure" or "modified" -Tennessee chooses modified (a not more than 50% rule) and New York chooses a pure form

Tingle v. Chicago

D's train ran over P's cow on a Sunday and there was a state statute that trains are not allowed to run on Sundays. The P's logic is if the train had followed the statute, there would have been no injury to the cow. Issue: negligence to D? Holding: No; no claim of negligence at all. Is the kind of injury here needing to be protected by negligence per se? Most likely not. And the statute of no trains running on Sundays was meant to keep pease, not to keep cows from getting hit

Purtle v. Shelton

D, 17-year-old, accidentally shoots his hunting companion, the P. jury says the P is contributorily negligent and under Arkansas law, this means he cannot recover ANY damages *impose liability here, hunting is recreational *court says there is no authority that a minor should be held to an adult standard if care merely because he engages in dangerous activity however, hunting is an activity used by adults AND children

Garratt v. Dailey

Dailey moved a lawn chair that he believed Ruth Garratt was going to sit down in. When she did, she fell, sustaining injuries. Garratt brought an action against the child for battery. -Dailey found liable for medical bills for Garrett. Though the defendant did not touch the woman's body directly, she would not have fallen but for his action of pulling the chair out from under her. This make him liable for a battery and the court states age is not an applicable detail here

Spooner v. Manchester

Defendant did not exceed the scope of consent like in Palmer v. Mayo -did not intend to continue to exercise dominion -honest mistake, merely became lost and tried to find his way back

In Re Polemis

Defendant will be held liable for all harm that is the direct result of his negligence; no valid distinction between foreseeability of the *extent* of damage and the *type* of damage

Restatement (Second) of Torts §220

Definition of a servant 1. a servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other's control or right to control 2. in determining whether one acting for another is a servant or n independent contractor, the following matters of fact are considered: a) the extent of the control which, by the agreement, the master may exercise over the details of the work b) whether or not the one employed is engaged in a distinct occupation or business c) the kind of occupation, with reference to whether, in the locality, the work is dually done under the direction of the employer or by a specialist without supervision d) the skill required in the particular occupation e) whether the employer of the workman supplies the instrumentalities, tools, and the place of work for the person doing the work f) the length of time for which the person is employed g) the method of payment, whether by time or by the job h) whether or not the work is a part of the regular business of the employer i) whether or not the parties believe they are creating the relation of the master and servant; and j) whether the principle is or is not in business

United States v. Carroll Towing Co.

Does the absence of the attendant make the barge owner partly liable for damages? Holding: yes; hard to put a nominal value on human life, but the hand formula establishes negligence here

Konradi v. United States

Employee for post office in collision with P's decedent, he dies, P brings suit under Federal Torts Claim Act (this act then adopts the law of the state in which the accident occurred when a federal entity is involved) *Vicarious liability here because there are measures the U.S. could have taken here to minimize driving and potential injuries. 1. the vehicle in Konradi is an instrument of employment 2. control by USPS too: stick to route, do not deviate from the route, wear seatbelt, etc. *this case gives employers across the country incentives to think of how to minimize liability in their business practices

Ira S. Bushey & Sons, Inc. v. United States

Employee of D turns wheel that results in partial sinking of U.S. ship and damage to P's dock -should vicarious liability apply? Holding: yes. the employee was working in an official capacity, making the employer liable --> the act here that spawns this is action is the opening of the valve

Hurley v. Eddingfield

Fact Summary: When Eddingfield (physician) refused to render aid to decedent, his heirs Hurley, unsuccessfully sued for wrongful death. Concise Rule of Law: In obtaining the state's license to practice medicine, the state does not require, and the license does not engage, that he will practice at all or on other terms than he may choose to accept. No, licensed doctors are not obligated to accept all patients who are in dire need of medical attention. No, there is no affirmative duty to be a good citizen and help others in peril if you have not caused their predicament. *no duty of acre. A medical license is a preventative one, not a compulsory one

Vaughan v. Menlove

Facts- Farmer ignored warnings that his hay was going to catch on fire. The caught on fire and burned down his neighbors cottages. Holding- A man must use and enjoy his property as to not injure that of another. *what would the average person do?

Roberts v. Ring

Facts- Old man ran over a child at 5 MPH Holding- When driving a vehicle you must use reasonable care, children are only held to a standard of a child the same age. If you choose to operate a machine and take on the risk, you should be held to a reasonable person standard for the damages that result from that risk.

Byrne v. Boadle

Flour falling from a barrel holder (the thing that lowers them from higher floors). The plaintiff is entitled to verdict. Two thing emerge here: 1. the accident very likely resulted from negligence and 2. gas of misinformation between the P and D, meaning more access to evidence for one party over another

Restatement (Second) of Torts §519

General Principle (in strict liability charter, specifically abnormally dangerous activities) 1. One who carries on an abnormally dangerous activity is subject to liability for harm to the person, and or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm 2. This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous

Malouf v. Dallas Athletic Country Club

Golfers hitting their balls into the neighborhood, cause property damage to cars -is this a trespass? Court says no, the action is NOT intentional so it does not meet the standards of a trespass

Combustion Engineering v. Hunsberger

Hunsberger is working in construction; A workman for the defendant company is screwing something into a metal shaft when it falls on Hunsberger Issue: negligence? NO -this is distinguished from Byrne based on the PROBABILITY (or likelihood) of the incident occurring and in a construction site, this action might be common -When the probability is closer to zero, this is most likely res ipsa loquitur

Hand Formula

If P*L>B = negligence

Scott v Shepherd

If the third party has acted instinctively (as in 'the heat of the moment') then there will be no break in the chain of causation

MacPherson v. Buick

In the landmark case of MacPherson v. Buick, Justice Cardozo dispensed with the previously applied requirement of privity of contract in products liability cases and extended the manufacturer's duty of care to include the ultimate consumer of the product, whether or not the consumer was the actual purchaser of the product. Later cases extended the duty to include not just the purchaser or the ultimate consumer, but to include all persons and property likely to be endangered by the product's probable use, such as the consumer's family or guests, or even near bystanders. "if he nature of a thing is such the it is reasonably certain to place life and limb n peril when negligently made, it is then a thing of danger

Cohen v. Smith

Intentional Torts--Battery Case: Nurse who touched a woman who was giving birth after she said no males in the room. Rule: An offensive touching occurs if a tortfeasor has knowledge of a person's unusual sensitivity and D violates the sensitivity, even if a reasonable person wouldn't be offended. Rule: Knowledge gives intent. Without prior knowledge that P would find something offensive, D cannot formulate intent. *IS this a battery? YES. The court states though we may not have the same religious belief does not mean we should not respect hers

Rowland v. Christian

Landmark case of Rowland vs. Christian eliminated the distinction between business invitee, licensee, and trespasser and found that the land occupier owes a duty to act as a "reasonable man" for purposes of rendering the occupied property safe for others. -P was a guest in D's apartment, cut his hand on a cold water faucet in D's guest bathroom Issue: invitee or licensee for negligence? The court rules these distinctions have become obsolete. D is still liable. D knew of the condition (or so the court assumes) and so should have warned her guest

Wallace v. Rosen

Mable Wallace delivers homework to her daughter at Indianapolis high school. Fire drill occurs, the teacher pushes Wallace and she falls (she already had an injured ankle) Issue/holding: Is this a battery? Court said no -"In a crowded world, a certain amount of personal contact is inevitable and must be accepted.

Colonial Inn Motor Lodge v. Gay

Man backs car into pole in paring lot of hotel, severs gas line unbeknownst to him. Explosion in laundry room. Negligence to defendant because court finds the reasonably foreseeable and the plaintiff is an eggshell skull plaintiff (we take them as we find them).

Welge v. Planters Lifesavers Co.

Man cuts and impairs hand on glass jar of peanuts. D is liable to P for the injury

Roth v. First National Bank

Man deposits money to bank, leaves with $72,000, thieves take money. Employee of D tipped off her boyfriend who was the thief --> no vicarious liability here because D's actions were outside the scope of her employment *Posner's question here: whether or not imposing liability would change the way the bank works. We don't want the bank to do less business

Margharita

Man fell overboard, leg bitten off by shark, no surgeon on ship. Nearest doctor is is at a port that would take the ship 3 weeks to complete the journey to. The ship did not stop to get the P medical help Issue: negligence to ship? Holding: under the Hand Formula, no. the burden would have outweighed the the PL

United Novelty Co. v. Daniels

Man instructed to clean machines with gasoline in a room with a gas heater. A rat, soaked i the gas, hid under the heater, caught fire and exploded the machine, killing Daniels. -Court will likely reverse this in favor of the deferent United Novelty Co. because this is a freakish accident, not a foreseeable one.

Sindell v. Abbott Laboratories

Market share liability. DES drug causes miscarriage, multiple manufacturers made it so they share liability. --> Market share liability: Plaintiffs can recover against all defendant's jointly, each D liable for the portion of their share of market at the time of the injury Issue: may a P, injured as the result of the drug administered to her other during pregnancy, who knows the type of drug involved but cannot identify the manufacturer of the precise product, hold liable the maker of the drug? Holding: under market share liability, yes

Werth v. Taylor

Mormon with the blood transfusion case -Is there battery here? Court says NO. Consent is implied when the patient is unconscious and as found in Mohr and Grabowski, when an emergency is present OR the patient is unconscious, consent is assumed. She would have died without the procedure, medical professionals acted in her best interest in the moment.

City of Boca Raton v. Mattef

Mr. Mattef, P's decedent, was a sign painter. Did not have qualifications to go to water tower for the project. Mattef went anyway. He slipped and fell off ladder to his death. Issue: negligence to city? Holding: No; Mattef labeled a "licensure," not much better than a trespasser. If you're inviting people as a business invitee, you are most likely benefitting in some way.

Davies v. McDowell National Bank

Mr. and Mrs. Davies arrive at Thomas's office (Thomas is ill and the step father to Mrs. Davies). Mrs. Davies and Thomas die of carbon monoxide poisoning. Mr. Davies brings suit against Thomas's estate Issue: negligence? Holding: No; court nonsuits the plaintiff, no way of knowing if Thomas was aware of the harmful fumes, the Davies were labeled as "social guests" meaning they were there of their own volition

Boyd v. Racine Currency Exchange, Inc.

No duty because there would be an incentive to hold people hostage

Miami Herald v. Kendall

No vicarious liability because Molesworth (the employee) and Miami Herald both intended employee to be an independent contractor

Brauer v. New York Central & HRR Co.

One of D's trains collided with P's wagon at a grade crossing. P's horse was killed, Wagners destroyed ad the content (cider, empty barrels and a banker) were stolen by unknown parties. -->negligence to D. The person responsible of the wagon was so hysterical after the crash, he was in a fit; unable to stop looters from stealing in the middle of big city -The act of the 3rd party does not supersede the D's wrongdoing

White v. Levarn

P and D go squirrel hunting, P is injured because the D mistook P's hat for a squirrel. Issue: Negligence? Holding: Yes; consent to an assault is no justification because state is wronged by it, law forbids it on public grounds -The inury here falls outside the scope of the statute *court got it wrong

Tedla v. Ellman

P and brother walking on side of highway. Brother is killed by drivers car and Tedla is injured Issue: who is negligent? Holding: solely the driver of the car, the defendant -If the statute does not benefit human life, the deviation with good cause can help get out from strict application of a statute. *the court has nothing to do with legislative intent regarding statutes -Violating a statute designed to increase safety when following it would actually decrease safety is not negligent; however, violation of a statute without good reason is a wrong

Widlowski v. Durkee Foods

P attempts to clean a tank containing nitrogen gas. Entered the tan without protective gear, became delirious, sent to hospital, bit off finger of a nurse. Issue: Negligence to Durkee? Holding: this was a freakish accident, break in chain of causation. Durkee did not owe Widlowski a city of ordinary care

Brauner v. Peterson

P brings suit against D because D's cow wanders off property and P hits him with his car Issue: res ipsa loquitor? no, failed to provide evidence to prove negligence; the cow could have escaped from perfectly adequate confines

Stangle v. Fireman's Fund Insurance

P buys a $30,000 ring via a promissory note , asks girlfriend Barnabas Britt to sell it. She makes contract and agrees to sell ring for $50,000 to Barry Richards, who then steals the ring --> Britt goes to the receptionist of the building the deal is occurring to call for help, the receptionist refuses, says the phone is for business uses Issue: duty of special relationship? Holding: No; plaintiff is not a tenant of D's building, so there is no special relationship and its a nonfeasance

Weirs v. Jones County

P crashes his horse and wagon into a dream because he could not read the signs (she a different language) stating the bridge is under construction issue: negligence? Holding: no, the defendant county was reasonably prudent *the fact that the P could have read it if he ;earned the language, the scenario would not have occurred.

Ryan v. Towar

P entered the pump house trough hole in the wall she created, became injured when she got caught between the wheel and the pit Issue: Negligence for D? Holding: no; the company was not aware of children entering the premises

Fredricks v. Castora

P gets hit by two semi drivers Holding: No negligence to the semi drivers because holding semi drivers to a higher standard does not serve the overall concept of vehicular injury -how does tailoring the standard of care to someone with more experience help? it does not

Brune v. Belinkoff

P given 8 milligrams of pontocaine for a spinal epidural before giving birth to her first child. common practice in New Bedford, but in Boston only 50 miles away, 5 milligrams was customary. P, 11 hours after giving birth, slipped and fell because of lower body numbness. Issue: does the :locality" rule in Small v Howard protect the defendant? NO -an outdated rule. proper standard of care is whether the physician has exercised the degree of care of the average qualified professional practitioner --> this is the national standard of care

Manning v. Brannon

P goes skydiving, reads the waiver and signs 14 times, releasing D from harm or injury. P's parachute doesn't release, spirals into pond and injures himself -P brings suit for not properly packing the parachute (negligence to D). -Held for D that the signed release was enforceable. P never supported that jumping was necessary to wellbeing, rather that P willingly trained with and jumped with D

Madsen v. East Jordan Irrigation Co.

P has a mink farm. D has an adjacent irrigation canal that he uses explosives to repair. The vibrations from the explosions excite the mother minks and they killed 230 of their kittens. --> no proximate causation here, there are breaks in the chain -->ask yourself if this is the kind of activity that strict liability is trying to protect against? this a no here

Friedman v. State

P is a 16-year-old girl who gets stuck on a ski lift with male friend, hysterical because her religion does not allow her to be left alone with a man. Jumps the 20 feet and breaks her nose Issue: negligence? Holding: yes, the hysteria the P felt motivated her movements which would not be necessary if the ski lift attendant had not left them there

Smith v. Cutter Biological

P is a hemophiliac (blood does not clot properly) and contracted HIV then AIDs after receiving bad blood products from army hospital -fungible products from only four companies, market share liability is applicable here

Van Tuyn v. Zurich (express assumption of risk)

P is a patron of Club Dallas, sees other patrons riding the mechanical bull, so she decided to do it. P had never ridden a bull before, told the operator to go slowly and she signed a waiver (which did not include the negligence of the operator component) Issue: is Club Dallas exempt from negligence? Holding: no; D could have taken all due care and P could still be injured. Injury, if instigated by the operator's negligence, the the actions are outside the scope of the waiver's terms

Woodall v. Wayne Steffner Productions

P is a stunt man for the D company and they agree to do a stunt that involved a car and a balloon contraption. All parties know and agree that the car cannot go over 30 miles per hour or the P will be injured. Issue: negligence to D? Holing: yes; employee hired and unqualified driver, D knew of the requirements for the stunt and did not comply with them

Kline v. 1500 Massachusetts Ave. Apartment Corp.

P is assaulted and robbed in a common hallway of the building in which she rented an apartment. She had lived there for 7 years, always with a doorman. The doorman had recently been removed. Issue: Negligence to the third party apartment building? Holding: Yes; this holding sort of makes landlords socialize hefty measures, but the contractual relationship between the P and D cuts against the liability. It solidifies the liability of the third party

Davis v. Feinstein

P is blind man walking in Philly, exercising precautions in using cane. he falls into open cellar door of the D's furniture store Issue: negligence to D? Holding: yes; P is not bound to discover everything a person of normal vision would *this is a distinct defect: person being clumsy or a and driver is not a defense. This P has a defect which does not allow them to be categorized as "the average person"

Wolf v. American Tract Society

P is delivering pipe to a building under construction, brick dropped on his head Issue: negligence under res ipsa loquitur? Holding: No; common thing to occur in a construction site

The Roman Prince

P is on a barge that collides with another ship and P does not think it is sinking. 30 minutes later, water on the deck, P tries to escape, injures knee. --> No negligence to D because not proximate cause. Had she not hesitated, she would not have injured her knee

Davis v. Consolidated Rail Corp.

P is the inspector of railway cars, driving a van the same color s the railroad corp. to inspect, must crawl under the train cars. Did not hang a blue flag as was customary. Train crew began moving the train, but did not blow the whistle, no alert to Davis. One leg severed below the knee, the other leg's foot cut off Holding: negligence to RR because blowing a whistle is an extremely low burden

Cohen v. McIntyre

P is the vet who is bit by D's dog, who knew of the dog's propensity to bite and did not warn the vet. *No liability to D for not disclosing information --> this is a lack of information, but not a misrepresentation

Yania v. Bigan

P is the widow of Yania, man who jumped into a sort of well by the urging of no one in articular, but in the presence of Bigan Issue: is there a case for negligence? Holding: No; Bigan owed no duty of care to Yania. Even though Yania was taunted, Bigan did not owe a duty of care

Jacobsma v. Goldberg's Fashion Forum

P sees store manager point to a third man and say "Stop thief!" The P tackles the thief to no avail. P dislocates his shoulder and brings suit Issue: negligence under duties and licensees? Holding: Yes; P was a business invitee, thus D owed him a duty of care

Selger v. Stephens Brothers

P slips on dog poop on sidewalk -the ordinance the P brought suit against the D under articulates a duty of care to THE CITY, not passersby

Herrick v. Wixom

P sneaks into circus without buying a ticket. Clown sets off firecracker and a stray piece of it hits P's eye. Issue: negligence? Holding: Yes jut because P trespassed, does not put D's action above the law

Haft v. Lone Palm Hotel

P sued D for the wrongful death of her husband and son who drowned while swimming in hotel pool. -D argues just because there is not a sign alerting that there is no lifeguard on duty, they can't protect against people still choosing to swim or not. It's not enough just because the P says there is not a sign. The claim is that there is no lifeguard. Issue: duty of care owed? Holding: yes

Kingston v. Chicago & N.W. Ry.

P sued D to obtain compensation for damages to his lumbar yard after two forest fires converged about 940 feet north of P's property. One fire is of unknown origin, the other was ignited by a spark from D's train. Issue: does D escape liability because the odin of the other fire cannot be proven? Holding: there is no such burden on P. D is negligent

Larson v. St. Francis Hotel

P walking down street gets hit by chair falling from window. No witnesses saw where the chair came from, just inferred it fell from a room of the hotel Issue: negligence under res ipsa loquitur? NO -the action must be done by a defendant who has total and exclusive control of the occurrence/ items in question

Connolly v. Nicollet Hotel

P walking past hotel has a mud-like substance enter her eye. D hotel hosting a convention fro National Junior Chamber of Commerce and shit got crazy, pandemonium had bee going on for days -Issue: Res Ipsa Loquitor applicable? Court of appeals says yes -"negligence may be inferred from all the facts and surrounding circumstances"

O'Neill v. Montefiore Hospital

P walks in to see her husband suffering symptoms of a heart attack, walks him to the hospital within 3 blocks of their home. Turned down by nurse for their insurance plan. The husband of P dies. Issue: is there a duty of care? Holding: YES; the nurse and the doctor saw the symptoms first hand and still tuned him away. Can be guilty for malpractice

Carter v. Kinney

P was member of bible study group the met at D's home. P slips on patch of ice at D's home and breaks leg. Brings suit, claiming to be an invitee Issue: negligence? Holding: no; missouri court upholds disinfection between invitee and licensee.

Gardener v. National Bulk Carriers

P's decedent disappears from boot and is never seen again Issue: what was the duty if there was one? Holding: D should have taken on the burden of turning around to search for the lost man. The only thing lost was time. --> there will always be an 80% chance that intervening help won't make a difference

Frank v. United States

P's decedent on fishing expedition off the Jersey Coast. Boat motor malfunctioned, Coast Guard dispatched. Tried to save the decedent, failed and he drowned. Issue: Negligence? Holding: No. The coast guard attempted a diligent rescue. The plaintiff's on their boot could have had life preservers to minimize their risk

Van Vactor v. Hierholzer

P's decedent suffers heart attack at 40, but prior to this, his doctors told him to quit smoking, to start working out, etc. He does not do these things *this doctor does have a fiduciary relationship to patient, reliance on doctor as the expert to notice something in a test. The court will affirm the jury verdict for finding Van Vector 93% contributorily negligent

Herskovits v. Group Health Cooperative of Puget Sound

P's decedent was a patient of D for over 20 years. In December 1974, he cam to Group Health complaining of chronic chest pain. The D prescribed cough medicine. IN summer of 1975, decedent consulted dr. Ostrow, who diagnosed him with cancer in the left lung. The lung was removed. Decedent died in March 1977. -Ostrow concluded that Group Health had probably reduced Herskovits's chance of surviving for 5 years from 39% to 25%. -This case focuses on the missed chance rationale, or the loss of chance. -The risk without negligence divided by risk with negligence = x. 100-x= the percentage of reduced chance Issue: whether the relationship between the increased risk of human harm and Herskovits's death is sufficient to hold D responsible Holding: yes; there is enough, the court reinstated the wrongful death suit. *key question here: would they have served but for the defendant's negligence?

New York Central Railroad v. Grimstad

P's decedent was the captain of a barge moored in Brooklyn. A tugboat bumped into the barge and pushed the decedent over. Wife argues that proximate cause was the barge company not having life preservers at the ready. Issue: is the barge in question negligent under proximate cause? Holding: no; the proximate cause of the death is the falling into the water. The man did not know how to swim, os the wife stating the lack of life preservers was the immediate cause of the death implies a break in the chain of causation

Keffe v. Milwaukee & St. Paul R. Co.

P, 7-year-old boy, got leg stuck in D's railroad turntable, leg was later amputated Issue: negligence? Holding: yes; if D knew that the turntable left unfastened was dangerous, then a duty was owed. Restatement §334

Litzman v. Humboldt County

P, a 9-year-old, has hand destroyed from what je thought was a flare, but was actually an aerial bomb that was used for fireworks displays Issue: which party is negligent? Holding: neither. the bomb other belonged to one party or the other, but it is impossible to prove which one -Since P cannot establish joint control of the parties over the aerial bob, P argues the court should apply res ipsa loquitur and alternative liability. In alternative liability, the burden is on the plaintiff

Bradshaw v. Daniel

P, the son of the two decedents, brings suit because the father had been diagnosed with rocky mountain spotted fever, correctly diagnosed but still passed away. The mom then sought treatment for the same ailment from the defendant doctor. Issue: Duty of the doctor to warn the wife? Holding: yes; fiduciary responsibility

Thompson v. County of Alameda

Plaintiff and their 5-year-old son lived a few doors down from James F., a juvenile offender confined in county institution. Correctional facility knew of James's propensities, yet warned no one. Little boy is killed Issue: Negligence? Holding: No; no special relationship to make a negligence claim. Statute protects this issue under discretion

Knight v. Jewett

Posture: summary judgement for the defendant, appellate court affirmed Jewett did not breach any duty owed to Knight. When one enters into a football game, there is a certain level of roughness assumed, so there is no need to find Jewett liable for battery -Knight getting injured but then continuing to play the game was like continuing to consent

Ybarra v. Spangard

Quintessential res ipsa loquitur case; the theory underlying res ipsa is that it gives plaintiffs a chance to recover when defendants have information about the negligence, but they (the plaintiffs) don't; the number of defendants does not affect the applicability of res ipsa -P goes in for appendectomy, leaves surgery with partial paralysis in his shoulder and inane to lift arm. -P brings suit to his doctor and team (nurse and anesthesiologist) under res ipsa loquitur: 1. the accident but be of a kind which ordinarily does not occur in the absence of someone's negligence 2. it must be caused by an agency or instrumentality within the EXCLUSIVE CONTROL of the defendant 3. it must have been due to any voluntary action or contribution on the part of the plaintiff issue: did trial court correctly find for dismissal? Holding: No; on appeal the court says there is negligence under res ipsa loquitur

Turner v. Big Lake Oil Co.

Salt water overflowed from an artificial pond the defendant's used in operating oil wells, causing damage to P's pasture -Court does not hold D for strict liability because in Rylands, it says holding water is not a natural or necessary use, but it is extremely necessary in Texas where water is not always readily accessible -in fact, holding water is necessary in many job markets, so holding the Ds to be strictly liable is no in the best interest of the job markets

Haskins v. Grybko

The D grew squash and one night went out to hunt woodchucks who were ravaging his garden. Accidentally shot P's intestate thinking it was a woodchuck. Issue: is D guilty of negligence? Holding: No; the P failed to show the intestate was not a trespasser, as trespassers of land are not owed a duty

Murphy v. Steeplechase Amusement Co.

The Flopper. The P goes on an amusement park ride known as the flopper. D has no duty of care, but there is a duty to warn, bu the facts state P knew and understood the risk is important (Restatement §496) A plaintiff who knows about the risk of an activity and voluntarily participates may not recover if that risk comes to fruition

Restatement (Second) of Torts §228

The conduct of a servant: 1. conduct of a servant is within the scope of employment if, but only if a) it is of the kind he is employed to perform b) it occurs substantially within the authorized time and space limits c) it is actuated at east in part by a purpose to serve the master, and d) if force is intentionally used by the servant against another, the use of force is not unexpectable by the master 2. conduct of a servant not within the scope of employment if it is different in kind from the authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.

Brzoska v. Olson

The dentist with HIV/AIDS, patients said he did not disclose his -Did Olson commit a battery? -The court found he did not. The offensive character of a contact in battery is assessed by a 'reasonableness' standard -Olson did not commit a battery, as the trial court and supreme court of Delaware affirmed, because based on what the reasonable person would believe to be offensive.

Madden v. D.C. Transit System

The exhaust from the bus hitting ht person in the face. Because the complaint in question does not include the allegation of apprehension of an immediate or harmful conduct, the complaint in question of assault is deficient and was dismissed.

Martin v. Herzog

The failure to follow statutes designed to protect the safety of others is negligence -P and her husband were struck by the D in a horse and buggy; the husband is killed. -Negligence charged to D for not keeping to the right of center of the highway -Negligence charged to P's intestate for traveling without lights on Issue: was P contributorily negligent? Holding: Yes --> P argues the statute should have been decisive, court found this law was decisive, but no lights is a breach of duty not a causation of injury

Police and Firemen-- licensee or invitee?

These categories of workmen are always licensees, is they only receive the ordinary standard of care

Bolton v Stone

Tort: Negligence Element: Breach of Duty If the likelihood of an event is sufficiently low, the social utility sufficiently high, and the cost of prevention sufficiently high it is not a breach of duty to have merely taken steps to significantly lower it, rather than completely obviate it.

Palsgraf v. Long Island Railroad

Tort: Negligence Element: Duty of Care There must be a direct foreseeable link between the negligent act and the damage. Injury caused to a party of sufficient distance in an unforeseeable manner does not attract a duty of care. --> need both "but for" AND proximate causation --> Cardozo's zone of danger

Grimsley

Transferred intent, Grimsely committed an assault, but actually committed a battery -this is enough to show intent for contact

Grabowski v. Quigley

Trial court gave summary judgement to the defendant, the court of appeals reversed -"Ghost surgery" case, Grabowski slipped on ice, sought surgery from Quigley. Quigley said he "performed" the surgery, but once Grabowski suffered complications, it was revealed Quigley did NOT perform the surgery, his colleague did. Holding: same as Mohr, "where the patient is mentally and physically able to consult about his condition IN THE ABSENCE OF AN EMERGENCY, the consent of a patient is prerequisite to surgery" *Like in Garrett v. Dailey, Dr. Quigley's cat directly led to the actions of Bailees (other doctor) on the plaintiff

Wagner v. International Ry.

Two men riding D's train. One man thrown off (claims the doors were negligently left open) and the train stops. His cousin and conductor go searching. P then loses footing and slips off bridge too. Issue: negligence to railroad? Holding: the act of rescue is normal and probable= foreseeable -rescue attempts entitle P to relief, similar to Eckert, not contributorily negligent if the cation taken was a reasonable one. Danger invites rescue

Summers v. Tice

Under Summers v. Tice, if there is clear evidence that two or more parties were negligent, but only one could have caused an injury, and if it cannot be shown which of the negligent parties caused the injury, then the burden of proof is on each defendant to show that he did not cause the injury. Absent such evidence, the negligent parties may be held jointly and severally liable for the damages. *The P in this case was able to establish that both defendants acted negligently, damages split evenly

Overseas Tankship v Morts Dock and Engineering

Wagon Mound #1. This case articulates foreseeability being the correct test of causation Probability is low for fire, high for mess.

Overseas Tankship v. Miller Steamship

Wagon Mound #2. The second case of the Overseas Tankships. This time, the plaintiff's were able to prove the actin of having oil spilled on water could be dangerous; therefore, the fire that destroyed the P's ship was foreseeable. -P's in this case committed no acts considered negligent, the stronger incentive to prove the foreseeability. The court states the consequences of a fire are reasonable that the average person could foresee them.

Miller v. Couvillion

Was there intent to make contact? Yes -the plaintiff is arguing the outcome in Garrett v. Dailey: the action is still intentional, making it battery

Central of Georgia v. Price

Woman, through negligence of train conductor, not let off at correct stop. Had to stay at motel and only had kerosene lamp. It started a fire and se burned her hand. No negligence to train because proximate cause of her injuries was the fire; nothing to do with train

Lynch v. Rosenthal

a 22-year-old man with the mental capacity of a 10-year-old is picking corn on the family farm, stumbles into the corn picker, right arm is injured -Lynch's expert witness, a psychiatrist, says Lynch is unable to appreciate the danger of moving machinery issue: is the defendant negligent and is the plaintiff contributorily negligent? holding: yes negligence to D, no con. neg. to P. -based on testimony, the P would have understood a direct warning, but none was given *distinguished from Menlove because the D in that case had "normal intelligence" and here, the P is mentally handicapped.

Sanderson v. International Flavors and Fragrances

cannot sue under enterprise (or market share) liability for the ingredients in perfume

Williams v. Hays

case of the ship captain who takes quinine, has a bad reaction and essentially blacked out for the entire day. The ship crashes. issue: does insanity of the defendant furnish a defense to the plaintiff's claim? Holding: No However, the defense of impossibility is mentioned as an excuse in law and there is no obligation to perform impossible things *insanity is not a defense to negligence unless that insanity is a product of exhaustive efforts -->eventually non suited so many times we are unclear on the outcome, but important to know that exhaustion and insanity re different and exhaustion would likely have been a better defense here

Defenses to Negligence

contributory negligence, comparative negligence, assumption of risk -Iowa is a comparative negligence state. If over 51% negligent, you'll recover nothing -For fairness purposes, courts favor comparative negligence

Assault

defendant intentionally causes plaintiff to have a reasonable apprehension of immediate harmful or offensive contact

Miller v. Roman-Wuerth Co.

employee of D asks permission to leave work to deposit a personal check, in his own car. ON way back to work, employee of D gets in collision with P. P sues D company --> NO various liability as he employee was not performing work for the company at the time of the collision -"employer i snot liable for torts committed by an employee while on a frolic or detour of his own."

Tunkl Test

i. activity suitable for public regulation ii. activity open to public iii. agreement one of adhesion iv. activity necessary or important to public v. unequal bargaining power between parties vi. agreement results in control of person/property

Common law

judge made law

Eckert v. Long Island RR

man who jumped onto railroad tracks to save life of little child. he is hit by the train and dies, but saves the child issue: negligence to railroad or contributory negligence to P? Holding: saving life is not a wrongful act. Man cannot be held negligent for those actions *principle object: man's own life *collateral object: child's life, very valuable *Eckert is not contributorily negligent if he truly believed he would survive helping the child

Express Assumption of Risk

occurs when the plaintiff expressly agrees, usually in a written contract, to assume the risk posed by the defendants behavior 1. see the terms 2. understand them 3. agree to them

Volenti non fit injuria

person who knowingly puts himself at risk for danger, cannot sue

strict libaility

the activities themselves are so inherently dangerous that the defendant will without fault be held liable. -explosives are a classic example of strict liability

Dunn v. Tuti

two six-year-olds throwing sticks at one another *court finds no negligence, the children are too young (the rule of sevens under the Roberts v. Ring case)

Bailment

when one gives another person permission to temporarily exercise dominion over a chattel (a dry cleaner is a good example) -Why is the Mayo case an example of liability under conversion? he breaks the deal. Mayo exceeded the scope of the consent from Palmer then he gives permission to Scott

Keel v. Hainline

•eraser fight •transferred intent --The plaintiff was not participating in the horseplay of throwing the erasers down. In a classroom but the teacher was not present and did not call the class to order yet -good case for negligence, but battery is a weaker case here

Mohr v. Williams

•wrong ear surgery •did plaintiff consent to other ear surgery? •possible sources of consent, *general, substituted, emergency* •*court ruled plaintiff did not consent* "the patient must be the final arbiter of whether he will take his chances with the operation or takes his chance with living without it" -->if no consent is given, it is a battery

Respondeat Superior

"Let the master answer" an employer is vicariously liable for the behavior of an employee working within his or her scope of employment

MacDougall v. Pennsylvania Power and Light Co.

*distinguished from Ellis because the foreseeability is higher here -P is a number sent to do work on Tiddy's roof to repair a rain spout. D maintained fuse box on pole at edge of roof, raining when P went to roof to fix, electrocuted himself and fell 25 feet. Issue: is D negligent for putting the fuse box so near the roof? Holding: yes

Rodi Yachts v. National Marine

*distinguished from T.J. Hooper because there is an express contract in Hooper -TDI owned a dock in Chicago, National Marine sent a barge to be unloaded on TDI's dock. Crew supplied by National Marine lashed barge to dock, then left the scene = $100,000 in damages Issue: what event had TDI and national Marine each had been negligent? page 164 --Posner says the contract is a better defense in this case. If the luggage being secured, the train ticket would cost more by the person paying for it; the passenger is agreeing to the unsecured luggage and all of its potential issues.

Tunkl v. Regents of University of California

- Mr. Tunkl was a patient at a university hospital - Mr. Tunkl dies at the hospital and his wife bring a lawsuit - Mr. Tunkl had signed a contract with the hospital that contained an exculpatory clause - Court says it is permissible in California to shift risk through a contract - However, court found the exculpatory clause used by the hospital violated the public interest (public policy)

Soldano v. O'Daniels

- Plaintiff's father shot & killed at saloon, patron came into Circle Inn & asked bartender to call police or let him use the phone, bartender refused - Plaintiff alleges: Circle Inn employee did not fulfill his legal duty to help Court held: - Harm was foreseeable & imminent, certainty of injury - While may not have had a duty to help, DID have a duty to NOT HINDER others from helping --> so yes, he was liable --> a saloon is arguably more open than a place of business as in Stangle v. Fireman's Fund