Development of Liability
Case Name LSF
Hull v. Orynge Counsel’s argument summarizing accepted law: a man is
King’s Bench, 1466 liable for the injury or damage he causes, even if it’s
caused without his intent (strict liability).
Weaver v. Ward Both trained soldiers. Military exercise. Ward accidentally
shot Ptf. Def admits it was an accident.
Someone is liable for an injury they caused without
intent, but it may be judged without his fault.
Brown v. Kendall Def tried to separate dogs, raised stick to hit dog and
poked Ptf in eye.
Cohen v. Petty Driver fainted, injuring Ptf. Def not liable.
Spano v. Perini Corp. Defs blasting 125 feet from Ptf 1’s garage. Blast damaged
garage and Ptf 2’s vehicle inside garage.
No proof of negligence.
Holding / Take Away
Liability started as strict liability - tends to guarantee recovery.
Unfair to make person who didn’t do it at fault.
Easier to administer: if you did it, pay for it.
Started the exception to strict liability. If you’re utterly at fault, could be a
defense.
Earliest case clearly recognizing that a Def may not be liable for a purely
accidental injury occurring entirely without his fault. Burden of proof falls on
Def.
Maybe Def didn’t intend to cause harm. Completely changed the law: used
“intentional” instead of “voluntary.”
Wanted to change the law so used legal fiction to sweep away the many cases
saying otherwise – said fault = did not use enough care
H: Whether or not duty to do action doesn’t matter. Question is whether
exercised reasonable care, if did, not liable.
Earliest clear statement of rule: liability must be based on legal fault
If no reason to expect sudden incapacitation, not liable. If had warning, possibly
liable.
The intentional setting off of explosives (the blasting) in an area in which it was
likely to cause harm to neighboring property results in strict/absolute liability.
Before this case, proof of negligence was required unless the blast was
accompanied by an actual physical invasion of property (e.g., glass from blast
comes over and cuts you)
 Intent
Case Name LSF Holding / Take Away
Garrat v. Dailey 5 year old boy pulled chair out from under woman. She Intent requires substantial certainty.
fell and fractured her hip. Battery would be established if in addition to Ptf’s fall, it was proved that when
the kid moved the chair, he was substantially certain Ptf would attempt to sit
down where the chair had been.

Spivey v. Battaglia Co-workers. Def knew Ptf was shy. In an attempt to tease
her, he gave her a “friendly unsolicited hug.” Ptf felt a
sharp pains and was paralyzed on the left side of her face
and mouth.
Court: Due to the lack of intent, an unsolicited friendly hug resulting in paralysis
is not assault and battery. Might be negligence – issue for jury.
Court is WRONG. It was battery. 2yr statute of limitation on battery but not
negligence. Court thought she should recover so made an incorrect distinction
so she could recover.
Banzhaf: A hug is not a sanctioned bodily contact. Def is subject to the tort of
batter because he had a purpose to cause unsanctioned bodily contact and an
unsanctioned bodily contact occurred.

Ranson v. Kitner While hunting for wolves, Defs believed Ptf’s dog was a Someone is liable for damages caused by mistake while acting in good faith.
wolf, shot and killed it.
Mistake of identify; not accident.

McGuire v. Almy Nurse cared for mentally ill patient who had a violent
attack. Nurse tried to intervene and patient struck her in
head.
An insane person is liable for torts to the extent the insane person was capable
of entertaining the necessary intent required to render a normal person liable
and that the insane person did entertain that same intent.
Mentally disabled persons may be held responsible for their intentional torts as
long as Ptf can prove they formed the requisite intent.

Talmage v. Smith Def ordered boys on his sheds to get down. Uncertain
whether he saw Ptf. Before boys finished getting down,
he threw a stick at one of the boys in view. The stick
missed Byron and hit Ptf above the eye, resulting in total
loss of sight in the eye.
Someone who throws a stick with intent to his a specific person is still
responsible if the stick hits someone other than the specific intended target.
Transfer intent: intent transfers from person to person, or tort to tort. Only
intentional torts transfer from one to another.

Even if man threw stick intending it to hit the ground and frighten the boy, and
it hits the boy – man is subject to liability for batter. Transfer of intent from
assault to battery.
 Battery
Case Name LSF
Cole v. Turner Defines battery
Wallace v. Rosen Ptf delivering homework to daughter at school. Ptf was in
hallway during fire drill. Def touched Ptf on back and told
her she needed to move so could evacuate students.
Witnesses testified Def pushed Ptf. Ptf slipped and fell
down stairs.
Fisher v. Carrousel Ptf was at hotel for conference. In line for buffet and one
Motor Hotel, Inc. of Def’s employees snatched plate from his hand and
shouted Negro could not be served in the club. Ptf wasn’t
touched, but highly embarrassed.
Assault
Case Name LSF
I de Set Ux. V. W de Def went to Ptf’s house to buy wine, but door was shut. Def made an assault on Ptf’s wife despite fact no other harm was done.
S He beat on door with hatchet. Wife stuck head out
window and commanded him to stop. Def saw her, struck
with hatchet, but did not hit her.
Western Union Ptf’s wife needed her clock fixed. She reported it and
Telegraph Co v. Hill then went to Def’s office to get it fixed. He asked her to
come behind the counter in his office and told her he
would fix her clock if she let him love and pet her. Def did
not touch her.
Holding / Take Away
Battery: lightest, angry touch
Not battery: gentle touch without violence
Not battery because the conditions in the stairway during the fire drill meet
Prosser and Keeton’s “crowded world” concept: in a crowded world, a certain
amount of personal contact is inevitable and must be accepted.
Court held anything so connected with the body as to be customarily regarded
as part of other person and therefore as partaking of its inviolability is
actionable as an offensive contact with his person. E.g., person’s cane; case
with penny on bed.
Banzhaf: Court is WRONG. A plate does not fall into this category in which an
object is so connected with someone’s body.
Action brought with intent to cause emotional distress. Court didn’t recognize
this as a tort. Used plate as a fall back; legal fiction.
Holding / Take Away
Assault. Def could have reached Ptf from where he was.
Transferred intent. Attempted battery, resulting assault: his purpose was to
cause an unsanctioned bodily contact but then caused an apprehension of
unsanctioned bodily contact.
 False Imprisonment
Case Name LSF
Big Town Nursing Ptf’s nephew took him to Def’s nursing home. Admission
Home, Inc. v. papers nephew signed stated patient wouldn’t be forced to
Newman stay against his will. Ptf made every effort to leave and
repeatedly asked manager and assistant to be permitted to
leave. After trying to escape multiple times, locked and taped
in restraint chair for more than 5 hours. Escaped after 2
months.
Parvi v. City of Police found 2 brothers in alley quarreling. Ptf was present,
Kingdom trying to calm brothers. All 3 had effects of alcohol. Police took
Ptf outside city limits to an abandoned golf course. Ptf
wandered to thruway and was struck by car and injured.
Hardy v. LaBelle’s Def hired Ptf as temporary employee. One employee reported
Distributing Co. Ptf for stealing a watch. Def’s manager took Ptf to office under
guise of tour. Ptf informed of accusation of stealing watch. Ptf
denied, took lie detector test which supported that. Def
apologized.
Enright v. Groves Def police officer saw dog running around without leash in
violation of city’s ordinance. Determined residence. Boy
pointed to mom in car. Officer went to car, demanded to see
Ptf’s driver’s license. She declined to produce but gave her
name and address. He took her to jail and charged with
violation of city ordinance Ptf was convicted of the ordinance
violation
Whittaker v. Def offered Ptf passage to America on his yacht. Ptf told Def
Sandford she was afraid he wouldn’t let her off the yacht until she
rejoined their religious movement. Def assured her he
wouldn’t. Upon arriving ito port, Def refused to furnish Ptf
with a boast so she could leave yacht. Def said it was up to her
husband if she could leave. Her husband said it was up to Def,
leader of the sect and owner of yacht. Ptf remained on board
for almost a month. She couldn’t leave yacht unaccompanied.
Holding / Take Away
False imprisonment. Def placed Ptf in wing with insane persons, alcoholics
and drug addicts knowing Ptf was not one; restraint chair; detained for 51
days.
Court: Ptf had to be conscious at the time of the incident in order for Defs
to be subject to liability for false imprisonment.
Modified since then: Must be aware of confinement or harmed by it.
No false imprisonment bc Ptf was not restrained against her will.
She was not told she couldn’t leave.
She did not ask to leave.
Ptf admitted she wanted to stay to straighten the situation out.
She would have voluntarily followed mgr if she had known his true
purposed. No real or apparent physical barriers – no evidence that she
thought the door was locked.
Nontortious means:
- reliance of duties owed to employee
- threat of future legal consequences – accusation of stealing;
presence of policemen
Def did not have proper legal authority to take Ptf into custody and
therefore falsely imprisoned Ptf.
Police Officer operated outside of his privilege to arrest under certain
circumstances.
There is no statute or case law in the jurisdiction requiring a citizen to
show her driver’s license upon demand, unless driver of car and request
made in that connection.
Offering someone passage to a destination on your yacht and then
refusing to provide them with a boat to take them to shore from your
yacht constitutes false imprisonment.
Def had a duty to get Ptf to shore. Def breached that duty – substitutes
act. There was no practical way for Ptf to get ashore except in the yacht’s
boats
 Intentional Infliction of Severe Emotional Distress
Case Name LSF Holding / Take Away
State Rubbish Def collected trash from Acme Brewing Co, which Ptf Assn If someone intentionally causes severe emotional distress, without a
Collector’s Ass’n v. regarded as within their territory. Ptf threatened to beat up privilege to do so, they are liable for the emotional distress and for the
Siliznoff Def unless he paid the amount demanded. Def signed the bodily harm resulting from the emotional distress.
necessary papers out of fear. Def Def was frightened and
became ill and vomited several times; had to stay away from Not assault – no immediacy
work for several days. Ptf sued Def to collect on the notes. No false imprisonment – not plead well
Def filed counterclaim re assaults made on him. *created new trot to deal with this

Slocum v. Food Fair While a customer in Def’s store, Ptf inquired as to price of an The use of insulting language under the circumstances does not constitute
Stores of Florida item and Def’s employee refused to tell her price and said an actionable invasion of a legally protected right. No reason to extend
she stunk to him. Ptf sued Def for damages for mental common carriers’ higher standard to this situation.
suffering/emotional distress and an ensuing heart attack.

Harris v. Jones Def approached Ptf over 30 times at work over 5-month The humiliation suffered was not intense enough to constitute the severe
period and verbally and physically mimicked his stuttering emotional distress required for IISED; not extreme and outrageous conduct.
disability. Ptf asked Def for a transfer to another dept. and
Def refused, calling Ptf a troublemaker. Def’s harassment Objective standard, but still look at particular plaintiff. This Ptf is very
heightened Ptf’s nervousness and his speech impediment sensitive.
worsened. Ptf had problems with other supervisors too.
Speech impediment = very sensitive

Taylor v. Vallelunga Def struck and beat Ptf’s father. Ptf witnessed the beading Ptf’s complaint does not allege Defs intended to cause Ptf severe emotional
inflicted on her father. distress. Without the allegation of intent, the complaint doesn’t allege IISED.
 Trespass to Land
Case Name LSF Holding / Take Away
Dougherty v. Stepp Def entered Ptf’s unenclosed land with a surveyor and chain Every unauthorized and therefore unlawful entry into the close of
carriers. Def surveyed a part of the land and claimed it as his own, another is a trespass. (no physical harm to land required)
without marking trees or cutting bushes.

Herrin v. Southerland Def stood on someone’s property, hunting birds and repeatedly Trespass to land. Land has an indefinite extent, upwards as well as
discharged a shotgun at waterfowl in flight over Ptf’s premises. downwards.

Rogers v. Board of Def had license to place snow fence in decedent’s field. Def and There was a basis for trespass to land. Trespass committed by
Road Com’rs for Kent decedent had a distinct understanding of agreement that all of the continued presence of the structure on the land.
County fence, together with the anchor posts, should be removed by Def
at the end of each winter season. Def’s employees removed the Failure to act gave rise to tort. Def had duty to act bc of his agreement
snow fence but didn’t remove the anchor post protruding from the with decedent.
grand in a mead with high grass concealing the post. Defendant
mowed grass without negligence, struck the steel stake and was
forcibly thrown from the seat of the machine and killed.

Trespass to Chattels
Case Name LSF Holding / Take Away
Glidden v. Szybiak 4 yr old Ptf went to neighborhood store for candy. On Ptf’s action did not constitute a trespass to chattel and thus she could recover.
store’s porch, found dog and tried to play with him. No claim at trial that dog was in an way injured by Ptf’s conduct
Climbed on dog, pulled ears and dot big her nose. Ptf Also, Ptf too young to be guilty of contributory negligence in her conduct toward
brought suit against owner of dog for statutory tort. dog.
Owner liable for property damage caused by dog unless
the damage was caused while engaged in the Bc porch attached to store – business invitee; had to defense as trespass
commission of a trespass or other tort. Def’s defense:
Ptf was trespassing.
CompuServe Inc. v. Ptf is major national commercial online computer Def’s continued transmission of electronic messages to Ptf’s computer equipment
Cyber Promotions, service, operating a computer communication service. constitutes the tort of trespass to chattel bc Def’s intrusions to Ptf’s computer
Inc. Defs send unsolicited email advertisements to may of systems harm Ptf’s business reputation and goodwill with its customers.
Ptf’s subscribers. Ptf received several complaints from
subscribers threatening to discontinue subscribers unless Any value Ptf realizes from its computer equipment is derived from the extent to
Ptf prohibits mass mailings. which that equipment can serve its subscriber base. The enormous volume of
Ptf sought injunction against Def on grounds of trespass mass mailings places tremendous burden on Ptf’s equipment. The value of Ptf’s
to personal property or to chattels. equipment diminished even though it was not physically damaged by Def’s
conduct.
 Consent
Case Name LSF
O’Brien v. Cunard Ptf passenger on Def’s steamship. Def is accustomed to have its
S.S. Co. surgeons vaccinate all emigrants who desire it and who have not
previously been protected by vaccination. Boston, destination,
Vaccination on ship requires it. Ptf in line with 200 women. She didn’t hear surgeon say
anything to them. Each woman received a card upon being passed by
and went to deck. Surgeon came to Ptf, told her there was no mark on
her arm and she should be vaccinated. She said she had been
vaccinated before and it left no mark. Surgeon said nothing. She held
up her arm to be vaccinated. She didn’t say she didn’t want to be
vaccinated. No one touched her. She was vaccinated, took the ticket
certifying surgeon had vaccinated her, and used it at quarantine.
Ptf brought suit for assault and for negligent vaccination. [technically
this is battery]
De May v. Roberts Ptf was married woman, ill, confined to bed. Ptf employed Def doctor
who was overworked, so he brought an unmarried man to accompany
Unmarried man held him and assist him carrying his things. Arriving at Ptf’s house, Def
patient’s hand doctor explained to Ptf’s husband the man was his friend to help carry
things. Ptf’s husband said alright. At the house, the man took Ptf’s
hand and held her, at the doctor’s request. Ptf brought action of
assault [today battery].
Mohr v. Williams Ptf consented to operation in her right ear. While Ptf was
unconscious, Def concluded condition in right ear not serious enough
Unauthorized to require operation. Def found more serious condition in left ear.
Operation Without reviving Ptf to ask her permission, Def operated on the left
ear and it was a success. Ptf sued for battery.
Hackbart v. Professional football game. Def intentionally struck blow at Ptf’s head
Cincinnati Bengals, and neck. Def frustrated re: losing game. Both players fell to ground.
Inc. Without complaining, both players returned to respective sides.
Football players
Holding / Take Away
Defense: Consent
Court held surgeon was justified bc Ptf manifested consent
Ptf outwardly manifested consent by holding out her arm, but
mentally said no. Ambiguous communication.
*Consent is an external manifestation
Argument: Ptf was naive and brow beaten into this. Ship should have
been clear and require her to sign a document.
Court held: The fact that Ptf consented to the man’s presence,
believing he was a physician, doesn’t preclude her from maintaining
an action and recovering.
This is really an invasion of privacy, but the tort didn’t exist. Court
used legal fiction so Ptf could recover and extended battery.
Rest – Consent induced by fraud or misrepresentation as to a
collateral matter (as opposed to essential character o fact itself), will
not invalidate consent.
Because Ptf did not consent to the operation on her left ear and the
circumstances did not permit Def’s act, this constitutes battery.
Trial Court: Social policy of game so violent and unlawful that valid
lines couldn’t be drawn. Ptf doesn’t recover.
Appellate Court: The very conduct present in this case is expressly
prohibited by one of game’s rules. Ptf recovered.
Rest: Consent to all contacts permitted by rules of a game
 Defense of Property / Land / Chattels
Case Name LSF
Katko v. Briney Defs had issues with intrusions at farm house (not their dwelling) and had its
windows and doors boarded up. They posted a “no trespass” sign on the land. Def
Thief shot by booby- set up a shotgun, the power of which he was aware, and set it up in the bedroom
trapped shot gun so that opening the door would trigger the gun to fire. Gun could not be seen
from outside. Not warning of gun’s presence was posted. Ptf broke into house,
opened booby-trapped door, and was shot in right leg. Much of his leg was blown
away.
Ptf sued Defs. Defs’ main defense was the law permits the use of a spring gun in a
dwelling to prevent unlawful entry of a burglar or thief.
Holding / Take Away
An owner may not protect personal property in an
unoccupied boarded-up farm house against trespassers
and thieves by a spring gun capable of inflicting death or
serious injury.
Rest: A possessor land can’t do indirectly by a
mechanical device that which if her were present he
could not do immediately and in person.

Recovery of Property / Chattels

Case Name LSF Holding / Take Away
Hodgen v. Hubbard Ptf purchased stove on credit at Def’s warehouse. Def discovered almost at Defs had a right to retake the property fraudulently obtained
one Ptf had misrepresented his credit. Defs pursued Ptf. Ptf’s resistance led from them, if it could be done without unnecessary violence to
Pursuit of customer Defs to use violence and applied force. Ptf drew a knife in response and Ptf.
who bought stove then forcibly held by one of Defs while the other took the stove.
with bad credit Ptf sued Defs for trespass for assault and battery, and for taking away stove. (Ptf’s fraud and misrepresentations invalidated Defs’ consent)

Bonkowski v. Arlan’s Ptf and her husband left Dept store. When they were almost to their car, a
Dept. Store private policeman on duty called her to stop and motioned for her to return
to the store. Once she returned, the policeman informed her someone
Potential shoplifting reported had seen her shoplift. Ptf denied. Policeman asked to see contents
Shopowner’s of purse. Ptf emptied contents into husband’s hand and produced receipts.
privilege Policeman satisfied and returned to store.
Ptf brought action for false arrest (And slander).
Def had the privilege to conduct the investigation if he
reasonably believed Ptf had taken the chattel unlawfully.
^ Shopowner’s Privilege
F.I. analysis – Private policeman motioned her back, bt
insufficient evidence that he intended to take Ptf into custody.
Improper means: assertion of apparent legal authority.

Isn’t it just as probable that she stayed bc of apparent legal

authority as it was to clear her name?
 Doctrine of Necessity
Case Name LSF
Surocco v. Geary Def was mayor of San Francisco. There was a raging fire. Def
ordered that Ptfs’ building be blown up and destroyed to
Individual’s house stop the fire.
destroyed to stop raging Suit for trespass to land, trespass to chattel.
fire
Public Necessity
Ploof v. Putnam Ptf and his family were on a ship in a lake. A violent storm
(Boater v. Landowner) came, putting the family and property in great danger of
destruction. To save themselves, Ptf moored the ship onto a
Boater suing Landowner dock attached to an island, both owned by Def. Def’s servant
for untying boat from untied the shop. The storm drove the ship upon the shore,
dock and resulting destroying the ship and its contents. Ptf and his family were
damages cast into the lake and upon the shore, receiving injuries.
Private Necessity Ptfs brought suit for trespass and charging Def for untying
the ship. In the alternative, Ptf alleged Def had a duty to
permit Ptf to moor his ship to the dock and permit it to
remain moored during the storm. Defs demurred,
questioning the sufficiency of Ptf’s complaint bc it doesn’t
negate the existence of natural objects to which Ptf could
have moored with equal safety.
Vincent v. Lake Erie Def owned a steamship that was unloading its cargo while
Transp. Co. moored at Ptf’s dock. While unloading, a violent storm
(Dock owner v. Boater) developed. After discharging its cargo, Def signaled for a tug
to tow it from the dock, but none could be obtained due to
Ship moored to dock the severity of the storm. If the lines holding the ship to the
and deliberately dock had been cast off, the ship would have drifted away.
maintained moored Instead, likes kept and as soon as one parted, it was
during storm replaced. Wind and waves so forceful the steamship was
constantly being lifted and thrown against the dock,
Private Necessity damaging it.
Ptf sued Def for damages the ship caused to its dock.
Holding / Take Away
A person who destroys another’s house in good faith and under apparent
necessity during the time of a fire, for the purpose of saving the buildings
adjacent and stopping the fire’s progress, cannot be held personally liable
in an action by the owner of the property destroyed.
The individual rights give way to public necessity.
Test: Good faith and apparent necessity
Defs’ MTD denied. Doctrine of necessity applies with special force to the
preservation of human life. An entry upon the land of another may be
justified by necessity. This rule can’t be held irrespective of circumstances.
Must allow case to proceed.
*Often cited as the classic example of the Privilege of Necessity, but
several problems with this simplistic view.
- A mere privilege, without more, doesn’t explain how the person
asserting the privilege could win a lawsuit.
- A privilege foes not create a corresponding duty in the way that a
right does.
- A privilege is a defense to a lawsuit a shield against possible
liability.
- Boater can’t successfully sue Landowner simply bc B has a privilege
of necessity which he is somehow unable to utilize.
- There must first be a tort by L. (see 3 theories in outline /
handout)
Privilege of Necessity applies and it is limited:
One is still liable for the damages caused when asserting the privilege of
necessity.
Court was satisfied the ship needed to stay moored given the storm. Those
in charge of the ship deliberately kept the ship moored and as a result the
dock was damaged. Having preserved the ship at the expense of the dock,
the ship owner is responsible to the dock owner.
If the ship had entered the harbor during the storm and while there it had
become disabled and thrown against Ptf’s dock, Ptf could not have
recovered.
 Negligence: Formula
Case Name LSF
Lubitz v. Wells Def’s father left his gold club in backyard. Def (11 yr) and Ptf (9
yr) were playing in the backyard. Def picked up club and swung
Golf Club at stone, striking Ptf in jaw and chin.
Blyth v. Birmingham Def installed water mains in street. Plug opposite Ptf’s house
Waterworks Co. sprung a leak during a severe frost bc the connection btw the
Freezing Pipes plug and water main was forced out by the expansion of
freezing water. Ptf’s house damaged.
Pipher v. Parsell Ptf passenger while Def driving. Biesel also passenger. B
unexpectedly grabbed wheel, causing truck to veer off road.
Laughed off. B grabbed wheel 2d time, truck slid off road and
struck tree.
Chicago, B. & Q.R. Ptf, with other children, found Def’s turntable unlocked and
Co. v. Krayenbuhl unguarded. Ptf got on and the other children set it in motion.
Ptf’s foot was caught btw the rails and severed at the ankle
Turntables joint.
Davison v. Ptf driving across bridge at slow speed. As rounded curve of
Snohomish County bridge, driver lost control, car skidded and struck railing, broke
through railing and fell. Car wrecked; passengers severely
injured.
Ptf alleged county negligent for not putting up stronger guard
rails.
United States v. Ptf Conners owned barge chartered to PA RR Co, which loaded
Carroll Towing Co. it with flour belonging to Ptf US. Charter required Conners to
provide bargee. Def owned a tug whose servants negligently
shifted the barge’s mooring lines, causing the barge to break
free from pier. Barge broke away, drifted up against a tanker at
the next pier. Tanker’s propeller broke a hole in the barge.
Barge careened and dumped all flour and sunk.
Holding / Take Away
Court: A golf club is not so obviously and intrinsically dangerous that it
would be negligent to leave it lying on the ground in the yard.
Test ^ by itself not enough. Must look at all circumstances together to
determine probability of harm
Court: Defs not guilty of negligence bc acted with reference to the average
circumstances of the temperature in ordinary years.
Test doesn’t make sense.
Court: Driver subject to liability for the tort of negligence bc he did not
take a precaution against B grabbing the wheel a 2d time.
Have to look at all facts and circumstances. There are many things drivers
can do that may be distracting but negligence (e.g., talking to friends)
Def was negligent. --The general benefits from using the turntable
outweigh the occasional injuries inflicted. However, the incident of
danger-may be lessened by the use of a lock and the interference ifs
outweighed by the anger anticipated from an omission to use it. The public
good demands the use of the lock on the turntable.
Test: Burden
Def is not liable for negligently maintaining and constructing the elevated
causeway at issue. Burden too high.
No longer good law. Important technological change since then: steel.
It was a fair requirement that Ptf Conners should have a bargee aboard
during the working hours of daylight, unless he had some excuse for his
absence, which in this case he did not. Therefore, Ptf was negligent and
partly responsible for the losses.
Probability barge will break away x Gravity of resulting injury compared to
burden of adequate precautions. Liability depends on whether foreseeable
risk is less than burden.
*Calculus of Risk
 Negligence: Reasonable Prudent Person
Case Name LSF Holding / Take Away
Vaughan v. Menlove Def built hay rick near boundary of his land, near Ptf’s cottages. Holding Def to standard of reasonably prudent formula. Judge says
Def repeatedly warned the rick was likely to ignite. Def built a everyone knows hay ferments.
Hay rick fire chimney through the rick. Rick burst into flames, went through
Def’s barn and destroyed Ptf’s cottages.
Delair v. McAdoo Def drove next to Ptf in same direction, wanting to pass Ptf. Left Def is subject to the tort of negligence for driving with a tire worn through
rear tire of Def’s car blew out, causing Def’s car to swerve and to the fabric.
Tire blow out collide with Ptf’s car. - Society requires it if it’s dangerous and easy to check.
- Reasonably prudent people don’t know how to do the things the
Court is saying they must. Where do we draw the line?
Trimarco v. Klein Ptf tenant’s glass shower door unexpectedly shattered. Door Proof Ptf produced on custom and usage was sufficient to go to a jury.
made out of ordinary glass, not tempered safety glass that had - Proof of customary practice coupled with showing it was ignored,
Shattering shower been customary for landlords who had occasion to install glass may establish liability
door for shower enclosures, whether to replace broken glass or - Demonstrating common practice is not conclusive
comply with request of tent, to do so with safety glass or - Jury must be satisfied with reasonableness and the
plastic. Ptf brought negligence suit against landlord. unreasonableness of the behavior which did not adhere to the
custom
*Test: Custom and Practice
Cordas v. Peerless Thief hopped into Def’s cab and threatened to kill him unless he Def is not subject to liability for the tort of negligence for his behavior in an
Transportation Co kept driving. Def pulled car out of 1 st gear, pulled emergency emergency requiring prompt action
break and jumped out of the moving car. Cab mounted
Driver hopped out of sidewalk, injuring Ptfs Emergency Doctrine
moving car bc thief
Roberts v. State of Def’s employee, blind man, walked to bathroom without his A blind man walking without his cane in a familiar area is not subject to
Louisiana cane, relying on facial sense, and bumped into Ptf, causing 75yr liability for the tort of negligence.
Blind man w.o. cane old man to and injure his hip. - Custom and Practice.
Breunig v. American Schizophrenic Ptf struck truck by driving on wrong side of road. A sudden, mental incapacity equivalent in its effect to such physical causes
Family Ins. Co. Believed God was taking hold of wheel and that she would as a sudden heart attack, epileptic seizure, stroke or fainting should be
become air-borne. treated alike and not under the general rule of insanity. Condition
unknown prior to incident
Robinson v. Lindsay Def (13 yr) drove snowmobile, pulling Ptf in intertube attached A child operating a powerful motorized vehicle should be held to the
to snowmobile. Ptf’s thumb severed when it was caught in the standard of care and conduct expected of an adult. When the activity a
tow rope. child engaged in is inherently dangerous, the child should be held to an
adult standard of care.
 Negligence: The Professional
Case Name LSF
Heath v. Swift Wings Airplane crashed immediately after takeoff, killing everyone on
board. Mechanical Engineer expert testified as to various things
pilot should have done. (Banzhaf – expert wrong)
Hodges v. Carter Ptf sued his attorneys for failing to have process properly served
(served Commissioner of Insurance by mail, pursuant to
common practice) and suing out alias summonses at the time
the insurers/orig defs filed the MTDs.
Boyce v. Brown Def operated onPtf and placed screw in bone. Def continued to
attend to Ptf 3-4 weeks until complete union of bone. 7 years
later, Ptf returned to Def, complaining ankle pain. Def examined
ankle, wrapped it and filed the ankle support. Week later, Def
removed bandage. Ptf’s ankle didn’t improve and continued to
grow more painful for 2 years. After 2 years, Ptf saw diff doctor.
Doctor ordered x-ray and saw necrosis of bone around screw.
Dr. operated and remove screw. Ankle back to normal
Morrison v. Ptf had a smear test for a UTI. Ptf had an adverse reaction to the
MacNamara test, fainted and struck his head on a metal blood pressure
stand and on the floor. Ptf permanently lost his senses of smell
and taste. Ptf sued Def for negligence.
Scott v. Bradford Def performed a hysterectomy on Ptf. After surgery, Pf
experienced problems with incontinence. Ptf visited another
physician who discovered she had an issue. The physician
referred her to an urologist who corrected her problem after 3
surgeries. Ptf sued, maintaining if she had been properly
informed, she would have refused surgery.
Moore v. The Ptf visited UCLA after being diagnosed with hairy-cell leukemia.
Regents of the Univ Def Dr. Golde withdrew blood, bone marrow and other bodily
of CA substances to test them. Spleen removed. Ptf consented to
surgery and proceeded to visit the medical center several times
in a matter of years bc Dr. Golde represented it was necessary.
After first blood draw, Dr. Golde and his colleagues had
discovered Ptf’s cells were unusually useful in genetic research
and had developed and patented a cell line from Ptf’s cells and
then licensed it for commercial development.
Holding / Take Away
The professional standard of care is objective.
Court: Defs were not negligent by failing to properly serve the defs in an
action against their client. Custom setting standard of care – typical
attorney in the area would do this.
Banzhaf: This has never been tested ni the courts. No custom and practice.
Should use calculus of risk. Alias summons = small burden
Ptf did not put for sufficient evidence to charge Def with malpractice. The
2d doctor she saw did not testify as o the proper standard of medical care
required at time Ptf saw Def, whether the treatment deviated from that
standard and whether the failure to take the x-ray was a deviation from
the proper standard.
Conspiracy of silence – doctor didn’t want to testify
See outline re other possible allegations of negligence
Medical labs, hospitals, board certified physicians and other health care
provider should be held to a national standard of care, not locality rules
(conduct of members of medical profession measured solely by standard
of conduct expected of other members of the medical profession in the
same locality/community)
The scope of a physician’s communications must be measured by his
patient’s need to know enough to enable him to make an intelligent
choice; full disclosure of all material risks incident to treatment must be
made.
In order to satisfy his fiduciary duty and obtain patient’s informed consent,
a physician must disclose personal interests unrelated to the patient’s
health, whether research or economic, that may affect his medical
judgment.
 Negligence: Rules of Law
Case Name LSF Holding / Take Away
Pokora v. Wabash Ptf driving at railroad crossing. Couldn’t see clearly bc of Def’s Supreme Court created Stop, Look and Listen Rule. This case clarified the
Ry. Co. stack of boxcars. Ptf stopped, looked and listened then existence of the duty depends upon the circumstances.
proceeded slowly. Struck by train.

Negligence: Violation of Statute

Case Name LSF Holding / Take Away
Osborne v. Def’s clerk sold Ptf’s wife a deadly poison without labeling it Failure to perform a duty imposed by a statute, which results in the injury
McMasters poison as required by statute. She took it and died. the statute is supposed to prevent, to an individual the statute is supposed
to protect, constitutes negligence.
(if no statute related to this, could use custom and practice)

Negligence: Applicability of Statute

Case Name LSF
Stachniewicz v. Barroom brawl. Ptf brought suit under statute and regulation.
Mar-Cam Corp - Statute’s standard would be appropriate because nearly impossible
to determine whether alcoholic drink consumed after intoxication
caused injuries.
- Ptf was within the class of persons intended to be protected by the
regulation and the harm caused to him was the kind the statute
intended to protect. Therefore, Def’s violation of the Act constitutes
negligence.
Ney v. Yellow Def’s employee left taxicab unattended on Chicago street without stopping
Cab Co. the engine or locking the ignition or removing the key. A thief stole the cab
and ran into Ptf’s vehicle, damaging Ptf’s property.
Someone is subject to liability for the tort of negligence if they leave a vehicle
unattended without stopping the engine or locking the ignition and the
vehicle is stolen and damages another person’s property.
Holding / Take Away
To analyze statute, look at (1) purpose of statute; (2) is person
seeking to apply statute within class legislation intended to be
protected; (3) hazard or harm; (4) appropriateness. If decide
statute is designed to set standard of care, what’s the effect of
this determination? Exceptions?
Using criminal statute to set standard of care – applicable if one
of the statute’s purposes was to prevent someone from stealing a
car.
(Could use reasonably prudent person to set standard0

Perry v. S.N. & Two children allegedly regularly abused physically and sexually by operator of
S.N. their day care center. Ptfs sued day care center operator’s friends for
allegedly being aware of the abuse and not reporting it.
No duty at common law. Trying to use statute to establish duty. Trying to see
if statute creates a new tort, but talk about it as a standard of care.
Not appropriate to adopt the statute to establish a duty/new tort
bc (1) other states don’t allow cause of action; (2) words of
statute too broad, general, vague; (3) disproportionate civil
liability (certainly fair to sue actual perpetrators; seems arguably
unfair to go after perp’s friends)
(would impose immense potential liability under an ill-defined
standard on a broad class of individuals whose relationship to the
abuse was extremely indirect)
 Negligence: Effect of Statute
Case Name LSF Holding / Take Away
Martin v. Herzog Ptf and husband driving buggy at night without lights Issue of Contributory Negligence: Because a causal connection can be inferred btw the
on. Rounded curve and Def driving buddy in middle of collision and the lack of signals/lights, Ptf forfeits the right to damages.
Negligence Per Se rode. Cars collided.
This is negligence in itself; not something a jury can consider. Judge decides whether
the negligence is justified or excused.
Zeni v. Anderson Ptf walked to work on street instead of snow-covered Describes the 3 possible rules a particular state would adopt concerning the effect of a
sidewalk. Hit by Def’s car. Pedestrian sued driver. Def criminal statute found to be an appropriate standard of care in a negligence of action
maintained Ptf violated statute requiring pedestrians
to walk on left side of road facing traffic if no sidewalk. This court decided rebuttable presumption of negligence (can be overcome by
Ruling for Ptf. providing adequate excuse as to why statute ignored)

Proof of Negligence: Circumstantial Evidence

Case Name LSF Holding / Take Away
Goddard v. Boston & Ptf fell on banana peel on train platform Def not liable for slip and fall bc insufficient evidence as to how long the peel
Maine R.R. Co. had been on its property.
Anjou v. Boston Ptf asked Def’s employee for direction to other car. He Def liable bc the inference could have been made that the peel had been
Elevated Railway Co directed her to stairway. She took stairway and slipped on there long enough it should have been picked up.
Slip and Fall on Dirty banana peel that felt dry, gritty, and trampled over good deal. (employee directing her should have used care– evidence of negligence if he
Banana Peel didn’t see peel) common carrier = higher duty
Joyce v. Great Ptf slipped and fell on banana in supermarket. Peel was dark Insufficient evidence to establish constructive notice bc it can’t be
Atlantic and Pacific brown, had dirt and sand on it and was sticky around edges. determined how long banana was on the floor.
Tea Co Dirt on floor near banana. No evidence Def put banana on floor or had actual notice of its presence.
Slip and Fall on Circumstantial evidence – floor may not have been swept for
Banana Peel 35 min. Can’t make a determination based on this.
Ortega v. Kmart Corp Ptf slipped on puddle of milk on floor of Def’s store. Ptf no If Ptf can show an inspection was not made within a particular period of time
idea if milk fresh/old. Ptf had burden of proof. Def unable to prior to an accident, they may raise an inference the condition did exist long
Slip and Fall on prove last time aisle cleaned. Ruling for Ptf. enough for the owner to have discovered it. Q of fact for jury.
Puddle Milk in Store
Court shifted burden: If Def can’t show inspected within reasonable time,
then creates permissible inference and jury can make an inference.
Jasko v. F.W. Ptf slipped on piece of pizza on the terrazzo floor in Def’s Ptf did not need to demonstrate actual or constructive notice to prove Def’s
Woolworth Co. store. negligence bc she proved Def’s operating methods are such that dangerous
Slip and Fall on Pizza conditions are continuous or easily foreseeable
**Distinct from previous slip and fall cases
H.E. Butt Groc. Co. v. Ptf slipped and fell near 2 grape displays at Def’s grocery The mere fact that a store has a customer sampling display can’t, without
Resendez store. more, be evidence of a condition on the premises that poses an
unreasonable risk of harm.
 Proof of Negligence: Res Ipsa Loquitur (The Thing Speaks for Itself)
Case Name LSF
Byrne v. Boadle Ptf walking in a public street past Def’s shop and a barrel of
flour fell upon him from a window above the shop. Ptf
knocked down and seriously injured.
McDougald v. Perry Ptf driving behind tractor-trailer. Spare tire under trailer fell
to ground. Trailer’s tires ran over the spare, causing it to
bounce and collide with Ptf’s windshield. After accident, Def
saw chain securing the spare was dragging under the trailer.
Larson v. St. Francis Def walking on sidewalk next to Hotel during Sn Francisco’s V-
Hotel J day. Ptf struck in head by arm chair. No one saw where the
chair came from or saw it before it knocked Ptf unconscious.
Ybarra v. Spangard Ptf had an appendectomy. Prior to operation, Ptf hadn’t had
any pain or injury to his right arm or shoulder. When he woke
up, he felt a sharp pain there. Pain spread and worsened.
Developed paralysis and atrophy of the muscles around the
shoulder.
Sullivan v. Crabtree Ptf’s adult son was a passenger in Def’s motor truck. As truck
approached curve, another truck overtook and passed him.
Def’s truck swerved, ran off shoulder, overturned down
embankment and killed Ptf’s son.
Holding / Take Away
When a barrel of flour falls from window of Def’s shop and knocks and
injures Ptf, Ptf doesn’t need to provide evidence to prove Def’s negligence bc
of res ipsa loquitur.
On the basis of common experience and as a matter of general knowledge,
the spare tire wouldn’t have escaped but for the failure to exercise
reasonable care by the person who had control of the spare tire.
Court: The doctrine of res ipsa loquitur doesn’t apply bc it appears the
occurrence is on in which the accident ordinarily might happen despite the
fact that Def used reasonable care and was totally free from negligence.
Banzhaf: Court WRONG. Don’t need res ipsa. There are many things hotel
could have to prevent incident. E.g., bolt furniture to ground; have small
windows
Where a Ptf receives unusual injuries while unconscious and in the course of
medical treatment, all those Defs who had any control over his body or the
instrumentalities which might have caused the injuries may properly be
called upon to meet the inference of negligence by giving an explanation of
their conduct.
*An exception to res ipsa used for medical procedure – harm to separate
part of body from where procedure took place.
Treated as a unified activity - Strong reaction to conspiracy of silence –
someone likely knew who screwed up and didn’t disclose.
Res ipsa loquitur applies bc (1) this type of accident doesn’t usually occur
without negligence and (2) it resulted from the driver’s loss of control of the
truck, which he couldn’t explain. Creates permissible inference
 Causation in Fact: Sin Qua Non (That Without Which the Thing Cannot Be)
Case Name LSF Holding / Take Away
Perkins v. Texas and Ptf’s husband passenger in automobile that collided with Based on the evidence, it appears almost certain that the fatal accident
New Orleans Def’s train. The engineer and brakeman on the train were would have occurred irrespective of the excessive speed of the train. It
aware of the obstruction at the intersection. Train follows that this speed was not a substantial factor in bringing about the
approached with headlights burning, bell ringing nd whistle accident.
blowing. As soon as saw care, applied emergency brakes.
Train struck car, killing both occupants. Banzhaf – Reduction in train’s speed would have saved passengers’ lives

Causation in Fact: Proof of Causation

Case Name LSF Holding / Take Away
Reynolds v. Def’s train running late. Passengers warned to hurry If negligence greatly multiplies the changes of accident to Ptf and it’s of character
Texas & Pac. Ry. up. Ptf’s wife emerged from bright light of sitting room naturally leading to its occurrence, mere possibility it might have happened without
Co and walked down unlit steps. She mistepped and fell negligence is not sufficient to break chain of cause and effect.
yond the narrow platform, incurring serious injuries.
Sufficient evidence to prove Def’s negligence caused
Ptf’s misstep.
Gentry v. Ptf stumbled, rifle discharged and killed Ptf’s wife. If there had been evidence Def was on stairs, then jury could have made that inference.
Douglas Don’t know where Ptf was. However, the most that could be inferred was that Def was about to ascend stairs when
Hereford Ranch, he stumbled and fell. Why he stumbled and fell would still require speculation.
Inc. Speculation insufficient to defeat MSJ
Kramer Service, Ptf guest in Def’s hotel. Ptf cut forehead on piece of Court: Medical expert testimony is no probability that cancer could be caused by injury,
Inc. v. Wilkins glass that fell when Ptf opened door. Wound didn’t and fact that cause of cancer is unknown, sufficient to determine no cause in fact.
heal. Cancer developed at point of injury.
Banzhaf: Court WRONG. You can prove causation even if you don’t know the mechanism
Constructive notice – Def was negligent. Negligence (Daubert case). Small cuts generally heal; this one didn’t. Parallel logic: not all drunk
caused cut. Can she recover with cancer in addition to drivers cause accidents, not all accidents are caused by drunk drivers.
cut?
Herskovits v. Ptf filed action for professional negligence as a result Medical testimony of a reduction of chance of survival from 39% to 25% is sufficient
Group Health of failure to timely diagnose lung cancer. Ptf had less evidence to allow the proximate cause issue to go to jury.
Coop of Puget than 50% chance of survival. A diagnosis would have Court wrong – 14 percentage points, not 14% decrease
Sound reduced his chances of survival by 14%. General rule – if the initial survival rate is < 50%, cause in fact under the conventional
“but for” test can’t be established
Daubert v. Ptfs alleged Benedictin caused birth defects. Court Changed basic criteria as to which people can testify as to scientific evidence
Merrel Dow held evidence of general causation but not specific Old Frye test – general acceptance of experts’ technique in scientific community (tended
Pharmaceuticals, causation: needed either to prove risk doubled to keep out new ideas)
Inc. probability or actual causation. Daubert – Supreme Court made courts gate keepers – must show scientific knowledge
(peer review or publication or grows out of pre-litigation research) and relevant to task
at hand0
 Causation in Fact: Concurrent Causes
Case Name LSF Holding / Take Away
Hill v. Edmonds Def left tractor trailer parked, without lights on, in the middle of But For Test. Where separate acts of negligence combine to produce directly
a road on a stormy night. Ptf passenger in car that collided with a single injury, each tortfeasor is responsible for the entire result, even
Def’s truck. though his act alone might not have caused it.
Anderson v. Forest fire originated from one of Def’s train engines. That fire But for test doesn’t work so use Substantial Factor Test. Joint and several
Minneapolis, St. P. merged with another fire of independent and uncertain origin. liability. Def liable bc either fire would have destroyed Ptf’s property
& S. St. M. Ry. Co. Combined fires burned Ptf’s property

Causation in Fact: Problems in Determining which Party Caused Harm

Case Name LSF Holding / Take Away
Summers v. Tice Ptf and 2 Defs were members of a hunting party. Both Defs May proceed bc both defs acted negligently despite fact no evidence as to
negligently fired at same time at a quail in Ptf’s direction. Ptf which one caused the negligence. Both Defs negligent. Unfair for totally
Hunters struck in eye by a shot from one gun. innocent Ptf to bear burden of proof (both Defs could get away and Ptf might
not recover). Fair to shift burden of proof to those who are culpable. Both
Defs required to supply evidence for the apportionment of damages bc both
acted negligently.
Sindell v. Abbott Ptf’s mother ingested a drug, DES, which was marketed by Modifies Summers v. Tice.
Laboratories Defs, 5 drug cos. Don’t know which co. manufactured the Market Share Liability: Each Def will be held liable for the proportion of the
pills Ptf’s mother ingested. judgment represented by its share of that market unless it demonstrates
DES daughter that it could not have made the product which caused Ptf’s injuries.
 Proximate or Legal Cause
Case Name LSF Holding / Take Away
Atlantic Coast Line R. Co. v. Daniels (not v. helpful) Courts don’t deal with cause and effect in any absolute degree. Use qualifying words eg., “proximate”

Proximate or Legal Cause: Unforeseeable Consequences

Case Name LSF Holding / Take Away
Ryan v. NY Central By careless management or through insufficient condition of Def was negligent. His negligence was cause in fact of fire. No proximate
R.R. Co. one of its engines, Def set fire to its woodshed and a large cause. Seems to be policy reason – court didn’t want to hold RR accountable
quantity of wood inside. Heat and sparks caused Ptf’s house, for endless result. Better to have set rule than to leave to jury.
~130 ft away, to be consumed by fire despite efforts to save it.
Rule Modified: 1 jump rule. Many have gone father.
Bartolone v. Ptf involved in 4-car chain reaction collision with Def. Ptf Def is liable for aggravating Ptf’s pre-existing condition.
Jeckovich sustained minor injuries and was treated. Ptf suffered acute
psychotic breakdown for which he hasn’t recovered. *Thin Skull Doctrine – take your Ptf as you find him
In re Arbitration Owners chartered their vessel to Defs. Defs used vessel to carry Def liable bc the fire was directly caused by the falling of the plank. IT’s
btw Polemis and cargo, including petrol. While discharging at Casablanca, a immaterial that the causing of the spark by the falling of the plank couldn’t
Furness, Withy & heavy plank fell into the hold in which the petrol was stowed, have been reasonably anticipated.
Co., Ltd. caused and explosion, and destroyed the vessel. *Direct and Natural Test
Wagon Mound No. Def’s freighter, Wagon Mound, carelessly discharged furnace oil Court held Def not liable bc not foreseeable that stuff spread on water
1 into harbor. Oil contacted wharf Ptfs operate. Later, oil ignited would cause fire.
when cotton waste floating on its surface was set fire by molten
metal dropped from the wharf by Ptfs’ workmen. Ptf’s wharf Reasonably foreseeable test
damages, plus 2 ships docked to it.
Wagon Mound No. Ptfs = owners of 2 ships docked at wharf from first case. Defs liable bc could have foreseean and prevented the risk.
2 Reasonably foreseeable the oil would have ignited in exceptional
circumstances. Court holds reasonable man would only allow small risk if
had valid reason. Not true. Discharged bc too burdensome.
Palsgraf A man ran to catch a train and jumped aboard. He seemed Cardozo, majority: Issue of duty. If duty, then proximate cause, but sees no
unsteady, so a guard on the train reached forward to help him duty. Def’s guard not negligent. Negligence is not actionable unless it
and a guard on the platform pushed him from behind. This involves the invasion of a legally protected interest, the violation of a right.
dislodged the package the man was holding, causing it to fall on Negligence and duty are strictly correlative. Ptf did not show a violation of
the rails. Package small, covered by newspaper, and contained her own right. (but Ptf passenger – bought ticket, waiting to board; you’d
fireworks. They exploded. The shock threw some scales down think common carrier duty would extend to her; ignores fact scale not
at the other end of the platform. Scales struck Ptf, injuring her. properly bolted down) Cardozo possibly looking for case to try Rest. theory

Andrews, dissent: Issue of proximate cause. Step-by-step reasonably

foreseeable test – r.f. package exploded, r.f. scale knocked down, r.f. hit
someone
 Proximate or Legal Cause: Unforeseeable Consequences – Cont’d
Kinsman No. 1 Employees of Kinsman improperly moored ship at dock. River
full of floating ice moving with a rapid current. Ice and debris
accumulated, building wedge btw ship and dock. Pressure from
wedge snapped mooring line. Ship broke loose, floated
downstream and collided with other ship. Collided with bridge
that wasn’t raised bc crew in charge of bridge had gone off
duty. Ships caused bridge to collapse, jamming ice behind
wreckage. River backed up and property on banks of river
flooded far upstream. Approx 20 claims for property damage
Kinsman No. 2 Claim brought by owners of wheat store aboard a ship in the
harbor below the bridge. Bc of the accident, ship couldn’t be
moved and unloaded at the shipper’s grain elevators, located
above the collapsed bridge. Shipper was put to considerable
additional expense for extra transportation and storage costs
and for purchase of replacement wheat
Yun v. Ford Motor Spare tire fell off van while driving. Van pulled over on
Co shoulder. Chang got out, ran across highway in middle of night,
grabbed tire, and ran back across. During return, struck by car
and killed. Daughter/driver ware spare tire assembly bent. She
told Mobile Service not to fix it bc it was damaged in an
accident and she was waiting for the other driver’s insurance co
to handle its repair
Def Kinsman liable bc consequences are direct and damage, although other
and greater than expectable, is of same general sort that was risked.
Court held injuries to shipper were too remote or indirect a consequence of
Def’s negligence. Differentiated btw the damage of property in Kinsman No.
1, recoverable in tort law, and economic loss in Kinsman 2, not recoverable
in tort law.
Trial Court: Alleged defect in spare tire bracket assembly did not proximately
cause Chang’s injuries bc Chang’s highly extraordinary and dangerous actions
in crossing highway 2x with complete disregard for his own safety clearly
constitute a superseding and intervening cause of his own injuries.
Dissent: Qs of proximate cause and intervening cause are generally left to
jury. This should have been left to jury. Could be differing opinions as to
whether this was reasonably foreseeable. Judges more cautious, may
interpret differently from jury.
Supreme Court reverses on grounds of dissent.
 Proximate or Legal Cause: Intervening Causes
Case Name LSF
Derdiarian v. Felix While driving, Def Dickens suffers epileptic seizure and loses
Contracting Corp. consciousness. His vehicle careens into Def Felix’s worksite,
where it’s installing an underground gas main. Def Dickens
struck Ptf with such force that he is thrown in air and he
landed and was splattered with hot oil from a kettle the car
struck. The enamel he was covered with was used in
connection with sealing the gas main. Ptf’s body ignited into
fire ball, but he survived.
Watson v. Kentucky Through the negligence of Def RR, a tank car full of gasoline
& Indiana Bridge & derailed and its valve broke. Gasoline ran into street. Dueer
R.R. Co. struck match, igniting gasoline and explosion followed.
Uncertain as to whether Dueer lit match with malice or
inadvertently.
Fuller v. Preis Decedent in good health when involved in car accident.
Afterward, he suffered several epileptic seizures. Never had a
seizure prior to accident. After 7 months, Def shot himself.
McCoy v. Am. Suzuki Ptf drove behind car that swerved off road and rolled. Ptf
Motor Corp stopped to help. Trooper arrived and asked Ptf to place flares
on road to warn approaching vehicles. Ptf did this, but
concerned flares insufficient. Ptf went further and manually
directed traffic. After 2 hours, only trooper and Ptf left. Ptf
walked back to his car. Almost near trooper, trooper left
without comment. Ptf struck from behind by a hit-and-run
vehicle, while still walking on roadway’s shoulder.
Holding / Take Away
(Driver – direct cause)
Negligence - Felix negligent bc failed to put up physical barrier to prevent
cars from coming onto site. – test – custom and practice to establish
negligence
Damages – Ptf injured
Causation in Fact: But for – if had barrier, wouldn’t have had accident
Proximate cause: Use intervening cause as test. Is this intervening cause
reasonably foreseeable, but not so removed that it is a superseding cause?
Court can’t conclude the driver’s negligence was a superseding cause which
interrupted the link btw Felix’s negligence and Ptf’s injury. Serious injury or
even death was a foreseeable consequence of a vehicle crashing through the
work area.
Dueer’s act of lighting match was foreseeable and therefore an intervening
cause to Def’s negligent act proximately causing Ptf’s injury. If Dueer’s act
was malicious, it was not foreseeable and Def would not be liable.
Last Human Wrongdoer Principe
As a matter of law, an act of suicide is not a superseding cause in negligence
law precluding liability. (last human wrongdoer principle would hold
decedent liable).
An initial tortfeasor may be liable for the wrongful acts of a 3d party if
foreseeable. (thin skull doctrine – once def has negl caused injury to Ptf, if
Ptf subsequently injures self as result of original injury, hold def liable).
Q of fact as to whether suicide was irresistible impulse. Court is stretching
doctrine – this was usually reserved for instances shortly after incident and
without preparation.
The rescue doctrine applies to product liability actions and negligence
actions. Ptf must still prove Def proximately caused his injuries. With regards
to this case, the issue of foreseeability of the intervening cause is sufficiently
close that it should be decided by jury, not court.
- Rescue Doctrine – allows injured rescuer to sue party causing the
danger requiring the rescue in the first place.
- 2 intervening causes: driver negligently hitting him, Ptf’s choice to
stay at scene. Probably couldn’t find driver
 Proximate or Legal Cause: Public Policy
Case Name LSF
Kelly v. A host who serves liquor to an adult social guest,
Gwinnell knowing both that the guest is intoxicated and that
he will be operated a motor vehicle afterward, is
liable for injuries inflicted on a third party as a result
of the negligent operation of a motor vehicle by the
adult guest when such negligence is caused by the
intoxication.
Enright v. Granddaughter DES case – can you have a duty to
Eli Lilly & someone who wasn’t conceived at the time of the
Co ingestion of the pill allegedly causing the defect?
Holding / Take Away
The imposition of such a duty by judiciary seems both fair and fully in accord with the State’s
policy.
(meets all proximate cause tests)
Dissent – Legislature is better equipped to effectuate the goals of reducing injuries from
drunken driving and protecting the interests of the injured party, without placing such a grave
burden on the average citizen of this state. Significant difference btw average citizen and a
commercial licensee.
Court declines to recognize multigenerational cause of action.
Duty question. Not foreseeability.
Question of policy – court feels they must impose limit on liability to confine liability within
manageable limits. For all they know, the rippling effects of DES exposure may extend
generations.

Products Liability: Express Warranties

Case Name LSF Holding / Take Away
Baxter v. Ptf bought Ford vehicle. Dealer distributed printed materials from Manufacturers can be liable for an implied or express warranty without privity of
Ford Motor Ford representing the car had a windshield of nonshatterable contract. (first case to allow)
Co. glass. While driving, pebble hit Ptf’s windshield and small pieces
of glass flew into his left eye and he lost sight in that eye. (Not A person of ordinary experience and reasonable prudence could not readily
necessarily negligent – shatterproof glass didn’t exist) detect the falsity of the glass. Ptf had the right to rely on the representations Ford
made.

Products Liability: Implied Warranties

Case Name LSF
Henningsen Ptf husband purchased Chrysler car and signed contract
v. Bloomfield without reading it. The contract included a warranty
Motors, Inc. clause providing the manufacturer and dealer gave no
warranties except replace defective parties within specific
time range. While Ptf driving car one day, she was badly
injured when something went wrong with the steering
gear and the car turned sharply to the right into a wall
Holding / Take Away
When a manufacturer puts a new car in the stream of trade and promotes its purchase
by the public, an implied warranty that it is reasonably suitable for use accompanies it
into the hands of the ultimate purchaser.
The warranty clause is unfair and therefore invalid. The warranty at issue is a
standardized form designed for mass use. Car consumer either takes it or leaves it.
Gross inequality of bargaining position occupied by consumer in automobile industry.
Administer the spirit of the law – burden to protect the ordinary man against the loss of
important rights through what in effect is the unilateral act of the consumer.
 Products Liability: Strict Liability in Tort
Case Name LSF
Greenman v. Ptf used his Shopsmith on a piece of wood several times without
Yuba difficulty. Then the wood suddenly flew out of the machine and struck
Ptf on the forehead, inflicting serious injuries. About 10.5 months
later, Ptf gave the retailer and manufacturer written notice of claimed
breaches of warranty and filed suit. Manufacturer contended Ptf
didn’t give it notice of breach of warranty within a reasonable time
and therefore action barred.
Court – the Notice is pursuant to the contract which is a trap for the
unwary bc of fac that warranty can require people to do something
most people wouldn’t know what to do
Holding / Take Away
Created strict liability
A manufacturer is strictly liable in tort when an article he places on the
market, knowing that it is to be used without inspection for defects, proves
to have a defect that causes injury to a human being.
Liability is not governed by law of contract warranties but by law of strict
liability.
Purpose of strict liability is to insure that the costs of injuries resulting from
defective products are borne by manufacturers that put such products on
the market rather than by the injured persons who are powerless to protect
themselves.

Products Liability: Manufacturing Defect

Case Name LSF Holding / Take Away
Rix v. General Motors Ptf was injured when the pickup he was driving was hit from behind by a A manufacturer can’t be held strictly liable for a manufacturing
Corp GMC 2 ton chassis-can. GMC was equipped with a water tank after sale by defect when the product was not defective when it left the
the GMC dealer. manufacturer’s assembly line.
Ptf alleged defect in brake lining. GMC agreed brake tube was defective, but
contended the tube was altered after it left the assembly line.

Products Liability: Design Defect

Case Name LSF
Prentis v. Yale Mfg. Ptf was injured when the forklift he was operating
Co. experienced a power surge, causing Ptf to fall to the ground.
Ptf sued the Def, claiming a defect in design because the
forklift did not provide a seat or platform for the operator.
O’Brien v. Muskin Ptf arrived uninvited to neighbor’s home and dove into their
Corp above-ground swimming pool from either the platform or the manufacturing a pool with a vinyl liner constituted either a design or
roof of the garage. His outstretched hands hit the vinyl-lined
pool bottom, they slid apart, and he hit his head sustaining
injuries.
Holding / Take Away
In an action against the manufacturer of a product based upon an alleged
design defect, breach of implied warranty and negligence require proof of
the same elements and use of identical evidence.
Describes 4 approaches to design defects.
Court adopted risk-utility standard
Trial court shouldn’t have taken away from the jury the issue of whether
manufacturing defect.
 Products Liability: Warnings Defect
Case Name LSF Holding / Take Away
Anderson v. Owens- Ptf allegedly contracts asbestosis and other lung ailments A Def in a strict products liability action based upon an alleged failure to
Corning Fiberglass through exposure to asbestos and asbestos products while warn of a risk of harm may present evidence of the state of the art i.e.,
Corp. working as an electrician. He allegedly encountered asbestos evidence that the particular risk was neither known nor knowable by the
while working in the vicinity of others who were removing application of scientific knowledge available at the time of manufacture
and installing insulation products aboard ships. and/or distribution. Exclusion of this evidence would make a manufacturer
Ptf alleges Def should have warned of danger, but Def didn’t the virtual insurer of its product’s safe use, a result not sound with principles
know of danger underlying strict liability.

Court uses negligence/foreseeability test, not imputation.

Products Liability: Proof

Case Name LSF
Friedman v. General Ptf turned ignition on his 17-month old car while the gearshift
Motors Corp selector was in the drive position. Although he didn’t expect
the vehicle to start, it did, and the car leaped forward,
startling Ptf so that he could not regain control before the car
ran wild and crashed. Ptf and his family were injured.
Holding / Take Away
Manufacturer Defect – cars are designed not to do this
Reasonable inference car like that when came from factory
Case also could have been pleaded as design defect – possible for contacts
to become misaligned

Tort of Invasion of Privacy: Appropriation

Case Name LSF Holding / Take Away
Flake Photo misappropriated
Newspaper by mistake published ad with picture of high
school girl.
Dickerson Name misappropriated. Allowed publication.
Defs hired during a child custody dispute to investigate Ptf. Def’s publication was primarily noncommercial bc it related to a matter of
Def noticed inconsistencies in way Ptf came to possess certain public concern, namely the facts of Ptf’s crime and conviction.
bearer bonds and reported this to the authorities. He wrote
an article published in his newsletter detailing how Ptf stole
the bonds, the fact that the jury convicted Ptf of theft and
how the court ordered her to pay restitution to the theft
victim. Front page of newsletter. Mentions Ptf by name and
includes her photo.
 Tort of Invasion of Privacy: Intrusion
Case Name LSF Holding / Take Away
Sanders v. ABC ABC reporter undercover at psychic. Recorded conversations In an office or other workplace to which the general public does not have
with small video camera, including ones with Ptf unfettered access, employees may enjoy a limited, but legitimate,
expectation that their conversations and other interactions will not be
secretly videotaped by undercover television reporters, even though those
conversations may not have been completely private from the participants’
coworkers.
Court noted difference btw listening and recording conversation

Tort of Invasion of Privacy: Disclosure

Case Name LSF Holding / Take Away
Hall v. Post Ex-Carny articles re: ex-carny trying to find daughter given up Articles allowed bc truthful public disclosure, despite disclosing private facts.
for adoption. Daughter and adopted mother brought suit.

Tort of Invasion of Privacy: False Light

Case Name LSF
Cantrell Article re woman’s husband who died in bridge collapse.
Reporter returned and interviewed kids when mother wasn’t
home. Article misrepresented the family’s poverty and
discussed Ms. Cantrell, although she wasn’t home
Falwell v. Hustler Parody ad re minister – re his first time with his mother
Holding / Take Away
Because the paper published false information, Def was liable for the actions
of its reporters.
Article allowed. Supreme Court says can’t draw line of horrible. The fact that
the speech in question may be offensive to society is not a sufficient reason
for suppressing it.

Public figures and officials may not recover for the tort of intentional
infliction of emotional distress by reason of publications such as the one
here at issue without showing in addition that the publication contains a
false statement of fact which was made with actual malice, i.e., with
knowledge that the statement was false or with reckless disregard as to
whether or not it was true.