2020

TORTS
KELSEA NOLOT
FALL 2020
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DAMAGES

1) Standard of Proof

a. Preponderance of the evidence (51%)

b. Clear and convincing evidence (75%)

2) Remedies Available

a. Equitable relief

i. Injunctions, restraining order, declaratory judgement

b. Monetary

i. Nominal

1. Small sums awarded to the plaintiff vindicate right

ii. Compensatory

1. Closest financial equivalent the loss suffered to a) to make the

plaintiff whole again

2. To restore plaintiff to their original state

3. Legislative control of jury awards for compensatory damages

a. Caps on damage awards

b. Increasing standard of proof

c. Modification of collateral source rule

4. Cases

a. Anderson v. Sears, Roebuck & Co. (E.D. La. 1974)

i. Facts

1. Defective heater sold by Sears caused a fire

that severely injured the plaintiff and her
daughter

ii. Holding

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1. Sears was responsible for the injuries in

selling a defective heater. Because the
daughter was injured in such a way that she
will be affected for the remainder of her life,
the award for damages were not outside of
the fair range of reasonable compensation.

iii. Resulting Rule

1. A trial court may review a jury’s award of

damages to determine whether it exceeds the
maximum amount which the jury could
reasonably award

b. Montgomery Ward & Co. v. Anderson (Ark. 1998)

i. Facts

1. Plaintiff was a customer in defendant’s

department store where she was badly
injured. Upon injury, the store sent her to the
local hospital where she racked up
significant medical charges.

ii. Holding

1. Despite the discount given by the hospital,

the medical bills should be admissible as
evidence to show damages.

iii. Resulting Rule

1. A trial court may review a jury’s award of

damages to determine whether it exceeds the
maximum amount which the jury could
reasonably award.

2. Hop. R.R.: It is the tortfeasor’s

responsibility for all harm that he or she
causes and this responsibility is not confined
to only the net losses (dollar losses) that the
injured party actually receives or is
responsible for.

iii. Punitive

1. Additional sum over and above compensation that is awarded as a

punishment, deterrence

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2. Constitutionality: There is no right to punitive damage award

3. Jury has discretion to award punitive damages or not award

punitive damages

4. A state has the discretion to limit or place caps or restrictions on

the amount that a plaintiff can recover

5. There is no 5th Amendment takings involved when a state restricts

or takes a portion of a punitive damage award.

6. Illinois Limits on Punitive Damages

a. May be awarded only if actual damages are awarded.

i. The amount of punitive damages that may be

awarded in any civil action shall not exceed three
times the amount awarded to the claimant for the
economic damages on which such claim is based.

ii. A plaintiff must show clear and convincing

evidence that the defendna’s conduct was with evil
motive or with reckless and outrageous indifference
to a highly unreasonable risk of harm and with a
conscious indifference to the rights and safety of
others.

iii. Clear and convincing evidence means that measure

or degree of proof that will produce in the mind of
the trier of fact a high degree of certainty as to the
truth of the allegations sought to be established.

7. Test

a. No state shall make or enforce any law which shall abridge

the privileges or immunities of citizens of the United
States; nor shall any state deprive any person of life,
liberty, or property , without due process of law; nor deny
to any person within its jurisdiction the equal protection fo
the law. (14th Amendment)

b. The U.S. Supreme Court guideposts used in determining

whether a punitive damage award survives federal
constitutional scrutiny (BMW v. Gore)

i. The degree of reprehensibility of the defendant’s

misconduct

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ii. The disparity between the actual or potential harm

suffered by the plaintiff and the punitive damage
award

iii. The difference between the punitive damages

awarded by the jury and the civil penalties
authorized or imposed in comparable cases.

iv. Defendant’s conduct must constitute a reckless

disregard for the rights of others (willfull,
wantonness, recklessness)

8. Cases

a. Cheatham v. Pohle (Ind. 2003)

i. Facts

1. Revenge porn case

ii. Holding

1. Plaintiff has no right to punitive damages

and takings clause does not apply.

iii. Resulting Rule

1. A plaintiff has no right to receive punitive

damages

b. *State Farm Mutual Automobile Ins. Co. v. Campbell (U.S.

2003) REVIEW

i. Facts

1. Campbell tried to pass six trucks causing

oncoming car to swerve off of road and
crash into another car. Oncoming driver was
killed and driver of car that was collided into
was permanently disabled.

2. State Farm had max coverage at $25,000 but

damages were estimated at much higher
amount. State Farm told Campbells that
their assets were safe, they were not
responsible for liability, did not need outside
counsel which all was untrue after damages

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were more than the Campbell’s policy

allowed.

ii. Holding

1.

iii. Resulting Rule

1. Awards of punitive damages by state courts

that exceed a single-digit ratio between
punitive damages and compensatory
damages are usually “grossly excessive” and
violate the Due Process Clause of the
Fourteenth Amendment.

c. Exxon Shipping Co. v. Baker (U.S. 2008)

i. Facts

1. Oil tanker ran into the coastline of Alaska

causing the worst oil spill of all time.

ii. Holding

1. Punitive damages ratio should be reasonably

predictable

iii. Resulting Rule

1. A punitive-to-compensatory damages ratio

of 1:1 should be the maximum punitive
damages in maritime cases

9. Collateral Source Rule

a. A trial court must exclude evidence of payments received

by an injured party from sources collateral to the defendant

b. Public Policy: recoveries from collateral sources are not

credited to the benefit of a tortfeasor, even though double
recovery for the same thing by the injured party may result.

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NEGLIGENCE

1) Definition

a) Conduct that falls below the standard of care established by law for the protection of
others against the unreasonable risk of harm

b) The failure to exercise the level or care that a reasonably prudent person would exercise
under the circumstances.

2) Test

a) Duty

i) Duty to use reasonable care requiring actor to conform to a certain standard of

conduct

b) Breach of Duty

i) Generally “breach of duty” is a question of fact for the jury

ii) Once an applicable standard of care has been established, a jury will consider the
facts to determine whether the defendant has complied with or failed to comply with
the standard required under the law

c) Causation

i) Actual Cause

(1) Is the defendant’s breach of a duty of care owed to the plaintiff the actual cause of
the plaintiff’s injuries

(a) “But for” test: the defendant’s conduct is a cause of the event if the event
would not have occurred but for that conduct. (Note: the conduct will not be a
cause of the event would have occurred without the conduct)

(b) Substantial factor” test: the defendant’s conduct is the cause of the event if it
was a substantial factor (a material element) in bringing about the harm.
(Defendant’s negligence will be a substantial facto if the injury/harm to the
plaintiff would not have occurred without the factor)

ii) Proximate Cause

(1) Is the defendant’s breach of duty of care owed to the plaintiff the “proximate
cause” of the plaintiff’s issue?

(a) The test involves foreseeability. Are the plaintiff’s injuries the foreseeable
consequences of the defendant’s breach of a duty of care? Or;

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(b) Are there intervening factors that appear after the defendant’s negligent
conduct and prior to the plaintiff’s injuries that may be responsible for the
plaintiff’s injuries? If yes,

(i) Does the intervening cause rise to the level of being a superseding cause?

(ii) If the intervening cause rises to the level of being a superseding cause,
then the proximate cause connection is broken. The defendant will not be
able to sue for negligence.

iii) Need both proximate and actual causes for a case

d) Damages

i) Plaintiff must suffer damage as a result of the defendant’s breach of a duty of care
owed to the plaintiff

ii) The amount of damages and the apportionment of damages when multiple defendants
are at fault, is a question for the jury.

e) Restatement (Third) of Torts §3

i) A person acts negligently if the person does not exercise reasonable care under all
circumstances. Primary factors to consider in ascertaining whether the person’s
conduct lacks reasonable care are:

(1) The forseeable likelihood that the person’s conduct will result in harm

(2) The forseeable severity of any harm that may ensue; and

(3) The burden of precautions to eliminate or reduce the risk of harm.

3) General points

a) Arbitrary limits that have been set as setting the limits beyond which the courts will not
look in the attempt to trace the connection between a given cause and effect (Atlantic
Coast Line R.R. CO.)

b) Definition: the next, nearest, immediately before or after in order,…2. Close, very near…
(See note 1)

c) Proximate cause is a policy decision made by the legislature or the courts to deny liability
for otherwise actionable conduct based on considerations of logic, common sense, policy,
precedent, and justice/fairness. See note 5

d) Proximate cause is often used as a fudge factor that permits judges and juries to decide
that there should not be liability even with the causation-in-fact has been satisfied.

4) Cases

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a) Lubitz v. Wells (Sup. Ct. Conn., 1955)

i) Facts

(1) Child accidentally hits friend with golf club left in backyard by father

ii) Holding

(1) The father is not liable for negligence for leaving the golf club in the yard

iii) Resulting Rule

(1) Unless the object is obviously and intrinsically dangerous, it is not negligent to
leave unattended

b) Blyth v. Birmingham Waterworks, Co. (Ct. Exchequer, 1856)

i) Facts

(1) Water leak froze under property causing damage

ii) Holding

(1) Defendant could not have been aware that such a freeze was coming causing the
leak because based on knowledge of the weather in previous years, the incident
would have been caused by an extreme freeze.

iii) Resulting Rule

(1) A defendant who acts in a prudent and reasonable manner is not liable for
damages

c) Pipher v. Parsell (Delaware, 2007)

i) Facts

(1) Teenage drivers goofing off with one passenger yanking the steering wheel twice,
the second time causing an accident injuring the other passenger

ii) Holding

(1) The actions of passenger swerving the steering wheel the second time was not
foreseeable and therefore the drive was not liable for negligence.

iii) Resulting Rule

(1) A driver of a car has a duty of care to prevent foreseeable accidents

d) Chicago, B. & Q.R. Co. v. Krayenbuhl (Neb. 1902)

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i) Fact

(1) Kids playing with R.R. push carts and unlocked turntable where one got his foot
stuck and severed it at the ankle

ii) Holding

(1) The R.R. company is found liable for negligence and respective damages

iii) Resulting Rule

(1) A party is negligent if it fails to take the precautions that an ordinary man would
take under the circumstances

e) Davison v. Snohomish Cty. (Wash. 1928)

i) Facts

(1) Driver and passenger slid off road and crashed through guardrail suffering severe
injuries

ii) Holding

(1) The County is not liable for negligence and cannot be held responsible for
providing the same amount of protection on bridge as they can on a road (guard
rails can be installed further into the ground allowing for greater protection;
requiring this is impractical)

iii) Resulting Rule

(1) Roads must be built and maintained in a reasonably safe way by municipalities
with an ordinary degree of care but the municipalities are not liable for
negligence for failing to provide the same degree of protection on bridges as is
afforded on roads

f) U.S. v. Carroll Towing Co. (Us. Ct. App. 2d 1947)

i) Facts

(1) Barge collision resulting in a sinking ship and lost cargo

ii) Holding

(1) Yes, missing barge attendant is contributorily negligent for its failure to take
safety precautions

iii) Resulting Rule

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(1) Liability for negligence due to take safety precautions exists if the burden of
taking such precautions is less than the probability of injury multiplied by the
gravity of any resulting injury (B<PL=negligence liability)

(a) WHAT ABOUT THIS CASE WILL WE NEED TO KNOW??? MATH??

g) Other definitions

i) Cause in fact

(1) The causal link between an action and a result

ii) Emergency doctrine

(1) Something that is “sudden, unexpected, and the individual has no control over.”

5) ***Duty of Care

a) Reasonable Person Standard/The Common Law Standard of Care

i) Definition

(1) When a person engages in an activity, he is under a legal duty to act as an

ordinary, prudent, reasonable person

(a) Also the “adult standard of care.”

(b) Owed to the foreseeable plaintiffs but not any bystanders

ii) Cases

(1) Vaughan v. Menlove (Ct. Common Pleas, 1837)

(a) Concept: The Common Law Standard of Care

(b) Facts

(i) Hay fire after repeated warnings from others, destroying plaintiff’s
property

(c) Holding

(i) Defendant did not exercise the level of care that would be exercised by the
reasonable person

(d) Resulting Rule

(i) A person has the legal duty to use his or her property with the same level
of ordinary care that would be exercised by a reasonable person

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(2) Delair v. McAdoo (Penn. 1936)

(a) Concept: Things the reasonable person would know

(b) Facts

(i) Worn out tire blows out and causes collision and damages to nearby car

(c) Holding

(i) Driver of damaged tires is held liable for negligence because he did not
take reasonable care for his vehicle. Had he, the collision could have been
prevented.

(d) Resulting Rule

(i) Drivers and owners of vehicles are required to know the condition of their
vehicles likely to become dangerous in cases that would be discovered
during a reasonable inspection

b) Adjustments/Exceptions to the Reasonable Person Standard

i) Definition

(1) Same physical characteristics, average mental ability, same knowledge of

community as defendant.

ii) Cases

(1) Cordas v. Peerless Transportation Co. (City Ct. N.Y. 1941)

(a) Concept: Emergencies

(b) Facts

(i) Thief jumped in taxi and forced the driver to drive at gunpoint. Taxi driver
took advantage of distraction and jumped out of taxi while it was still
moving. It hit someone.

(c) Holding

(i) Taxi driver is not liable under emergency circumstances

(d) Resulting Rule

(i) An act by a reasonable person that is considered negligent under normal

circumstances is not negligent per se if performed by a reasonable person
during an emergency situation

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(2) Roberts v. State of Louisiana (Ct. App. Louisiana 1981)

(a) Concepts: Physical disabilities

(b) Facts

(i) Blind man did not use his cane within his own work building

(c) Holding

(i) Blind man was familiar with his surroundings and used standard mobility
training techniques to move around his work space, using reasonable
precautions, is not held liable for negligence

(d) Resulting Rule

(i) A disabled person cannot be held liable for negligence if he uses the same
precautionary measures an ordinary person would use with the same
disability in the same situation

(3) Robinson v. Lindsay (Wash. 1979)

(a) Concepts: Children

(b) Facts

(i) Child’s finger got caught, and was severed, in rope pulled by other child
on snowmobile

(c) Holding

(i) If a child causes an injury while participating in an inherently dangerous

activity, the child should be held to the reasonable adult standard instead
of the reasonable child standard

(d) Resulting Rule

(i) Adult standard of care is to be applied to a minor engaging in an

inherently dangerous activities

(ii) Allows children to be children while discouraging immature activity while

participating in dangerous activities

(4) Breunig v. American Family Ins. (Wis. 1970) (Insanity)

(a) Concepts: Insanity

(b) Facts

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(i) God and Batman took over a schizophrenic’s car and she hit someone.

(c) Holding

(i) Sudden mental incapacity should be treated the same as sudden physical
incapacity

(d) Resulting Rule

(i) Insanity may be a defense for negligence liability if the person can show
that it happened without warning and makes him incapable of standards of
a reasonable man

c) The Professional Standard

i) Definition

(1) Required to possess and exercise the knowledge and skill of a member of the
profession or occupation in good standing. Medical professionals are usually held
to the national standard.

ii) Cases

(1) Heath v. Swift Wings, Inc. (N.C. Ct. App. 1979) (Pilot)

(a) Facts

(i) A pilot crashed a plane and killed everyone on board of after likely
knowing that the plane was having mechanical issues. Expert testimony
says that he should’ve made a controlled landing if he knew he was having
issues.

(b) Holding

(i) The duty of care does not vary within a professional setting based on
individual’s past experience. The standard is the same for all individuals in
that profession.

(c) Resulting Rule

(i) The reasonable person standard within a profession is objective and does
not vary within that profession.

(2) Hodges v. Carter (N.C. 1954) (Attorneys)

(a) Facts

(i) Attorneys served summons improperly, but in good faith, on behalf of a

client. Client sued.

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(b) Holding

(i) No evidence of breach of duty of care and acted in good faith.

(c) Resulting Rule

(i) The reasonable person standard within a profession is objective and does
not vary within that profession.

(3) Boyce v. Brown (Ariz. 1938) (Medical Malpractice)

(a) Facts

(i) Doctor inserted a screw in the ankle of the patient which eventually caused
problems that he could not identify. She went to another doctor who fixed
the problem.

(b) Holding

(i) There is no proof that the doctor violated the proper standard of care and
therefore is not liable for medical malpractice.

(c) Resulting Rule

(i) Medical malpractice must demonstrate that the doctor did something in his
treatment of a patient that is against the recognized standard of good
medical practice in the community in which he practices.

(4) Morrison v. McNamara (D.C. Ct. App. 1979) (Standards of Care)

(a) Concept: Standards of Care (Rules), medical professionals

(i) Locality

1. Conduct of medical professionals is measured by the standard

expected to be given by other professionals in the same locality

(ii) Modified Locality

1. Conduct of medical professionals is measured by the standard

expected by other medical professionals in the same or similar
localities

(iii) National Standards

1. Conduct of medical professionals is measured by a National Standard

of care (accreditation, national standardized training) (specialists are
held to this standard)

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(b) Facts

(i) Plaintiff underwent medical testing while standing and fainted, hit his
head suffering injuries. The test would have typically been performed
while sitting to avoid such accident.

(c) Holding

(i) Medical practitioners in D.C. are held to a national standard of care

justified by access to cutting edge technology and medical knowledge

(d) Resulting Rule

(i) The standard of care applied to those in the medical profession is a

national standard, not a local standard.

6) Custom and Usage

a) Definition

i) The usages, habits and ordinary risks of a business.

b) No test, handled on a case-by-case basis

c) Cases

i) Trimarco v. Klein (N.Y. 1982)

(1) Concept: Custom and Practice

(2) Facts

(a) Bathroom door shattered while plaintiff was showering. Door was made of
normal glass instead of safety glass causing injuries to plaintiff

(3) Holding

(a) Trial error because of evidence that the tub was installed before the statute
was created but

(b) Landlord is held liable due for failure to adopt accepted practices (requirement
of safety glass in bathrooms)

(4) Resulting Rule

(a) A party is liable for negligence when a custom or accepted practice is coupled
with proof that such custom or accepted practice was ignored and that this
departure was the proximate cause of injury

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(i) Establishes the proper role of custom and practice in proving negligence

7) Duty of Informed Consent

i) Test

(1) Requires the following pieces of information to be discussed with a patient before
a procedure occurs

(a) Explanation of the procedure to be performed

(b) Discussion of alternative methods of treatment

(c) Explanation of material risks involved if the doctor performs the treatment

(d) Information regarding any personal interests unrelated to the patient’s health,
whether research or economic, that may affect the doctor’s medical judgement

ii) Scott v. Bradford (Okla. 1979) (Medical Malpractice-Duty to Disclose)

(1) Facts

(a) Patient claims that her doctor did not inform her of the risks of a surgery or
alternatives

(2) Holding

(a) A physician is required to disclose all material risk regarding a procedure so

that the patient can making an informed decision to move forward or not.

(3) Resulting Rule

(a) Medical malpractice suits for lack of informed consent require support that the
doctor failed to inform patient of all material risk and had the patient been
informed, the patient would not have consented, and that the consequences
that were not made known occurred and cause injury.

iii) Moore v. Regents of the University of California (Calif. 1990) (Medical Malpractice)

(1) Facts

(a) Patient with cancer was advised to have his spleen removed. Additional blood
and tissue cells were taken (consensually) and then used to create a
commercially valuable product which was sold to a lab (nonconsensual).

(2) Holding

(a)

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(3) Resulting Rule

(a) A physician has a fiduciary duty to disclose all material personal interests that
may influence her professional judgment before securing a patient’s informed
consent to medical treatment.

(b) Once cells leave a patient’s body, they are no longer that patient’s property.

8) Violation of Statutes (Negligence Per Se)

a) Definition

i) The violation of a statute is negligence “as a matter of law” when the violation results
in injury to a member of the class of persons intended to be protected by the statute,
and when the harm/injury is the type of injury that the statute was designed to protect.

(1) Shorthand approach to establishing the elements of duty and breach of duty for
negligence.

b) Rules

i) The plaintiff must be a member of the class of persons the legislature intended to
protect

ii) The plaintiff's injuries must be the type of injuries for which the statute was designed
to protect against

c) Policy

i) When a legislative body has generalized a standard from the experience of a

community and prohibits conduct that is likely to cause harm, the court accepts the
formulation.

d) Cases

i) Osborne v. McMasters (Minn. 1889)

(1) Facts

(a) Pharmacist sold unlabeled poison which lead to customer death

(2) Holding

(a) Pharmacist is liable in negligence per se because the statute requires all
poisons to be labeled as such

(3) Resulting Rule

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(a) If a statute or municipal ordinance imposes upon an individual a duty to

protect or benefit others, and he neglects to perform that duty, the individual is
liable for negligence per se and must pay damages for injuries that are
proximately caused by his actions if they are of the type the statute was
designed to prevent.

ii) Stachniewicz v. Mar-Cam Co. (Or. 1971)

(1) Facts

(a) Bar fight lead to man suffering from retrograde amnesia

(2) Holding

(a) The bar was held reasonable for not preventing fight in bar

(3) Resulting Rule

(a) A violation of a statute constitutes negligence as a matter of law when the

violation results in injury to a member of the class of persons intended to be
protected by the legislation and when the harm is of the kind which the statute
was enacted to prevent

iii) Ney v. Yellow Cab Co. (Ill. 1954)

(1) Facts

(a) Taxi driver left car unattended with engine running and it was stolen but hit
another car during its getaway

(2) Holding

(a) The taxi company was held liable for the accident because by violating the
statute and leaving the car running, the cab company caused the situation that
allowed for the car to be stolen and crashed into the plaintiff

(3) Resulting Rule

(a) A violation of a statute constitutes prima facie evidence of negligence, but

proximate causation must also be proven to maintain a negligence claim.

iv) Perry v. S.N. and S.N. (Tex. 1998) REVIEW

(1) Facts

(a) Child molestation case at daycare

(2) Holding

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(a) The witnesses did not cause the injury and therefore cannot be held liable for
tort negligence under a criminal law.

(3) Resulting Rule

(a) A violation of statute constitutes negligence per se when the violation results
injury to a member of the class of persons intended to be protected by the
legislation and when the harm is of the kind which the statute was enacted to
prevent, but only if the court determines that it is appropriate to impose such
civil liability.

9) Effect of Statute

a) Definition

i) Although the violation of an applicable criminal statute may be negligence,

compliance with it will not necessarily establish due care. If there are unusual
circumstances or increased danger beyond the minimum that the statute was designed
to meet, it may be found that there is more negligence in not doing it.

b) Variations in Interpretation

i) The courts have taken three approaches negligence per se

(1) The unexcused violation of a statute is negligence per se (Martin v. Herzog)

(majority viewpoint)

(a) This approach allows the defendant or plaintiff to present evidence of a

recognized excuse

(b) thus it is similar to the rebuttal presumption approach discussed in Zeni

(2) Negligence per se (no excuses allowed). Defendant is liable. (Zeni)

(a) Under this approach, the defendant or plaintiff will be liable for breach of a
duty of care if the two-part test for negligence per se is satisfied

(3) Evidence of negligence. (minority view) (Zeni)

(a) The violation of a statute provides evidence of negligence that the jury may or
may not consider

c) Cases

i) Martin v. Herzog (N.Y. 1920)

(1) Facts

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(a) Buggy and a car were in accident killing both in the buggy. Estate sued for
negligence on the basis that the car did not keep to the center of the highway.
Defense argued that that the plaintiff didn’t use its lights.

(2) Holding

(a) Defendant is not liable for damages because the decedent engaged in
contributory negligent by not having headlights.

(i) The two violations of statutes essentially cancel each other out??

(3) Resulting Rule

(a) An omission, or failure to perform an act required by statute, constitutes

negligence per se.

ii) Zeni v. Anderson (Mich. 1976)

(1) Facts

(a) Plaintiff was walking on established snow path instead of sidewalk when she
was hit by defendant

(2) Holding

(a) Adopts rebuttal presumption in allowing plaintiff to present prima facie

evidence of negligence and provide an adequate excuse under the
circumstances of the case.

(3) Resulting Rule

(a) The presumption that a violation of a statute constitutes a prima facie case of
negligence may be rebutted by offering an adequate excuse under the
circumstances of the case.

d) Other

i) Presumption

(1) A presumption is a rule of law, statutory or judicial, by which finding of a basic

fact gives rise to existence of presumed fact until the presumption is rebutted. A
legal device which operates in the absence of other proof to require that certain
inferences be drawn from the available evidence.

ii) Rebuttable Presumption

(1) A presumption that can be overturned upon a showing of sufficient proof…Once

evidence tending to rebut the presumption is introduced, the force of the

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presumption is entirely dissipated and the party with the burden of proof must
come forward with evidence to avoid a directed verdict.

10) Circumstantial Evidence

a) Definition

i) Circumstantial Evidence

(1) Indirect evidence can be used to create inferences that may support a claim that
the plaintiff's injuries were due to the fault of the defendant

(a) If the occurrence of an event such as bottles exploding while they are handled
in a proper manner

(i) Because our human experiences or common knowledge indicate that

bottles do not normally explode when being handled properly, the fact that
a bottle explodes during handling can give rise to an inference that the
product was defective when it was manufactured, or that negligence
occurred during the production of the bottle

(2) BLACKS LAW DEF: Testimony not based on actual personal knowledge or
observation of the facts in controversy, but of other facts from which deductions
are drawn, showing indirectly the facts sought to be proved

ii) Inferences

(1) Deductions or conclusions which with reason and commons sense, lead the jury to
draw from facts which have been established from the evidence in the case.

b) Types of Evidence

i) Demonstrative evidence

(1) Tangible evidence--photographs, charts, films, lab reports (OJ trial)

ii) Witness Testimony

(1) Evidence presented by eye witnesses (eg. usually oral testimony presented to the
court to prove the plaintiff's assertions/case or expert witnesses)

(a) Witness testimony can be based on personal knowledge of the witnesses, or

on treatises governing the subject matter

(b) Expert witnesses are utilized when the subject matter at issue is beyond the
scope of comprehension of lay jurors

iii) Circumstantial Evidence

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(1) Indirect evidence can be used to create inferences that may support a claim that
the plaintiff’s injuries were due to the fault of the defendant

c) Cases

i) Goddard v. Boston & Maine R.R. Co. (Mass. 1901)

(1) Facts

(a) Plaintiff slipped on sticky banana on railway platform

(2) Holding

(a) Plaintiff did not provide evidence that the banana had been there for a
significant amount of time to lead the jury to believe that the defendant had
been negligent in not picking it up.

(3) Resulting Rule

(a) To maintain a claim of negligence for breach of a duty of care, the plaintiff
must prove that the defendant was actually negligent.

ii) Anjou v. Boston Elevated Railway Co. (Mass. 1911)

(1) Facts

(a) Plaintiff slipped on brown, dirty banana on railway platform

(2) Holding

(a) The platform was not maintained because the banana had appeared to be
stepped on many times and therefore, the defendant is negligent

(3) Resulting Rule

(a) A railroad company negligently breaches its duty of care by not keeping its
platforms free of debris.

iii) Joye v. Great Atlantic and Pacific Tea Co. (4th Cir. 1968)

(1) Facts

(a) Plaintiff slipped on brown and sticky banana in supermarket

(2) Holding

(a) Inconclusive evidence provided by the plaintiff to determine how long the
banana had been there

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(3) Resulting Rule

(a) A store owner owes its customers a duty of care in keeping the store
reasonably safe and the burden is on the customer to show that that duty is
breached.

11) Proving Negligence with Circumstantial Evidence (Res Ipsa Loquitur)

a) Definition

i) Handles situations in which the fact that an injury occurs establishes a breach of duty
owed

ii) “The thing speaks for itself…”

iii) A rule of circumstantial evidence. Method of indirect proof of negligence

iv) Provides breach and causation

b) Policy

i) Provides a commons sense inference of negligence, where direct proof of negligence

is lacking, provided that certain elements consistent with negligent behavior are
present

c) Test

i) The accident/event is the kind that does not usually occur except for when some is
negligent

ii) The instrumentality that causes the injury is within the exclusive control of the
defendant

iii) The accident must not have been the result of or due to any actions on the part of the
plaintiff

d) Cases

i) Byrne v. Boadle (Ex. 1863)

(1) Facts

(a) Flour bag fell out of a warehouse window hitting passerby.

(2) Holding

(a) Defendant had exclusive possession over the barrel and despite the fact that
there is no direct evidence of negligence, it can be inferred that negligence had
occurred by someone at the warehouse.

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(3) Resulting Rule

(a) If injury of a type that does not typically occur without negligence does occur,
negligence is presumed from the mere fact of the occurrence.

ii) McDougald v. Perry (Fla., 1998)

(1) Facts

(a) Spare tire on semi falls off on highway hitting another car

(2) Holding

(a) A case can be shown by mere occurrence of an accident so long as it is

conclusive that the accident could not have happened without some kind of
negligence.

(3) Resulting Rule

(a) The mere fact of an accident occurring may be sufficient to maintain a claim
of negligence.

iii) Larson v. St. Francis Hotel

(1) Facts

(a) Furniture falling out of window and fell on passerby

(2) Holding

(a) A hotel does not exclusive control, either the actual or the potential control
over its furniture. Guests have, at the very least, partial control. Therefore,
RIP cannot be satisfied.

(3) Rule

(a) For a defendant to be liable under res ipsa loquitur, the plaintiff must prove
that the instrument that caused the accident was under exclusive control of the
defendant and that if the defendant was using ordinary care, the accident
would not have occurred.

iv) Cruz v. DaimlerChrysler Motors Corp. (R.I. 2013)

(1) Facts

(a) Plaintiff owned a minivan in which airbags unexpectedly deployed while he

was cleaning. He sued the manufacturer and the dealer. Manufacturer files for
bankruptcy and can't be sued for damages. Court offers RIL for case towards
dealership

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(2) Holding

(a) Dealer has not had the car for three years which is enough time for other
interference to have been made. Plaintiff provided no evidence that the
incident was a result of a defect that the dealer knew of

(3) Resulting Rule

(a) An inference of negligence is permitted only when (1) the event is of a kind
that ordinarily does not occur in the absence of negligence, (2) other
responsible causes are sufficiently eliminated by the evidence, and (3) the
inferred negligence is within the scope of the defendant’s duty to the plaintiff.

v) Sullivan v. Crabtree (Tenn. Ct. App. 1953)

(1) Facts

(a) Defendant lost control of truck injuring another driver. Control was lost due to
unknown causes

(2) Holding

(a) The defendant’s negligence came to due to RIL but it was not conclusive
because there could have been other causes for the accident.

(3) Resulting Rule

(a) Although the mere fact of an occurrence of an accident is an inference of

negligence, it is not conclusive and a jury still must make a determination on
the most probable evidence.

12) Contractual Duties

a) Approach

i) Three approaches taken by courts in determining whether to allow the plaintiff to sue
and recover under tort law or contractual law

(1) Allow the plaintiff to choose the venue an cause of action

(2) The court determines the cause of action

(3) Distinguishing between misfeasance v. nonfeasance: the court looks to whether

the defendant’s failure to honor the contract provisions results in misfeasance or
nonfeasance

(a) Misfeasance

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(i) Failure to perform with due care contractual obligations owed to one may
give rise to violation of legal duty

(ii) Active misconduct that works a positive injury to others

(b) Nonfeasance

(i) No torts duty of care, regardless of whether the defendant promises to

undertake action gratuitously or for consideration. Liability for breach of
contract extends only to parties in privity.

(ii) Inaction or a failure to take steps to protect plaintiffs from harm

b) Definition

i) Privity

(1) Mutual or successive relationships to the same right of property, or such an

identification of interest of one person with another as to represent the same legal
right.

ii) Privity of Contract

(1) That connection or relationship which exists between two or more contracting
parties.

c) Exceptions to misfeasance/nonfeasance

i) Things of danger

(1) Defendant can be liable irrespective of privity of contract between the defendant
and the plaintiff, where the defendant creates a thing that is reasonably certain to
cause danger to the plaintiff when negligently made, and the plaintiff will not
have reasonable opportunity to inspect the item before purchasing or using it.

ii) Public utility companies

(1) Defendant will not be liable for injuries caused as a result of the failure of a public
utility company to provide services contracted by the defendant, unless the
plaintiff is in privity of contract with the defendant.

iii) Professionals

(1) Defendant professional cannot be held liable for negligence to a plaintiff unless
the plaintiff and the professional are in privity of contract.

d) Cases

i) Winterbottom v. Wright (Ex. 1842)

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(1) Facts

(a) Postmaster and coach business (Wright) had an agreement to provide coaches
for the purpose of delivering mail. The postmaster and Winterbottom had a
contract for delivery of mail. Winterbottom was in an accident caused by
defect causing injuries. Winterbottom brought suit against Wright for
damages.

(2) Holding

(a) Wright and Winterbottom did not have privity of contract so there are no
available remedies for negligent performance.

(3) Resulting Rule

(a) A plaintiff who lacks privity of contract with a defendant may not sue the
defendant based on negligent performance of a contract made between the
defendant and a third party.

ii) MacPherson v. Buick Motor Co. (N.Y. 1916)

(1) Facts

(a) MacPherson lost a wheel off of his new car. The wheel was found defective
but it was not inspected before being sold to the dealer.

(2) Holding

(a) MacPherson was owed a duty of care by Buick to ensure the safety of the
automobile who is liable for negligence for failing to meet that duty.

(3) Resulting Rule

(a) A manufacturer of articles that are not inherently dangerous but that may
become dangerous when improperly constructed owes a duty of care to
anyone beyond the purchaser who might foreseeably use the articles, when it
is reasonable to expect no further tests will be performed.

iii) H.R. Moch Co. v. Rensselaer Water Co. (N.Y. 1928)

(1) Facts

(a) A building caught on fire and there was not enough money in the fire hydrants
to put it out. Owner of building sued water company contracted for supplying
water for breach of contract.

(2) Holding

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(a) Although nearly every city contract is a benefit to the public to a certain
extent, the benefit is incidental and not immediate. The water company cannot
be held answerable to every resident in the city because I the obligation would
be a crushing burden on the water company.

(3) Resulting Rule

(a) To prove that an individual is an intended third party beneficiary of a contract,

he must show that the parties to the contract clearly and definitely intended to
give him the benefit of the promised performance.

(b) An individual may be liable for negligence based on an omission if the failure
to act itself constitutes commission of a wrong or advances harm, and is
motivated by malicious intent or other aggravating factors.

iv) Clagett v. Dacy (Ct. Sp. App. Maryland 1980)

(1) Facts

(a) Attorney did not follow the correct procedure in the foreclosure of a property
preventing the plaintiff’s from completing the sale.

(2) Holding

(a) Attorney’s cannot be held liable for damage to a third party caused by his
negligence. No privity of contract.

(3) Resulting Rule

(a) An attorney will not be held liable for damage to a third party caused by his
negligence unless it is absolutely clear from the facts that an employment
relationship between the parties should be inferred.

13) Affirmative Duties to Act

a) Definition

b) Rules

i) Generally, no duty to rescue a person in peril

ii) Exceptions

(1) Special relationships

(a) Common carriers/patrons

(b) Captain of ship/crew

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(c) Employer/employee

(d) Custodian/one in custody

(e) Landowner/person entering onto land (trespasser, licensee, invitee)

(f) Teacher/student

(g) Husband/wife

(h) Parent/child

(2) Person is injured by instrument under control of the defendant and injury is a
result of plaintiff’s negligence

(3) Defendant’s negligence causes injury to the plaintiff

(4) Voluntary assumption of duty

(5) Statutory duties

(a) Hit and run statutes

(b) Hospitals requiring ER to provide medical screening

(c) Good Samaritan statutes

c) Cases

i) Hegel v. Langsam (Ohio Ct. Cmmn. Pleas 1971)

(1) Facts

(a) University student started running with wrong crowd

(2) Holding

(a) It’s at no fault of the university. There’s no cause of action

(3) Resulting Rule

(a) Universities do not have a duty to regulate the private lives of their students.

ii) L.S. Ayres & Co. v. Hicks (Ind. 1942)

(1) Facts

(a) Child gets caught in escalator at L.S. Ayres

(2) Holding

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(a) Even if the invitor isn’t negligent, and therefore not liable for the invitee’s
initial injuries, the invitor owes a duty to assist of rescue an invite. This is
because a special relationship exists between the two parties (invitor/invited
guest)

(3) Resulting Rule

(a) A party may be under a legal duty to rescue a person who is helpless or in a
situation of peril when the party is an invitor of the person, or when an injury
results from use of an instrumentality under the control of the party.

iii) Tarasoff v. Regents of University of California (Calif. 1976)

(1) Facts

(a) Patient told his therapist that he intended to kill his ex-girlfriend. Therapist
told police but did not warn the victim or her parents.

(2) Holding

(a) When a therapist has reason to know that a patient poses a threat to violence,
the therapist duty of care extents to any foreseeable victims.

(3) Resulting Rule

(a) When a therapist learns from his patient about intent to do harm to a third
party, the therapist has a duty to take reasonable precautions given the
circumstances to warn the potential victim of danger.

d) Landowners and duties of care

i) Definitions

(1) Trespasser

(a) Definition

(i) One who comes on the land without permission or privilege

(b) Variations

(i) Discovered trespasser

1. When a trespasser has been noticed on the property by owner or

occupier via first or second-hand information

2. Owner/occupier owes a duty to exercise ordinary care to warn the

trespasser, make safe artificial conditions known that involve a risk of
death or serious harm

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(ii) Undiscovered trespasser

1. Landowner/occupier owes no duty and has no duty to inspect

(iii) Anticipated trespasser

1. When a landowner knows or should reasonably know of the presence

of trespassers who constantly cross over a section of his land

2. Same duty of care as discovered trespasser

(2) Invitee (Campbell)

(a) Persons who enter onto the land of another (with an expressed or implied
invitation) in furtherance of the owner’s business. Persons who enter onto the
land with the goal of providing a pecuniary benefit to the land owner

(b) Landowner owns a duty of reasonable care to the invitee

(i) Inspect he premises to make them safe

(ii) To repair or fix the dangerous conditions

(c) Business customers, patrons at concerts, visitors of public parks

(3) Licensee (Barmore)

(a) Persons who come onto the land to further his or own purpose

(b) The landowner owes a duty to warn the licensee of any hidden dangers (latent
dangers) which are unknown to the licensee but which the landowner is aware
of

(c) Examples: social guests, door-to-door salespersons, persons who come

over to render incidental services

(4) Dangerous condition: where something on the land is likely to cause injury to
another person

ii) Rules

(1) Generally, landowner owes no duty of reasonable care to protect persons outside
of, or off the premises from injury due to naturally occurring conditions on the
property

(2) Trees: the landowner owes a duty of reasonable care to protect person outside of
the premises from injuries due to defective trees when he or she knows or has
reason to know that the tree is defective.

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iii) Cases

(1) Taylor v. Olsen (Or. 1978)

(a) Facts

(i) A rotted out tree fell on the road and a driver crashed into it.

(b) Holding

(i) A landowner must take reasonable care to prevent an unreasonable risk of

harm caused by roadside trees. Landowner should’ve known about the tree
swaying but not necessarily about the rot.

(c) Resulting Rule

(i) In terms of attention to his roadside trees, a landowner must take
reasonable care to prevent an unreasonable risk of harm.

(2) Salevan v. Wilmington Park, Inc. (Sp. Ct. Delaware 1950)

(a) Facts

(i) Passerby was walking by a baseball stadium and was hit by a ball.

(b) Holding

(i) A reasonable ballpark owner must take reasonable precautions to protect

the public. If 16-18 balls were hit outside of the park a game, he was not
taking reasonable precautions.

(c) Resulting Rule

(i) An owner of a ballpark must take reasonable precautions for the protection
of the public outside the park.

(3) Sheehan v. St. Paul & Duluth Ry. Co. (7th Circuit 1896)

(a) Facts

(i) Plaintiff was walking on railroad tracks when his foot got stuck and was
run over by a train.

(b) Holding

(i) There is no pre-existing duty to trespassers. The operator of the train did
not know of the trespasser until it was too late to stop the train.

(c) Resulting Rule

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(i) A railroad company owes a duty to a trespasser on its tracks only after the
company has actual notice of the trespasser’s presence on the tracks.

(4) Barmore v. Elmore (Ill. App. 2d 1980)

(a) Facts

(i) Barmore was invited to Elmore’s house where their disturbed son stabbed
him.

(b) Holding

(i) Barmore was a licensee because he was primarily as a guest. The

discussion benefited the organization that both men served. Further,
Barmore owed no duty because their son’s condition had been long
dormant and they had not reason to suspect that he would commit a
criminal act.

(c) Resulting Rule

(i) A licensee is a social guest who is invited to the landowner’s property, but
for the guest’s own purposes as opposed to the business of the landowner.

(5) Campbell v. Weathers (Kansas 1941)

(a) Facts

(i) Regular patron of a restaurant fell into a trap door in the floor before
purchasing any food.

(b) Holding

(i) Common knowledge that an open door is an invitation to enter and

therefore, patron was an invitee. Additionally, a business owner has a duty
to maintain safe premises for its invitees.

(c) Resulting Rule

(i) An invitee is an individual who is invited onto the premises as a member
of the general public in furtherance of the premises owner’s business.

(6) Whelan v. Van Natta (KY. Ct. App. 1964)

(a) Facts

(i) Customer asked for extra boxes which were located in a backroom. Fell
down an unforeseen stairway in the backroom.

(b) Holding

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(i) Landowner is only liable to another for injuries suffered while the guest
was within the scope of his invitation. In this case, the guest’s status as
invitee ended when he took on the personal mission for boxes and became
an licensee.

(c) Resulting Rule

(i) A landowner is subject to liability to another as an invitee only for injury

the invitee sustained while on the land in the scope of the invitation.

e) Children Trespasses

i) Most courts impose a higher standard of care towards child trespassers (use normal
standard of care)

ii) Rules

(1) The landowner has reason to know that children are likely to trespass

(2) The condition is one that the landowner has reason to know there is an
unreasonable risk of death or bodily harm to a child

(3) The child will not realize the risk because of his youth

(4) The burned of eliminating or minimizing the risk is slight compared to the risk to
the children involved

(5) The landowner fails to exercise reasonable care to remove the danger or protect
the child

f) Lessors/Lessees

i) At common law, no duty is owed to tenant or others entering the land, for defective
conditions existing at the time of the lease

(1) Exceptions

(a) Where undisclosed conditions that are known to the lessor and unknown to the
lessee and that the lessor is aware the lessee will not discover the condition.

(b) Dangerous conditions to person outside of the premises (tress, artificial

conditions on the land)

(c) Premises are leased for admission to the public

(d) Area of the premises that under the lessor’s control (walkways, hallways,
laundry rooms.)

(e) Lessor contracts to repair

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(f) Lessor is negligent in his repairs and lessee is unaware that the repairs were
negligently made

ii) Cases

(1) Borders v. Roseberry (Kansas 1975)

(a) Facts

(i) Guest of tenant injured when the guest slipped and fell on the outdoor
steps due to landlord’s failure to fix a condition that resulted in water
dripping from the roof and onto the steps

(b) Holding

(c) Resulting Rule

(i) A landlord is under no obligation to repair or remedy a defective condition

on the leased premises known to both the landlord and the tenant.

(2) Kline v. 1500 Massachusetts Ave. Apartment Corp. (D.C. Cir. 1970)

(a) Facts

(i) Plaintiff criminally assaulted while in the common area of an apartment

(b) Holding

(c) Resulting Rule

(i) When a landlord leases portions of a building to tenants and maintains

control over parts of the building for common use, the landlord has a legal
duty to exercise reasonable care to minimize the risk to tenants of
foreseeable criminal acts committed by third parties on the entire premises
and particularly in the common areas.

14) Breach

a) Definition

i) Required for negligence claim

ii) Generally “breach of duty” is a question of fact for the jury

iii) Once an applicable standard of care has been established, a jury will consider the
facts to determine whether the defendant has complied with or failed to comply with
the standard required under the law

15) Causation

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a) Generally, if an event were to occur without the act or omission, it cannot establish
causation

i) Test (need actual and cause)

(1) Actual Cause

(a) Is the defendant’s breach of a duty of care owed to the plaintiff the actual
cause of the plaintiff’s injuries

(i) “But for” test: the defendant’s conduct is a cause of the event if the event
would not have occurred but for that conduct. (Note: the conduct will not
be a cause of the event would have occurred without the conduct)

(ii) Substantial factor” test: the defendant’s conduct is the cause of the event if
it was a substantial factor (a material element) in bringing about the harm.
(Defendant’s negligence will be a substantial facto if the injury/harm to
the plaintiff would not have occurred without the factor)

(b) Cases

(i) Perkins v. Texas and New Orleans R. Co. (La. 1962)

1. Facts

a. A train hit a driver that ignored warning signs that a train was
coming.

2. Holding

a. The train would have hit the victim even if it had been moving at a
slower speed. Driver’s negligence was approximate cause of his
death.

3. Resulting Rule

a. A negligence claim cannot be maintained if the negligence is not a

cause in fact of the harm.

(ii) Gentry v. Douglas Hereford Ranch, Inc. (Mont. 1998)

1. Facts

a. Bacon was planning to go hunting on Douglas Hereford Ranch

(Ranch) (defendant), but as he was walking on wooden steps at the
Ranch, he stumbled and his rifle went off, killing Barbara Gentry.
Gentry’s husband brought a suit against the Ranch, claiming
negligence in the maintenance of the steps. Bacon testified at trial

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that he did not remember what caused him to stumble. The trial
court granted the Ranch summary judgment. Gentry appealed.

2. Holding

a. There

3. Resulting Rule

a. Where cause in fact of an accident cannot be proven, speculation is

not sufficient to defeat a motion for summary judgment.

(2) Proximate Cause

(a) Definition

(i) Any cause which in the natural and continuous sequence, unbroken by an
efficient intervening cause, produces the result complained of and without
which the result would not have occurred.

(b) Is the defendant’s breach of duty of care owed to the plaintiff the “proximate
cause” of the plaintiff’s issue?

(i) The test involves foreseeability. Are the plaintiff’s injuries the foreseeable
consequences of the defendant’s breach of a duty of care? Or;

(ii) Are there intervening factors that appear after the defendant’s negligent
conduct and prior to the plaintiff’s injuries that may be responsible for the
plaintiff’s injuries? If yes,

1. Does the intervening cause rise to the level of being a superseding

cause?

2. If the intervening cause rises to the level of being a superseding cause,

then the proximate cause connection is broken. The defendant will not
be able to sue for negligence.

(c) Cases

(i) Atlantic Coast Line R. Co. v. Daniels (Ga. Ct. App. 1911) (In general)

1. Facts

a. A man was pinned between railroad crossings while a train was

approaching. He stalled his car in top gear, pushed it out of the
path of the train. When he went to restart it, he attempted to start it
from top gear causing the engine to kick and throw him into the
radiator breaking some teeth.

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2. Holding

a. The defendant is liable for negligence when the defendant’s

negligent act bore such relation to the plaintiff’s act that it’s
considered having caused it.

3. Resulting Rule
a. Courts may use arbitrary limits to establish cause and effect and
thus limit the scope of causation.

(ii) Ryan v. New York Central R.R. Co. (N.Y. 1866) (Injury to property)

1. Facts

a. Shed caught on fire which jumped to a chain of house starting 130’

feet away.

2. Holding

a. It was unforeseeable that the fire would jump to the first house and
therefore its owner cannot be held for liability. (no legal cause.)

3. Resulting Rule

a. A negligent person is liable in damages for the proximate results of

his own acts, but not for remote damages.

(iii) Bartolone v. Jeckovich (N.Y. Supr. Ct. App. Div. 1984) (Injury to
person)

1. Facts

a. Defendant was driving a car when he had a spell that resulted in a

multi-care pile up.

2. Holding

a. Plaintiff’s injuries were foreseeable because the accident

aggravated a pre-existing illness.

3. Resulting Rule

a. A defendant takes the plaintiff as he finds him, including the

weakness and susceptibility to injury that he already had.

(iv)*Palsgraf v. Long Island R.R. Co. (N.Y. 1928)

1. Facts

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a. Railway passenger is holding fireworks when he is pushed onto a

train by an employee. He drops the fireworks, they explode an
cause a luggage scale to fall on the plaintiff

2. Holding

a. It’s unreasonable to foresee that the passenger had explosives in

his hands

3. Resulting Rule

a. A defendant owes a duty of care to a plaintiff only if the plaintiff is

in the zone of reasonably foreseeable harm resulting from the
defendant's actions.

(v) *Yun v. Ford Motor Co. (N.J. Super. Ct. App. Div. 1994)

1. Facts

a. A tire fell of on the New Jersey turnpike, passenger got out after
the car was brought to a safe stop, crossed the turnpike to retrieve
the parts and was hit by a car on his way back.

2. Holding

a. The car had already been brought safely to a shoulder when the
passenger was killed; additionally, the passenger broke the law
twice when retrieving the parts and was killed by a passing car. It
was his own negligence that got him killed, not the car, repairman,
driver, ect…

3. Resulting Rule

a. To be a proximate cause of an injury, the injury must be a

reasonably foreseeable consequence of the alleged conduct and not
highly extraordinary.

(3) Intervening/Superseding Cause

(a) Intervening Cause

(i) Generally, any act of negligence or force of nature that occurs after the
defendant’s initial act of negligence that has caused/contributed to the
plaintiff’s injuries.

(ii) Does not automatically break the chain of proximate cause when an
intervening cause occurs after the defendant’s initial act of negligence.

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(iii) The defendant continues to be liable despite the presence of an

intervening cause for the injuries that are foreseeable consequences of his
breach of duty

1. Foreseeability

a. A standard for assessing whether a particular result could be

realistically anticipated

(b) Superseding Cause

(i) A superseding cause is one that occurs after the defendant’s act of
negligence, but is so substantial on its own that it breaks the proximate
causal connection and takes liability for the accident (volcano)

(ii) become important enough to take over full responsibility for causing the
plaintiff’s injuries

(c) Cases

(i) Derdiarian v. Felix Contracting Corp. (N.Y. 1980) (unforeseeable, highly

extraordinary)

1. Facts

a. Derdiarian was a worker on a construction site when the site was

invaded by an oncoming car. He was burned by a substance on
site.

2. Holding

a. The car coming onto the jobsite was “highly extroidinary and
unforeseeable” allowing it to break the causal chain. Therefore,
despite the safety measures onsite, the defendant will not be held
liable.

3. Resulting Rule

a. An intervening act between the defendant’s negligence and the

plaintiff’s injuries will not break the causal connection and cut off
liability if the intervening act was reasonably foreseeable.

(ii) Watson v. Kentucky & Indiana Bridge R. & R. Co. (K.Y. Ct. App. 1910)
(intentional criminal acts of 3rd parties)

1. Facts

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a. Oil tanker spilled into surrounding neighborhood. After a few

hours, someone lit a cigar near the oil spill causing an explosion
and injuring Watson.

2. Holding

a. Depending on whether the match was dropped maliciously

determines whether the R.R. company is negligent. It’s reasonably
foreseeable that a passerby would drop a match causing the
explosion but the person lit the match with the intent to cause an
explosion, the company is not liable.

3. Resulting Rule

a. A criminal act of a third party that causes harm in concurrence

with a negligent act is generally not a reasonably foreseeable
consequence of the negligent act.

(iii) Fuller v. Preis (N.Y. 1974) (Plaintiff’s suicide-intentional acts)

1. Facts

a. Doctor was in a car accident that resulted in epileptic seizures and,

compounded with other events, chronic depression. He eventually
committed suicide.

2. Holding

a. Although suicide is often caused by many factors, if it’s shown that

a defendant’s negligence leaves the plaintiff helpless to resist the
impulse to commit suicide, the defendant can be liable for
wrongful death.

3. Resulting Rule

a. To be a proximate cause of an injury, the injury must be a

reasonably foreseeable consequence of the alleged conduct and not
highly extraordinary.

(iv)McCoy v. American Suzuki Motor Corp (Wash 1998) (rescuers &

foreseeability)

1. Facts

a. A Suzuki swerved off the road and flipped over. A passerby

(plaintiff) stopped to help and was hit by another car as he left the
scene. He alleged that the defective Suzuki was the cause of his
injuries.

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2. Holding

a. Under the rescue doctrine, tortfeasors can be held liable for injuries
that occur to the rescuers of the victims of the initial tortious acts.
This is because it is reasonable to forsee that third-parties will
come to the aid of those in trouble.

3. Resulting Rule

a. Under the rescue doctrine, the rescuer still must prove that the
tortfeasor’s action was the proximate cause of his injury.

(v) Kelly v. Gwinnel (N.J. 1984) (Public policy: social host liability)

1. Facts

a. Party attendee drove home drunk and hit someone on the way
home

2. Holding

a. A person that serves alcohol to a guest and allows him to drive

home is liable for injuries caused by intoxication. A duty on social
hosts in fair and in accord with state policy.

3. Resulting Rule

a. A host who serves alcohol to a guest, knowing that the guest is

intoxicated and has to drive home, is liable for injury that the guest
causes in the negligent operation of his vehicle thereafter when
such negligence is caused by intoxication.

(vi)Enright v. Eli Lilly & Co. (N.Y. 1991) (Public policy: intergenerational
tort injuries)

1. Facts

a. Pregnancy drug caused reproductive abnormalities in the babies of

the mothers taking it. In this case, one of the babies born had
reproductive issues later in life causing the premature birth of the
plaintiff.

2. Holding

a. The injury to the mother that results in injuries to her child fails to
establish cause of action against the original tortfeasor. The
possibility of a limitless chain of tort liability would eventually
deincentivize drug production for fear of high risk.

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3. Resulting Rule

a. Harm to a mother which results in harm to a later-conceived child

does not establish a cause of action in favor of the child against the
original tortfeasor.

16) Damages

a) Plaintiff must suffer damage as a result of the defendant’s breach of a duty of care owed
to the plaintiff

b) The amount of damages and the apportionment of damages when multiple defendants are
at fault, is a question for the jury.

17) Defenses

a) Contributory negligence

i) Definition

(1) The Doctrine of Contributory Negligence: If a plaintiff’s own negligence helped

cause an injury, the plaintiff can’t recover from the negligent defendant.

(2) Only a few jurisdictions enforce contributory negligence. All or nothing approach
to defense.

ii) Test

(1) Defendant must have created a hazardous situation

(a) Plaintiff’s conduct falls below the standard of care a reasonable person would
exercise when looking out for themselves.

(2) The plaintiff must have used ordinary care to avoid the hazard.

(a) Lack of care is an actual and proximate contributing cause of the plaintiff’s
injuries.

iii) Exceptions

(1) Allowing recovery if the defendant was grossly negligent

(2) Defendant had the last clear chance to avoid causing injury

(3) Defendant acted recklessly

iv) Cases

(1) Butterfield v. Forrester (Kings Bench 1809) (Contributory negligence)

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(a) Facts

(i) Homeowner placed a pole across a road creating a partial obstruction of

the road. The plaintiff rode his horse at full speed down the road and hit
the pole. Observers said the pole was visible from 100 yards away and
would be visible to someone exercising ordinary care.

(b) Holding

(i) The plaintiff was not using reasonable and ordinary care and cannot sue
for damages caused by the pole.

(c) Resulting Rule

(i) When a plaintiff fails to use ordinary care in avoiding an obstruction

caused by a defendant, the plaintiff may not recover damages from the
defendant.

(2) Davies v. Mann (Exchequer 1842) (The Last Clear Chance Doctrine)

(a) Facts

(i) A donkey was fettered and grazing (illegally) on the side of a road. Mann
was in his own carriage running at a high speed and the donkey, unable to
get out of the way, was struck and killed.

(b) Holding

(i) Even though the donkey was there illegally, the defendant could’ve
avoided the accident had he been using reasonable care and is therefore
liable for negligence.

(c) Resulting Rule

(i) The contributory negligence of a plaintiff will not defeat his negligence
claim if the defendant, by the exercise of reasonable care, could have
avoided the consequence of the plaintiff’s negligence.

b) Comparative fault

i) Definition

(1) A tort plaintiff’s recovery is reduced by the proportion by which the plaintiff
helped cause the accident

ii) Pure comparative fault

(1) Definition

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(a) Each party will bear the cost for the portion of damages that his negligence
actually caused.

iii) Modified comparative fault

(1) Definition

(a) If the plaintiff’s own percentage of the fault is equal to the combined
percentage fault of all the defendants in the case, the recovery is barred.

iv) Cases

(1) McIntyre v. Balentine (Tenn. 1992)

(a) Facts

(i) Drunk driver crashes into another drunk driver

(b) Holding

(i) Both parties were equally negligent

(c) Resulting Rule

(i) Even if contributorily negligent, a plaintiff may recover, but only if the
plaintiff’s negligence is less than the defendant’s negligence.

c) Assumption of the Risk

i) Definition

(1) The doctrine of assumption of the risks…means legally that a plaintiff may not
recover for an injury to which he assents (when he voluntarily exposes himself to
a known and appreciated danger) (Blacks.)

ii) Test

(1) Plaintiff has actual knowledge of the risks

(2) Plaintiff is able to appreciate the risks

(3) Plaintiff voluntarily proceeds to encounter the risks

iii) Cases

(1) Seigneur v. National Fitness Institute, Inc. (Md. Court of Special Appeals 2000)
(expressed)

(a) Facts

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(i) Seigneur was a member of a local gym where she injured her shoulder
during her first workout. The contract said that exercises undertaken at the
gym were at her own risk. She sued because she believed it was against
public policy

(b) Holding

(i) Seigneur voluntarily entered the contract with the exculpatory clause.
Clause upheld.

(c) Resulting Rule

(i) An exculpatory clause is unenforceable as against public policy when the

bargaining powers of the parties are substantially unequal or where the
contract involves an essential public service.

(2) Rush v. Commercial Realty Co. (N.Y. 1929)

(a) Facts

(i) Plaintiff fell into the hole of a outhouse in poor condition that was the only
restroom available to its tenants.

(b) Holding

(i) Plaintiff had no choice but to use the outhouse and therefore defendant
breached its duty of care to its tenants.

(c) Resulting Rule

(i) Assumption of risk will not be implied and will not bar recovery where the
plaintiff did not voluntarily assume the risk.

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