Tort Law. Seventh Edition J. Stanley Edwards, Traci Cull

Tor t Law
Seventh Edition
Tor t Law
Seventh Edition
J. Stanley Edwards, J.D.

Traci L. Cull, J.D.
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Tort Law, Seventh Edition © 2023, © 2016, © 2012 Cengage Learning, Inc.
J. Stanley Edwards, J.D. and Traci L. Cull, J.D.
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Printed in the United States of America

Print Number: 01 Print Year: 2021
Brief Contents
Preface xv
List of Cases xvii
About the Author xxvii
Part I
Introduction | 1
Chapter 1 Overview of Tort Law | 2
Chapter 2 Overview of a Tort Case | 17
Chapter 3 Intentional Torts | 33
Part II
Reasons to Sue | 67
Chapter 4 Negligence: Duty | 68
Chapter 5 Negligence: Breach of Duty | 106
Chapter 6 Negligence: Causation | 141
Chapter 7 Negligence: Damages | 175
Chapter 8 Negligence: Defenses | 217
Chapter 9 Malpractice and Professional Negligence | 260
Chapter 10 Misrepresentation, Nuisance, and Other Torts | 300
Chapter 11 Strict Liability | 336
Chapter 12 Product Liability | 358
Chapter 13 Defamation and Related Torts | 395

vi | Brief Contents
Part III
Whom to Sue | 431
Chapter 14 Vicarious Liability | 432
Chapter 15 Joint Liability | 456
Part IV
Torts in Practice | 487
Chapter 16 Tort Reform | 488
Chapter 17 Automobile Insurance | 511
Chapter 18 Bad Faith | 528
Chapter 19 Workers’ Compensation | 555
Appendix A Suggested Responses to “Putting It into Practice” Exercises and Answers to Practice Exams | 569
Appendix B Interviewing | 613
Appendix C Overview of Insurance | 621
Glossary | 629
Index | 634
Contents
Preface xv
List of Cases xvii
About the Author xxvii
Part I
Introduction
Chapter 1
Overview of Tort Law 2

Chapter Objectives | 2 Case: Schultz and Another v. Frank | 9
Background | 3 Coming Full Circle | 11
What Is a Tort? | 3 Classification of Torts | 11
Reasonableness of Conduct | 4 Summary | 12
Public Policy | 4 Key Terms | 13
Morality of Conduct | 5 Review Questions | 13
Slippery-Slope Arguments | 5 Practice Exam | 14
Creation of Case Law | 5 Tort Teasers | 16
Relationship between Tort Law and Other Areas Internet Inquiries | 16
of the Law | 6 Practical Ponderables | 16
Brief History of Tort Law | 7
Chapter 2
Overview of a Tort Case 17

Chapter Objectives | 17 Emphasis on Discovery throughout this Text | 25
Initiating a Complaint | 18 Summary | 25
Defendant’s Response | 20 Key Terms | 26
Discovery | 20 Review Questions | 27
Pretrial Procedures | 23 Practice Exam | 28
Trial | 23 Tort Teasers | 31
Post-Trial | 25 Internet Inquiries | 32
viii | Contents
Chapter 3
Intentional Torts 33
Chapter Objectives | 33 Key Terms | 55
What Is an Intentional Tort? | 34 Review Questions | 56
Intentional Torts against Persons | 35 Practice Exam | 56
Intentional Torts against Property | 40 Practice Pointers | 60
Defenses | 43 Tort Teasers | 64
Case: State v. Warren | 48 Internet Inquiries | 65
Summary | 54 Practical Ponderables | 65
Part II
Reasons to Sue
Chapter 4
Negligence: Duty 68
Chapter Objectives | 68 Case: Linda Riss, Appellant, v. City of New York,
Overview of Duty | 69 Respondent | 90
Possessors of Land | 70 Unborn Children | 94
Trespassers | 70 Case: Castro v. Melchor | 95
Trespassers as Rescuers | 72 Vicarious Liability | 99
Licensees | 74 Practice Pointers | 100
Invitees | 74 Summary | 100
Common Law Distinctions Today | 76 Key Terms | 101
Outside the Possessor’s Property | 76 Review Questions | 102
Landlord/Tenant Liability | 76 Practice Problem | 103
Case: Hemmings v. Pelham Wood Ltd. | 78 Tort Teasers | 104
Sellers of Land | 82 Practical Ponderables | 105
Duty to Protect or Aid Others | 82 Internet Inquiries | 105
Case: Seebold v. Prison Health Service, Inc. | 84
Chapter 5
Negligence: Breach of Duty 106
Chapter Objectives | 106 Case: Opinion | 109

What Is Reasonable Conduct? | 107 Restatement Position | 115
Learned Hand Formula | 107
Contents | ix
Reasonable-Person Standard—Objective versus Automobile-Guest Statutes | 131

Subjective | 116 Res Ipsa Loquitur | 131
What the Reasonable Person Is Expected Application | 133
to Know | 116
Summary | 134
Defendants with Special Characteristics | 117
Key Terms | 135
Children | 118
Review Questions | 135
Emergencies | 119
Practice Exam | 136
Case: Cordas v. Peerless Transportation Co. | 119
Practice Pointers | 138
Custom | 121
Tort Teasers | 139
Professions | 121
Internet Inquiries | 140
Negligence Per Se | 122
Practical Ponderables | 140
Case: Milbert v. Wells Township Haunted
House Inc. | 124
Chapter 6
Negligence: Causation 141

Chapter Objectives | 141 Application | 165
Actual Cause | 142 Summary | 166
Case: Mohr v. Grantham | 145 Key Terms | 166
Proximate Cause | 148 Review Questions | 167
Case: Palsgraf v. Long Island Rail Co. | 150 Practice Exam | 168
Exceptions to the Cardozo Rule | 157 Practice Pointers | 170
Intervening Causes | 159 Tort Teasers | 172
Case: Patterson v. Thunder Pass, Inc. | 161 Internet Inquiries | 173
Jury Question | 164 Practical Ponderables | 174
Chapter 7
Negligence: Damages 175

Chapter Objectives | 175 Discounting Future Damages | 199
Categories of Damages | 176 Structured Settlements | 200
Illustration of Damages | 176 Mitigation of Damages | 201
Shortened Life Expectancy | 179 Mental Suffering | 201
Collateral-Source Rule | 180 Application | 203
Expenses of Litigation | 180 Summary | 204
Damages for Physical Harm to Property | 181 Key Terms | 205
Damages in Product Liability Cases | 181 Review Questions | 206
Punitive Damages | 181 Practice Exam | 207
Case: Phillip Morris USA v. Williams | 188 Practice Pointers | 212
Recovery for Loss of Consortium | 194 Tort Teasers | 214
Assessment of Damages | 196 Internet Inquiries | 215
Wrongful-Death and Survival Actions | 197 Practical Ponderables | 216
x | Contents
Chapter 8
Negligence: Defenses 217

Chapter Objectives | 217 Application | 248
Contributory Negligence | 218 Summary | 249
Comparative Negligence | 220 Key Terms | 250
Case: Children’s Wish Foundation Intern, Inc. v. Review Questions | 251
Mayer Hoffman McCann, PC | 222 Practice Exam | 252
Case: Kaatz v. State | 229 Practice Pointers | 256
Assumption of Risk | 233 Tort Teasers | 257
Case: Pellham v. Let’s Go Tubing, Inc. | 237 Internet Inquiries | 259
Immunities | 243 Practical Ponderables | 259
Statutes of Limitations and Statutes of Repose | 248
Chapter 9
Malpractice and Professional Negligence 260

Chapter Objectives | 260 Underlying Causes of Professional
What Is Reasonable Care? | 261 Negligence Suits | 285
How Negligence Can Occur | 261 How to Prevent Professional Negligence Suits | 286
Case: O’Neal v. St. John Hospital and Medical Medical Malpractice Crisis | 288
Center | 263 Summary | 290
Specialists | 271 Key Terms | 290
Informed Consent | 271 Review Questions | 290
Battery versus Negligence | 272 Practice Exam | 291
Case: Cuc Thi Ngo v. Queen’s Medical Practice Pointers | 296
Center | 273 Tort Teasers | 298
Defenses to Professional Negligence | 283 Internet Inquiries | 298
Maintaining Adequate Records | 284 Practical Ponderables | 299
Chapter 10
Misrepresentation, Nuisance, and Other Torts 300

Chapter Objectives | 300 Misuse of Legal Process | 324
Development of Misrepresentation and Its Summary | 326
Relationship to Other Torts | 301 Key Terms | 327
Intentional Misrepresentation | 301 Review Questions | 327
Negligent Misrepresentation | 305 Practice Exam | 329
Innocent Misrepresentation | 308 Tort Teasers | 333
Nuisance | 308 Internet Inquiries | 334
Interference with Business Relations | 314 Practical Ponderables | 335
Case: Ixchel Pharma LLC v. Biogen, Inc. | 316
Contents | xi
Chapter 11
Strict Liability 336

Chapter Objectives | 336 Summary | 352
Overview of Strict Liability | 337 Key Terms | 352
Strict Liability for Harm Caused by Animals | 337 Review Questions | 352
Case: Gruber v. YMCA of Greater Practice Exam | 353
Indianapolis | 338 Practice Pointers | 354
Abnormally Dangerous Activities | 341 Witness Statements | 355
Case: City of Neodesha v. BP Corp. North America, Photographs | 355
Inc. | 343
Tort Teasers | 356
Product Liability | 349
Internet Inquiries | 357
Limitations on Strict Liability | 350
Practical Ponderables | 357
Chapter 12
Product Liability 358

Overview of Product Liability | 359 Key Terms | 383
Theories of Recovery | 359 Review Questions | 384
Types of Losses | 369 Practice Exam | 385
Types of Defects | 369 Practice Pointers | 391
Defenses | 376 Tort Teasers | 392
Preemption | 378 Internet Inquiries | 394
Class Actions | 380 Practical Ponderables | 394
Chapter 13
Defamation and Related Torts 395

Libel versus Slander | 395 Key Terms | 422
What Is a Defamatory Statement? | 397 Review Questions | 423
Case: WFAA-TV v. McLemore | 402 Practice Exam | 424
Privileges | 407 Practice Pointers | 428
Defamation on the Web | 409 Tort Teasers | 429
Invasion of Privacy | 411 Internet Inquiries | 430
Case: Minnifield v. Ashcraft | 413 Practical Ponderables | 430
Injurious Falsehood | 419
xii | Contents
Part III
Whom to Sue
Chapter 14
Vicarious Liability 432

Chapter Objectives | 432 Key Terms | 449
Overview of Vicarious Liability | 433 Review Questions | 449
Employer–Employee Relationship | 433 Practice Exam | 450
Employers–Independent Contractors | 435 Practice Pointers | 453
Case: Lee v. Pulitzer Publishing Co. | 436 Sample Interrogatories | 453
Bailments | 444 Tort Teasers | 454
Imputed Contributory Negligence | 445 Internet Inquiries | 455
Parental Liability | 447 Practical Ponderables | 455
Summary | 448
Chapter 15
Joint Liability 456

Joint and Several Liability | 457 Key Terms | 478
Case: In Re Stutsman | 459 Review Questions | 479
Satisfaction | 463 Practice Exam | 479
Contribution | 463 Practice Pointers | 482
Case: Spence v. Julian | 466 Tort Teasers | 484
Release | 466 Internet Inquiries | 485
Case: Reutzel v. Hunter Yes, Inc. | 474 Practical Ponderables | 486
Indemnification | 476
Part IV
Torts in Practice
Chapter 16
Tort Reform 488

Goals of the Tort System | 488 Review Questions | 505
Historical Roots of Tort Reform | 489 Practice Exam | 506
Focus of Today’s Reformers | 490 Tort Teasers | 509
Is There Really a Problem? | 495 Internet Inquiries | 510
Tort Reform in Practice | 497 Practical Ponderables | 510
Contents | xiii
Chapter 17
Automobile Insurance 511

Chapter Objectives | 511 Termination | 518
Overview of Automobile Insurance | 512 No-Fault Insurance | 518
Automobile Liability Coverage | 512 Summary | 520
Medical Payment Coverage | 514 Key Terms | 521
Comprehensive Coverage | 515 Review Questions | 521
Collision Insurance | 515 Practice Exam | 522
Miscellaneous Coverage | 515 Practice Pointers | 525
Uninsured Motorist Coverage | 515 Tort Teasers | 526
Underinsured Motorist Coverage | 517 Internet Inquiries | 527
Arbitration | 517 Practical Ponderables | 527
Chapter 18
Bad Faith 528

Chapter Objectives | 528 Uninsured and Underinsured Motorist
How Bad Faith Is Committed | 529 Coverage | 549
Historical Development of Bad Faith Concept | 529 Summary | 550
Overview of Bad Faith | 530 Key Terms | 551
First-Party versus Third-Party Claims | 531 Review Questions | 551
Case: Nardelli v. Metropolitan Group Property and Practice Exam | 551

Cas. Ins. Co.| 534 Practice Pointers | 553
Case: Scottsdale Insurance Company v. Addison Tort Teasers | 553
Insurance Co.| 543 Internet Inquiries | 554
Declaratory Judgment Actions | 548 Practical Ponderables | 554
Chapter 19
Workers’ Compensation 555

What Is Workers’ Compensation? | 556 Key Terms | 564
Historical Background | 556 Review Questions | 564
The Statutory Framework | 557 Practice Exam | 564
Today’s Systems | 558 Practice Pointers | 566
Filing a Workers’ Compensation Claim | 561 Tort Teasers | 566
Current Issues in Workers’ Compensation | 562 Practical Ponderables | 567
xiv | Contents
Appendix A
Suggested Responses to “Putting It into Practice” Exercises and

Answers to Practice Exams 569
Appendix B
Interviewing 613
Appendix C
Overview of Insurance 621
Glossary | 629
Index | 634
Preface
“If it’s not broken, don’t fix it.” This has been our • Internet Inquiries—Searching the Internet is
guiding adage throughout the seventh revision of the best way to build confidence and become
this text. The feedback we have received throughout familiar with what is available. These exercises
the years for the first six editions has been so posi- provide some structure to that search. Some of
tive, we have not made major changes for the sake these exercises are a fairly structured means of
of change alone. familiarizing students with particular websites,
I have updated cases, added new materials due whereas other exercises are more exploratory
to changes in the law, and revised our web refer- in nature, encouraging students to discover and
ences to reflect the widespread student understand- report what they find.
ing of search engines. We hope we have maintained
• Practical Ponderables—These exercises include
the balance of readability and academic integrity cre-
questions that require students to assimilate
ated in the past. The core of the text has remained
information they have learned throughout the
unchanged except for updates where necessary and
chapter (sometimes incorporating concepts
additional information where helpful including new
discussed in previous chapters). The questions
cases.
are more provocative than those in the practice
The text retains the hypotheticals introducing
exams and necessitate integration of materials.
each chapter and the “Putting It into Practice” exer-
They could easily serve as the basis for class dis-
cises that encourage students to immediately put
cussion and homework assignments.
into application concepts to which they have been
exposed. The “Practice Pointers” continue to intro-
duce practical procedural skills, such as drafting
pleadings, preparing medical authorization requests, Supplemental Teaching
documenting damages, writing FOIA letters, and
assembling trial exhibits. The “Tort Teasers” at the
and Learning Materials
end of each chapter continue to provide stimulating This seventh edition is accompanied by a support
fact patterns in the form of actual cases, which can package that will assist students in learning and aid
be used in class to discuss the tort principles pre- instructors in teaching.
sented in that chapter.
Many of our features from previous editions
Cengage Instructor Center
have been retained. They are:
Additional instructor resources for this product are
• Review Questions and Practice Exams—The available online. Instructor assets include an Instruc-
review questions are broad in nature and require tor’s Manual, PowerPoint® slides, and a test bank
students to assimilate the concepts in each powered by Cognero®. Sign up or sign in at www
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and vocabulary. The questions are similar to those resource for class preparation, presentation, and
provided in the Cognero Test Bank. Consequently, testing. The instructor resources available for down-
students can be assured that if they do well on load include:
these practice exams (whose answers are provided
in Appendix A), they should do well on the exams • Instructor’s Manual. Provides activities and
given in class. We have also emphasized the need assessments for each chapter (including busi-
for students to take advantage of this resource and ness cases with corresponding assessment
to make sure they have sufficiently mastered the activities) and their correlation to specific
materials before moving on to the next chapter. learning objectives, an outline, key terms with
xvi | Preface
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• PowerPoint Slides. Presentations are closely involved in bringing a new edition to completion.
tied to the Instructor’s Manual, providing ample We would like to thank Melissa Riveglia, Senior
opportunities for generating classroom discus- Product Manager; Diane Chrysler, Senior Product
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in the text and in the digital offerings from the
to help make this text better meet the needs
previous edition to this edition.
of students and faculty. We honor their obvious
commitment to the educational process.
List of Cases
Adams v. Baxter Healthcare Corp., 459 Barnes v. Birmingham International Raceway,
Adkisson v. City of Seattle, 243 Inc., 418
Adler, Barish, Daniels, Levin & Creskoff v. Barnes v. Clayton House Motel, 429
Epstein, 315 Barringer v. Arnold, 265
Ainsworth v. Century Supply Co., 417 Bartlett v. New Mexico Welding
Alaska Foods Inc., v. American Manufacturer’s Supply, Inc., 502
Mutual Insurance Co., 230 Bass v. SouthTrust Bank of Baldwin County, 413
Allcity Insurance Co. v. Old Greenwich Behar v. Fox, 243
Delicatessen, 455 Bell v. Poplar Bluff Physicians Group, Inc., 224
Allen v. Dover Co-Recreational Softball Belli v. Orlando Daily Newspapers, Inc., 398
League, 240, 242
Beloit Power Systems, Inc. v. Hess Oil Virgin
Allen v. Hannaford, 64 Islands Corp., 485
Allien v. Louisiana Power & Light Co., 113 Berger v. Sonneland, 146
Allison v. Vintage Sports Plaques, 415 Bernard v. Char, 278
Alonzo v. Safe Harbors of the Hudson Hous. Bertram v. Harris, 231
Dev. Fund Co., Inc., 474
Bickler v. The Raquet Club Heights
Althaus v. Cohen, 84 Associates, 142
America Online v. IMS, 42 Bierczynski v. Rogers, 457
American Golf Corp. v. Superior Court, 235 Birmingham Broadcasting Co. v. Bell, 417
Anand v. Kapoor, 105 Blackstock v. Kohn, 224
Anaple v. Standard Oil Co., 128 BMW of North America, Inc. v. Gore, 189,
Ancier v. State Dept. of Health, 262 190, 501
Anderson v. Liberty Lobby, Inc., 127 Boles v. Montgomery Ward & Co., 129
Anderson v. Sears, Roebuck & Co., 176 Booth v. Mary Carter Paint Co., 465
Anison v. Rice, 547 Bordelon v. Pelican State Mut. Ins. Co., 111
Associated Oil Co. v. Myers, 320 Bose Corp. v. Consumers Union, 430
Atlanta Journal-Constitution v. Jewell, 401 Bosley Medical Group v. Abramson, 321
Atlantic Richfield Co. v. Christian, 313 Bourque v. Louisiana Health System Corp., 367
Bachran v. Morishige, 281 Boyd v. Lincoln Elec. Co., 172
Bacon v. 4042 Austin Blvd., 476 Brannan v. Lankenau Hosp., 86
Balido v. Improved Machinery, Inc., 393 Brannigan v. Raybuck, 162
Banks v. Hyatt Corporation, 112 Bray v. Isbell, 64
Banner v. Lyon & Healy Co., 334 Brewer v. Memphis Pub. Co., 404
Barber v. Bankers Life & Casualty Co., 239 Brimelow v. Casson, 323
Barcai v. Betwee, 278 Brisboy v. Fibreboard Corp., 265
xviii | List of Cases
Brown v. Board of Education, 565 Chicago Title Ins. Co. v. Mertens, 225
Brown v. Clark Equip. Co., 98 Children’s Wish Foundation Intern., Inc. v.
Brown v. Department of Social & Health Mayer Hoffman McCann, 222
Services, 243 Christy Bros. Circus v. Turnage, 202
Brown v. Keill, 503 Cipollone v. Liggett, 379, 380
Brown v. Stevens Pass, Inc., 239, 240, 241, 242 City of Fairbanks v. Schaible, 230
Brown v. United Methodist Homes for the Coburn v. City of Tucson, 162
Aged, 345 Codd v. Stevens Pass, Inc., 239, 240
Buckaloo v. Johnson, 318
Coleman v. Hoffman, 240
Buckbee v. Aweco, Inc., 114
Coleman v. Wyoming Workers’ Compensation
Bunting v. Hogsett, 173 Division, 557
Burley v. Douglas, 215 Colson v. Standard Oil, 195
Burns v. Bakelite Corp, 88 Comer v. Risko, 127
Business Men’s Assurance Co. of America v. Commonwealth v. McMullen, 87
Graham, 225, 226
Connell v. New York Central & Hudson River
Bussey v. John Deere Co., 413 Railroad Co., 120
Butler v. Town of Argo, 414 Conte v. Wyeth, Inc., 393
Butterfield v. Forrester, 231 Conway v. O’Brien, 113
Buttersworth v. Swint, 333 Cook v. Whitsell–Sherman, 341
Byrd v. Smith, 126 Coomer v. Kansas City Royals Baseball
Cafazzo v. Central Medical Health Corp., 243
Services, 365 Cooper Industries, Inc. v. Leatherman Tool
Cahill v. Ski Liberty Operating Corp., 234 Group, Inc., 191
Campbell v. Weathers, 74, 75 Cooper v. Roberts, 272
Campisi v. Gambar Food Corp., 475, 476 Cordas v. Peerless Transportation Co., 119
Canessa v. J.I. Kislak, Inc., 417 Corey v. Havener, 143
Canterbury v. Spence, 280 Corley v. Lewless, 448
Caronia v. McKenzie’s Pastry Shoppes, 112 Coulter v. American Bakers Co., 258
Carr v. Brasher, 403, 406 County of Santa Clara v. Atlantic Richfield
Carr v. Strode, 274 Co., 369
Casso v. Brand, 405 Cox Broadcasting Corp. v. Cohn, 412
Castano v. Zee–Jay Realty Co., 476 Cox v. Northwest Airlines, 132
Castro v. Melchor, 95 Crabtree v. Bugby, 544
Celotex Corp. v. Catrett, 126 Crocker v. Winthrop Laboratories, 361
Central Alarm v. Ganem, 160 Cruse v. Aden, 162
Chase v. Blue Cross of Cal., 539 Crystal Coca-Cola Bottling Co. v. Cathey, 139
Chavez v. Tolleson Elem. Sch. Dist., 163 Curtis Pub. Co. v. Butts, 404
Chevron U.S.A., Inc. v. Workers’ Comp., 321 Dalehite v. United States, 244
Chicago Board of Trade v. United States, 321 Dallas Morning News, Inc. v. Tatum, 429
List of Cases | xix
Daly v. General Motors Corp., 393 Erie v. White, 240

Davies v. Mann, 219 ESCA Corp. v. KPMG Peat Marwick, 226
Davis v. Cessna Aircraft Corp., 163 Estate of McCall v. United States, 289
DeBaliviere Place Ass’n v. Veal, 545 Ethridge v. TierOne Bank, 547
DeHart v. Jones, 454 Falcon v. Mem. Hosp., 265
Delair v. McAdoo, 139 Falls v. Scott, 347
Derdiarian v. Felix Contracting Corp., 160 Ferguson v. Pony Exp. Courier Corp., 439
Devaney v. Sarno, 393 Ferrari v. Bob’s Canoe Rental, Inc., 241
DeVaney v. Thriftway Marketing Corp., 334 Fisherman’s Wharf Bay Cruise Corp. v.
DeWick v. Village of Penn Yan, 241 Superior Court of San Francisco, 322
Dilworth v. Dudley, 405 Flannery v. United States, 98
District of Colombia v. Beretta, 393 Florenzano v. Olson, 226
Doe v. Boys Clubs of Greater Dallas, 403 Folsom v. Burger King, 239
Doe v. Roe, 415, 416 Fordham v. Oldroyd, 88
Dombey v. Phoenix Newspapers, Inc., 404 Forrest v. Gilley, 339, 341
Douglas v. Irvin, 74 Foster v. Laredo Newspapers, Inc., 403
Downs v. Steel & Craft Builders, Inc., 443 Foster v. Preston Mills Co., 351
Dresher v. Burt, 127 Foster–Milburn Co. v. Chinn, 417
Du Rite Laundry v. Washington Electric Fulton v. William Beaumont Hosp., 263, 264
Co., 333 Garzilli v. Howard Johnson’s Motor
Duda v. Phatty McGees, Inc., 258 Lodges, 215
Dun & Bradstreet, Inc. v. Greenmoss Builders, General Accident Fire & Life Assurance Corp.
Inc., 402 v. Little, 542
Dunham v. Kampman, 503 Gertz v. Robert Welch, Inc., 191, 397, 400, 403
Dunlop v. Gregory, 319 Gilchrist Timber Co. v. ITT Rayonier, Inc., 226
Dupler v. Mansfield Journal Co., 127 Gipson v. Kasey, 162
Duren v. Suburban Community Hospital, 498 Gleason v. Cohen, 240, 241, 242
Dyals v. Hodges, 73 Gleason v. Hanafin, 265
Earll v. Consolidated Aluminum Corp., 224 Glinski v. Szylling, 265
Edwards v. Sims, 64 Gonzalez v. Autoliv ASP Inc., 392
Edwards v. Tardif, 298 Gortarez v. Smithy’s Super Valu, Inc., 52
Einhorn v. Johnson, 341 Graham v. Oppenheimer, 411
Einhorn v. LaChance, 404 Gramex Corp. v. Green Supply, Inc., 224
Elbaor v. Smith, 473 Gray v. Washington Power Co., 178
Elmore v. American Motors Corp., 368 Great N. Ins. Co. v. Interior Constr. Corp., 476
Elston v. Howland Local Schools, 127 Greenman v. Yuba Power Products, Inc., 365
Emerson R. Julian, Jr. v. Christopher Greenman v. Yuba Products, 390
Spence, 467 Gregoire v. City of Oak Harbor, 240
Enright v. Groves, 64 Grimshaw v. Ford Motor Co., 184
xx | List of Cases
Grimshaw v. Ford Motor Company, 498 Hubbell v. Xenia, 126

Grisham v. Philip Morris U.S.A., Inc., 317 Hudson v. St. Paul Mercury Insurance Co., 298
Grogan v. Chaffee, 320 Hunn v. Windsor Hotel Co., 236
Gryger v. Burke, 193 Huston v. Konieczny, 127
Guar. Fed. Sav. Bank v. Horseshoe Operating Hutcherson v. City of Phoenix, 536
Co., 460 Imperial Ice Co. v. Rossier, 318, 334
Gustafson v. Benda, 224 Ind. Restorative Dentistry, P.C. v. Laven Ins.
Haelan Laboratories, Inc. v. Topps Chewing Agency, Inc., 340
Gum, Inc., 415, 416 Intel Corporation v. Hamidi, 42
Hale v. Brown, 173 ITT Commercial Fin. Corp. v. Mid–Am. Marine
Halliburton v. Town of Halls, 104 Supply Corp., 545
Harbeson v. Parke–Davis, Inc., 146 ITT Commercial Fin. v. Mid–America
Marine, 438
Hardy v. General Motors Corp., 495
Ixchel Pharma LLC. v. Biogen, Inc., 316, 317
Harris v. Pizza Hut of Louisiana, Inc., 112
J.C. Penny Co. v. Robison, 129
Harris v. Pizza Hut, 112
Jackson v. Columbus, 127
Harris v. ShopKo Stores, Inc, 214
Jackson v. Housing Authority of City of High
Harvey v. Washington, 223
Point, 348
Haumerson v. Ford Motor Co., 198
Jaillet v. Cashman, 307
Hemmings v. Pelham Wood Ltd, 78
Jamaica Pub. Serv. Co. v. La Interamericana
Henningsen v. Bloomfield Motors, Inc., 372 Compania De Seguros Generales, 475
Herald Co. v. Bay City, 264 James v. Bessemer Processing Co, Inc., 143
Herskovits v. Group Health Cooperative, 145 Jamgotchian v. Slender, 64
Herzberg v. White, 163 Jehle–Slauson Constr. Co. v. Hood–Rich
Hetrick v. Marion–Reserve Power Co., 128 Architects & Consulting Eng’rs, 418
Hidalgo v. Cochise County, 122 Johnson v. Corporate Special Services,
Inc., 414
Highline School District No. 401 v. Port of
Seattle, 239 Johnson v. Wagner Provision Co., 128
Hill v. Sacred Heart Med. Ctr., 146 Johnston v. Fuller, 414
Hoffman v. Jones, 232 Jones v. Ray, 460, 461
Hogeland v. Sibley, Lindsay & Curr Co., 476 Jones v. Shaffer, 98
Holcombe v. Whitaker, 36 Jost v. Dairy Cooperative, 311
Holston v. Sisters of Third Order of St. Judkins v. Sadler-MacNeil, 64
Francis, 98 K.C. St. J. & C.B. Rld. Co. v. Simpson, 346
Honda Motor Co. v. Oberg, 189, 191 K.L.M.N.I., Inc. v. 483 Broadway Realty
Hood v. Waldrum, 64 Corp., 476
Horne v. Peckham, 298 Kaatz v. State, 228
Hougland v. Pulitzer Publishing Kalima v. State, 97
Company, 438, 440 Karnes v. Ray, 226
Howard v. Spradlin, 44 Kassel v. Gannett Co., Inc., 404
List of Cases | xxi
Keisker v. Farmer, 547 M.G. v. Time Warner, Inc., 419

Keller v. Missouri Baptist Hosp., 439 MacDonald v. Ortho Pharmaceutical Corp., 392
Kemper v. Builder’s Square, Inc., 129 Macklin v. Robert Macklin v. Robert, 318
Kentucky Fried Chicken National Management MacPherson v. Buick Motor Co., 360, 372
Co. v. Weathersby, 38 Mahan v. Am-Gard, Inc., 139
Keomaka v. Zakaib, 279 Maher v. United States, 162
Kerns v. Hoppe, 243 Mahoney v. Shinpoch, 239
Kinegak v. State Dept. of Corrections, 258
Markowitz v. Ariz, 162
Kirby v. Larson, 265
Maroon’s Home Prods. v. Manufacturers &
Kirk v. Washington State University, 240 Traders Trust Co., 475
Klenberg v. Russell, 340 Marsalis v. La Salle, 104
Knell v. Feltman, 485 Mathieu v. State, Dep’t of Transp. & Dev., 114
Kolanka v. Erie Railroad Co., 121 Maximus, Inc. v. Lockheed Information
Kopplin v. Quade, 357 Management Systems, Inc., 334
Korea Supply Co. v. Lockheed Martin McCallister v. 200 Park, 475
Corp., 318 McCoy v. Hearst Corp., 405
Kyser–Smith v. Upscale Communications, McLaughlin v. Cooke, 146
Inc., 416
McMahon v. Chryssikos, 215
Labor Disc. Ctr., Inc. v. State Bank & Trust Co.
of Wellston, 546 McNeill v. United States, 179
Laidlaw v. Sage, 121 McNutt Oil & Refining Co. v. D’Ascoli, 316
Landers v. East Texas Salt Water Disposal, 460 Menifee v. Ohio Welding Prod., Inc., 127
Lang v. Holly Hill Motel, Inc., 127 Merchants’ Ad-Sign Co. v. Sterling, 320
Langan v. Valicopters, Inc., 348 Mericle v. Mulks, 10
Leibreich v. A.J. Refrig., Inc., 127 Messner v. Am. Union Ins. Co., 547
Leon v. Peppe Realty Corp., 475 Mikolajczyk v. Ford Motor Co., 366
Lerman Bros. v. Lewis, 75 Miller v. Civil Constructors, 357
Levi v. SLEMCO, 113 Miller v. Ernst & Young, 225
Leyson v. Steuermann, 278 Miller v. Howard, 81
Li v. Yellow Cab Co., 221, 231, 232 Minnifield v. Ashcraft, 412
Liberty Nat’l Fire Ins. Co. v. Akin, 460 Miranda v. Arizona, 565
Life Insurance Co. v. Johnson, 498, 501 Missouri. Pub. Entity Risk Mgmt. Fund v. Am.
Cas. Co. of Reading, 543
Light v. Ohio Univ., 127
Mitnick v. Whelan Bros., 173
Lindsey v. Normet, 189, 192
Lippard v. Houdaille Industries, 224 Miyamoto v. Lum, 277
Loiland v. State, 88 Mohr v. Grantham, 144
Lord v. Lovett, 148 Montalvo v. Lapez, 96
Lumley v. Gy, 315 Montana v. San Jose Mercury News, 416
Lybbert v. Grant County, 239 Montoya Lopez v. Allstate Ins. Co., 536
Mook Sang v. Clark, 99
xxii | List of Cases
Moore v. Kansas City & I. Rapid–Transit Onassis v. Christian Dior–New York, Inc., 417
Ry., 224 Ontiveros v. Borak, 142, 161, 162
More v. Bonnet, 319 Orcutt v. Miller, 271
Morgan v. County of Yuba, 89 Orme Sch. v. Reeves, 162
Morgan v. Planning Dep’t, Cty. of Kauai, 97 Pacific Gas & Electric Co. v. Bear Stearns &
Mroczkowski v. Straub Clinic & Hosp., Inc., 278 Co., 318
Mt. Hawley Ins. Co. v. Fed. Sav. & Loan Ins. Pacific Mut. Life Ins. Co. v. Haslip, 191
Co., 539 Palsgraf v. Long Island Rail Co., 111, 149
Muhammad v. United States, 455 Palsgraf v. Long Island Railroad, 69
Mumphrey v. Rollins, 111 Parks v. LaFace Records, 417
Murphy v. City of Springfield, 225 Parras v. Std. Oil Co., 128
Muthukumarana v. Montgomery County, 80 Paschal v. Rite Aid Pharmacy, Inc., 128
Myrick v. Freightliner, 379, 380 Patterson v. Thunder Pass, Inc., 160
Naccarato v. Grob, 271 Patton v. Hutchinson Wil-rish Mfg. Co., 376
Nader v. General Motors Corp, 412 Peck v. Tribune Co., 397
Nalwa v. Cedar Fair, 258 Pellham v. Let’s Go Tubing, Inc., 237
Nardelli v. Metropolitan Group Property and Penley v. Honda Motor Co., 258
Cas. Ins. Co., 534
People for the Ethical Treatment of Animals v.
Nav. Co. v. Wright, 319 Bobby Berosini, Ltd., 417
Neagle v. Morgan, 356 People v. Bonnetta, 320
Nelson v. Superior Court, 369 People v. Chun, 319
Nelson v. Union Wire Rope Corp., 89 Perez v. McConkey, 243
New York Central Railroad v. White, 565 Perry v. Eastgreen Realty Co., 128
New York Times Co. v. Sullivan, 395, 400, Perrysburg v. Toledo Edison Co., 53
403, 422
Petrucelli v. Wisconsin Patients Compensation
Newport v. Fact Concerts, Inc., 191 Fund, 498
Ngo v. Queen’s Med. Ctr., 273 Philadelphia Newspapers v. Hepps, 399
Nguyen v. Good Chevrolet, Inc., 454 Phillips v. Gulf & South America S.S. Co., 461
Nishi v. Hartwell, 278 Pierce v. New York Central Rail Co., 200
Nist v. Tudor, 242, 243 Pile v. City of Brandenburg, 258
Noble v. Cavalier Restaurant, 132 Pinsonneault v. Merchants & Farmers Bank &
Nostrame v. Santiago, 318 Trust Company, 108
O’Brien v. Muskin Corp., 393 Plaintiff v. Emmanuel Rudy Lopez and Jane
O’Neal v. St John Hospital & Medical Doe Lopez, 61
Center, 262 Pleasant Glade Assembly of God v.
O’Neal v. St. John Hosp. & Med. Ctr., 263 Schubert, 215
Oberschlake v. Veterinary Assoc. Animal Polm v. Dep’t of Human Servs., 98
Hosp., 64 Poole v. Alpha Therapeutic Corp., 367
Ogden v. State, 231 Popescu v. Apple Inc., 319
Olsen v. United States, 244
List of Cases | xxiii
Port Parties, Ltd. v. Merchandise Mart Santiago v. PNI, 444

Props., Inc., 476 Sarchett v. Blue Shield of Cal., 539
Poznanski ex rel. Poznanski v. Horvath, 340 Saslow v. Rexford, 231
Prescott v. United States, 143 Schifano v. Greene County Greyhound Park,
Presley v. City of Norwood, 128 Inc., 414
Pruitt v. Circuit City Stores, Inc., 418 Schultz and another v. Frank, 8
Pryor v. Brown & Root USA, Inc., 413 Schurk v. Christensen, 448
Purcell v. Breese, 262 Schwalm v. Holmes, 319
Quelimane Co. v. Stewart Title Guaranty Schwindt v. Red Roof Delivery, Inc., 563
Co., 318
Scioto Memorial Hospital Association v. Price
Ragsdale v. Kennedy, 304 Waterhouse, 226
Rainey v. Shaffer, 429 Scott v. Hughes, 346
Randall’s Food Mkts., Inc. v. Johnson, 405 Scott v. Pacific West Mountain Resort, 240,
Ray v. Kapiolani Med. Specialists, 274 241, 242
Record v. Reason, 241 Sczyrek v. County of Essex, 258
Redfearn v. Trader Joe’s Co., 319 Sears v. Morrison, 72
Reece v. Finch, 418 Seebold v. Prison Health Services, Inc., 83, 84
Reeves v. Hanlon, 318 Shamnoski v. PG Energy, 84
Regents of University of California v. Superior Shellenbarger v. Brigman, 147
Court, 83 Shelton v. Aetna Cas. & Sur. Co., 111
Regions Bank v. Plott, 414 Shields v. Cape Fox Corp, 226
Riscatti v. Prime Properties Ltd. Shipley v. Williams, 203
Partnership, 126
Shobe v. Kelly, 545
Riss v. New York, 89
Shoen v. Shoen, 535
Roberts v. Ball, Hunt, 333
Sholtis v. American Cyanamid Co., 143
Rodriguez v. New Orleans Pub. Serv., Inc., 111
Shuck v. Means, 446
Rodriguez v. Suzuki Motor Corp., 224
Siegler v. Kuhlman, 357
Roe v. Wade, 565
Simmers v. Bentley Constr. Co., 127
Rogers v. Louisville Land Co., 38
Sindell v. Abbott Laboratories, 144, 170, 367,
Rogers v. Retrum, 162
386, 491
Rosenblatt v. Baer, 404
Sindell v. Abbott Labs, 142, 168, 438
Roskowske v. Iron Mountain Forge Corp., 225
Skinner v. Square D Co., 265
Rush v. Commercial Realty Co., 235
Skousen v. Nidy, 64
Rylands v. Fletcher, 341, 353
Smith v. Doss, 414, 415
Saleeby v. Rocky Elson Const. Inc., 484
Smith v. Johnson and Johnson Co., 375
Sandoval v. Leake and Watts Service, Inc., 455
Smith v. Lewis, 139
Sandy v. Bushey, 356
Smith v. Wade, 501
Santana v. Leith, 39
Snead v. Metropolitan Property and Casualty
Santiago v. Phoenix Newspapers, Inc., 435 Insurance Co., 64
xxiv | List of Cases
Snolis v. Clare, 475 Straub v. Fisher and Paykel Health Care, 368
Solomon v. National Enquirer, 399 Stroda v. State Highway Commission, 349
Sorrell v. Norfolk Southern Railway Co., 226 Stroik v. Ponseti, 110
Sovereign Pocohontas Co. v. Bond, 303 Strojnik v. Gen. Ins. Co. of Am., 161
Spence v. Julian, 476 Studebaker v. Nettie’s Flower Garden, Inc., 438
Spur Industries, Inc. v. Del E. Webb Stump v. Sparkman, 245
Development Co., 312 Sullivan v. Anderson Twp, 126
Squires v. Reynolds, 173 Sullivan v. St. Louis Station Associates, 441
St. Amant v. Thompson, 400, 405 Summers v. Tice, 142, 144
Standard Chartered PLC v. Price Sun Oil Co. v. Robicheaux, 461
Waterhouse, 226
Supervisory Union 29 v. N.H. Dep’t of Ed., 50
Standard Oil Co. of California v. United
Supreme Beef Packers Inc. v. Maddox, 123
States, 322
Sutter v. Biggs, 265
State ex rel. Park Nat. Bank v. Globe Indem.
Co., 546 Swigert v. Welk, 466, 471
State Farm Mut. Auto Ins. Co. v. Syah v. Johnson, 454

Campbell, 501, 503, 539 Tandy v. St. Anthony Hosp., 129
State Farm Mut. Automobile Ins. Co. v. Tarasoff v. Regents of University of
Campbell, 189, 190 California, 83
State Farm v. Campbell, 507 Tavoulareas v. Piro, 404
State v. Abbott, 230 Templemire v. W & M Welding, Inc., 544
State v. Betts, 223 Texaco, Inc. v. Pennzoil Co., 315
State v. Carson, 223 Thomas v. Mallett, 143
State v. Cobb, 49 Thompson v. Better–Bilt Aluminum Prods.
Co., 539
State v. Dedrick, 48
Thompson v. Lupone, 173
State v. Grierson, 49
Time, Inc. v. Firestone, 429
State v. Hare, 50
Time, Inc. v. Hill, 419
State v. Kay, 49
Tincani v. Inland Empire Zoological
State v. Schallock, 434
Society, 239, 240
State v. Vincent, 48
Tom Lange Co. v. Cleaning by House
State v. Warren, 47 Beautiful, 438
Steinbrenner v. M. W. Forney Co., 120 Trevino v. Union Pacific R. Co., 89
Stephens v. Akron Palace Theatre, 129 Trotter v. Jack Anderson Enters., Inc., 404
Sterling Merchandising, Inc. v. Nestle, S.A., 322 Turcotte v. Fell, 235
Stewart v. Sam Wallace Indus. Co., 357 Turner v. General Motors Corp., 374, 386
Stiles v. Batavia Atomic Horseshoes, 475 Twaite v. Allstate Ins. Co., 539
Stocking v. Johnson Flying Service, 53 TXI Operations, LP v. Perry, 76
Stone v. Williamson, 265 TXO Production Corp. v. Alliance Resources
Stratton Oakmont, Inc. v. Prodigy Services Corp., 191
Co., 410
List of Cases | xxv
U.S. Supreme Court in New York Central Wiener v. Weintraub, 429

Railroad v. White, 556 Williams Ford, Inc. v. Hartford Courant Co., 307
U.S. v. Gilman, 16 Williams v. Amoco Production Co., 346
UAS Management, Inc. v. Mater Misericordiae Williams v. Emerson Elec. Co., 368
Hospital, 322
Williams v. Lancaster County School
United States v. Reliable Transfer Co., 232 District, 430
Valentine v. On Target, Inc., 80 Williams v. Montgomery, 334
Van Dyke v. Boswell, O’Toole, Davis & Williams v. Tharp, 340
Pickering, 460
Williams v. Wright, 475
VanWagner v. Mattison, 228
Wilson v. Steinbach, 239
Vogler v. Dominguez, 132
Wisener v. State, 162
Volpe v. Gallagher, 105
Witte v. United States, 193
Vulcan Metals Co. v. Simmons Manufacturing
Wolfe v. Sibley, Lindsay & Curr Co., 562
Co., 303
Wood v. Picillo, 312, 313
Wade v. U.S., 95
Wood v. United Air Lines, Inc., 349
Wagner v. International Ry. Co., 72
Woodard v. Eddie’s Place, Inc., 163
Walker v. Packer, 459
Woolstrum v. Mailloux, 183
Waller’s Adm’r v. Collinsworth, 162
Worford v. Stamper, 459
Wal-Mart Stores, Inc. v. Odem, 35
Wright v. Ryder, 319
Watson v. Rinderknecht, 157
Wyeth v. Levine, 494
Wayne J. Griffin Elec., Inc. v. Dunn Constr.
Co., 413 Yania v. Bigan, 82, 86
Weirum v. RKO General Inc., 173 Ybarra v. Spangard, 132, 133
Wells Fargo Bank v. Ariz, 161 Yukon Equipment, Inc. v. Fireman’s Fund
Insurance Co., 342
West v. Founders Life Assurance Co. of
Florida, 413 Zacchini v. Scripps–Howard Broadcasting
Co., 416
WFAA-TV v. McLemore, 402
Zeran v. America Online, Inc., 410
Wheatland Irrigation District v. McGuire, 349
Zerby v. Warren, 228
White Deer Twp. v. Napp, 84
Zueger v. Pub. Hosp. Dist. No. 2, 147
Whittington v. Mason, 298
Zumwalt v. Utilities Insurance Co., 545
Wickens v. Oakwood Healthcare Sys., 269
About the Authors
J. Stanley Edwards has been an Arizona attor- tRACI l. cull has been a licensed Indiana attor-
ney since 1975. He has been a sole practitioner for ney since 1996. She has been a real estate attorney,
all but two of those years. Stan co-authored five text- private practice attorney, and has spent the last 21
books with his late wife, Dr. Linda L. Edwards. They years teaching in higher education. She is a certified
are: Tort Law for Legal Assistants, 3rd edition; Civil mediator and a certified compassionate trust leader
Procedure & Litigation: A Practical Approach; Intro- who has a passion for alternative dispute resolution.
duction to Paralegal Studies: A Practical Approach; She has authored thousands of supplements to text-
Guide to Factual Investigations; and Introduction to books in the legal field and has developed numer-
Paralegal Studies & the Law: A Practical Approach. ous online courses from start to finish. She serves
Stan has tried over 20 cases to juries. He previ- as a mentor for online courses and served as a stu-
ously served as a judge pro tem in both the civil and dent advisor for 2 years as well. She loves to make
family law divisions of the Maricopa County Supe- material accessible to everyone and delivered in a
rior Court. Stan is a certified arbitrator in the District way that people of all ages and levels can under-
Court of Arizona. He has twice been named Volun- stand. She believes that the law should be easy to
teer Lawyer of the Month by the Volunteer Lawyers understand and has used that motto in updating this
Program. He is licensed to practice in Arizona, Colo- textbook.
rado (currently on inactive status), the District Court
of Arizona, the Ninth Circuit Court of Appeals, and
the United States Patent and Trademark Office.
1
Part
BigPixel Photo/Shutterstock.com
Introduction
Chapter 1: Overview of Tort Law
Chapter 2: Overview of a Tort Case
Chapter 3: Intentional Torts
Chapter 1
Piyawat Nandeenopparit/Shutterstock.com
Overview of Tort Law

Chapter Topics
Background Creation of Case Law
What Is a Tort? Relationship between Tort Law and
Reasonableness of Conduct Other Areas of the Law
Public Policy Brief History of Tort Law
Morality of Conduct Coming Full Circle
Slippery-Slope Arguments Classification of Torts
Chapter Objectives
After completing the chapter, you should be able to
• Define a tort and distinguish between a tort and • Recognize the philosophical principles and argu-
a crime, as well as between a tort and a contract. ments underpinning tort law.
• Trace the evolution of tort law.
Y ou come home one evening to find that one of your children has been bitten by your next-door neighbor’s
pit bull, who was safely secured behind the fence when your child, contrary to your instruction, entered
the yard to retrieve a wayward ball. Your neighbor took every precaution of isolating the dog, short of locking
the fence. Should the neighbor be held liable?
Someone in your family contracts a deadly disease, the cause of which can be traced to chemical contaminants
found in toxic wastes dumped by the city in which you live. The city dumped the waste several decades before the
area became residential and, at the time, was totally ignorant of the long-term effects. Should the city be held liable?
A medical student watches as a five-year-old girl falls into the lake at the local park and screams “Help, I
can’t swim.” He walks away as she goes under for the third time. Although he worked as a lifeguard for several
years, he has not worked as a lifeguard since entering medical school. Should he be held liable?
An eight-year-old boy trespasses and falls into a hole on your property. Should you be held liable?
Your daughter finally succeeds in becoming a famous actress. Without her permission, a magazine pub-
lishes nude photographs of her. Should she be able to sue for invasion of privacy? Intentional infliction of emo-
tional distress? Defamation?
Your son is wrongfully detained because a storekeeper suspects him of shoplifting. Should he be able to
sue the store for the emotional distress he endures while being detained?
CHAPTER 1 Overview of Tort Law | 3
Should the attorney for whom you work as a paralegal be held liable for your negligent acts?
Should you be held liable for the intentional torts of your children?
Your home has been burglarized on several occasions and, in a desperate attempt to protect your property,
you set up a mechanical trap. Should you be held liable if a would-be burglar is seriously injured by the device?
These questions, illustrating the broad scope of human experiences that fall under tort law, will be exam-
ined in this text. Tort law is an intriguing area of the law that covers virtually every aspect of human behavior. It
not only governs the conduct of people in our society, but also reflects our attitudes and values toward living
life itself. The parameters of tort law contain many of the philosophical underpinnings of our society.
Background their decisions. After all, they point out, the process
of living comes with no guarantees and the assur-
It has been said that tort liability is like a tax that makes ance of safety is too high a price to pay for freedom.
products and services more costly to all and ultimately In addition to this philosophical concern, there
unaffordable to some. This “tax,” it is argued, has put is reluctance to burden a defendant, particularly an
some medical doctors out of business, prohibited the industry, with all losses and damages, for fear of finan-
sale of certain drugs and products, and severely ham- cial ruin. As a result, new technological developments
pered businesses and governmental bodies in their may be inhibited or become financially prohibitive.
delivery of services. This problem of distribution of losses contin-
Advocates of expanded tort liability see tort ues to haunt those who seek an equitable balance
law as the knight in shining armor, duly anointed between the needs of plaintiffs and defendants.
to protect the interests of the consumer. In their Judges must decide the proper solution to this con-
perception, manufacturers and those who deliver troversy. Suffice it to say that whichever philosoph-
services are better able than consumers to predict ical trail they choose to follow predetermines their
and prevent injuries from the use of their products resolution of many cases.
and services. The burden of injury, they reason,
should be borne by those who create risks rather than
by those who fall prey to them. The philosophical
and political debates on the issue of risk allocation
What Is a Tort?
have gained new significance in one of the most But what is this thing we call a tort? Although
recent developments in tort law—product liability. the term has evaded concrete definition, it has
Others argue that we have become too pater- been described as a civil wrong for which the vic-
nalistic in our efforts to protect individuals and that tim receives a remedy in the form of damages
we should allow people to bear the consequences of (Exhibit 1–1). Included under this heading are
Exhibit 1–1 Definition of a Tort
Tort
A civil wrong for which the

victim receives a remedy in
the form of damages
Intentional Negligence Strict Liability
Intent required Violation of reasonable No fault (no intent

person standard required)
4 | Part I Introduction
intentional torts (assault, battery, false imprison- types of questions with which jurors and courts must
ment, intentional infliction of emotional distress, grapple in their struggle to assign fault and apportion
and trespass, are some examples), negligence (acts damages equitably under tort law doctrines.
committed with no deliberation but in violation of a Sometimes the reasonableness of the defen-
reasonable person standard to someone they owe dant’s conduct is not at issue because of the
a duty), and strict liability (acts committed with no far-reaching social consequences of their actions.
intent or fault at all). In the area of product liability, for example, even
those manufacturers and sellers who act reasonably
are held liable to plaintiffs injured by their products.
This is done in the name of protecting society. By
Reasonableness of holding manufacturers and sellers responsible for all
Conduct such losses, the argument is made, consumers will
be better protected, and sellers and manufacturers
The common thread interweaving most torts is the will be more conscientious in the delivery of their
notion that socially unreasonable conduct should services and products. Similarly, one who innocently
be penalized and those who are its victims should be defames another will be held liable despite their lack
compensated. Of course, determining what is unrea- of intent. Once defamation has occurred, the dam-
sonable is a formidable task, because reasonableness, age has already been done. The victim’s reputation
like beauty, is in the eye of the beholder. The overall is irreparably tarnished no matter how reasonable
goal in defining reasonableness is to balance the plain- the defamer’s conduct, goes the rationale, and so
tiff’s need for protection against the defendant’s claim compensation is required.
of freedom to pursue their own ends. But how does
one determine reasonableness of conduct? Should
one take into consideration, for example, the parties’
religious beliefs, their physical disabilities, their values, Public Policy
emotional idiosyncrasies, or their mental state?
To get a feeling for where you stand on this issue Tort law often goes beyond compensating individuals
of reasonableness, consider the following. You are and considers, more broadly, the interests and goals
sitting as a juror on a case in which the plaintiff, a of society at large and the community in which we live.
devoutly religious Catholic woman, was severely These interests are often referred to by the courts as
injured by the negligent driving of the defendant. public policy concerns. Most people are familiar with
The plaintiff was pregnant at the time of her injury the term corporate or company policy, which dictates
and was told that because of the serious pelvic injury the values and principles of a corporation. Similarly,
she had sustained, she would be in grave danger if the local, state, and national communities have “pub-
she carried her baby to term. Because of her intense lic policies” that dictate the norms of the community
aversion to abortion, she chose to deliver the baby or the public based on its beliefs and values regarding
and died in the process. justice, fairness, and equality. Judges may consider
Do you think the defendant should be required to public policy to determine the impact their rulings or
compensate the plaintiff’s family for her death? How legal principles will have on society as a whole.
would you determine the reasonableness of the plain- All laws, including tort law, are based in some part
tiff’s conduct? Would you require her to conform to the on the public policy of the society and/or the commu-
conduct of the “average” person, or would you com- nity. To find the public policy underlying a law, one
pare her conduct to that of a reasonable person hold- must look at the rationale or reason for the law. For
ing her beliefs? These are just some examples of the example, a community may have an ordinance that
In the News
For an overview of tort law and what it encompasses, go to www.law.cornell.edu. Search for tort law
and it will take you to www.law.cornell.edu/wex/tort. This is a great overview of tort law. You can
search any topic on the main site and it will give you the same.
prohibits the opening of an adult bookstore within which are ever on the alert to avoid. For that reason,
300 feet of an elementary school. The public policy some types of flagrant misdeeds are not vindicated
underlying such an ordinance is the community policy by tort law. Relatively trivial concerns must also go by
or value that young children should not be exposed the wayside in an effort to minimize the flood of litiga-
to adult bookstores, their materials, and their patrons. tion. Many of our most grievous hurts are inflicted in
Understanding public policy is essential to the context of interpersonal relationships and yet most
understanding tort law. of these must go without redress. Lovers are jilted,
Why, you might ask, must the interest of society children are verbally belittled by parents, friends are
be considered when dealing with a dispute between “used,” and so on. The law cannot become enmeshed
two individuals? Because our common law system in these psychically damaging events if the legal sys-
is based on case precedent, every decision ren- tem is to avoid the administrative nightmare created
dered by a court has the potential of establishing a by an onslaught of cases. Clearly, not all human wrong
rule that must be followed by other courts. Society, can be remedied.
therefore, has an interest in ensuring that disputes Perhaps you have heard of the slippery-slope
between litigants are resolved through a process of argument, which means, essentially, that use of an
resolution that is fair and just for all concerned. The argument in one case will allow application of that
very principles set forth today will be those that gov- same argument in innumerable other cases. The
ern the cases of tomorrow. metaphor is used to show that once you take the
first small step, it can lead to a long chain of events
that can result in a significant event often with a
negative or disastrous outcome. The slippery-slope
Morality of Conduct argument is, in essence, an administrative concern.
Is the morality of a defendant’s conduct relevant in tort A court fears that if it finds negligence on behalf of
law? Although personal morality may be subject to the sympathetic plaintiff before it, hundreds of thou-
variation, tort law borrows heavily from a sense of pub- sands of similarly situated individuals or those whose
lic morality. It can be said that, at least in certain cases, situations are analogous to the case will also seek
we all have a sense of what is universally regarded as similar redress. The precedential effect of allowing
right and wrong. Tort law generally reflects that sense. medical prescriptions for marijuana use can lead to
There are circumstances, however, in which the argument of everyone thinking it is acceptable
a defendant can be held liable even though they to use marijuana and everyone legalizing it for rec-
have violated no moral code. One who, for exam- reational use. This is one of the many slippery-slope
ple, trespasses on the land of another in the reason- issues considered by the courts.
able belief that it is their own land is still liable for Keep in mind that, although courts are to focus
trespass. With the increasing popularity of no-fault on the long-term in making their decisions, they
torts, such as strict liability, we appear to be mov- sometimes are understandably sympathetic to the
ing away from a need to cast moral judgment on a plight of the individuals before them. In such cases
defendant’s conduct. In contrast, tort law does not they often render decisions that meet the short-term
deal with all blatantly immoral acts. Although it may goals of justice but that prove untenable over the
be morally reprehensible, for example, to allow a long run. Justice, you will soon discover, is an illu-
stranger to die when you could save them, in most sory goal that often eludes capture by even the most
circumstances you will have committed no tort. conscientious judge.
Slippery-Slope Arguments Creation of Case Law

Tort law is largely a product of case law, which
Case precedent, the effect of a ruling on a future case,
involves case-by-case decision making by the state
is a major part of the development of tort law. Courts
courts. This decision-making process is affected, to
are often hesitant to crack open a legal door in a par-
some degree, by statutes, which the courts are man-
ticular case for fear of creating a “flood of litigation,”
dated to follow, unless statutory gaps exist that leave
a court with unanswered questions. This is where another individual or group of individuals. The pur-
case law comes into play. Some statutes, such as the pose of prosecuting someone who has committed a
wrongful death and survival acts, directly address crime is to vindicate the interests of society by pun-
issues that arise in the context of tort law. Others, ishing the offender. The purpose of suing under tort
such as certain criminal statutes, serve as guide- law, in contrast, is to compensate the victim.
lines to the courts in establishing policy. A statute, Although the primary purpose of criminal law
for example, that makes it a misdemeanor to drive is punishment and the primary purpose of tort law
while under the influence of alcohol sets forth the is compensation, there is some overlap between
standard of care expected of drivers. A driver having the two. Compensation given to the victim of a
a blood alcohol level in excess of the statutory limit crime (known as restitution) is frequently used by
would be considered to have breached the duty of the courts as part of an offender’s sentence. By the
care they owed to those around them. same token, punitive damages, which are intended
Another guideline that courts use in formulat- to punish the tortfeasor (one who has committed
ing their holdings is the Restatement of the Law of a tort), are used in certain circumstances in tort law.
Torts. The Restatement was compiled by eminent Despite this overlap, the primary functions of crimi-
legal scholars and practitioners in an attempt to pro- nal law and tort law remain distinct.
vide lawyers and judges with black-letter principles Moreover, the rules of civil procedure are used
(legal principles generally accepted by the legal in tort cases, whereas the rules of criminal procedure
community, also referred to as black-letter law) of are used in criminal cases. Also, the plaintiff’s bur-
tort law. Adopted in many jurisdictions, the Restate- den of proof in a tort case requires proof by a pre-
ment is frequently cited in court opinions and has ponderance of the evidence (the preponderance
been updated several times over the years. must be proven to be greater than 50% true under
Although criticized for creating the impression of this burden of proof); the state’s burden of proof in
uniformity in the law where there is none, the Restate- a criminal case is proof beyond a reasonable doubt
ment is nevertheless a frequently used guide through (the highest burden of proof and no doubt whatso-
the maze of tort law decisions. For this reason, the ever in the defendant’s guilt). The rules of evidence
Restatement is often cited throughout this text. Keep in applicable in criminal cases vary from those applica-
mind, however, that your state may not have adopted ble in civil cases.
the Restatement position. Be sure to consult the case Many acts may be both a crime against the state
law in your state when dealing with a specific case. and a tort against the individual. If a drunk driver,
for example, is involved in a vehicular accident, they
may be charged with a criminal offense as well as
Relationship between Tort
Law and Other Areas of Exhibit 1–2 Torts versus Crimes
the Law Torts Crimes
Torts versus Crimes Purpose Compensation Punishment
How does a tort differ from a crime? Although the Standard of Preponderance Beyond a
two share several similarities, they differ in terms Proof of Evidence Reasonable Doubt
of the interests affected, the remedy granted, stan- Interests Individual’s Society’s Interest
dard of proof, and procedural mechanisms used Violated Interest
(see Exhibit 1–2). A crime is considered an offense Procedural Civil Rules Criminal Rules
Rules
against society, whereas a tort is an offense against
In the News
To learn more about the American Law Institute, which publishes the Restatements, and to gain a
better understanding of what the Restatements are and how they are compiled, go to www.ali.org/
publications to see all the different restatement publications they publish.
sued by the injured parties for negligence. For this because they expressly contracted to prevent injury
reason (among others) those charged with criminal to the guest, but because the law imposes certain
offenses often plead nolo contendere (no contest). obligations on them by virtue of being a landowner.
If they were to plead guilty, their admission of guilt The remedy in a contract case is to compensate
could be used against them in a subsequent civil the prevailing party with the benefit of the bargain.
trial, whereas a plea of nolo contendere could not. In other words, the remedy is to provide them with
This is true, however, only if the issue tried in the what was expected under the contract. In a tort
criminal case is also relevant to some aspect of the case the remedy is much broader and the victim of
tort action. Because of the lower standard of proof a tort may be awarded monetary damages for pain
in a civil case, the plaintiff in a tort case will have an and suffering, economic damages, and punitive
easier time establishing liability than the state will damages.
have proving guilt in a criminal case. In the trial of Just as with criminal law, however, there is an
the twentieth century, the defendant O. J. Simpson overlap between tort law and contract law. Certain
was acquitted of criminal charges and found liable tort duties may coincide with those duties set forth
for the same conduct under tort principles in a civil in a contract, for example, so that if a party fails to
case. (See the Joan Rivers case involving her death live up to its obligations, an action may lie in either
from routine surgery.) tort or contract. Additionally, some quasi-contractual
Clear and convincing evidence is a standard obligations (such as the obligation to act in good
required in some administrative hearings and certain faith) are imposed by law without the consent of the
civil and criminal proceedings. It is a standard above parties, just as in tort law.
preponderance of the evidence and below beyond One other distinction between contract and tort
a reasonable doubt. It requires the party proving a law is that in contract law, obligations are made to
contention that the contention is substantially more specific individuals by virtue of an agreement of the
likely than not that it is true. This standard can be parties; whereas in tort law, duties are imposed by
used in civil as well as some criminal trials. This stan- law and owed to society. In tort law, one is bound to
dard is used for cases involving property that is sub- act as a reasonable person toward all other persons,
ject to forfeiture as well as the burden for plaintiffs but in contract law one is bound in contract only to
who allege fraud and is also applicable to paternity specific individuals. This distinction is not completely
and some probate issues. valid, however, in that tort law principles impose
special duties in some cases because of the relation-
Torts versus Contracts ship one has with another. An employer, for exam-
ple, owes duties of care to their employees that they
Tort law differs from contract law in terms of the vol-
do not owe to other persons.
untariness of entering into an agreement. When two
You will find as you pursue your study of torts
or more parties create a contract, they each agree to
that this area of law overlaps with most other areas
give up something in return for receiving some ben-
of law. Therefore, you will frequently find yourself
efit. In a contract action, the parties have voluntarily
referring to knowledge that you have gained from
and knowingly assumed duties or obligations to oth-
tort law when you study property law, constitutional
ers. In tort law, by contrast, duties are imposed by
law, criminal law, contract law, corporate law, and
the law without the express consent or awareness of
others.
those involved (Exhibit 1–3). If a guest is injured on
a landowner’s premises, the landowner is liable, not
Exhibit 1–3 Torts versus Crimes

Brief History of Tort Law
If this is the point in most textbooks where you skip
Torts Contracts
ahead, try to persevere. You might be surprised at
Duties Imposed by Law By Parties’ how interesting the evolution of tort law really is
Assigned Consent (Exhibit 1–4).
Obligations Society in Specific In barbaric societies the only “law” that
Made To General Individuals
seemed to control group behavior had its roots
Exhibit 1–4 Evolution of Tort Law remote causal connection was sufficient to justify the
imposition of punishment.
Blood feud (no fault) Interestingly enough, during this same time
period, vengeance was exacted on whatever was
Action in trespass (no fault)
determined to be the immediate cause of death,
(Vi et armis) even if it was an animal or inanimate object. The
(Direct use of force) offending object, be it a horse or a sword, might
be turned over to the victim or the victim’s fam-
Trespass on the case (wrongful intent or ily to be used as they saw fit, or delivered to the
negligence) king.
(No force or indirect injury)
Negligence (fault required) Action in Trespass

Strict liability (no fault) Over time the moot process of dispute resolution
led to the establishment of certain fundamental
rules. Communities discovered, through trial and
error, those decisions that led to the greatest peace
in the blood feud. The protocol of the blood feud and harmony. Following the Norman Conquest, the
required that the clan go to war against any out- dispute resolution process fell to the royal justices
sider who inflicted harm on a clan member, thereby of the king’s courts. They soon discovered that fol-
dishonoring the clan as a whole. Atonement for the lowing the already established local rules provided
humiliation suffered by the victim’s kin seemed the optimal efficiency in resolving conflict. As a result,
primary goal. the local rules eventually evolved into what is now
Despite the obvious deterrence this system of known as the common law.
justice provided, its inherent violence and its toll The action in trespass, which emerged some-
on those who were obligated to protect family and time in the middle of the thirteenth century, was one
clan members prompted reform. Ultimately a nego- of the products of the common law evolution. This
tiation process was developed in which the vic- action, which was basically of a criminal nature, dealt
tim summoned the perpetrator to the “moot”—a with serious and forcible breaches of peace. One of
forum in which the victim pleaded their case to the its requirements was the showing of force and arms,
community and asked for a redress of their griev- referred to as vi et armis.
ance. Community members offered advice about The plaintiff had to allege that the defendant
how best to resolve the dispute. When a solution had used force directly on the plaintiff’s person or
acceptable to both victim and perpetrator was property, thus the term vi et armis appeared in every
found, the parties dispersed and the blood feud writ of trespass as a matter of course. No further
was averted. showing of blameworthiness or fault on the part of
When the law first became more civilized , the the defendant was necessary. As time went on, how-
remedies created served as substitutes for the feud- ever, even mild, innocuous physical contact was suf-
ing process, and thus emerged the concept of mon- ficient for the plaintiff to prevail in a trespass action,
etary compensation. Early in Anglo-Saxon history, and the pleading of vi et armis became a mere tech-
individuals were assigned a monetary value based nical device.
principally on their rank. Money instead of blood To see an example of a trespass in action, read
was offered as a remedy for injured clan pride. Com- the whimsically written case of Schultz and another
pensation was directed toward the clan rather than v. Frank. Do not be concerned if you do not fully
the individual, and awards were distributed propor- understand the legal arguments, because we have
tionately among the injured person’s relatives. There not yet discussed the legal concepts at issue. In
was no distinction between crimes and torts. Fur- essence, this case discusses filing a trespass in
thermore, there seemed to be no concern regarding action case over a regular trespass case to recover
issues of fault or blameworthiness. Even the most damages.
Case
Schultz and Another v. Frank
1 Wis. 352, 1853 WL 1722
Supreme Court of Wisconsin
“In trespass on the case. The plaintiff declares in To relieve justices of the peace from the embarrassments
damages, and complains of the defendants for this, which frequently arise, to perplex even higher tribunals,
to wit: That on or about the third day of December, out of the logical distinction between actions of tres-
1851, and on divers other days, until the 22d day of pass on the case, and actions of trespass, the 43d
December, 1851, in the town of Concord and the town section of ch. 88 of the Revised Statutes was doubtless
of Ixonia in Jefferson county, the said defendants did enacted. This section provides that, “when by the wrong-
willfully, maliciously, carelessly, and neglectfully, by their ful act of any person, an injury is produced, either to the
own acts and by the acts of their hired men servants person, property, or rights of another, or to their servant,
and those in their employ, damage, injure and destroy child or wife, an action of trespass on the case may
a certain quantity of broom-corn brush, the property be brought to recover damages for such injury, whether
of the said plaintiff in the following manner, to wit: by it was willful, or accompanied by force or not, and
tearing the same to pieces with pitchforks, trampling whether such injury was a direct and immediate conse-
upon it with their feet, breaking the covers and rendering quence from such wrongful act, or consequential and
the same unfit for use. And the said plaintiff further indirect.”
complains of the said defendants for this, to wit: On the The design of this section was, to abolish, in
above named day and in the above named places, said regard to actions brought before justices of the
defendants and their hired men did strew, scatter, and peace, all distinction between trespass and tres-
leave in the fields and highways, a portion of the said pass on the case. By adopting the one, therefore,
broom-corn brush; leaving the same to be destroyed. instead of the other, no implication can arise against
Said plaintiff further complains of the said defendants the plaintiff. By bringing case, he cannot be consid-
for throwing a portion of said broom-corn brush into ered as waiving the taking, or the force. We cannot,
a pile, together with hay, straw, oats in the sheaf, and therefore, admit the position assumed by the plain-
other things improper to be thrown into and mixed with tiffs in error, that the defendant in error has admitted
said broom-corn. Said plaintiff also complains of said in his declaration and proof, that the plaintiffs in error
defendants for this, to wit: That on the day and times had a right to remove the broom corn. Neither do
and places first above named, said defendants did, the cases cited, in our opinion, sustain that position.
by their own neglect, and the neglect of those in their The same latitude of proof was extended to the plain-
employ, suffer horses, hogs, sheep, turkeys, fowls, and tiff below in the action of case, that would have been
cattle to run, trample, feed and roost upon said broom- in the action of trespass.
corn. Said plaintiff further complains of said defendants The proof before the justice shows, that the plain-
for this, to wit: That on or about the 3d day of December, tiffs in error seized a quantity of broom corn, belong-
1851, said defendants did, in the town of Concord, ing to, and in possession of the defendant in error,
open the fence and fixtures of the said plaintiff, thereby and removed the same from his barn, in the town of
leaving the same open and down, and suffering divers Concord, to the barn of Adams, in the town of Ixonia. It
cattle to remain over night in said plaintiff’s barn, upon appears from the testimony of Ram say, that the corn
grain and grass seed, the property of said plaintiff, to was in good condition in Frank’s barn. That when the
the damage of the said plaintiff one hundred dollars. bundles, in the moving, became untied, the plaintiffs
The declaration in this case is informally and inarti- in error and his assistants did not tie them again. That
ficially drawn. It is just such a declaration of the cause “the hens would knock the corn down, and the colt
of action, as might be supposed, drawn by one ignorant would run on it.” It also appears from the testimony,
of the forms of law, before a tribunal, of which technical that the corn was taken from the possession of the
precision is not required, but to which the substantial defendant in error and removed to the barn of Adams,
equity of the law makes its most frequent appeals… where it remained some four weeks. It is equally clear
(continued)
Case | Schultz and Another v. Frank. (continued)

that it was injured in the moving. The plaintiffs in error to presume that he had an execution, or any lawful
do not show the slightest right or authority to interfere authority for removing the corn of the defendant in
with the corn, or with the possession of the defendant error, when he neither alleges it in his pleadings, nor
in error. The injury done appears to have been willfully attempts to exhibit it in proof.
done, as no justification for meddling with the corn is The judgment of the county court must therefore be
alleged or proved. The first count in the declaration is affirmed, with costs.
sustained by the proof, to wit: in damaging, injuring,
and destroying the same, by tearing the same to pieces
NOTE.—The section referred to, is as follows: “Whereby
with pitchforks, trampling upon the same, etc. To this the wrongful act of any person, an injury is produced
injury, as proved, there is no justification alleged by the either to the person, property, or rights of another, or
pleadings. No right is shown in any manner to interfere to his servant, child or wife, an action of trespass on
with the corn, and in this respect, no conflicting proof the case may be brought to recover damages for such
whatever appears. injury, whether it was willful, or accompanied by force or
It is true, Streeter, one of the plaintiffs in error, told not, and whether such injury was a direct and immediate
Adams that he had an execution against Frank. Yet he consequence from such wrongful act, or consequential
neither pleads it nor proves it. He may or may not have and indirect.” This section repealed by the adoption of the
had it. He may have told Frank that he had one, and Code. As to justification under legal process, it must be
that may be the reason why Frank did not resist him plead and proved, by showing process itself; see Mericle
in taking the corn. It is asking too much of this court v. Mulks, post, 317.
Trespass on the Case Negligence

The action in trespass was highly restrictive in that The development of public transportation and more
it precluded recovery by those who could show no vehicles on the road seems to have had a profound
use or only indirect use of force by the defendant. influence on the evolution of tort law. As the courts
A companion form of action known as trespass on were faced with more traffic-related cases, they
the case arose to allow recovery in the absence came to the realization that decisions mechanically
of force or in cases where an injury was inflicted rendered in favor of victims under the trespass the-
indirectly. A plaintiff who was injured when the ory (which merely required the showing of direct
defendant wielded a plank of wood against him force) would have a prohibitive effect on the use of
could pursue an action in trespass to redress their highways. Under this approach, few could afford to
injuries, whereas a plaintiff who tripped over that risk traveling on the highways and losing their for-
same piece of wood left carelessly in her path tunes as a result of an accident. Thus, the idea of
by the defendant had to resort to an action on negligence emerged as a compromise. Travelers
the case. were granted some measure of protection from lia-
Although damage to the plaintiff was implied bility as long as they drove in such a manner that
in an action in trespass, the plaintiff in a trespass on they reasonably reduced the risk of accidents.
the case was required to show injury and damage. The rise of negligence as a cause of action
Trespass-on-the-case actions demanded proof of the coincided with the disintegration of actions in
defendant’s wrongful intent or negligence, whereas trespass and trespass on the case, although
an action in trespass required no showing of fault. negligence ultimately assumed many of the
Trespass on the case was frequently used as a means characteristics of a trespass-on-the-case action. The
of recovering for breach of a legal duty grounded distinction between trespass and trespass on the
on custom. Those who served the public, such case has basically disappeared except in a few states
as innkeepers, were frequently the defendants in where some trace of the distinction has been retained
such cases. through common law pleadings. One vestige of the
distinction that continues to hang on, however, is the interpersonal disputes. The fault theory of tort law
necessity of proving damages. Torts that trace their was abandoned in favor of a system that provided
ancestry back to trespass require no proof of actual social justice. William Prosser, one of the most noted
damages; those that trace back to trespass on the tort scholars and author of one of the most influential
case do require such proof. Although reminders of treatises on tort law, advocated that the purpose
these dinosaurs of tort law emerge occasionally, they of tort law was to provide justice rather than to
have for the most part been replaced by the modern simply punish and deter inappropriate conduct. He
torts that are the subject of this text. forcefully and successfully lobbied for the adoption
of strict liability in reference to defective products on
the premise that liability should be borne by those
Coming Full Circle best able to bear it (the manufacturer). It would not
be fair for consumers to be injured by a product and
This brief overview of the development of tort law have no redress because there was no ill intent or
demonstrates the cyclical evolution of our attitude actual negligence present by the manufacturers.
toward the notion of fault. Strict liability (no fault) For what reason have we taken this brief excur-
reigned supreme during early Anglo-Saxon law and sion through the historical roots of tort law? Learn-
was evident in the action in trespass. Only in actions on ing tort law is not just about memorizing case law
the case did the notion of duty and neglect arise. Now, and legal principles. A true understanding of tort law
at the beginning of the twenty-first century, strict lia- requires a knowledge of the purposes it serves and
bility has once again assumed importance in our legal its relationship to societal goals and needs.
system. More and more modern courts are assigning There is a lot of controversy today about the
liability even where there is no showing of fault. reform of tort law, but these reforms have essentially
How did this notion of no fault assume such arisen as members of society wrestle with certain
importance in tort law? To understand, we must look basic issues. Should society bear the cost of losses
back to the scientific revolution that followed the suffered by individuals, or should that responsibility
Civil War. Influenced by the technological wonders of be shifted to the individual? What if society is the
the Industrial Revolution, intellectuals embraced the one who harms the individual? What role should fault
supremacy of scientific thought. Legal scholars, led play in tort law? Is the purpose of tort law merely to
by Oliver Wendell Holmes (an influential Supreme resolve disputes, or is it to see that justice is done?
Court Justice), also adopted the scientific paradigm Looking into the mirror of the past often helps us
as they sought to create common principles that better understand where we are going in the future.
specified when individuals were entitled to compen- Knowing the historical derivation of tort law will give
sation for the wrongs they had suffered. In so doing, you some insights about the tort reforms advocated
these “scientific” scholars created a general duty of today. Knowing how those who have come before us
care that resulted in a fault theory of tort law. have answered the questions raised above helps us
At the beginning of the twentieth century, as today’s legislators, voters, jurors, and judges strug-
problems of poverty and social disadvantage gle to answer these same questions. In Chapter 16 we
began to be seen as societal rather than individual examine tort reform issues. Those issues cannot be
problems. Increasingly the government was called adequately addressed without considering the philo-
upon to intervene and redress the wrongs against sophical implications they raise. Our brief interaction
individuals. The tort “scientists,” who had been with tort law of the past shows that these philosophi-
content to systematically catalog the rules of tort law, cal questions are neither new nor easily resolved.
gave way to the legal “realists,” who saw themselves
more as revolutionaries than as mere observers. No
longer content with rules that created fair results Classification of Torts
between parties, these scholars strove for rules that
equitably distributed losses. In other words, tort law Today torts are divided into three categories,
came to be viewed more as a means of creating a depending on the nature of the defendant’s con-
just society than as simply a peaceful resolution of duct: intentional torts, negligence, and strict liability.
By far the most common is negligence. The bulk of easier to comprehend than negligence, negligence
personal injury practice centers around automobile is addressed in depth because paralegals must have
accident cases, “slip and fall” cases, and other types a solid foundation in negligence when they begin
of cases in which someone failed to use reasonable practicing, even if their understanding of intentional
care. Strict liability is found to a lesser degree, usu- torts is not as advanced.
ally in the context of product liability or hazardous We divide our discussion into three separate
activities. Intentional torts usually involve conduct areas, but you should be aware that many torts may
that also constitutes a crime such as a battery or an be based on any one of the three types of conduct.
assault. Tort law differs from criminal law in terms of Misrepresentation, for example, can be committed
the purposes, burden of proof, and procedural rules. intentionally, negligently, or with no fault (strict lia-
The organization of this text reflects the rel- bility), as can defamation. Malpractice is a tort based
ative importance of each of these tort classi- on negligence. Bad faith is primarily an intentional
fications. Although considerable coverage is tort. But many other causes of action are hybrids
devoted to negligence and related topics, rela- that defy precise classification. Rather than trying to
tively little consideration is given to intentional pigeonhole all torts into neat categories, recognize
torts. Although intentional torts are conceptually that some distinctions are blurred.
Summary
A tort can be defined as a civil wrong for which the assigned in the context of contracts are by virtue
victim receives compensation in the form of damages. of the party’s consent. Furthermore, in contract law
The feeling that socially unreasonable conduct should obligations are assumed toward specific individuals,
be penalized underlies tort law, and much of the case whereas tort law assumes that obligations are owed
law is focused on determining what constitutes unrea- to society as a whole.
sonable conduct. In some cases, however, reason- The origin of tort law can be traced back to
ableness is not an issue because the goal is to protect the blood feud, which evolved into the “moot” pro-
society no matter how reasonable the conduct. cess of dispute resolution and ultimately developed
Public policy concerns prevail throughout tort into the common law. When the concept of mone-
law. These concerns center primarily around the tary compensation emerged, it was directed toward
ideals of justice, fairness, and equality held by the the clan rather than the individual. The action in
public or the community and become community trespass, which evolved in the thirteenth century,
policies that provide the purpose or rationale required proof that the defendant used force directly
underlying the principles of tort law. One of the on the plaintiff or their property. The plaintiff did
philosophical dilemmas that permeates tort law is not, however, have to prove fault on the part of the
how much weight should be placed on the needs of defendant. In contrast, trespass on the case allowed
society when resolving disputes between individuals. recovery even when the defendant did not use force
In balancing these needs, courts frequently resort to or inflicted injury indirectly. Proof of damages and
slippery-slope arguments to justify their refusal to the defendant’s wrongful intent or negligence were,
grant relief to sympathetic plaintiffs. however, required in a trespass-on-the-case action.
Tort law is largely a product of common law, The concept of negligence developed along with
although statutes are, in some instances, relied on. the evolution of public transportation. At the same
The courts frequently look to the Restatement of the time, actions in trespass and trespass on the case
Law of Torts in formulating the law. fell into disfavor and ultimately disappeared. Strict
Although similar in some ways to crimes, torts liability has now assumed an important role in tort
differ in terms of purpose, burden of proof, eviden- law and is evidence of its cyclical evolution in that
tiary rules, and procedural rules. Many acts are con- the law began with no fault (action in trespass) and
sidered both a crime and a tort. Torts differ from has now culminated in no fault. Tort law bears the
contracts in that the duties assigned according to imprint of the “scientific” scholars and legal realists
tort law are those imposed by law, whereas those who sought its reform.
Key Terms
action in trespass (vi et armis) probable cause but less than clear and convinc-
Early cause of action involving serious, forcible ing evidence.
breaches of peace that evolved to encompass public policy
even minor physical contact; no showing of fault Policy of the public or a community that dic-
was required tates the norms of the community based on its
beyond a reasonable doubt beliefs and values regarding justice, fairness,
Standard of proof requiring a showing of almost and equality
absolute certainty for each element restitution
black-letter principles (also known as black- Compensation for a crime that is given to the
letter law) victim
Legal principles generally accepted by the legal slippery-slope argument
community Argument that once you take a first step in
case law allowing something in one instance, you are in
Case-by-case decision making by the court danger of sliding the “slippery slope” into a bot-
clear and convincing evidence tomless pit of circumstances requiring compara-
Clear and convincing evidence requires a higher ble treatment
burden of persuasion than “preponderance of tort
the evidence” but less than that required by Civil wrong for which victim receives compensa-
“proof beyond a reasonable doubt.” In most tion in the form of damages
states the standard requires the judge or jury tortfeasor
to find the evidence submitted is substantially One who has committed a tort
more likely to be true than not true. trespass on the case
nolo contendere Early cause of action involving injuries inflicted
Pleas of “no contest”; not an admission of guilt indirectly and requiring some showing of fault
preponderance of the evidence
Standard of proof requiring a showing that each
element is more probable than not. Higher than
Review Questions
1. What are some of the purposes of tort law? 7. What are the primary differences between tort
law and criminal law?
2. What is a tort?
8. What are the primary differences between tort
3. How does the concept of reasonableness law and contract law?
relate to tort law?
9. Describe the evolution of tort law. Identify
4. What role do public policy arguments and blood feuds, moots, actions in trespass, and
morality play in tort law? trespass on the case in the process.
5. What is a slippery-slope argument, and how 10. Describe negligence and how it fits into the
does it affect court decisions? study of tort law.
6. How do each of the following relate to tort 11. Does strict liability require intent? Negligence?
law?
a. case law b. statutes c. Restatement-Torts
Practice Exam
Students should complete the practice exam after studying each chapter. The answers are in Appendix A. If
you score lower than 80%, you should reread the materials.
True-False
1. Some perceive tort liability as a tax because 14. In tort law the primary goal is to punish the
it puts some people out of business, makes tortfeasor and to deter others from the same
some products unaffordable, and hampers conduct.
some governmental bodies in their delivery of
services. 15. An admission of guilt cannot be used against a
defendant in a subsequent civil trial but a plea
2. Those who believe in the expansion of tort of nolo contendere can.
liability believe that tort law should protect the
interests of consumers. 16. It is harder to prove that a defendant is guilty
of a crime than to prove that they are liable for
3. Those who argue against the expansion of tort a tort.
law believe that individuals should bear the
consequences of their decisions, and that if we 17. Tort duties sometimes correspond with con-
burden industry too much, new technological tractual duties.
developments will be inhibited or prohibited. 18. Trespass-on-the-case actions required proof of
4. A tort is an intentional act for which a victim the defendant’s negligence or wrongful intent.
receives damages. 19. Negligence arose as a cause of action because
5. The basic premise of tort law is that socially of a concern that few could afford to travel
unreasonable conduct should be penalized. under the trespass theory of tort law.
6. Reasonableness balances the plaintiff’s need 20. Torts that trace their heritage back to tres-
for protection against the defendant’s freedom pass on the case require no proof of actual
to pursue their own ends. damages.
7. Reasonableness does not depend on the 21. Strict liability was evident in actions in trespass.
perceptions of the individual determining 22. At the beginning of the twentieth century, tort
reasonableness. law came to be viewed as a means of creating
8. In some instances, a defendant can be held lia- a just society and not just a means of resolving
ble even if their conduct is reasonable. disputes.
9. Public policy arguments do not consider soci- 23. Intent must be proved when suing based on
etal interests because the dispute at issue is either an intentional tort or negligence.
between individuals. 24. Negligence is the most common tort, whereas
10. Any blatantly immoral conduct is considered a intentional torts are rarely encountered in
tort. practice.
11. Tort law is driven exclusively by case law. 25. Modern tort law breaks down torts into three
categories which include intentional torts, neg-
12. The Restatement of the Law of Torts attempts ligence, and unintentional torts.
to provide lawyers with black-letter principles.
26. In a strict liability case, the plaintiff must prove
13. Compensation is the only purpose of tort law. intent on the part of the defendant.
Fill-in-the-Blank
1. _______________ _______________ arguments 5. The _______________ _______________ required
concern issues of fairness, equality, and justice. a clan to go to war against any outsider who
inflicted harm on a clan member. It was eventu-
2. A _______________ _______________ argument ally replaced by a(n) _______________, in which
is used by a court when it is concerned that a a victim would plead their case to the commu-
decision for a sympathetic plaintiff may lead nity and ask for redress of their grievance.
to innumerable individuals in similar situations
seeking redress. 6. A tort that involves the pleading of vi et armis
is a(n) _______________ _______________
3. A(n) _______________ is an offense against _______________. A more restrictive tort that
society, whereas a(n) _______________ is an allows recovery in the absence of a showing of
offense against an individual. force is a(n) _______________ _______________
4. In tort law the burden of proof is _______________.
_______________ _______________ 7. __________________ torts require no intent or
_______________. negligence.
Multiple-Choice
1. Those who argue for the expansion of tort law 5. In early Anglo-Saxon times,
believe that a. blood was offered to heal injured clan pride.
a. the burden of risk should be borne by those b. there was great emphasis placed on issues
better able to afford it, such as manufactur- of fault and blameworthiness.
ers and providers of services. c. even remote causal connections were con-
b. the law is too paternalistic. sidered sufficient to justify punishment.
c. individuals should bear the burden of the d. all of the above.
risk of getting injured.
d. all of the above. 6. Following the Norman Conquest,
a. the dispute-resolution process fell to the
2. The Restatement of the Law of Torts royal justices of the king’s court.
a. has been adopted by all states. b. it was discovered that following local rules
b. is frequently cited by the courts. led to maximum efficiency in resolving
c. is prepared by the courts. conflict.
d. all of the above. c. the common law was developed.
d. all of the above.
3. Tort law differs from criminal law in terms of
a. purpose. 7. An action in trespass
b. burden of proof. a. required a showing of force and arms.
c. procedural rules. b. required a showing of fault.
d. all of the above. c. dealt with nonforcible breaches of peace.
4. Contracts differ from torts in that
a. the duties that exist in contract law are 8. In a trespass on the case
imposed by law. a. the plaintiff had to plead vi et armis.
b. the duties that exist in tort law are imposed b. the plaintiff did not have to prove injury or
by law. damage.
c. in contract law duties are made to the pub- c. recovery was allowed in the absence of
lic in general. force or where injury was inflicted indirectly.
d. none of the above. d. none of the above.
Tort Teasers
A student who recently graduated from college is unable to secure a stable and decent-paying job. She files
suit against the college claiming that they did not do enough to help her land a job upon graduation. She had
decent grades and completed her coursework. Discuss all of the possible issues in this case from both sides
including defenses by the University. Would this fall under intentional torts or negligence? Why or why not?
What would be appropriate damages, if any, in this type of case?
Internet Inquiries
The Cornell Law School Legal Information Institute is a major legal resource gateway. At this site you will find
links to United States Court of Appeals recent decisions, state court decisions and statutes, and a host of rele-
vant resources. Be sure to bookmark this site; you will use it often.
To become familiar with what this site has to offer, do the following exercises:
a. Go to the search bar at the top of the page and type in tort law.
b. Scroll down to find the Federal judicial decisions, Supreme Court, and recent tort law decisions.
c. Scroll down to the U.S. v. Gilman case and read the opinion. Write down the holding of the case.
Practical Ponderables
Much ado has been made in the media about the older woman who collected a substantial judgment from
McDonald’s as a result of the injuries she sustained from hot coffee she spilled on her lap. To get more details
about this case, go to www.findlaw.com and type “McDonald’s” into the search window and you will see
McDonald’s hot coffee case. You will see a lot of interesting facts about the case that are not as well-known. Do
you think McDonald’s should have been liable? If the plaintiff proves that McDonald’s knew the coffee was too
hot and had previous complaints, would that have a bearing on the case? What if others had similar dangerous
injuries?
After reading this case, write a short paper on your assessment of the appropriateness of the judgment. In
your paper, consider some of the arguments raised in this chapter about the purpose of tort law and damages.
Chapter 2
Overview of a Tort Case

Chapter Topics
Initiating a Complaint Trial
Defendant’s Response Post-Trial
Discovery Emphasis on Discovery throughout This Text
Pretrial Procedures
Chapter Objectives
In this chapter you will be given a procedural overview of a tort case and will learn the terminology
associated with
• The initiation of a complaint and a response to • The conduct of a trial.
that complaint. • The implementation of post-trial procedures.
• The conduct of the discovery process.
• The preparation for trial.
A fter leaving work on Friday afternoon, Hanna drove to Happy Valley Bank to cash her paycheck.
Leaving the bank, as she prepared to enter Sunshine Avenue, the street on which the bank was
located, she came to a complete stop and looked into the mirror provided by the bank to see if there was
any oncoming traffic. The bank had found it necessary to install this mirror because customers experienced
so much difficulty in seeing any oncoming cars. The curved shape of the street obstructed their view. (See
Exhibit 2–1.) As fate would have it, rain from earlier that afternoon had caused the mirror to fog over.
Consequently, Hanna did not see the car being driven by Fred and pulled out directly in front of it. Fred,
being unable to stop in time, rammed into Hanna’s car, causing it to spin around and collide with the car
being driven by Sunny, which was proceeding in the opposite direction. Fred and Sunny sustained only
minor injuries in the accident, but Hanna received a broken leg and a concussion. As a result, Hanna was
out of work for a month.
Exhibit 2–1 Bank Parking Lot
E
Down grade
Security Mirror N S
Floodlight
Curb Curb W
Block wall Block wall
Steep grade
Elevated planter Elevated planter
20'
Parking Parking Parking Parking
Space Space Space Space
20'
Curb Curb
Slight grade
Parking Parking Parking Approximate Bicycles Parking

Space Space Space Distances Space
Hanna relays these events to an attorney and the accident (the proximate cause) and whether
then tells the attorney that she wants to sue the Hanna sustained monetary and other damages as a
bank, which Hanna believes was the ultimate cause result of the accident.
of her accident. Hanna is aware that Fred and Sunny To address these questions the attorney will
may sue her for the property damage and physical need to find out several things. Who owns the mir-
injuries they incurred. Let us walk through the likely ror? Who owns the property where the mirror is
chain of events that will occur as Hanna enters the located? Who installed the mirror? Who is respon-
legal world (see Exhibit 2–2). sible for maintenance of the mirror? Who owns the
bank? Does the bank have any agreements with
the city regarding maintenance of the mirror? Is
Initiating a Complaint the design of the street itself defective? Is there a
history of accidents in that location? Was the city
First, the attorney must ascertain whether the legal negligent in their traffic pattern and enforcement?
elements of any tort claim has been met. Since Was Hanna negligent in her use of the mirror?
there was no intent present here to cause injury, Were there any witnesses to the accident? Does
this would most likely fall under a negligence claim. the extent of Hanna’s money damages warrant a
For negligence to occur there must be a duty, a lawsuit?
breach of duty, and that breach must be the prox- After conducting their investigation, if the
imate cause of any injuries. Did the bank have a attorney concludes that Hanna does have a viable
duty to maintain the mirror in a safe condition and, claim, they will send a demand letter to Happy
if so, did the bank breach that duty by allowing the Valley Bank. In this letter, they will explain why they
mirror to fog over? The attorney must also deter- believe the bank is liable, they will detail the extent
mine whether the mirror was, in fact, the cause of of their client’s damages, and put forth a demand
CHAPTER 2 Overview of a Tort Case | 19
Exhibit 2–2 Overview of a Case attorney must also choose a proper venue. Venue is
the location within the proper jurisdiction in which the
INITIATING • Interview
case will be filed. There are many factors to consider
A COMPLAINT • Investigation
• Filing of complaint when choosing venue.
Second, the complaint must list the parties to
DEFENDANT • Answer the action. In this case Hanna would be the plaintiff
RESPONSE • File counterclaim or cross-claim
and Happy Valley Bank the defendant.
• File motions
• Default Third, the complaint must provide a brief sum-
mary of each of the elements of the case along
DISCOVERY • Interrogatories with the basic facts that will be used to prove each
• Depositions
element. Hanna’s attorney must allege that Happy
• Requests for admissions
• Requests for production of Valley Bank had a duty to maintain the mirror in a
documents safe condition, that it breached that duty, that as
• Requests for medical or a result of the breach Hanna was injured, and that
psychological exam
she sustained monetary damages. The degree of
• Disclosure statements
• Motions to compel and for factual detail required in this part of the complaint
protective order is dictated by the procedural rules of the particular
• Motions for summary judgment state in which the complaint is being filed (check
PRETRIAL • Pretrial conference the Rules of Civil Procedure in your state). Also,
PROCEDURES • Motions in limine certain cases may be filed in federal court as well as
state court. Once that is determined it is important
TRIAL • Voir dire (challenges for cause and
to review the appropriate rules of court.
peremptory challenges)
• Opening statements Finally, the complaint must specify the relief
• Direct and cross examination being sought by the plaintiff. In Hanna’s case, she
• Motion for directed verdict will be asking for compensation for her hospital
• Closing arguments and medical bills and her lost salary, as well as
• Charging the jury
• General or special verdict additional monies for the pain and suffering she
has endured and will continue to endure. In some
POST-TRIAL • Motion for new trial
PROCEDURES • JNOV states, a verification must be submitted along with
• Appeal and cross-appeal the complaint. The verification is an affidavit indi-
cating that the plaintiff has read the complaint and
that, to the best of their knowledge, all of it is true.
While we refer to the FRCP in our analysis, the
for settlement of the case. If they cannot negotiate
Rules of Civil Procedure in Hanna’s state will deter-
a settlement, they will initiate the case or lawsuit by
mine how defendant Happy Valley Bank should be
filing a complaint (FRCP 8[a]).1
served with the complaint, where the complaint
Answers to these questions above can be
should be filed, when it must be served, and who
ascertained during interviews with the client and
may serve it.
witnesses. A discussion of interviewing practices is
available in Appendix B, Interviewing.
A complaint has four basic elements (see
Exhibit 2–3). First, a complaint must state that the court Exhibit 2–3 Elements of a Complaint
has jurisdiction, i.e., the authority to hear the case.
The attorney must show, for example, that she has met Jurisdiction Claim
any residence or amount-in-controversy requirements
of the court. The plaintiff has the right to choose the
court within which to file her complaint so long as she Parties Damages
meets the jurisdictional requirements of that court. The
1. The Federal Rules of Civil Procedure are cited Complaint

throughout this text as FRCP.
Defendant’s Response a lack of jurisdiction over the person or subject

matter, improper venue, insufficiency of process,
Once Happy Valley Bank has been served, it has sev- or failure to state a claim upon which relief can be
eral options. If the bank does not file a response or granted. The most important of these is the last—
answer to the complaint, Hanna can get a default failure to state a claim upon which relief can be
judgment in which the court would resolve the case granted, referred to in some states as a motion for
in Hanna’s favor because of Happy Valley Bank’s lack dismissal or a demurrer. By filing such a motion,
of opposition (FRCP 55). The court might set aside the defendant, in essence, is asserting that the
the default judgment if Happy Valley Bank can show plaintiff has failed to state a legally necessary
it had a good reason for failing to respond to the element of the cause of action and is not entitled
complaint. to prevail. If, for example, Happy Valley Bank did
Defendant Happy Valley Bank could choose to not own the mirror and had no legally recognizable
file an answer (FRCP 8[c]). In so doing it would admit duty to maintain it, the element of duty would be
those allegations in Hanna’s complaint it thought unfulfilled. If that were the case, Happy Valley Bank
to be true, deny those with which it disagreed, could file a motion alleging that Hanna had failed
and respond lack of sufficient knowledge for those to state a claim upon which relief could be granted.
allegations requiring further investigation. At the By granting the motion, the court would dismiss
same time, the defendant could raise any affirma- the case.
tive defenses it might have, such as contributory
negligence, assumption of the risk, impossibility,
duress, justification, etc. An affirmative defense Discovery
is any defense that the party asserting it must
affirmatively prove or, in other words, for which it If the case is not dismissed in these early stages of
bears the burden of proof which would show they the process, it will move into the discovery phase
are not responsible for the damages incurred (FRCP 26). The theory underlying discovery is that
(FRCP 8[c]). So, if Happy Valley Bank asserted that the more each side finds out about the other side’s
Hanna’s negligence was the cause of her damages case, the more likely it is that the parties will be able
(thus using contributory negligence as an affirma- to settle the case and that the final outcome will be
tive defense), it would have the burden of proving an equitable one. Discovery can be compared to a
that negligence. game of poker. In this game each party tries to gain
The defendant may at this time also raise any as much information as possible about the oppos-
counterclaims (FRCP 13 [a]) or cross-claims (FRCP 13 ing side’s position while revealing as little informa-
[g]). A counterclaim is a claim raised by the defen- tion as possible about its own position. Admittedly
dant against the plaintiff; a cross-claim is a claim the stakes in litigation are often higher than those
raised against a co-party. For example, if Fred sued in poker, but the strategies employed are remark-
Hanna and Happy Valley Bank to recover for his ably similar. It is fair to say that most cases today are
injuries and property damage, Hanna could raise a won or lost in the discovery process. Because legal
counterclaim against Fred alleging contributory neg- assistants play a major role in this process, you must
ligence and a cross-claim against Happy Valley Bank become adept at creating and utilizing the tools of
alleging negligence. discovery.
At the same time Happy Valley Bank answers There are five basic types of discovery:
Hanna’s complaint, it could file a motion (FRCP 12). (1) interrogatories, (2) depositions, (3) requests for
Motions can be filed alleging, among other things, admission, (4) requests for production of documents,
In the News
To read and search the Federal Rules of Civil Procedure online, go to your favorite search engine
and type in “Federal Rules of Civil Procedure.” To access the procedural rules of your state type in
[Your State] Rules of Civil Procedure. A good site for FRCP is www.law.cornell.edu/rules/frcp. For state
specific go to: www.law.cornell.edu/wex/table_civil_procedure and click on your state.
and (5) requests for medical and psychological Happy Valley Bank’s counsel would most likely
examinations. want to depose Hanna to elicit detailed information
Interrogatories are written questions submitted from her about what she did before the accident,
to the opposing party, which that party must answer as well as to assess her probable demeanor before
in writing and under oath (FRCP 33). Interrogatories a jury. This kind of information would be pertinent
are a relatively inexpensive way of soliciting basic to counsel not only in mapping a trial strategy but
objective information. Hanna’s counsel, for exam- also in considering the advisability of settlement and
ple, will want to use interrogatories to find out the whether to depose any witnesses.
names, addresses, and duties of the employees of Requests for admissions are simply requests
Happy Valley Bank who maintain the mirror (if any), by one party asking that the other party admit cer-
as well as information regarding Happy Valley Bank’s tain facts (FRCP 36). If Hanna’s attorney, for exam-
relationship to the owner of the property on which the ple, ascertained that the bank did in fact own, install,
bank is located. Interrogatories are limited in useful- and maintain the mirror, they would want the bank
ness because they are usually answered by or with the to admit those facts. Once a party admits a fact,
assistance of opposing counsel, whose aim is typically that matter is conclusively established and cannot
to provide as little information as possible. be later argued at trial. Under the Federal Rules and
A deposition, however, is an oral examination of the rules in many states, if a party fails to respond to
a witness (or a party to the lawsuit) under oath (FRCP requests for admissions, those matters are deemed
27–32). Because depositions are considerably more admitted for the record.
time-consuming and more expensive than interrog- Documents vital to a case that are in the pos-
atories, attorneys carefully select those whom they session of the opposing party can be obtained via
want to depose. At a deposition, deposing counsel a request for production of documents (FRCP 34).
will be able to observe the demeanor and behavior Hanna’s attorney will want to review any mainte-
of the witness and assess how a jury might respond nance records pertaining to the maintenance of the
to the deponent. The attorney will also be able to mirror and defense counsel will want to examine
pursue lines of questioning more thoroughly than Hanna’s hospital and medical records. Both can do
by using interrogatories because they can ask so by propounding or serving a request for pro-
follow-up questions and observe the witnesses’ body duction of documents. Because Hanna has put her
language as they respond to the questions. A court medical condition at issue in this case, Happy Valley
reporter, present during the deposition, prepares a Bank’s counsel will also want to select a physician
transcript of everything that is said. The transcript to examine Hanna in order to get a second opinion
can then be introduced at trial. For that reason, about the seriousness of her injuries. This can be
an attorney may opt to depose a witness whose done through a request for medical examination
testimony they want to use at trial if they believe (FRCP 35).
that witness will not appear for the trial or may If Hanna lived in a state that required mandatory
be unreliable on the stand. Counsel can also use the disclosure (FRCP 26), she would have to serve a dis-
witness’s statements made during the deposition closure statement early on in the case to the oppos-
to impeach (discredit) their testimony at trial. The ing parties. A disclosure statement must contain
deposition may also be video-taped and portions certain categories of information about that party’s
of the videotape may be shown to the judge and/ case. To understand how disclosure statements
or jury who can assess the witnesses’ demeanor at have evolved, you must know something about the
the deposition. This may be especially useful if the reformation of the discovery process.
party has changed their story or attitude.
In the News
To review a portion of a deposition taken of Dr. Jeffrey Wigand (the former vice president and head of
research for the tobacco company, Brown & Williamson, whose testimony was the focus of the movie
The Insider), go to www.jeffreywigand.com or use your favorite search engine. Dr. Wigand’s testimony was
crucial in subsequent litigation against the tobacco companies.
In the News
Read about both sides of the issue of discovery reform in “Reducing the Costs of Civil Litigation” by Peggy
E. Bruggman. Use “Bruggman” or “discovery reform” for your search term. Another good article about
discovery reform is www.nydailynews.com/opinion/ny-oped-discovery-reform-is-dangerous-20190204-story
.html which discusses whether defendants will know who will testify against them very soon after the case is filed
under new broad discovery reform propositions.
The last decade has seen the emergence of a • all documents in a party’s possession, custody,
reform movement advocating “disclosure-centered” or control and that the disclosing party may use
discovery, in which parties are required to disclose to support its claims or defenses.
information voluntarily without waiting for a request. • the computation of damages and the
Under the traditional “request-centered” system, an documents and other evidentiary materials
attorney who wanted information had to ask for it and upon which such computations are based.
describe it in clear enough terms that an opponent
• any insurance policy covering the defendant for
could not get away with hiding crucial evidence by
the liabilities claimed in the suit.
claiming that the request was ambiguous. That process
was inherently inefficient since the requesting party During the pretrial discovery process both
had no knowledge of what information was there to parties can make discovery-related motions as well
be discovered and they had to ask to see everything. as motions for summary judgment. Discovery-related
In some ways, traditional discovery was like the game motions include motions to compel and motions for
Battleship, in which each player tries to guess where protective orders. A motion to compel is appropriate
the other player’s ships are located. when the opposing party refuses to produce discov-
The basis of mandatory disclosure is full and open erable material (FRCP 37). A motion for a protective
disclosure. Instead of putting the requesting party to order, in contrast, prevents discovery of information
the frustrating task of firing off requests in the dark, that is privileged and therefore not discoverable
mandatory disclosure requires parties to disclose— (FRCP 26[c]).
without being asked—every bit of information in During the discovery process a party may eval-
their possession that is relevant to any issue being lit- uate the dispute and determine that the other
igated. This approach eliminates a great deal of the side has failed to prove one or more elements of
gamesmanship of traditional discovery and much of its case. Consequently, there is no material fact at
the paperwork as well. The traditional discovery tools issue for the jury to decide; instead, the court could
are still needed to flesh out the information voluntarily render a decision as a matter of law without a
provided, but their use is now greatly curtailed. trial. In this event the party will file a motion for
Disclosure statements are the foundation of summary judgment, requesting that the court enter
mandatory disclosure. Under the federal rules, the a judgment on its behalf, thus dispensing with the
body of the initial disclosure statement must address need for a trial (FRCP 56). A party can also request
four areas of subject matter. These include the a partial summary judgment, which, in effect, elim-
disclosure of inates particular issues. If Hanna’s attorney filed a
• the name, address, and telephone number motion for a partial summary judgment and the
of each individual likely to have discoverable court determined, as a matter of law, that Happy
information that the disclosing party may use to Valley Bank had a duty to maintain the mirror in
support its claims or defenses. a safe condition and that it breached that duty,
In the News
To read samples of motions for summary judgment, use “motion for summary judgment” as a search
term. Another good website is www.findlaw.com/litigation/filing-a-lawsuit/what-is-summary
-judgment.html.
In the News
To see sample motions in limine, use “Samples” and/or “motions in limine” as your search term. You can
also visit legaldictionary.net/motion-in-limine/ to learn more about motions in limine.
then the only remaining issue to resolve would be Trial

the extent of Hanna’s injuries and whether Happy
Valley Bank was the proximate and actual cause of If Hanna’s case goes to trial, she will have the oppor-
Hanna’s injuries. tunity to decide between a bench trial (trial before a
To rebut a motion for summary judgment judge) or a jury trial (FRCP 39). In a jury trial all factual
the opponent must show that a genuine factual issues are resolved by the jury while all legal issues
dispute exists and that a trial will be necessary are resolved by the judge. In a bench trial the judge
to resolve that dispute. The mere allegation that decides both factual and legal issues. Whether to
a factual dispute exists is, however, insufficient. opt for a jury trial or a bench trial is a strategic deci-
Using answers from interrogatories, deposition sion, although case law does limit the right to a jury
answers, and affidavits, the opposing party must in certain types of cases.
show that it can controvert material facts alleged Jury selection is conducted through a process
by the other side. known as voir dire, which consists of a series of
questions asked of potential jurors by the trial
judge or the attorneys, depending on local practice
Pretrial Procedures (FRCP 47). A party who wants to excuse a particular
juror and can show that the juror has already formed
If the parties cannot resolve the dispute during the a judgment as to how the case should be decided or
discovery process, and summary judgment is not for some reason is unable to decide the case impar-
granted, the case will proceed toward trial. Most tially or is biased, may use a challenge for cause
courts require a pretrial conference to clarify the (FRCP 47[b]) and 28 U.S. Code § 1870. The party who
issues and defenses for trial, to establish the wit- wants to dismiss a particular juror but cannot allege
nesses and exhibits that will be used at trial, and bias may remove the juror using a peremptory
to promote settlement (FRCP 16). How vehemently challenge (FRCP 47[b]). No reason needs be given
the judge pushes for settlement depends on their for a peremptory challenge.
philosophical beliefs. Statistics tell us, however, Although an attorney has an unlimited number of
that most cases settle at or before the pretrial challenges for cause, they have a limited number of
conference. peremptory challenges (the specific number depends
Before trial the parties will once again have on local practice). Hanna’s attorney might want to
an opportunity to move for dismissal as well as to use their peremptory challenges to eliminate jurors
make motions in limine. The purpose of a motion engaged in a particular occupation if research has
in limine is to resolve whether the evidence should shown that members of that profession are generally
or should not be introduced to the jury because reluctant to compensate plaintiffs generously. They will
it is unduly prejudicial, irrelevant, or will confuse also want to excuse persons that instinct or observation
the jury or waste its time. For example, if Hanna’s tell them will be unsympathetic to their client’s plight.
attorney wanted to introduce testimony that Happy When the trial begins, Hanna’s counsel will be
Valley Bank had instituted a new procedure for given an opportunity to make opening statements.
maintenance of the mirror subsequent to Hanna’s They will probably give an overview of the basic
accident, Happy Valley Bank’s attorney would want elements of her case, introduce the parties and wit-
to make a motion in limine to prevent that testi- nesses that will be involved in the trial, and in general
mony. The generally prevailing argument, is that a set the tone and theme of her case. Opening state-
motion such as this should be granted, as admis- ments are not considered part of the evidence, but
sion of this type of evidence would inhibit defen- they are extremely important, especially in light of
dants from taking measures to remove or correct research showing that the majority of jurors decide
dangerous conditions. the outcome of the case during opening statements
In the News
To read the opening statements in famous cases such as the 9/11 mastermind Moussaoui case, you can
search “opening statement” and the case name. To read the opening statement by the U.S. Attorney in
the Moussaoui case visit famous-trials.com/moussaoui/1829-spencerstatement and then read the opening
statement by the defense attorney.
and do not change their minds after hearing the tes- evidence regarding an affirmative defense. At the
timony. Because Hanna has the burden of proving close of Happy Valley Bank’s case, Hanna will be
each element of her case by a preponderance of given an opportunity to present rebuttal evidence,
the evidence, she will be given the opportunity not which is used to refute evidence presented by the
only to begin the trial with opening statements but defendant.
also to end the trial by making the final statement Because Hanna has the burden of proof, her
in closing arguments. In order to prove her case by counsel will be given the opportunity to present her
a preponderance of the evidence, Hanna’s evidence closing argument to the jury first. In this argument
must be more convincing than Happy Valley Bank’s Hanna’s attorney will summarize the facts of the case,
evidence. showing how the evidence sufficiently established
The evidence in any civil case consists of witness each of the legal elements. Using the theme estab-
testimony and exhibits. On direct examination, lished in their opening statements, they will use their
questions are posed by the counsel calling the wit- most persuasive rhetoric to convince the jury that
ness; cross-examination is conducted by oppos- Hanna should prevail and that generous damages
ing counsel. The function of cross-examination is to should be awarded. Counsel for Happy Valley Bank
impeach (discredit) testimony given by the witness will do likewise in their closing arguments, and then
during direct examination. This process continues Hanna’s attorney will close with a rebuttal argument.
through redirect and recross-examination and so on Finally, in a process known as charging the jury,
until counsel exhaust all their questions or the court the judge will instruct the jury on the rules of law
refuses to allow further questioning. to be applied (FRCP 51). In some states standard
During the course of the trial, counsel may jury instructions are used. In others, attorneys draft
object to questions being asked or evidence being proposed instructions for the judge’s consideration
presented. The trial court will rule on the admissibil- and, in a conference conducted outside the ear-
ity of evidence using the rules of evidence appropri- shot of the jury, argue which instructions should be
ate for that court. Each state has adopted rules of adopted. Much attention is given to the adoption
evidence for its state courts and the Federal Rules of jury instructions, and counsel is given an oppor-
of Evidence are used in federal courts. If the court tunity to object to any instructions the judge gives or
sustains (grants) an objection to a question, that fails to give. Jury instructions are important because
question cannot be asked but if the court overrules objections to these instructions are typically the fun-
(denies) an objection, that question can be asked. damental components of an appeal.
After Hanna’s counsel finishes presenting Hanna’s The jury will then be asked to render either a
case to the jury, counsel for Happy Valley Bank will general or special verdict (FRCP 49). In Hanna’s case
probably move for a directed verdict, arguing that a general verdict would require the jury to decide if
Hanna failed to meet the burden of proof on all Happy Valley Bank was liable for Hanna’s injuries and
the elements of her case (FRCP 50). Such motions, to determine what damages should be awarded. If
though frequently made, are commonly denied, a special verdict were requested, the jury would be
but if a motion for a directed verdict is granted, the required to answer special interrogatories, and the
case is in essence dismissed. Hanna’s counsel will judge would have to determine the prevailing party
make a similar motion if Happy Valley Bank presents after reviewing the jury’s answers. In a case tried
In the News
For an overview of the Federal Court System, go to www.uscourts.gov/about-federal-courts
/court-role-and-structure.
before a judge alone, the attorneys may be required final judgment is entered, however, and all appeals
to submit trial briefs in which they present the appli- are completed, the issues litigated are res judicata,
cable law and show how it would apply to the facts of in that they cannot be relitigated at a later time. The
the particular case. philosophy underlying this rule is that litigation must
ultimately come to an end and cannot be allowed to
go on forever.
Post-Trial
If the jury decides against Hanna, she can file
a motion for a new trial, arguing that errors were Emphasis on Discovery
committed during the trial (FRCP 59). Or she can throughout This Text
move for a judgment notwithstanding the verdict
(JNOV), arguing that the verdict reached was con- Although this overview of a civil case is certainly not
trary to the evidence and law (FRCP 50[a (2)]). exhaustive, lacking many of the sub-routes parties
Such motions are generally contingent on counsel can pursue in litigation, it does give you a framework
making appropriate objections during the trial; within which to analyze tort cases. Examples will be
if counsel fails to do so, these procedural reme- provided throughout the text of typical discovery
dies will be denied. Hanna could also appeal (see tools, and you will be encouraged to consider the
Federal Rules of Appellate Procedure) the decision information presented in each chapter in the con-
to a higher court, and if Happy Valley Bank were text of how it could be applied in discovery. Keep
unhappy with part of the outcome at the trial level, the importance of discovery foremost in your mind
it can file a cross-appeal. An appellate court will not as you work through this book. Remember that a key
look at any facts of the case, but will simply review contribution paralegals can make to the litigation
the lower court decision and decide if proper pro- team lies in their ability to create, interpret, and
cedure and application of the laws occurred. Once a organize discovery tools.
Summary
To initiate a tort claim, the plaintiff must file a com- parties to attend a pretrial conference and to resolve
plaint. This complaint must state the basis for the evidentiary questions by making motions in limine. At
court’s jurisdiction, the parties to the action, the ele- the trial, the parties are allowed to select jurors through
ments of the case, and the relief being sought. The a process of voir dire, dismissing jurors on the basis
defendant may then file an answer admitting or deny- of either a challenge for cause or peremptory chal-
ing allegations in the plaintiff’s complaint and raise any lenge. At trial, the plaintiff has the burden of proving
affirmative defenses. The defendant may also bring a each element of their case by a preponderance of the
counterclaim against the plaintiff and/or a cross-claim evidence. Both counsels are given the opportunity to
against a co-party. Additionally, they may file a motion introduce their cases by making opening statements,
alleging, for example, that the plaintiff failed to state to elicit testimony through direct examination, and
a claim upon which relief can be granted. to impeach witnesses through cross-examination.
In the discovery phase both parties try to find out Motions for directed verdict are generally made
as much as possible about the other side’s case while after opposing counsel has presented their case.
revealing as little as possible about their own. Interrog- After both counsel have given closing arguments,
atories, depositions, requests for admission, requests the judge charges the jury. The jury is then asked to
for production of documents, and requests for med- render either a general or special verdict, the latter of
ical and psychological examinations are the most which requires the answering of special interrogatories.
frequently used tools of discovery. A party may also file Subsequent to trial, a party can move for a
a motion for summary judgment if no material fact is new trial or a judgment notwithstanding the verdict.
arguably at issue. Appeals and cross-appeals can also be filed, but once
A case that cannot be resolved during the discov- a final judgment is entered and all appeals are com-
ery process and is not dismissed on summary judgment pleted, the issues litigated are considered res judicata
moves on to trial. Before trial, most courts require the and therefore, final.
Key Terms
affirmative defense direct examination
Any defense that a party asserts for which it Examination by the attorney that called the
bears the burden of proof witness
answer directed verdict
A pleading in which the defendant responds to Dismissal of a case because of the opposing par-
the plaintiff’s complaint ty’s failure to meet the requisite burden of proof
appeal disclosure statement
Formal request by a party asking a higher court A document each party is required to prepare
to review the decision of a lower court and serve on opposing parties shortly after a
bench trial lawsuit commences. This document must con-
Trial before a judge tain certain categories of information about that
challenge for cause party’s case
Request to remove a potential juror because of discovery
their alleged inability to decide the case impartially Process through which parties try to find out as
charging the jury much as possible about the other side’s case
Process in which the judge instructs the jurors in general verdict
rules of law they are to apply Verdict in which a jury decides issues of liability
closing argument and damages
Final statement made by an attorney that sum- interrogatories
marizes the evidence Written questions submitted to the opposing
complaint party that the party must answer in writing and
An initial pleading filed on behalf of the plaintiff, under oath
the purpose of which is to provide the defen- judgment notwithstanding the verdict (JNOV)
dant with the material elements of the plaintiff’s A decision that the verdict reached was contrary
demand to the evidence and the law
counterclaim jurisdiction
A claim presented by a defendant in opposition Power to hear a particular kind of case
to the plaintiff’s claim motion for a new trial
cross-appeal Motion requesting a new trial based on an
Appeal filed after an appeal is filed by the alleged error committed by the trial judge
opposing party motion for a protective order
cross-claim Motion that protects a party from having to
A claim brought by a defendant against a disclose privileged information
co-defendant in the same action motion for summary judgment
cross-examination Motion requesting that the court enter a judg-
Examination of a witness called by the opposing ment on the party’s behalf because there is no
party material fact at issue
default judgment motion in limine
Judgment entered due to lack of opposition on Motion to prevent evidence from being
behalf of the opposing party presented to the jury
demand letter motion to compel
A letter detailing a client’s damages and setting Motion to force the opposing party to comply
forth the reasons for their demand with a request for discovery
demurrer opening statements
Motion for dismissal based on a defect in the Statements made by counsel to the jury at the
form or content of a complaint beginning of trial
deposition overrule
Oral examination of a witness under oath To deny an objection
peremptory challenge res judicata

Request to remove a potential juror for no artic- Legal principle stating that issues litigated cannot
ulated reason be relitigated at a later time once a final judgment
pretrial conference is entered and all appeals are exhausted.
Conference involving the judge and parties special verdict
where issues and procedures for the trial are Verdict in which the jury is required to answer spe-
clarified and efforts are made at a settlement cial interrogatories, which the judge must review
requests for admissions to determine the prevailing party after a review
Request by one party asking the other party to sustain
admit certain facts To grant an objection
request for medical examination verification
Request that the opposing party be examined Affidavit indicating that the plaintiff has read the
by a physician chosen by the party making the complaint and to the best of their knowledge
request believes it to be true
request for production of documents voir dire
Request for document in possession of the Process of jury selection involving the use of
opposing party challenges for cause and peremptory challenges
Review Questions
1. What will an attorney generally do before 9. What is the difference between a jury trial and
initiating a complaint? a bench trial?
2. What are the four elements of a complaint? 10. Describe the voir dire process and distinguish
between challenges for cause and peremptory
3. What possible options does a defendant have challenges.
in responding to a plaintiff’s complaint?
11. What is charging the jury and how important
4. What is an affirmative defense and who can is it?
utilize them?
12. What is the purpose of each of the following?
5. What is a cross-claim? A counterclaim? a. opening statements
b. closing arguments
6. What are the five basic discovery tools, and c. direct examination
how are they used? d. cross-examination
e. moving for a directed verdict
7. What is a disclosure statement, and how f. charging the jury
does it relate to the concept of mandatory
disclosure? 13. What is the difference between a general and a
special verdict?
8. Identify each of the following:
a. motion to compel 14. What options do parties have after trial?
b. motion for a protective order
c. motion for summary judgment
d. motion in limine
Practice Exam
Students should complete the practice exam after studying each chapter. The answers are in Appendix A.
If you score lower than 80%, you should reread the materials.
True-False
1. Before an attorney can file a complaint, they 10. In a jury trial, all issues are decided by the
must determine whether the legal elements of jury.
a claim have been met.
11. A party cannot file a motion for a partial
2. A plaintiff can select any court in which to file a summary judgment.
complaint based solely on convenience.
12. An attorney has an unlimited number of
3. The amount of detail required in a complaint preemptory challenges in jury selection.
is dictated by the statutes in the state in which
the complaint is filed. 13. To rebut a motion for summary judgment a
party need merely allege that a factual dispute
4. A complaint must specify the relief being does in fact exist.
sought by the plaintiff.
14. Most cases settle at or before the pretrial
5. In all states a verification must be submitted conference.
along with a complaint.
15. Most jurors decide the outcome of a case
6. Interrogatories are very useful because they during opening statements.
are answered by a party without any assistance
from counsel. 16. The plaintiff opens a case by making the first
opening statement and ends a case by making
7. Once a party admits a fact in a request the final closing argument.
for admission, that matter is conclusively
established and cannot be argued at trial. 17. Motions for directed verdict are rarely made
but frequently granted.
8. Under the Federal Rules of Civil Procedure, if
a party fails to respond to requests for admis- 18. A party that fails to make the appropriate
sion, those matters are deemed admitted. objections during trial will be denied any
procedural remedies requested in a post-trial
9. A motion in limine exists to determine if certain motion.
evidence will confuse the jury.
Matching
GROUP 1
________ 1. Place where defendant can raise an affirmative defense a. counterclaim defense
________ 2. Claim raised by defendant against co-party b. cross-claim
________ 3. Claim raised by defendant against plaintiff c. demurrer
________ 4. Failure to state claim upon which relief can be granted d. answer
GROUP 2
________ 1. Used to establish facts a. interrogatories
________ 2. Used to assess plaintiff’s medical condition b. deposition
________ 3. Used to obtain documents c. requests for admission
________ 4. Used to thoroughly question a party d. request for production of documents
________ 5. Used to get basic information e. request for medical examination
________ 6. Full and open disclosure f. disclosure statement
GROUP 3
________ 1. Resolves evidentiary questions a. motion to compel
________ 2. No material fact at issue b. motion for protective order
________ 3. Prevents discovery of privileged information c. motion in limine
________ 4. Used when party refuses to provide information d. motion for summary judgment
________ 5. Used when judge erred during trial e. motion for new trial
GROUP 4
________ 1. Used to impeach witnesses a. opening statements
________ 2. Conducted by attorney calling a witness b. jury instructions
________ 3. Sets the theme of a case c. directed verdicts
________ 4. Directions regarding rules of law d. cross-examination
________ 5. Failure to meet burden of proof e. direct examination
Fill-in-the-Blank
1. If an attorney determines that a viable claim 4. A(n) ____________ ____________ is any defense
exists, they may send a(n) ____________ letter that the party asserting it bears the burden of
to the defendant setting forth why the defen- proving.
dant is liable and demanding a certain amount
of money to settle the case. 5. At the same time they file an answer, a
defendant can file a(n) ____________ alleging
2. A(n) ____________ is an affidavit indicating that lack of jurisdiction over the person or subject
the plaintiff has read the complaint and that to matter.
the best of their knowledge it is true.
6. ____________ are written questions submitted
3. If a defendant does not respond to a to a party which that party must answer in
plaintiff’s complaint, the plaintiff can seek a(n) writing and under oath.
____________ in their favor.
7. An oral examination of a witness before trial 15. A party that can show that a potential juror
and under oath is known as a(n) ____________. is unable to decide the case impartially
should use a(n) ____________ ____________
8. A party can obtain copies of documents in
____________, whereas a party that cannot
the possession of the opposing party by filing
allege bias but that wants to get rid of a
a(n) ____________ ____________ ____________
potential juror should use a ____________
____________.
____________.
9. If a plaintiff has put their medical condition at
16. If a judge ____________ an objection, the
issue in a case, the defendant can get a second
question can be asked.
opinion about the seriousness of their inju-
ries through a(n) ____________ ____________ 17. In some states standard jury instructions are
____________ ____________. used to ____________ the jury.
10. In states with mandatory disclosure, each party 18. A jury that is asked to render a(n) ____________
must file a(n) ____________ ____________ early verdict must decide liability and award
on in the case. damages; a jury that is asked to render a(n)
____________ verdict must answer interrogato-
11. If during discovery a party learns that there is
ries, which a judge must review to determine
no material issue of fact and that a court could
the prevailing party.
render a decision without hearing evidence,
that party should file a(n) ____________ 19. A losing party can file a motion for a(n)
____________ ____________. ____________ ____________ ____________on
the basis that the verdict reached was contrary
12. To prevent the jury from hearing irrelevant and
to the evidence.
prejudicial evidence, a party should file a(n)
____________ ____________ before trial. 20. A party that is unhappy with a trial court’s deci-
sion can ____________ that decision to a higher
13. At a jury trial all ____________ issues are
court; the opposing party can then file a(n)
decided by the jury and all ____________ are
____________.
decided by the judge. At a(n) ____________ trial
the judge decides both factual and legal issues. 21. An issue that is considered ____________
____________ cannot be relitigated at a later
14. During the process of ____________
time.
____________ the judge or the attorneys can
ask potential jurors questions.
Multiple-Choice
1. A complaint contains 3. Discovery
a. a statement of jurisdiction. a. can be compared to a game of poker.
b. a listing of the parties. b. is a stage of litigation in which legal assis-
c. a brief summary of each element of the case. tants have little involvement.
d. all of the above. c. has little impact on the final outcome of
cases.
2. In an answer, a defendant
d. has no rules.
a. admits allegations in the complaint believed
to be true. 4. Depositions
b. denies allegations in the complaint believed a. are less expensive than interrogatories.
to be false. b. do not provide as much insight into a party’s
c. indicates lack of sufficient knowledge thinking as do interrogatories.
for those allegations requiring further c. allow an attorney to assess how a witness
investigation. will come across to a jury.
d. all of the above. d. all of the above.
5. An attorney 9. Discovery-related motions include

a. may choose to depose a witness that they a. motions for summary judgment.
believe will not be available for trial. b. motions to compel.
b. cannot use a deposition transcript to c. motions alleging improper venue.
impeach a witness at trial. d. all of the above.
c. cannot introduce a deposition transcript at
trial. 10. Pretrial conferences are used to
d. all of the above. a. establish witnesses and evidence that will
be used at trial.
6. Under the federal rules, a disclosure statement b. promote settlement.
must contain c. clarify issues and defenses.
a. the name, address, and telephone number d. all of the above.
of each person likely to have discoverable
information. 11. Opening statements
b. any documents in the possession, a. allow an attorney to introduce the parties.
custody, or control of a party that are b. are not particularly important.
relevant to the disputed facts alleged in c. are considered part of the evidence.
the complaint. d. all of the above.
c. information regarding the computation of
damages. 12. During closing arguments an attorney
d. all of the above. a. summarizes the facts of the case.
b. shows how the evidence established each
7. Disclosure-centered discovery of the legal elements in the case.
a. is less efficient than request-centered c. tries to convince the jury that their client
discovery. should prevail.
b. requires parties to disclose information d. all of the above.
voluntarily.
c. is like the game of Battleship in that parties 13. Jury instructions
have to guess what information the oppos- a. are of little importance because jurors are
ing party has. known to pay little attention to them.
d. all of the above. b. cannot be objected to by attorneys.
c. may be drafted by counsel and argued
8. Mandatory disclosure before the judge.
a. eliminates the need for traditional discovery d. all of the above.
devices.
b. does little to reduce the gamesmanship of
discovery.
c. is based on full and open disclosure.
Tort Teasers
Make an outline of the steps leading up to trial, those events that occur at trial, and those events that occur
after trial. Which of these events do you think you will be most involved in as a legal assistant? How important
do you think it is to be proficient in all of these steps? Why?
Internet Inquiries
This assignment is designed to begin familiarizing you with the provisions of the Federal Rules of Civil
Procedure as well as your state rules. For each of the following questions, find the applicable rule number in
the Federal Rules and the corresponding rule in your specific state rules that provide an answer.
1. Within what statute of limitations must an initial complaint be filed after the cause of action?
2. Within what time period must a summons be served after a complaint is filed?
3. What basic elements must be included in any complaint?
4. What are the possible bases for an affirmative defense?
5. What are the possible grounds for a motion to dismiss?
6. Who can serve a subpoena, and where can it be served?
7. How long must a person be given to respond to a subpoena?
8. When must a response to a motion be filed? When must a reply be served?
9. What determines the time limits of oral arguments? Must a judge allow them?
10. What must a party that is filing a motion to compel do before the court will consider the motion?
11. For what reasons can a judge issue a protective order?
12. When must a response to a motion for summary judgment be filed? When must a reply be filed?
13. Who can file a motion to set and certificate of readiness?
14. When must discovery be completed?
15. What must a party show if it wants to postpone a trial?
16. What must be included in a settlement conference memorandum, when must it be completed, and to
whom must it be given?
17. Who conducts voir dire in the federal courts?
18. To how many peremptory challenges is a party entitled?
19. At what point must a party submit requests for jury instructions?
20. When can a party apply for a default judgment?
21. How are awards for attorneys’ fees determined?

Chapter 3
Intentional Torts
Chapter Topics
What Is an Intentional Tort? Intentional Torts against Property
Intentional Torts against Persons Defenses
Chapter Objectives
• Identify the elements of assault, battery, false • Recognize circumstances in which it is appropri-
imprisonment, and infliction of mental ate to raise the defenses of consent or necessity.
distress. • Recognize when force can be used to defend
• Identify the elements of trespass to land, trespass self, others, or property, to regain possession of
to chattels, and conversion. chattels, or to reenter land.
S uppose you come home one evening to discover that your teenage son “borrowed” your car and went
on the following spree: First, he dropped by his girlfriend’s house to pick her up, but once there met with
considerable resistance from her parents. Not to be intimidated by her father, who stood menacingly in front of
the car as he started the engine, your son yelled out the window that he would run over her father if he did not
get out of the way. The father, who doggedly stood his ground until the last possible moment, barely escaped
injury when he finally jumped aside.
Unbeknownst to either your son or his girlfriend, her younger brother had crawled into the back of the car
during the dispute with the father. Now, the little boy screamed to be released from the car. Your son, who har-
bored some latent hostility toward the little brother, took great delight in holding him captive for several miles
before letting him out of the car to walk home.
Next, your son and his girlfriend headed to a remote place in the country to enjoy a little privacy. Nei-
ther noticed a man brandishing a gun approaching them. The man, who was the landowner, punctuated each
demand to get off his land by firing a shot in the air. Thoroughly frightened, the two lovers made a hasty
retreat, but with one last act of bravado, your son drove towards a sign on the man’s property and obliterated it
with the car. Later, your son, as an afterthought, casually mentioned to you that before leaving the property he
took the opportunity to fire a few shots in the man’s direction with a gun that he had “borrowed” from the top
shelf in your closet.
Ultimately, he arrived safely at home with a car that was only slightly scratched from its close encounter
with a sign. In the course of his escapade, what intentional torts did your son commit, and what defenses might
he raise to justify his conduct? Are there any negligent acts committed here? To answer these questions let us
first consider the nature of an intentional tort.
What Is an Intentional derivations of criminal and tort law are different, so

the terms and concepts used in the criminal arena
Tort? do not necessarily correspond to those used in tort
law. For example, in the criminal arena, defendants
There are intentional torts and negligent torts. The
can be found guilty or not guilty, while in tort law
state of the tortfeasor’s mind distinguishes an inten-
they are liable or not liable. Also remember that the
tional tort from a negligent one. Although negligent
purpose of criminal law is to punish, and the pur-
torts can be committed unintentionally, intentional
pose of tort law is to compensate.
torts require that the tortfeasor intend or have a
desire to bring about a particular consequence. The
tortfeasor need not desire or plan to harm a person, Transferred-Intent Doctrine
but he must be aware that certain consequences If a tortfeasor intends to punch A, but A ducks and
are substantially certain to result from his acts. If, for the tortfeasor inadvertently strikes B, the intent to
example, the defendant intends to do nothing more strike A will be transferred from A to B. Under the
than play a practical joke on the plaintiff and has transferred-intent doctrine, the defendant’s intent
absolutely no desire to injure them, they may still be toward one person is transferred to the person
liable if they harm the plaintiff. The intent to bring who is actually injured as a result of the defendant’s
about a particular result is what is important. The conduct. Therefore, in such cases the tortfeasor is
fact that they wish no harm to the plaintiff has no deemed to have committed an intentional tort. This
bearing on their intent or the offense. same rule is applicable if the tortfeasor intends to
If a defendant knows with substantial certainty commit one kind of tort and in fact commits another.
that a result will occur, they will be liable for the con- If the tortfeasor uses his dog to scare A (an assault),
sequences. An individual who throws a firecracker and the dog escapes and bites B (a battery), the tort-
into the middle of a dense crowd, for example, may feasor will be liable for the battery to B even though
not actually want to hit anyone but if they know he intended an assault on A.
with substantial certainty that someone will get hit,
they have acted intentionally. If the consequences
are merely highly likely but not substantially cer- EXHIBIT 3–1 Intentional Torts against Persons
tain, the defendant will be considered negligent
but will not be deemed to have acted intentionally. Battery Assault
Note that intent can be distinguished from motive.
Intentional infliction of Intentional causing of
Intent is the desire to bring about a consequence;
harmful or offensive apprehension of harmful
motive is connected to the reason for desiring such contact. or offensive contact.
a consequence.
You will recall that intentional torts can also be
crimes. An assault is both a tort and a crime, as are
False Infliction of
trespass and false imprisonment. A police officer
Imprisonment Mental Distress
who deliberately and unlawfully detains an indi-
vidual can be sued for the damages sustained by Intentional confinement Intentional infliction of
of another. severe emotional or
the detainee (false imprisonment) and can be pun-
mental distress as a
ished criminally as well (although the crime is often result of extreme and
referred to as unlawful imprisonment). Be cautious, outrageous conduct
however, in drawing too many analogies between (can also be committed
recklessly).
tort law and criminal law. The purposes and historical
CHAPTER 3 Intentional Torts | 35
Categorization of Intentional Torts The defendant need not actually touch the
plaintiff with their body. A person who orders their
Intentional torts are generally divided into two cat-
dog to attack or who throws water on someone or
egories: those against persons and those against
throws something at them has committed a battery
property. The torts against persons that are dis-
(Restatement [Second] of Torts § 18, cmt. c).
cussed in this chapter are battery, assault, false
Neither must the plaintiff suffer pain or bodily
imprisonment, and infliction of mental distress (see
injury to recover for battery. The contact need only
Exhibit 3–1). The torts against property that are dis-
be “offensive.” In determining whether a contact is
cussed are trespass to land, trespass to chattels, and
offensive, the question is whether a reasonable per-
conversion.
son would be offended. If a woman gently taps her
partner on the shoulder to get their attention, they
have not committed a battery. Touching by a friend
Intentional Torts against is not offensive to an ordinary person and therefore
Persons is not actionable.
Awareness of Contact
Battery The plaintiff is not required to have any awareness
of the contact at the time it occurs. If someone
If two people become engaged in a heated argu-
throws paint on a person’s back and that person is
ment and one pushes the other to the ground, the
not aware until later, a battery has still been com-
person who does the shoving commits a battery.
mitted. If the plaintiff gives consent for a biopsy to
Battery is defined as the intentional infliction of a
be done and the doctor decides while the patient is
harmful or offensive contact upon a person. If the
under anesthetic to go ahead and perform surgery,
tortfeasor intends only to frighten the victim and
the doctor has committed battery, unless specified
accidentally makes “harmful or offensive contact,”
and consented to in the consent form. Even though
they have still committed a battery, as well as an
they obtained consent for the biopsy, they lack the
assault. As indicated earlier, whether the tortfeasor
plaintiff’s consent to perform the surgery. The fact
intends to actually injure the plaintiff is irrelevant. To
that the plaintiff is unaware of the doctor’s actions at
satisfy the elements of battery the tortfeasor must
the time of the surgery is irrelevant.
only intend to make contact and the contact must
actually be made.
Extent of Liability
What Is Considered Contact? The defendant who commits battery is liable for
any consequences and damages regardless of how
The function of the law concerning battery is to
unforeseen they may be. Suppose the defendant
protect individuals from undesired and unpermit-
grabs the plaintiff and playfully squeezes their arm in
ted contacts or touching of their body. This tort
a manner that would normally cause no bodily harm.
extends to contact with any part of a person’s
Because the plaintiff is suffering from osteoporosis,
body, or anything attached to or identified with the
however, they sustain extensive damage to their
body. Contact with a purse they are holding, with
arm, resulting in long-term pain and suffering. The
an object in the plaintiff’s hand, or with the car in
defendant is liable for the full extent of the plaintiff’s
which the plaintiff is riding all constitute contact for
bodily harm even though they could not have rea-
the purposes of battery. In one case, the defendant
sonably anticipated that degree of harm.
argued that he was not liable because he grabbed
the victim’s purse and did not have any contact
with their body. The court rejected the defendant’s Assault
argument, reasoning that the intentional snatching Assault is defined as the intentional causing of
of an object from a person’s hand is as offensive an apprehension of harmful or offensive con-
an invasion as having actual contact with the body tact. Apprehension does not mean fear but does
(Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513 require the plaintiff to be aware of the impending
[Tex. App 1996]). contact. A person who shakes a board at someone
to frighten or chase them away has committed door, tried to pry it open, and repeated his threats
assault if the object of their threats believes they to kill her. The defendant argued that no assault had
are trying to strike them. A defendant can commit been committed because he had made no overt
assault by either intending to commit a battery or action toward the plaintiff. The court concluded that
merely intending to frighten the plaintiff, with no the evidence supported a finding that the defendant
intent of actual contact. A defendant, for exam- had the apparent ability to carry out the threatened act
ple, who attempts to strike the plaintiff but misses, (Holcombe v. Whitaker, 318 So. 2d 289 [Ala. 1975]).
commits an assault, but so does the defendant If a plaintiff believes the defendant has the ability to
who makes a fist at the plaintiff with no intent of carry out his threatened contact, then even though the
actually hitting them. defendant actually does not, the elements of assault
The transferred-intent doctrine is as applicable are still met.
to assault as it is to battery. Therefore, if a defendant
throws a stone at A and B fears being hit, the defen- What Constitutes a Threat?
dant will be liable to B for assault even though they Any threats of harm must be imminent to constitute
never intended to hit or frighten B. an assault. Threats of future harm are not sufficient,
although they may satisfy the criteria for the tort of
Plaintiff’s Attitude intentional infliction of mental distress. If A threat-
Unlike battery, a plaintiff alleging assault must be ens to shoot B, for example, but must go to their
aware of the threatened contact. So, if A intends to car to get their revolver, A has not committed assault
frighten B by discharging a pistol behind them, but (Restatement [Second] of Torts § 29, illus. 4).
B, who is stone deaf, does not hear the pistol, A will The courts are in some disagreement as to
not be liable to B for assault (Restatement [Second] whether words alone constitute an assault. Some
of Torts § 22, illus. 1). courts require that words be accompanied by some
An individual will not be able to recover for assault overt act that tends to enhance the threatening char-
if their apprehension is that someone else will be acter of the words; other courts, in accordance with
touched and not themself. If a husband, for example, the Restatement [Second], require no accompanying
disarms a robber just before he shoots the husband’s overt act. If a member of a gang, holding a knife in
spouse, the husband cannot recover for assault, their hand, approaches a member of another gang
because the attack was directed at his spouse and not and, without any additional movement, says, “You
himself (Restatement [Second] of Torts § 26). die,” many courts would conclude that an assault
A plaintiff need not be fearful that they will be had been committed. Other courts may require an
harmed. A plaintiff confident in their ability to pro- additional overt act in order for assault to occur.
tect themself can still be the victim of assault. Their Note that the tort of assault is complete as soon
awareness that they could be harmed if they failed as the plaintiff is apprehensive of the contact. If, after
to take defensive action is sufficient. the plaintiff’s apprehension, the defendant suddenly
abandons their plan, they will still be liable for assault.
Defendant’s Ability to Carry Out Threat
A defendant must appear to the plaintiff to have the False Imprisonment
present ability to carry out the threatened contact. The tort of false imprisonment is committed when
In one case the defendant repeatedly threatened to a person intentionally confines another. Originally,
kill the plaintiff if she sued him. After the plaintiff filed confinement was restricted to actual incarcera-
suit, the defendant came to her home, beat on the tion, but today, confinement includes restraint in
3:1 Putting It into Practice

When a famous actress steps out of her limo and has several paparazzi photographers jump in front of her
taking pictures and scaring her, have the photographers committed any intentional torts? If so, which ones?
an open street or even in a moving vehicle. The Local Links

restraint must be more than a mere obstruction
of the plaintiff’s right to go wherever they please. Consult the statutes and common law in your
Blocking the plaintiff’s path in one direction only state to ascertain the rights of merchants and
does not constitute confinement as long as alterna- casinos in your jurisdiction to detain persons
tive routes are available. The doctrine of transferred suspected of a crime for questioning.
intent is applicable to this tort. If the defendant, in
their intent to confine one person, inadvertently
confines another as well, they will be liable to both the warrant to be valid has not committed false
for false imprisonment. imprisonment.
What Constitutes Confinement? Shoplifting

The plaintiff is not required to subject themself or their In most states, a merchant who reasonably believes
property to any risk of harm in an effort to extricate that a customer has stolen property has a right to
themself from their confinement. Suppose a defen- detain the suspected individual for a short period of
dant closes off every exit except one. If the plaintiff time for the purpose of investigation. The right to
can escape only by exposing themself to the possibil- detain is very restricted, however, and will be lost if
ity of substantial bodily harm, the defendant has con- the detention is unreasonably long, if the plaintiff is
fined them. Similarly, if the defendant blocks all doors bullied or insulted, if the plaintiff is publicly accused
except one and steals the plaintiff’s clothing, leaving of shoplifting, or if the detention is used to coerce
the plaintiff naked, and the plaintiff can leave only payment or the signing of a confession. In most
by walking through a room filled with other persons, states the right to detain is limited to detention
the defendant has confined the plaintiff (Restatement on the defendant’s premises and is lost when the
[Second] of Torts § 36, illus. 3 and 5). plaintiff leaves the premises. The pivotal question is
Confinement can be achieved by something whether the merchant had reasonable grounds for
less than physical force. If a defendant threatens the detention.
by their body language alone to harm the plaintiff if
the plaintiff tries to escape, they have still confined Infliction of Mental Distress
the plaintiff. Threats need not be aimed directly A relatively new tort is the claim of infliction of mental
at the plaintiff, either. If the defendant threatens distress (sometimes referred to as infliction of emo-
to harm another if the plaintiff leaves the confine- tional distress). This tort can be committed either
ment area, the defendant has committed false impris- intentionally or recklessly. If committed intentionally,
onment. Any threats, however, must be of imminent the tortfeasor must desire a particular consequence
harm. Threats of future harm are not sufficient. Finally, or must know with substantial certainty that a spe-
the plaintiff must be aware of their confinement at cific result is likely to occur. If the tort is committed
the time it occurs. If a person does not discover until recklessly, the defendant must act in deliberate dis-
after their release that they were confined, they can- regard of the emotional distress that they know they
not claim they were falsely imprisoned. are very likely to cause the plaintiff. Such reckless-
ness rises above mere negligence.
False Imprisonment in Law Enforcement
False imprisonment most often occurs in the context What Is “Extreme and Outrageous”
of law enforcement. A valid defense to the allegation Conduct?
of false imprisonment is the police officer’s assertion It is not enough for this tort that the defendant act
of the legal right to make an arrest. An officer can unreasonably; the conduct must be “extreme and
claim such a defense even if the arrest or detention outrageous.” Liability has been found only where the
later turns out to be unlawful. They are required only conduct has been so outrageous in character, and
to act reasonably and in good faith in carrying out so extreme in degree, as to go beyond all possible
the arrest. An officer who serves the plaintiff with an bounds of decency, and to be regarded as atrocious,
invalid arrest warrant but who reasonably believes and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of and other employees, took away her store keys
the facts to an average member of the community and suspended her for ten days “pending an
would arouse his resentment against the actor, and investigation.” Because of personality traits of the
lead him to exclaim, “Outrageous! (Restatement employee, of which the employer was unaware,
[Second] of Torts § 46 cmt. d). For example, if the the employer’s actions resulted in the employ-
defendant tells the plaintiff that her spouse has been ee’s hospitalization for depression and severe sui-
critically injured in an accident, when in fact no such cidal and homicidal tendencies. The court held
accident has occurred, the defendant is liable for that because the employer had no knowledge of
any emotional distress the plaintiff suffers (Restate- the employee’s peculiar sensitivities, no cause of
ment [Second] of Torts § 46, illus. 1) action may have existed. Barring that knowledge,
Mere insults and petty jokes towards others are however, the court concluded that the employer’s
not sufficient for this tort. However, a defendant conduct, however insensitive it may have been,
who uses their position abusively may be liable did not rise to the level of intentional infliction
for any emotional distress it causes. A high school of emotional distress. The court also opined that
principal, for example, who browbeats a student, a “certain amount of arbitrary nastiness” in the
threatening them with public disgrace and even workplace is a “fact of life we must accept” and
prison unless they confess to immoral conduct, that “[t]he workplace is not always a tranquil world
will probably be liable for any emotional distress where civility reigns.”
suffered by the student (Restatement [Second] of In the second case (Rogers v. Louisville Land
Torts § 46, illus. 6). Co., 367 S.W. 3d 196 [Tenn. 2012]), the plaintiff filed
The specific characteristics of the plaintiff may suit against Louisville Land Co. who was in charge
be taken into consideration in evaluating the defen- of maintaining the cemetery where her son was bur-
dant’s conduct. A defendant who takes advantage of ied. She was assured it was properly maintained but
a plaintiff of low intelligence may be liable for any upon regular visits realized it was in complete dis-
distress they cause the plaintiff even though that array. Plaintiff claims intentional infliction of mental
same conduct would not be deemed outrageous if distress from the anguish she suffered upon seeing
the plaintiff were an adult of average intelligence. such a heartbreaking site. The lower court agreed
Considerable differences exist among the with the plaintiff and found that the defendant
courts as to what does and does not constitute failed to maintain the cemetery with any amount of
“extreme and outrageous” conduct. To illustrate, respect for the deceased. She was awarded com-
consider two cases from different jurisdictions. In pensatory and punitive damages as well as attorney
the first case (Kentucky Fried Chicken National fees. The Supreme Court agreed with the appellate
Management Co. v. Weathersby, 607 A.2d 8 [Md. court who reversed all the damages and fees. The
1992]), the employee’s supervisor accused her of court found that the plaintiff failed to prove ade-
stealing money from the store safe, ordered her to quate mental injury for the tort of infliction of men-
take a polygraph test, and, in front of customers tal distress to apply. The court said that a charge of

A couple go to a “Private After-Hours Sale” at a department store. One of the men, who is recovering
from a recent kidney transplant, is still partially paralyzed, has bloodshot eyes and visible needle marks,
and walks with a faltering gait. He is given a shopping bag by one of the store’s employees and believes
that he is to use this bag for shopping. He goes to the men’s department and selects ties, shirts, and cuff
links, which he puts in his bag. When he leaves the men’s department and moves toward the escalator, he
is apprehended by a store security guard who has been observing his actions. The man is searched and
then interrogated in an office for a considerable length of time before he is released. Has this man been
falsely imprisoned?
In the News
To read about intentional infliction of emotional distress claims in the workplace and to see some
summaries of actual cases, enter “intentional infliction of emotional distress in workplace” as your
search term.
extreme and outrageous conduct is the same as one Type of Harm Suffered
for infliction of mental distress and should be com- A plaintiff must prove that they actually suffered
bined. Do you see any similarities in the holdings of severe emotional distress and must, at the very least,
these two cases? have sought medical attention. Some courts require
that the plaintiff suffer some kind of physical harm,
Transferred-Intent Doctrine although most modern courts have no such require-
The doctrine of transferred intent is generally not ment. A plaintiff who suffers harm only because of
applicable in cases of intentional infliction of men- a specific and unusual vulnerability or sensitivity will
tal distress. To apply this doctrine would be to open not be allowed to recover if the defendant is not
the courthouse doors to all those who suffered emo- aware of these vulnerabilities or sensitivities.
tional distress as a result of viewing tortious acts
being intentionally committed against others. An Higher Standard for Those in Public Service
exception to this general prohibition occurs when Common carriers, innkeepers, and public utilities
the defendant directs their conduct against a mem- are held to a higher standard of conduct than the
ber of the plaintiff’s immediate family and is aware rest of the populace and can be held liable, for
that the plaintiff is present at the time. For example, example, for highly insulting language. Although an
if a man severely beats a child’s father and is aware insult to an ordinary person would almost never be
at the time of the beating that the child is watching, considered actionable, an insult to a customer by
he will be liable for the emotional distress suffered an employee of a utility, hotel, or common carrier
by that child. would be considered cause for an infliction of men-
The transferred-intent doctrine is also not appli- tal distress claim. This rule apparently stems from a
cable if the defendant fails to commit the tort they concern that those who provide such services should
intended to commit and succeeds only in causing never be rude to their customers.
the plaintiff emotional distress. A defendant who
is tired of the incessant barking of their neighbor’s
dog, and who shoots at the dog with the intent to
kill it but misses, will not be liable for the emotional Local Links
distress suffered by the dog’s owner. Their intent Does your state court require physical harm
to commit conversion, in other words, is not trans- or injury to recover for infliction of emotional
ferred to the emotional distress they actually cause distress?
(Restatement [Second] of Torts § 47, illus. 2).
In the News
The tort of negligent infliction of emotional distress has not been accepted in all jurisdictions. In the
case of Santana v. Leith, 117 A.D. 3d 711 [NY 2014]), plaintiff brought action to recover from negligent
infliction of emotional distress alleging that defendant attacked him with a hammer while using racial and eth-
nic slurs. The cause of action here stated that a negligent infliction of emotional distress claim does not require
physical injury but is based on a breach of duty owed to plaintiff by defendant. Here, the defendant attacked
the plaintiff, and the acts were intentional, therefore, a negligent action for emotional distress could not be
brought. The court dismissed the complaint for failure to state a claim. Do you think the plaintiff could bring a
new claim for intentional infliction of emotional distress?

The manager of a Game Stop outlet is told on two occasions about unsatisfactory practices occurring in his
store. His store supervisor and two security people came to his store to investigate. He was questioned at
thirty-minute intervals throughout the day over a period of 6 hours, during which he claims he was cursed
at, threatened, and denied his medication. Later that afternoon, he was asked to submit to a polygraph test,
which he agreed to, but was still not allowed to take his medication, Valium, because it might have interfered
with the test. He was brought to the testing place but hyperventilated and must be taken home. He returned
to work the next day but could not remain on the job and eventually was hospitalized by a psychiatrist. Does
he have a viable claim for intentional infliction of emotional distress? What must he prove for the claim to be
successful?
Intentional Torts against mistake. An intentional trespass is committed, for

example, if a defendant walks on another’s land
Property thinking it to be their own or believing they are
entitled to enter the land.
Trespass to Land
A person who enters or wrongfully remains on Type of Contact Required
another’s land has committed the tort of trespass to The defendant need not enter or make contact with
land (see Exhibit 3–2). By the same token, trespass the land themself; an indirect invasion is sufficient.
occurs if an individual fails to remove an object from If a child fires their BB gun at the plaintiff’s barn, for
another’s land if they are under a duty to remove it. example, they are liable for trespass even if they
Historically, trespass was a strict liability tort, allow- never set foot on the plaintiff’s property. Further-
ing liability even if the defendant’s contact with the more, a defendant who does not intend to enter the
land was unintentional. Today almost all courts have plaintiff’s land but who knows that such an entry is
rejected strict liability except when the defendant is reasonably certain to happen, is liable for trespass.
engaging in an abnormally dangerous activity, such If a person builds up an embankment next to their
as blasting. adjoining neighbor’s land, and during an ordinary
rain the dirt washes from their land to the other
Defendant’s Intent neighbor’s land, they are liable for trespass. Even a
The defendant’s only intent must be to make phys- defendant who allows gases or particles to enter the
ical contact with the plaintiff’s land. They need not plaintiff’s property will, according to most modern
intend any harm to the plaintiff’s property nor even courts, be liable for trespass. Similarly, most courts
be aware that any harm might occur. A defendant today hold that a trespass is committed when the
is still liable for trespass even if their contact with defendant sets off a blast that causes concussions or
the plaintiff’s land is the result of a reasonable vibrations on the plaintiff’s property.
EXHIBIT 3–2 Intentional Torts against Property
Trespass to Land Trespass to Chattels Conversion
Intentionally entering or Intentional interference with Intentional interference with

wrongfully remaining on another’s use or possession another’s use or possession
another’s land of chattel (personal property) of chattel to such a degree that
it interferes with the owner’s right
to enjoy. The defendant must
pay the owner the full value of
the chattel
Because landowners, under the common law, Extent of Liability

are considered to own the airspace above their A defendant is liable for almost all consequences
property and the surface below their property, of the trespass, no matter how unpredictable those
those who violate such space can be sued for tres- consequences might be. Even if a defendant has no
pass. Most states have amended their statutes and reason to believe that the plaintiff or others will be
included provisions for trespass by a drone or other injured as a result of their trespass, they will be lia-
unmanned aerial vehicle. These provisions usually ble. In some courts they will be liable as well for any
have an exception for law enforcement or public emotional distress suffered as a result of the tres-
agencies who are following the law. So, someone pass, even if the plaintiff suffers no physical harm.
who flies their drone repeatedly over another per-
son’s property can be liable for trespass. Someone
who fires a gun over the plaintiff’s property may Trespass to Chattels
be liable for trespass even though no bullet lands Trespass to chattels is committed by the intentional
on the property. In this day of general aviation, interference with the plaintiff’s use or possession of
however, landowners cannot be allowed to sue for chattel (personal property). Chattel is property that
any invasion of their airspace. The airspace above is visible, tangible, and movable. A defendant who
certain minimum flight altitudes, as established by damages the plaintiff’s china or who deliberately
federal statutes and administrative regulations, is hides the plaintiff’s bicycle so as to deprive them
considered public domain. Therefore, damages of its use has committed trespass to chattels. The
cannot be awarded for any flights occurring above length of the deprivation is irrelevant. Recovery will
these altitudes. A landowner who can show that be allowed even if the loss of possession is only
they have suffered actual harm resulting from the temporary. The owner of the chattel need not be
flight of aircraft over their property at permissi- in possession of the chattel at the time the trespass
ble altitudes may, however, be able to sue on the occurs. Both the owner and possessor of a chattel
basis of a nuisance theory. This theory of recovery are entitled to sue.
is discussed in more detail in Chapter 10. The only intent required for this tort is the intent
to interfere in some way with the plaintiff’s chattel.
Revocation of Permission to Enter The defendant need not intend to cause harm to the
Trespass is also committed if a defendant who has property. Neither is the defendant’s mistaken belief
permission to enter the plaintiff’s land refuses to that the property is their own a defense. Defendant
leave when the permission is revoked. Similarly, if must intend to and actually make physical contact
the defendant refuses or neglects to remove some- with the property.
thing when they are supposed to, they may be lia- Unlike the plaintiff who sues for trespass to land,
ble for trespass. For example, a person who is given however, the plaintiff who sues for trespass to chattels
permission to park their car on the plaintiff’s land for must prove actual harm. A child who climbs on the
a month, and who at the end of the month removes back of a dog and pulls on its ears has not committed
the car but forgets to remove the gas can that they trespass to chattels as long as the dog is not harmed in
put beside the car, has committed a trespass. any way (Restatement [Second] of Torts § 218, illus. 2).

A veterinarian receives the permission of the Copelands to allow a student interested in a career in vet-
erinary medicine to accompany him as he cares for their cat in their home. The student does not tell the
veterinarian or the Copelands that, in addition to being a student, she is an employee of a local television
station. She videotapes the veterinarian’s session with the cat and parts of that videotape are aired when an
investigative report on the veterinarian is broadcast. Do the Copelands have grounds for a trespass claim
against the television station? Against the student/employee?
Conversion chattels. Returning the goods is an effort to miti-

gate the plaintiff’s damages. In the case of conver-
If the defendant’s interference with the plaintiff’s
sion, however, title is deemed to have transferred
property is so extreme that it substantially interferes
from the plaintiff to the defendant because of the
with the owner’s right to the property, then justice
defendant’s substantial interference. As a result,
demands that they pay the plaintiff the full value of
the defendant is required to pay the full value of
the property. The defendant has committed the tort
the property and sometimes other damages/losses
of conversion. As with trespass to land and trespass
to the plaintiff. In a sense, conversion may be
to chattels, no intent to harm the plaintiff’s property
looked on as a “forced sale” because the defen-
or possessory rights is required. An innocent mis-
dant pays for the full value of the property rather
take by the defendant is sufficient. The plaintiff must
than for just the damage done.
show only that the defendant intended to interfere
with their possessory rights. As with trespass to chat-
tels, the plaintiff in a conversion action need not be
Indicia of Conversion
the owner but can be the person in possession of Six factors are taken into consideration in deter-
the property at the time of the conversion. mining whether a defendant’s interference with the
Recently, some courts have applied the plaintiff’s property rises to the level of conversion
trespass-to-chattels theory to electronic communi- (Restatement [Second] of Torts § 222A):
cations. A Virginia court, for example, concluded • the extent and duration of the defendant’s
that sending unauthorized spam to a computer exercise of control over the property
network constituted trespass to chattels (America
• the extent and duration of the resulting interfer-
Online v. IMS, 24 F.Supp.2d 548 [1998]). A mar-
ence with the plaintiff’s right to control
keting company that sent 60 million unauthorized
electronic mail (e-mail) advertisements (“spam”) • the defendant’s intent to assert a right inconsis-
to an Internet company’s subscribers was liable for tent with the plaintiff’s right of control
trespass to chattels. The court found that the mar- • the defendant’s good faith
keter’s conduct injured the plaintiff’s goodwill and • the harm done to the chattel
diminished the value of the computer network.
• the inconvenience and expense caused to the
In Intel Corporation v. Hamidi, 71 P.3d 296 [Ca.
plaintiff
2003]), the e-mail communications by defendant
did not cause physical damage or functional dis- To illustrate how these factors are weighed, con-
ruption to the plaintiff’s computers, nor did they sider a defendant who, upon leaving a restaurant,
deprive the plaintiff of the use of his computers. mistakenly picks up the plaintiff’s hat believing it to
The court found that without any damages, there be their own. When they reach the sidewalk they dis-
was no trespass to chattel. cover their mistake and promptly reenter the restau-
rant and return the hat. Because no harm was done,
Distinction between Conversion and the defendant acted in good faith, and their interfer-
Trespass to Chattels ence with the plaintiff’s right of control was limited,
From the defendant’s standpoint the distinction no conversion would be committed, but there would
between trespass to chattels and conversion is an still be a trespass to chattel (Restatement [Second] of
important one. A defendant who is in possession Torts § 222A, illus. 1).
of the chattel at the time suit is brought has the Suppose that the defendant keeps that hat for
right to return the goods in the case of trespass to three months before discovering their mistake and
In the News
For an analysis of some courts’ application of the trespass to chattels theory to electronic communica-
tions, go to the Electronic Frontier Foundation site at www.eff.org/.
For examples of cases dealing with electronic trespass to chattels, enter “electronic communication
and trespass to chattels” as your search term.
returning the hat. Such a lengthy confiscation of the sufficiently severe. By the same token, a parking lot
hat would be considered a conversion because of attendant who intentionally refuses to return the plain-
the defendant’s substantial interference with the tiff’s car to them is liable for conversion if the refusal is
plaintiff’s use of their property. The defendant’s acting done in bad faith and the resultant interference with
in good faith would not make it any less a conversion the plaintiff’s right to possession is substantial.
(Restatement [Second] of Torts § 222A, illus. 2).
When the defendant gets to the sidewalk, if a Conversion of Intangibles
sudden gust of wind blows the hat into an open Recently, a number of courts have allowed conver-
manhole, they will be liable for conversion because sion suits for intangibles, such as stock certificates,
the plaintiff’s property interest is completely promissory notes, insurance policies, and savings
destroyed. Again, the defendant’s good faith would bank books. Generally, however, these intangible
not change the outcome (Restatement [Second] of rights must be linked to some kind of document to
Torts § 222A, illus. 3). support a conversion action. A defendant who falsely
Suppose the defendant knowingly takes the claims ownership over Internet domain names, gives
plaintiff’s hat but returns it to the restaurant because away confidential information, or gives away a part-
they see a police officer coming toward them. They nership interest, for example, is not liable for con-
have committed a conversion because of their bad version although they may be liable for some other
faith, even though the duration of their control over tort, such as interference with contractual relations
the hat is relatively short (Restatement [Second] (discussed in Chapter 10).
of Torts § 222A, illus. 4). Although the distinction
between trespass to chattels and conversion is a
blurred one, these guidelines will assist you in mak- Defenses
ing reasonable distinctions.
Mistake
Removal and Transfer of Goods
Mistake in and of itself is not a defense to an inten-
Conversion can be committed by ways other than
tional tort. A defendant who intentionally enters the
taking possession of the plaintiff’s property. A
land of another, acting in the honest and reasonable
defendant may also be liable for conversion by the
belief that the land is their own, is still liable for the
removal of goods or property. The removal must
tort of trespass. Mistake is, however, an element of
create a relatively serious interference with the plain-
consideration in some of the other defenses dis-
tiff’s right to possession and control of their prop-
cussed in this chapter. A defendant who reason-
erty. Suppose, for example, the defendant takes
ably but mistakenly believes that they must defend
possession of a house of which the plaintiff and
themself or another can still claim self-defense even
defendant are co-owners. If the defendant removes
though their acts are premised on an erroneous
the plaintiff’s furniture when they become engaged
belief. The effect of mistake is considered through-
in a dispute about ownership, they will be liable for
out the remaining sections of this chapter.
conversion if they refuse to make the furniture avail-
able when the plaintiff demands it back. However, if
the defendant complies with the plaintiff’s request, Consent
the defendant’s interference will constitute trespass In general, a defendant is not liable for an inten-
to chattels but not conversion. In the latter case the tional tort if the plaintiff consents to the defendant’s
defendant’s interference is not so severe as to con- intentional interference (see Exhibit 3–3). In most
stitute conversion but is considered intermeddling cases the plaintiff does not explicitly consent, but
with the plaintiff’s goods, which is the essence of the consent may be implied from the plaintiff’s con-
trespass to chattels. duct or from any customs surrounding such conduct.
Conversion also occurs when the defendant Because defendants are not expected to be mind
transfers chattel to someone who is not entitled to it. readers, the issue of whether a plaintiff has con-
A parking lot attendant, for example, who gives a car sented is determined by objective manifestations
to the wrong person, commits conversion if they cre- and not by the plaintiff’s subjective mental state. Sim-
ate an interference with the car owner’s rights that is ply put, the question is whether a reasonable person
in the defendant’s shoes would have believed that is implied, for example, when a doctor performs
the plaintiff has consented to an invasion of their emergency surgery that is immediately necessary to
interest. Suppose a man announces to his date while save the patient.
they are standing at the front door that he is going Generally, if a plaintiff consents only because
to kiss them good night. If they say or do nothing they are mistaken about some material fact, their
to indicate their displeasure, it can be inferred from consent will still be considered effective. If, however,
their conduct that they have given consent. the defendant either knows of or induces the plain-
Consent or lack of consent can also be inferred tiff’s mistake, the plaintiff’s consent will be deemed
from custom. In Howard v. Spradlin, 562 S.W. 3d ineffective. If the defendant, for example, tricks the
281 [Ky 2018], defendant was not considered a tres- plaintiff into consenting to be restrained because
passer by looking at the custom or prior usage of they think they are helping someone else when in
the property. He parked his truck in the particular fact, it is a staged scenario, the plaintiff’s consent will
parking lot on several occasions and there were no be invalid, and the defendant will be liable for false
“no trespassing” signs present. The court stated that imprisonment.
habitual or customary use of property for a particu- The question of mistaken consent most often
lar purpose, without objection from the owner, may arises in the context of medical cases in which the
give rise to consent to such use so that users have plaintiff alleges that the doctor did not adequately
the status of licensees. Since the owner had shown inform them about the risks involved in the proposed
no objection to the defendant’s use, the trespass treatment. Generally, the courts consider consent to
charge was dismissed. be ineffective if the doctor fails to disclose the conse-
quences of a procedure that they know will definitely
Capacity to Consent follow from the treatment. If, however, the doctor
Consent is not a defense if the plaintiff is incapable simply fails to mention a minor risk that may or may
of or incompetent to give consent. Someone who is not be a consequence of the treatment, most courts
unconscious or obviously intoxicated, for example, is will consider the plaintiff’s consent to be effective.
incapable of giving consent. Consent will be implied, The courts are split in reference to the effec-
however, if emergency action is immediately neces- tiveness of a plaintiff’s consent to a criminal act.
sary to save an incapacitated person’s life, if no indi- The majority of courts find such consent ineffective.
cation exists that they would have refused to give A minority of courts and the Restatement (Second)
consent, and if a reasonable person would have con- consider the consent effective unless the crime is
sented under like circumstances. A patient’s consent intended to protect a class of persons against their

When Matthew moves into a home he has recently rented, he discovers that the former tenant (John) has
still not removed his furniture. Matthew wants to bring in his own furniture, so he makes arrangements to
have John’s furniture stored in a warehouse in John’s name. He calls John immediately to let him know of
these arrangements but is unable to get in touch with John for a week. Has Matthew committed a conver-
sion? What claim does John have against Matthew or his previous landlord if any?
What if Matthew moved the furniture to a warehouse that was so distant that John was greatly inconve-
nienced and forced to go to great expense to recover his furniture? Or suppose that instead of moving the
furniture, Matthew changed the locks. When John, after being notified of the change, comes to the house
to retrieve his furniture, Matthew is not home. Has Matthew committed a conversion if John is able to return
the next day and pick up his furniture?
Suppose Matthew loans John his truck to drive to the warehouse to pick up the furniture, but John
makes a ten-mile detour to pick up his girlfriend. Has John committed a conversion? Would your answer
change if, on the way to his girlfriend’s house, John is involved in an accident that causes significant dam-
age to Matthew’s truck?
EXHIBIT 3–3 Defenses to Intentional Torts
Consent If a plaintiff who has the capacity to consent to interference with their person or property
voluntarily does so, either explicitly or implicitly, the defendant will not be liable for such
interference.
Self-Defense A defendant is entitled (privileged) to use reasonable force to protect themself or another
against imminent harm if they reasonably believe it is necessary to do so (most courts
require that any person being aided must be privileged to act in self-defense).
Defense of Property A defendant is entitled to use reasonable (not deadly) force to protect their property
against imminent harm if they reasonably believe it is necessary to do so and they
verbally demand that the intruder stop first (if circumstances permit).
Regaining Possession A property owner is entitled to use reasonable force to regain possession of chattel if the
of Chattels chattel was wrongfully taken and the owner is in fresh pursuit.
Reentry on Land In some states a landowner may use reasonable force to reenter their land, although the
majority of courts deny that right to landlords attempting to evict tenants.
Public Necessity A defendant may harm the property interest of another when necessary to prevent a
disaster to the community or a substantial number of people. No reimbursement of the
plaintiff is required.
Private Necessity A defendant may harm the property interest of another if necessary, to protect his own
interests or those of a few private citizens because no less damaging way to prevent the
harm exists. Reimbursement of the plaintiff is required if there is substantial harm to the
plaintiff’s property.
own poor judgment and the plaintiff is a member of However, if the condition of the patient’s appendix
that protected class. A defendant who commits stat- justified an emergency removal, the patient will be
utory rape, for example, is liable regardless of the deemed to have implicitly consented to that oper-
plaintiff’s consent. Because the plaintiff is a member ation. The issue of consent in the area of medical
of the class the statute is intended to protect, they practice is largely academic today because most
cannot give their consent. hospitals require patients to fill out extremely gen-
eral consent forms, which, unless unduly vague, pro-
Voluntariness of Consent tect hospitals from liability.
If a plaintiff consents only because they are under
duress and that duress creates an immediate and Self-Defense
serious threat to themself or another, their consent In the area of self-defense two questions are gener-
will be deemed involuntary. Threats of future harm ally raised: Was the defendant privileged to use force
and threats involving economic duress are generally to defend themself, and was the degree of force that
not sufficient to render a plaintiff’s consent invol- they used reasonable? (The answers to these two
untary. A person who agrees to hit someone else questions will differ somewhat in the civil arena as
because of a threat of future blackmail cannot claim compared with the criminal arena.) A person may
duress and would still be liable for a battery. defend themself against any threatened harmful or
offensive bodily contact as well as any threatened
Scope of Consent confinement. Whether the threat posed is intentional
A defendant must not exceed the scope of the plain- or negligent does not matter. The defendant need
tiff’s consent. A defendant who invades a plaintiff’s not even actually be harmed to invoke this defense.
interest in a way that substantially deviates from that
consented to will be liable for their act. Suppose Defendant’s Belief
a plaintiff consents to gallbladder surgery but the The defendant must reasonably believe that a threat
surgeon decides to remove their appendix as well. exists, even if they are wrong. This result is probably
Because the plaintiff’s consent did not extend to based on the idea that “self-preservation is the first
their appendix, the doctor will be liable for battery. law of nature.” Suppose a police officer apprehends
a suspect known to them to be armed and danger- How much force a defendant may use depends
ous. If the suspect reaches into their pocket for what on the degree of force necessary to prevent the
the officer mistakenly believes to be a gun and the impending harm. Suppose A threatens B with
officer shoots them, the officer will be deemed to clenched fists. B cannot claim self-defense if they
have acted in self-defense so long as their mistaken respond using a knife, because their response
belief is a reasonable one. If the officer was excep- exceeds the amount of force necessary to protect
tionally timid or paranoid, unreasonably believed themself. Furthermore, a defendant may not use
that the suspect was about to shoot them, and no deadly force (defined as that force likely to cause
objective facts supported their perception, they death or serious bodily injury) unless they are in
could not claim self-defense. danger of death or serious bodily harm themself
(Restatement [Second] of Torts §§ 65–66). Conse-
What Constitutes Reasonable Force? quently, someone threatened with rape or some
A defendant may use only that force that is rea- other type of serious bodily harm may defend them-
sonably necessary to protect themself against a self using deadly force, whereas someone threat-
threatened harm. They cannot use force to defend ened with trespass to chattels may not. This rule is
themself against words alone unless those words based on an objective standard in that the conduct
are accompanied by some type of hostile act. Nor of the defendant is compared to that of a reasonable
can they use force to protect themself against person under similar circumstances.
future harm. Any threat of harm must appear to the
defendant to be imminent. Furthermore, they must Defense of Home
reasonably believe that they have no reasonable A common question that arises in the area of
alternative to the use of force to protect themself self-defense pertains to the use of force when some-
from the impending danger. one invades another’s home. The oft-quoted advice
For obvious reasons, a defendant may not claim that if someone shoots a person who is outside
self-defense if they use force against someone who their house, they must drag the body inside in order
is helpless. If A takes a swing at B and in the process to claim self-defense, is erroneous. All one need
slips and falls flat on his back, rendering him inca- show is that they reasonably believed they were in
pacitated, B cannot take that opportunity to avenge imminent danger of death or serious bodily harm
himself. Nor can self-defense be used to justify any and that no lesser degree of force was sufficient to
retaliation for a previously committed tort. If a child prevent the harm.
throws a snowball at the defendant, hitting them in The courts are split, however, on whether a defen-
the eye, the defendant is not justified in using force dant has a duty to retreat. Some courts, giving homage
to punish the child (Restatement [Second] of Torts § to individual honor and dignity, allow a defendant to
63, illus. 4). In summary, the use of force is not con- use deadly force even if they can safely retreat. Other
sidered reasonable if it is used against someone who courts, attaching more importance to the sanctity of
is helpless in response to a threat of future harm, human life, require a defendant to retreat if they can
in retaliation for a previously committed tort, or in do so safely. Even the latter courts, however, do not
response to words unaccompanied by a hostile act. require someone who is attacked in their own home to

A patient who has had his larynx removed because of cancer allows the surgeon who removed the larynx
to take photographs of him to record the progression of his tumor. The patient gives no written consent but
implies through his actions that he is willing to comply with the surgeon’s request. On the surgeon’s last visit,
he once again proceeds to take the patient’s photograph, but the patient raises his fist and tries to move his
head out of range of the camera. Does the patient’s consent to the previous photographs entitle the surgeon
to take the last photograph despite the patient’s apparent resistance? What defense could the physician use?
Local Links person they are aiding would have been privileged
to use self-defense.
Does your state court recognize the “castle
doctrine” for defense of your property?
Defense of Property
The same rationale used in defense of persons
retreat. This result is apparently based on the precept applies to defense of property. A property owner
that “one’s home is one’s castle.” may use only that degree of force that is reasonably
necessary to protect the property (some states, such
Prevention of Felonies as Texas, allow deadly force to be used to protect
According to the Restatement, deadly force may property). Furthermore, the owner must verbally
also be used to prevent certain types of felonies, insist that an intruder stop before they are justified
such as robbery, kidnapping, and rape. The defen- in using force. An exception to this general rule is
dant must believe that the felony cannot otherwise allowed if the defendant reasonably perceives that
be prevented, and the type of harm threatened must the request to stop will be useless or that the harm
involve death or serious bodily injury (Restatement will occur immediately (Restatement [Second] of
[Second] of Torts § 143). Notice that the defendant Torts § 77[c]). Beyond this an owner may not use
in this case is entitled to use force even though they deadly force to protect property unless they believe
are not personally endangered. such force is immediately necessary to prevent death
or serious bodily harm to themself or another or to
Defense of Others prevent certain types of felonies.
Reasonable force may be used to protect others,
Mechanical Devices
including complete strangers. To claim the privilege
of defense of another, the defendant must reason- Property owners frustrated by frequent burglaries
ably believe that the circumstances would support that the local police appear impotent to prevent
a claim of self-defense and that their intervention sometimes turn to mechanical devices for pro-
is immediately necessary for the protection of the tection. These devices can range from strings of
other person. barbed wire to spring guns, which are mechanically
Problems arise when the defendant intervenes rigged guns designed to go off automatically when
on behalf of another, mistakenly believing assis- someone enters the premises. As a general rule,
tance is necessary. Suppose A sees B being tackled a property owner is entitled to use such a device
and injured by C and they intervene on B’s behalf. only if they could use a similar degree of force
If it turns out that C is an undercover police officer if they themself were present when the intruder
attempting to arrest B, should A be able to claim entered. Because such devices are usually consid-
the privilege of defense of another as long as they ered deadly force, they may be used only to prevent
reasonably believe that B was in imminent danger? death or serious bodily harm or the commission of
Most courts reason that the intervener (A) “steps certain felonies. A homeowner will be liable, there-
into the shoes of the person they have sought to fore, if a trespasser is seriously injured by an elec-
champion (B).” If it turns out that the person being tric fence erected by the homeowner. Because the
rescued is not privileged to act in self-defense, the owner would not be justified in using deadly force
intervener is precluded from claiming such a privi- against the trespasser if they confronted the tres-
lege. A minority of courts, including the Restatement passer in person, they would not be justified in using
[Second], however, allow the intervener to claim a mechanical device that constituted deadly force.
the privilege as long as they reasonably believe the In the case of State v. Warren, 794 A.2d 790 [New
Hamp 2002], the cohabitant of a home used deadly
force to protect himself against the deceased even
Local Links though he reasonably believed that the deceased
What must a defendant prove in your state if would use non deadly force against him. He argued
he mistakenly intervenes on another’s behalf? that the intruder proportionality requirement
should not apply since they were cohabitants, and

George is walking his date to the theater when a man suddenly lunges before them, wielding a knife that he
slashes menacingly at them. George grabs the gun that he carries in his belt holster and points it at the man.
Can he lawfully shoot the man?
Suppose the attacker is mentally ill and likes to scare people but is actually quite harmless. If the “knife”
is actually a plastic toy knife and incapable of causing harm, is George still justified in using deadly force to
protect himself and his date?
the danger was not from a burglary or an intruder. Local Links

Defendant stated that there should be no distinc-
tion between the amount of deadly force allowed to Can you use deadly force in your state to
defend oneself against an intruder as there is to a defend property? If not, what level of force is
cohabitant. The court disagreed. allowed?
Case
State v. Warren
794 A.2d 790 (New Hamp 2002)
BROCK, C.J.
The defendant, Theodore Warren, was convicted after when he reasonably believes that person is about to
a jury trial in Superior Court (Mohl, J.) of reckless man- use unlawful force against him during the commission
slaughter, see RSA 630:2, I(b) (1996), for the stabbing of a felony against him in their dwelling.
death of Kevin Connolly. He appeals, arguing that the The State objected, arguing that RSA 627:4, II(d)
trial court should have instructed the jury that he was does not justify a person’s use of deadly force against
entitled to use deadly force in self-defense if he reason- a cohabitant. The trial court rejected the proposed
ably believed Connolly was likely to use unlawful force instruction. The sole question on appeal is whether RSA
in the commission of a felony, II(d) (1996). We affirm. 627:4, II(d) allows a defendant to use deadly force against
The defendant, his wife, and their daughter lived in a cohabitant of the defendant’s home when the
an apartment with the defendant’s sister-in-law and defendant reasonably believes that the cohabitant
her two children. Connolly, a friend of the Warrens, is likely to use unlawful force in the commission of
also stayed in the apartment. On November 20, 1996, a felony against the defendant in the dwelling or its
an argument at the apartment that began between the curtilage.
defendant and his wife culminated in a physical con- “The purpose of the trial court’s charge is to state
frontation between the defendant and Connolly. The and explain to the jury, in clear and intelligible lan-
defendant stabbed Connolly in the heart. Connolly died guage, the rules of law applicable to the case.” State
from the stab wound. v. Vincent, 139 N.H. 45, 48, 648 A.2d 478 (1994) (quo-
At trial, the defendant requested the following jury tation omitted). We will reverse the trial court’s decision
instruction, based upon RSA 627:4, II(d): if the jury instructions did not “fairly cover the issues of
A person is justified in using deadly force to protect law in the case.” State v. Dedrick, 135 N.H. 502, 505,
himself from another person using unlawful force to 607 A.2d 127 (1992).
commit a felony against him in his dwelling even if the The defendant argues that the jury instructions did
other person also resides in the dwelling. Thus, a room- not fairly cover the issues of law in this case because
mate may use deadly force against another roommate the court declined to give his requested instruction.
(continued)
Case | State v. Warren (continued)

The question of whether the defendant was entitled to the statute’s legislative history to determine legislative
the instruction raises an issue of statutory construc- intent. See Singer, supra § 46.07, at 194–97.
tion. “When construing the meaning of a statute, we As we have noted, under the common law rule
first examine the language found in the statute, and of self-defense, a person is generally justified in
where possible, we ascribe the plain and ordinary using deadly force upon another only if such force is
meanings to words used.” State v. Cobb, 143 N.H. necessary to protect himself (or another) from the use
638, 643, 732 A.2d 425 (1999) (quotation omitted). of unlawful deadly force or an imminent threat to life or
We do not presume that the legislature would pass an basic bodily integrity. See Green, supra at 7. Implicit in
act leading to an absurd result, however, see State v. this rule are the notions: (1) that deadly force should be
Kay, 115 N.H. 696, 698, 350 A.2d 336 (1975), and we used only when, and to the extent, “necessary”; and (2)
will consider other indicia of legislative intent where that the force used in response to the threat should not
the literal reading of a statutory term would compel an be excessive in relation to the harm threatened. Id. at
absurd result. See 2A N. Singer, Sutherland Statutory 7–8. In 1971, the New Hampshire legislature codified
Construction § 46.07, at 194–97 (6th ed.2000). the basic rules governing the use of deadly force in
RSA 627:4, II provides in pertinent part that “[a] self-defense as follows:
person is justified in using deadly force upon another II. A person is justified in using deadly force upon
person when he reasonably believes that such other another person when he reasonably believes that
person … (d) [I]s likely to use any unlawful force in the such other person:
commission of a felony against the actor within such
(a) Is about to use unlawful, deadly force against
actor’s dwelling or its curtilage.” The defendant argues
the actor or a third person, or
that this statute’s reference to “another person” is
(b) Is likely to use any unlawful force against a per-
unambiguous and that the statute applies whether the
son present while committing or attempting to
assailant is an intruder or a cohabitant. We agree with
commit a burglary, or
the State, however, that such a reading would lead to
absurd results. (c) Is committing or about to commit kidnapping or
Under the defendant’s interpretation of the stat- a forcible sex offense.
ute, he was entitled to a jury instruction that he was RSA 627:4, II (Supp.1971). Although the statute per-
justified in using deadly force against his roommate mitted a person to use deadly force against an assail-
even if he believed only that his roommate was about ant who used unlawful force against the person while
to use non-deadly force against him. This interpre- committing or attempting to commit a burglary, the
tation of the statute alters the well-established com- statute did not allow the use of deadly force simply to
mon law principle that a person is generally justified prevent the unlawful entry into a dwelling.
in using deadly force only to meet the use of unlaw- We conclude from our review of the legislative his-
ful deadly force or an imminent threat to life or basic tory that the bill that eventually became RSA 627:4, II(d)
bodily integrity simply because the felony against the is essentially a defense of premises statute intended to
person occurs not on the street, but in a dwelling in permit a person to use deadly force whenever the per-
which the parties have an identical interest. See 1 son reasonably believes that a person who has unlaw-
W. LaFave & A. Scott, Substantive Criminal Law § 5.7, fully entered the dwelling intends to use unlawful force
at 652 (1986); Green, Castles and Carjackers: Propor- against the person in order to commit a felony against
tionality and the Use of Deadly Force in Defense of the person in the dwelling, regardless of whether the
Dwellings and Vehicles, 1999 U. Ill. L.Rev. 1, 7. Because person reasonably believes the intruder is about to
we believe that this would be inconsistent with the use unlawful deadly force. In our view, this “defense of
general principle that the law places great weight upon dwelling” exception to the general rule that the force
the “sanctity of human life in determining the rea- used in response to a threat should be proportionate is
sonable necessity of killing a human being,” State v. based upon the defender’s interest in the premises and
Grierson, 96 N.H. 36, 40, 69 A.2d 851 (1949) (quota- the assailant’s status as an intruder. Because “[i]mplicit
tion and ellipses omitted), we agree with the State that in the defense of dwelling defense is the notion that the
such a result would be absurd. We therefore turn to dwelling is being defended against an intruder,” State v.
(continued)
Case | State v. Warren (continued)

Hare, 575 N.W.2d 828, 832 (Minn.1998), the exception 627:4, II(d) to apply only to intruders and not cohab-
does not apply where the assailant is a cohabitant. Id. itants would undermine a battered spouse’s ability to
We disagree with the defendant that RSA 627:4, II(d) defend himself or herself.
must apply to both cohabitants and intruders because Under this reading of paragraphs II(d) and III(a),
self-defense against an intruder is already covered a victim of domestic violence would not be justi-
by RSA 627:4, II(b) (1996). According to the defen- fied in using deadly force if he or she did not rea-
dant, because burglary requires unlawful entry into sonably believe that the aggressor was about to
a home, RSA 627:4, II(b) was intended to provide use deadly force. However, a victim of domestic vio-
a homeowner with the ability to use deadly force in lence would be justified in using deadly force if he or
self-defense against an intruder. Therefore, read- she reasonably believed that the other person was
ing RSA 627:4, II(d) as the State does renders RSA about to use deadly force, see RSA 627:4, II(a), even
627:4, II(b) superfluous. We are unpersuaded by the if he or she could retreat from the encounter with com-
defendant’s argument because we conclude that para- plete safety, so long as the victim is within the victim’s
graph II(d) applies to a broader set of factual situations dwelling or its curtilage and was not the initial aggres-
than does paragraph II(b). sor. See RSA 627:4, III(a).
The defendant also asserts that because the leg- The defendant argues that two aspects of the stat-
islature has abolished the distinction between intrud- ute’s legislative history support his interpretation of the
ers and cohabitants with the enactment of RSA 627:4, statute. First, the defendant asserts that the Comments
III(a) (1996), a consistent reading of the statute demands to the 1969 Report of the Commission to Recommend
that such a distinction not be read into paragraph II(d). Codification of Criminal Laws make clear that there
We disagree. RSA 627:4, III provides, in pertinent part: should be no distinction made between cohabitants
A person is not justified in using deadly force on and intruders. Even if these comments related to the
a n o t h e r t o d e f e n d h i m s e l f o r a t h i rd p e r s o n issue of defense of dwelling, however, they were written
from deadly force by the other if he knows that he and in 1969, and do little to illuminate the meaning of RSA
the third person can, with complete safety: 627:4, II(d), which was enacted in 1981.
(a) Retreat from the encounter, except that he is not The defendant also argues that subsequent leg-
required to retreat if he is within his dwelling or its curti- islative history supports his reading of the statute. In
lage and was not the initial aggressor…. particular, he notes that in 1993, the Attorney General’s
RSA 627:4, III thus codifies the “duty to retreat” Office proposed legislation that would have expressly
doctrine and makes clear that a person confronted excluded cohabitants from the reach of RSA 627:4,
with deadly force is not justified in using deadly force in II(d). The defendant asserts that the legislature’s failure
response if he or she can retreat with complete safety, to adopt the proposed amendment kept intact the prin-
unless he or she is in his or her dwelling or its curtilage ciple that there is no distinction between intruders and
and is not the initial aggressor. The exception to the duty cohabitants in the application of RSA 627:4, II(d). We
to retreat is premised upon the notion that when a person agree with the defendant that “[c]omments concerning
is in his or her own home or its curtilage, there is no safer prior law which are contained in **795 the legislative
place to which to retreat. LaFave, supra § 5.7, at 660–61 history of a subsequent amendment enacted by a sub-
n. 68 (1986). Given the rationale for this exception, we sequent legislature … [may be] entitled to some consid-
agree with the defendant that it applies even when the eration.” Supervisory Union 29 v. N.H. Dep’t of Ed., 125
assailant is a cohabitant of the dwelling. Such a reading N.H. 117, 122, 480 A.2d 46 (1984). However, the legis-
does not, however, mandate that RSA 627:4, II(d) also lative history of a proposed amendment rejected by a
applies when the assailant is a cohabitant. subsequent legislature does not alter our interpretation
It is not inconsistent to hold: (1) that a person is of the statute, particularly since the proposed amend-
not entitled to use deadly force to repel a non-deadly ment purported to clarify, not change, existing law.
attack in the person’s home where the assailant is a In summary, we hold that RSA 627:4, II(d) does not
cohabitant, see RSA 627:4, II(d); and also (2) that a per- justify the use of deadly force against an assailant
son may, rather than retreat, use deadly force to repel a when the assailant is a cohabitant of the home. Thus,
deadly attack in the person’s home where the assailant we conclude that the defendant was not entitled to the
is a cohabitant. See RSA 627:4, III(a). Such a reading jury instruction he requested.
of the statute obviates any concern that reading RSA Affirmed.
The general principle behind the case was that cannot break into the consumer’s house to regain
the law places greater weight upon the sanctity of possession. If, however, the consumer uses fraud
human life in determining the reasonable necessity to gain possession and the seller promptly discov-
of a killing of a human being. If a property owner ers the fraud, they may use reasonable force to
intends to use a nonlethal device to protect their recover possession (Restatement [Second] of Torts
property, they must post some type of warning. §§ 101[1][a] and 106). No greater force than what
However, a warning that deadly force may be used is required can be used, and deadly force is imper-
would not suffice. No warning of firearms being missible unless necessary for the defendant to pro-
present would have relieved Warren of being liable. tect themself against ensuing violence.
When force starts out as being purely defensive and
then becomes more than is reasonably necessary, Fresh Pursuit
the excess may be aggressive and not defensive. Third, the property owner must be in “fresh pursuit.”
Therefore, if the owner delays for a substantial period
Regaining Possession of Chattels of time before attempting to get their property back,
they may no longer use reasonable force to secure
Under limited circumstances, a property owner may
possession. Instead, they must turn to the courts
use force to regain possession of chattels taken from
for redress. Although the courts have never clearly
them by someone else. Because the owner becomes
defined the meaning of fresh pursuit, it appears
an aggressor by their use of force, they are not given
that prompt and persistent efforts must be made
the same latitude by the courts as one who is taking
to reclaim the property. Owners are privileged to
a less aggressive stance in defending their posses-
use force to recapture property only because of the
sion of chattels.
concern for the delay created by the cumbersome,
time-consuming legal process. If, however, they fail
Reasonable Force
to make timely efforts to regain possession, they will
To claim this defense, the owner must first show that be relegated to the legal process for a remedy. If per-
they used reasonable force in securing the chattels. son A knows their wallet has been stolen by person
Deadly force is never allowable unless justified under B and goes after them to get it back, that would be
the doctrine of self-defense. considered fresh pursuit. If, however, person A waits
a week or two before attempting to get it back from
Property Wrongfully Taken B, they will be relegated to the legal process.
Second, the property must have been wrongfully
taken. If the owner willingly gives up possession Mistake
and is later entitled to repossession of the prop- Any mistakes on the part of the owner will cause
erty, they cannot use force to regain it. A seller them to lose the privilege. If, for example, they
who attempts to repossess a computer sold to mistakenly (albeit reasonably) believe that some-
a consumer who has missed several payments one is in possession of their goods, they will not be

1. Summarize the facts that are critical to an understanding of the Warren case.
2. Why is there no privilege to use force intended to cause death or serious physical injury in order to pro-
tect property? Under what conditions may such force be used?
3. Explain this: A cohabitant has a right to use whatever force necessary to defend their property against
another cohabitant.
4. Summarize the theme of the civil cases cited by the Warren court.
5. Is there a distinction between the amount of force allowed to be used against an intruder as there is
against a cohabitant?
justified in using force to retake the goods. Similarly, Local Links

if they reasonably but mistakenly believe that force
is necessary to reclaim the goods, they will lose the Do the courts in your state permit landlords
privilege. The owner is expected to bear the conse- to use force to evict holdover tenants? What
quences of any mistakes. about to enter an apartment while a tenant is
in occupancy?
Detention of Shoplifters
The issue of recapture of goods most frequently Necessity
occurs in the context of merchants detaining sus- In the privileges discussed thus far, the defendant
pected shoplifters. As discussed earlier in this has prevailed in their cause of action because of
chapter, many courts have granted merchants the some wrongdoing on the plaintiff’s part. In some
privilege of temporarily detaining any person they circumstances, however, the defendant is privileged
reasonably suspect of shoplifting. As you will recall, not because the plaintiff has done anything wrong
the detention must be relatively short in duration and but because of unusual circumstances that justify the
the merchant or its agent must not attempt to coerce defendant’s actions. The privilege of necessity justi-
a payment or a confession from the suspect, nor may fies the defendant’s harming of the plaintiff’s prop-
the merchant or its agent purport to arrest the sus- erty in certain emergencies. For example, a person
pect (Gortarez by & Through Gortarez v. Smithy’s who trespasses on another’s land in an attempt to
Super Valu, Inc., 140 Ariz. 97, 680 P.2d 807 [1984]). avoid a criminal attack can claim the privilege of
necessity. The same for someone who enters another
Reentry on Land person’s land to save a child in danger.
The issue of reentry on land typically occurs in the
case of a landlord who attempts to forcibly evict a
Distinction between Public and Private
tenant who overstays their lease (referred to as a Necessity
holdover tenant). The majority of American courts Cases involving necessity fall into two categories:
do not permit the use of force by landlords. Land- public necessity and private necessity. The con-
lords, it is felt, should be restricted to the legal duct of a defendant protecting only their own inter-
process to resolve these disputes because the law ests or those of a few private citizens falls into the
typically provides procedures allowing for expedi- realm of private necessity. By contrast, if the class
tious resolutions. In short, landlords are discouraged of persons being protected is the public as a whole
from taking the law into their own hands. A landlord or a substantial number of persons, the privilege is
may, however, enter the land if they do so without referred to as public necessity. The only reason for
force. Furthermore, if a provision in the lease allows distinguishing between these two kinds of necessi-
for reentry through the use of force, some courts will ties is that the defendant does not have to pay for
uphold a forcible entry as long as only reasonable damages caused in cases of public necessity but is
force is used. required to do so in cases involving private necessity.

Read over the facts in the “Putting It into Practice” question 3:2 for false imprisonment and consider the
following additional facts:
• The man being interrogated asked to call his employer and/or his spouse and his request was denied.
• One of the store detectives walked around the room repeatedly slapping his gun during the investigation.
• After more than an hour of questioning, the detectives asked the man to sign a civil release form, threat-
ening him with jail if he refused to sign. After he reluctantly signed the form, he was told not to mention
this incident to anyone.
Did the detectives exceed their authority in their detention of the suspected shoplifter?
Public Necessity person or the property of that person. Furthermore,

The privilege of public necessity arises when the privilege requires that no less damaging way of
interference with the land or chattels of another preventing the harm exist. In contrast to cases of
is required to avert a disaster to the community. public necessity, private necessity applies even when
In one case, for example, the defendant sprayed the danger is not severe. A driver, for example, can
fire retardant chemicals on the plaintiff’s land claim the privilege of private necessity if they are
while fighting a forest fire that threatened the forced to trespass on private land because the pub-
entire county. When the plaintiff sued for the dam- lic roadway on which they are traveling is obstructed
age incurred by his trees, the court permitted and the only conceivable path of avoidance is
the defendant to raise the privilege of necessity through the adjoining land of a private owner.
(Stocking v. Johnson Flying Service, 387 P.2d 312
[Mont. 1963]). The defendant who successfully
Damages
claims the privilege of public necessity will not be In determining whether a privilege exists, the harm
required to reimburse the plaintiff for the dam- to the plaintiff’s property must be weighed against
ages they suffer. Although the common law does the severity and likelihood of the danger the defen-
not require the community as a whole to compen- dant is seeking to avoid (Restatement [Second] of
sate the victim, several states have enacted stat- Torts § 263, cmt. d). If the defendant causes no sub-
utes that provide for such compensation. stantial harm to the plaintiff’s property, the privilege
A utility company may be required to relo- of private necessity is a complete defense. If, how-
cate its lines at its own expense if the relocation is ever, the defendant causes actual damage to the
demanded by public necessity (Perrysburg v. Toledo plaintiff’s property, the privilege will be limited, and
Edison Co., 870 N.E.2d 198 [Ohio. App 2007]). the defendant will be required to pay for the dam-
ages caused in a private necessity. Suppose a man is
Private Necessity lost in the forest and comes upon someone’s cabin.
A person may claim the privilege for private neces- If he enters the cabin and takes food because he is
sity when they damage the property of another to starving, he will not be liable for the trespass. He
prevent injury to themselves or their property. The will, however, be required to compensate the owner
privilege also extends to the protection of a third of the cabin for the food he takes.
One of the benefits of invoking the privilege of
private necessity is that the person whose property
Local Links has been harmed has no right to use reasonable force
Does your state have any statutes requiring to prevent the exercise of the privilege. Furthermore,
compensation for victims in public necessity one who resorts to such retaliatory force will be liable
cases? for any damages they cause (Restatement [Second] of
Torts § 263, cmt. b).

A fireman arrives at the scene of a raging blaze and removes Maryann’s lawfully parked car from the high-
way to gain access to a fire hydrant. Is the fireman privileged to move the car? Is he liable to Maryann for
any unavoidable damages to her vehicle?
Maryann’s next-door neighbor, Liz, is bleeding profusely after being hit by flying debris from
chemical-containing cans that exploded in the fire. Liz asks Maryann to use her scarf as a tourniquet
until the ambulance arrives. Maryann refuses because the scarf is an heirloom and says she will look for
something else to use as a tourniquet. Afraid that she will bleed to death before Maryann finds something
acceptable, Liz grabs Maryann’s scarf. Is Liz privileged to do so? Will she be liable to Maryann for the
bloodstains on the scarf? Does Maryann have a valid defense?
Summary
An intentional tort requires that the tortfeasor intend that any harm might occur. An indirect invasion of
or have a desire to bring about a particular conse- the land is sufficient, as is an invasion of the airspace
quence. The fact that the defendant wishes no harm above (by the use of a drone for example) or the sur-
to the plaintiff has no bearing on whether they acted face below the plaintiff’s property. A defendant who
intentionally. If they know with substantial certainty refuses to leave the plaintiff’s land when permission
that a result will occur, they will be liable for an inten- has been terminated also commits trespass.
tional tort. Under the transferred-intent doctrine, a Intentional interference with the plaintiff’s use
tortfeasor’s intent with respect to one person may be or possession of chattels constitutes trespass to chat-
transferred to the person who is actually injured. tels. As with trespass, the only intent required is the
The intentional infliction of a harmful or offen- intent to interfere. The defendant need not intend
sive contact upon a person’s body or anything to cause harm to the property. As with trespass, the
attached to or identified with the body is referred to mistaken belief that the property is their own is not
as battery. The plaintiff need not suffer actual pain or a defense. In contrast with trespass, the plaintiff is
bodily injury nor even be aware of the contact at the required to prove actual harm.
time it occurs. If the defendant’s interference with the plain-
If a tortfeasor intentionally causes an apprehen- tiff’s property is so substantial that the defendant
sion of a harmful or offensive contact, they commit must compensate the plaintiff for the full value of the
assault. Assault requires an intent either to commit a property, the defendant has committed the tort of
battery or to frighten the plaintiff. The victim of assault, conversion. The defendant need not desire to harm
unlike the victim of battery, must be aware of the the plaintiff’s property. With trespass to chattels, the
threatened contact. The plaintiff need not actually fear defendant has a right to return the goods to miti-
that they will be harmed but they must believe that gate the plaintiff’s damages, but the defendant in a
the defendant has the present ability to carry out the conversion action is required to pay the full value of
threatened contact. the property.
The tortfeasor who intentionally confines One of the defenses that can be raised in
another commits the tort of false imprisonment. The response to an intentional tort is consent. If a plain-
plaintiff must be aware of their confinement at the tiff implicitly or explicitly consents to the defendant’s
time it occurs but is not required to subject them- intentional interference, the defendant is not liable
self to any risk of harm in order to extricate themself for their conduct. Consent is determined by objec-
from their confinement. As with assault and battery, tive manifestations of the plaintiff but can be inferred
the doctrine of transferred intent is applicable, and from custom. The plaintiff must be capable of giving
threats of harm must be imminent. consent and must do so voluntarily. If a defendant
The tort of infliction of mental distress can exceeds the scope of the plaintiff’s consent, they will
be committed either intentionally or recklessly, but be liable for their conduct.
in either case the defendant’s conduct must be A defendant may use reasonable force to pro-
“extreme and outrageous.” The specific and unusual tect themself against threatened harmful or offen-
characteristics of the plaintiff may be taken into con- sive bodily contact or threatened confinement. They
sideration in evaluating the defendant’s conduct. cannot raise the defense in response to threats of
Generally, the doctrine of transferred intent is not future harm or when they are threatened with words
applicable, although some exceptions exist. A plain- alone, unless those words are accompanied by some
tiff must prove they actually suffered severe emo- kind of hostile act. Deadly force may be used only in
tional distress and in some courts must prove they response to a threat of death or serious bodily injury.
experienced some kind of actual physical harm. A defendant who uses force to protect against the
A person who enters or wrongfully remains invasion of their home must show that they faced a
on another’s land commits the tort of trespass. The threat of death or serious bodily harm and that no
defendant’s only intent must be to make physical lesser degree of force was sufficient. The courts are
contact with the plaintiff’s land. They need not intend split on whether a defendant has a duty to retreat
any harm to the plaintiff’s property nor be aware before resorting to force.
If the circumstances would support a claim Reasonable force is required, and deadly force is
of self-defense and the defendant’s intervention is never allowed unless justified under the doctrine of
immediately necessary for the protection of a third self-defense. Furthermore, the property must have
person, a defendant may use reasonable force to been wrongfully taken and the property owner must
protect another. If the person being rescued would be in fresh pursuit. If the property owner is mistaken
not be privileged to act in self-defense, the defen- in any way, they will lose the privilege even if their
dant, according to most courts, will be precluded mistake is a reasonable one.
from claiming the privilege. A minority of courts, The use of force to gain reentry on land is usu-
however, allow the privilege as long as the defen- ally not allowed by the courts. Landlords, who most
dant reasonably believes that the person he is aiding frequently argue that force is necessary to evict a
would have been privileged to use self-defense. tenant, are generally restricted to the legal process
A property owner may use only that degree to resolve their disputes.
of force that is reasonably necessary to protect A defendant who is justified in harming the
their property. They must first verbally insist that an plaintiff’s property because of an emergency may
intruder stop unless it reasonably appears that the claim the privilege of either public necessity or
request to stop will be useless or that the harm will private necessity. Interference required to avert a
occur immediately. Mechanical devices used to pro- disaster to the community is classified as a public
tect property are generally considered deadly force necessity; interference necessary to prevent injury
and may be used only to prevent death, serious to a few private citizens or oneself, is classified as
bodily harm, or the commission of certain felonies. a private necessity. In a case of public necessity, the
In some circumstances a property owner defendant is not required to reimburse the plaintiff
may use force to regain possession of chattels. for the damages they suffer.
Key Terms
assault necessity
Intentional causing of an apprehension of harm- Privilege that justifies the defendant’s harming
ful or offensive contact of the plaintiff’s property in an effort to prevent
battery great harm to the defendant or others
Intentional infliction of a harmful or offensive private necessity
contact upon a person Privilege that justifies the defendant’s harming of
chattel the plaintiff’s property in order to protect their
Personal property own interests or those of a few private citizens
conversion public necessity
Substantial interference with another’s property Privilege that justifies the defendant’s harming
to the extent that justice demands payment for of the plaintiff’s property in an effort to prevent
the full value of the property great harm to the public as a whole or to a sub-
deadly force stantial number of persons
Force likely to cause death or serious bodily transferred-intent doctrine
injury Intent with respect to one person (or tort) is
false imprisonment transferred to another person (or tort)
Intentional confinement of another trespass to chattels
intentional tort Intentional interference with another’s use or
Tort in which the tortfeasor intends to bring possession of chattels
about a particular consequence or knows with trespass to land
substantial certainty that a result will occur Intentionally entering or wrongfully remaining
on another’s land
Review Questions
1. What must a tortfeasor intend in order to be 13. What is the difference between trespass to
held liable for an intentional tort? chattels and conversion, and what does a court
consider when distinguishing between these
2. What is the transferred-intent doctrine? two torts?
3. What is a battery? 14. What must be shown to prove that a plaintiff

consented?
4. Does a plaintiff have to be aware of a battery
when it occurs? 15. Under what conditions is a defendant entitled
to use self-defense?
5. How does a battery differ from an assault?
16. When is a defendant justified in using force to
6. If a person is trapped by another, but has one defend their property?
way out, is that considered false imprisonment?
17. Under what conditions might a defendant not
7. How does the tort of false imprisonment arise be justified in defending a third person?
in law enforcement and in shoplifting cases?
18. Why are homeowners not allowed to use
8. If a person hits golf balls onto someone else’s spring guns to defend their homes?
property, is that a trespass?
19. Under what conditions can a property owner
9. Why is it so difficult to hold a defendant liable use force to regain possession of chattels?
for the infliction of emotional distress?
20. Can a landlord use force to evict a holdover
10. How does custom relate to consent? tenant?
11. Does a person have to be aware of another 21. What are the differences between public and
person’s mental ability for consent to apply? private necessity?
12. What are some of the ways a tortfeasor can

commit trespass?
Practice Exam
True-False
1. To be liable for an intentional tort, a tortfeasor 4. The intent to commit one tort cannot be trans-
must intend to harm the plaintiff. ferred to the tort that is actually committed.
2. Tort law and criminal law share the same pur- 5. Battery includes harmful or offensive contact
pose and historical derivations. even if the defendant intended only to frighten
but not to harm the plaintiff.
3. The concepts and terms used in tort law do not
always correspond to those used in criminal 6. Battery must involve contact with the plaintiff’s
law. body, not with something attached to the body.
7. To commit battery the defendant must actually 22. To defend themself against a claim of false
touch the plaintiff with their body. imprisonment, an officer must show that the
arrest they made was lawful.
8. To commit battery the defendant must cause
the plaintiff pain or bodily harm. 23. To defend themself against charges of false
imprisonment by a customer detained for
9. In determining whether a contact is offensive, shoplifting, the merchant must show that there
the question is whether any person of reason- were reasonable grounds for the detention and
able dignity would be offended. that the detention was not unreasonably long.
10. The defendant is liable for the full extent of the 24. The right to detain someone suspected of
plaintiff’s harm even if they could not have rea- shoplifting will be lost if the defendant is
sonably anticipated that harm. coerced into signing a confession or making
11. An assault is not committed unless the plaintiff payment or is publicly accused of shoplifting.
fears the impending contact. 25. To hold a defendant liable for the tort of inten-
12. An assault is committed when a defendant tional infliction of emotional distress, a plaintiff
intends to frighten but not to contact the must prove that the defendant wanted to bring
plaintiff. about a particular consequence or knew with sub-
stantial certainty that a specific result would occur.
13. A plaintiff who believes they can protect them-
self and who is not fearful that they will be 26. Insults and petty manipulations are often the
harmed can still be the victim of an assault. basis for the tort of infliction of emotional
distress.
14. A plaintiff can recover for assault even if they
know that someone other than themself will be 27. A plaintiff’s peculiar characteristics may be
touched. taken into consideration in evaluating the
defendant’s conduct for purposes of the tort of
15. The defendant need not have the ability to intentional infliction of emotional distress.
carry out a threatened contact, but the plaintiff
must believe the defendant has that ability. 28. The courts are not at all uniform in their assess-
ment of extreme and outrageous conduct.
16. An assault occurs even if threats of future harm
are made. 29. The doctrine of transferred intent generally
applies to the infliction of emotional distress.
17. An assault is complete as soon as the plaintiff
apprehends contact. 30. If a defendant fails to commit the tort they
intend to commit but ends up causing the
18. Some courts allow words alone to constitute an plaintiff emotional distress, they cannot be
assault. held liable for the harmful effects of the emo-
tional distress.
19. Merely obstructing a plaintiff from taking
the route they prefer is grounds for false 31. A defendant is liable for the emotional distress
imprisonment. suffered by a plaintiff only if they suffered some
type of physical harm.
20. Confinement for purposes of false imprison-
ment can be achieved by threats even if those 32. Common carriers and public utilities are held
threats consist of the defendant’s body lan- to a higher standard of care than the rest of the
guage or are directed at someone other than public for purposes of the tort of intentional
the plaintiff. infliction of emotional distress.
21. A plaintiff is not required to subject themself 33. Trespass is a strict-liability tort.
or their property to harm in order to extricate
themself from confinement. 34. Trespass does not occur if a defendant’s contact
with the land is a result of a reasonable mistake.
35. A defendant is liable for allowing gases or par- inform them about the risks involved or the
ticles to enter the plaintiff’s land or for setting consequences that will definitely follow the
off a blast that causes vibrations on the plain- treatment.
tiff’s land.
49. To claim self-defense the defendant must show
36. Landowners cannot necessarily sue for an inva- a threat of imminent or future harm.
sion of their airspace.
50. When determining whether a defendant used
37. If a defendant fails to remove something from a reasonable amount of force to protect them-
the plaintiff’s property after permission to be self, a subjective standard is used.
on the property has ended, they are liable for
trespass. 51. A defendant can use deadly force to protect
themself in their home if they reasonably
38. A defendant is liable for all consequences of believe they are in imminent danger of death
a trespass as long as those consequences are or serious bodily harm.
predictable.
52. A defendant must retreat before using deadly
39. Recovery for trespass to chattels is allowed for force to protect themself when their home is
the owner but not the possessor of property. invaded.
40. A viable defense to trespass to chattels is that 53. According to the Restatement, deadly force
the defendant mistakenly believed the prop- can be used to prevent any felony.
erty was theirs.
54. A defendant can use force to defend another
41. A defendant is not liable for trespass to even if they are mistaken about that per-
chattels if there was no harm caused to the son’s need for intervention as long as they
property. reasonably believe that the person they are
helping would have been privileged to claim
42. With conversion the plaintiff can recover even self-defense.
if the defendant made an innocent mistake.
55. Homeowners must post warnings for nonlethal
43. With both trespass to chattels and conversion, devices but posting a warning for a deadly
the defendant has a right to return the prop- device will not absolve them of liability if some-
erty to the plaintiff to mitigate their damages. one is injured.
44. A defendant does not commit conversion if 56. Property owners lose their privilege of using
they mistakenly pick up the plaintiff’s phone force to regain possession of property if they
and does not realize their mistake until two make a mistake.
months later, at which time they return it.
57. Most courts do not allow a landlord to forcibly
45. In deciding whether a conversion has been evict a tenant unless there is a provision in the
committed, the only thing the courts consider lease allowing forcible entry and reasonable
is the extent and duration of the defendant’s force is used.
control of the property.
58. If a defendant claims the privilege of necessity,
46. Mistake is a defense to any intentional tort. they must pay for any damages they cause.
47. A plaintiff’s consent may be implied by their 59. If a defendant has a right to claim the privilege
conduct. of necessity, the plaintiff has no right to use
48. A patient’s consent to treatment will be consid- reasonable force to prevent the defendant
ered ineffective if the doctor fails to adequately from exercising their privilege.
Matching
________ 1. Desire to attain a certain result a. assault
________ 2. Reason for wanting a certain result b. battery
________ 3. Inflicting offensive contact c. false imprisonment
________ 4. Creating fear of harmful contact d. motive
________ 5. Confinement e. intent
________ 6. Conduct exceeding all bounds of decency f. infliction of emotional distress
Fill-in-the-Blank
1. Under the _______________ _______________ 6. If a defendant’s interference with the plaintiff’s
doctrine the intent with respect to one person property is so substantial that they must pay the
is transferred to another person. plaintiff the full value of their property, the tort of
trespass to chattels becomes _______________.
2. An assault occurs when a defendant intends to
but fails to commit a(n) _______________. 7. The privilege of _______________
_______________ allows a defendant to pro-
3. _______________ occurs when a person inten-
tect their own interests in an emergency
tionally confines another.
situation. The privilege of _______________
4. To prove infliction of emotional distress, _______________ allows a defendant to protect
a plaintiff must show that the defen- the interests of the public in an emergency.
dant’s conduct was _______________ and
8. In determining whether a privilege exists, the
_______________.
harm to plaintiff’s property is weighed against
5. _______________ occurs when someone enters the _______________ and _______________ of
or remains unlawfully on another’s land. danger the defendant is seeking to avoid.
Multiple-Choice
1. A plaintiff must be aware of the contact at the 3. For a defendant to be held liable for false
time it occurs for the defendant to be liable for imprisonment
a. battery. a. a plaintiff must be actually incarcerated.
b. assault. b. physical force must be used.
c. both assault and battery. c. a plaintiff must be aware of their
d. neither assault nor battery. confinement.
2. The doctrine of transferred intent is applicable
to 4. To be liable for trespass a defendant must
a. battery. a. intend to harm the plaintiff’s property or be
b. assault. aware that harm might occur.
c. false imprisonment. b. make contact with the land themself.
d. all of the above. c. know that an entry on the plaintiff’s land is
reasonably certain to happen.
5. Conversion can be committed by 9. A homeowner

a. removing goods. a. can use deadly force to defend property.
b. transferring goods to someone who is not b. can use a mechanical device to prevent
entitled to them. burglaries only if the owner would be jus-
c. taking possession of intangibles. tified in using the same degree of force
d. all of the above. if they were present when the intruder
entered.
6. Consent cannot c. is not liable for injuries suffered by a
a. be inferred from custom. trespasser who is hurt by the homeowner’s
b. be implied in emergency situations. electric fence.
c. be given by someone who is incompetent d. all of the above.
or incapable of giving consent.
d. all of the above. 10. To regain possession of their property, a
property owner
7. Consent a. may use reasonable force.
a. is not valid if the defendant exceeds the b. may use force if the property was wrongfully
scope of that consent. taken.
b. can, in most states, be given to criminal acts. c. must be in fresh pursuit.
c. is not voluntary if it is given as a result of a d. all of the above.
threat of future harm or economic duress.
d. all of the above. 11. The privilege of private necessity
a. may be claimed only when the danger is
8. A defendant cannot use force to defend severe.
themself unless b. is a complete defense if the defendant
a. they are actually harmed. causes no substantial harm to the plaintiff’s
b. they believe they have no reasonable property.
alternative to the use of force to protect c. can be invoked on behalf of oneself but not
themself against impending harm. a third person.
c. an actual threat exists against them. d. all of the above.
Practice Pointers
Drafting of routine pleadings is a common assignment for litigation paralegals. In offices that handle a large
volume of cases in a particular area of specialization, such as personal injury, insurance defense, or debt collec-
tion, complaint drafting generally involves making straightforward modifications to form complaints, and para-
legals are handed a file and expected to produce a finished complaint, ready to sign and file with the court.
In cases of greater complexity or those that present difficult substantive issues, complaint drafting requires a
detailed analysis of the issues based on appropriate legal research. Here, research-qualified paralegals may be
asked to prepare a draft for review and editing, but the responsible attorney will participate more actively in
the pleading process.
Before a paralegal can begin to draft a complaint, they need to have some basic knowledge of the facts of
the case. These facts are obtained by interviewing the client, and by obtaining pertinent facts and documents,
such as police reports, from other sources. Certain facts are necessary in every case. Here are some of them:
1. The names of the parties being sued
2. The state and county of residence of the parties being sued. In the case of corporations and other enti-
ties, the state in which the entity is incorporated or created must be known as well as the county and
state in which the entity has its principal place of business.
3. The main facts that led to the injury that the client is suing for
4. The place where the injury to the client occurred and the date on which it occurred
Notice the key elements of the following complaint. The caption at the beginning of the complaint con-
tains the names of the court, plaintiffs, and defendants. The caption also indicates that the type of plead-
ing involved is a “complaint.” Under the “General Allegations” the jurisdictional element of the complaint is
satisfied by showing where the cause of action occurred and where the defendants are doing business. The
“General Allegations” also contain a brief summary of the facts supporting the cause of action. Each “count”
identifies a cause of action (intentional infliction of emotional distress and conversion) and the relief being
sought (general, special, and punitive damages).
Traci Cull 001995

Cull Law Offices, LLC
P. O. Box 15791
Louisville, Kentucky 40502
(502) 459-1111
Attorney for Plaintiff
IN THE SUPERIOR COURT OF THE STATE OF KENTUCKY IN AND FOR THE COUNTY OF
JEFFERSON
LINDA MENDOZA, a single woman
Plaintiff,
v. No. CV-07-00123
EMMANUEL RUDY LOPEZ and JANE DOE LOPEZ hus- COMPLAINT
band and wife; BEVERLY ALLEN POE and JOHN DOE
ALLEN POE husband and wife; JOHN DOES I-X; JANE
DOES I-X; BLACK CORPORATIONS I-X; and WHITE PART-
NERSHIPS I-X.
Defendants.
Plaintiff Mendoza alleges:

1. Plaintiff Mendoza currently resides in Jefferson County, Kentucky and at all times mentioned herein
was a resident of Jefferson County, Kentucky.
2. Defendants caused events to occur in Jefferson County, Kentucky, out of which this claim for relief
arises.
3. Defendants are and were at all times mentioned herein residents of Jefferson County, Kentucky.
4. All Defendants identified as husband and wife were at all times mentioned herein married to each
other and were acting in furtherance of their marital community. At the present time the true name
of any spouse identified as Jane Doe or John Doe is unknown to Plaintiff Mendoza, who therefore
sue this Defendant by such fictitious name and will seek to amend this complaint when the true
name of such spouse is ascertained.
5. All Defendants identified as Kentucky Corporations were at all times mentioned herein created,
organized, and existing under the laws of the State of Kentucky.
6. All Defendants identified as foreign corporations were at all times mentioned herein qualified and
authorized to do and were doing business in the State of Kentucky.
Practice Pointers (Continued)
7. Defendants John Does I-X, Jane Does I-X, Black Corporations I-X, and White Partnerships I-X are
those persons and entities whose relationships to the named Defendants or whose acts or omis-
sions give rise to legal responsibility for the damages incurred by Plaintiff Mendoza, but whose true
identities are at the present time unknown to Plaintiff Mendoza. These persons and entities hereby
are notified of Plaintiff Mendoza’s intention to join them as Defendants if and when additional inves-
tigation or discovery reveals the appropriateness of such joinder.
Count I
Negligence
8. On or about December 1, 2018, in the vicinity of the intersection of Poplar Level Road and Green
Street, in Louisville, Kentucky, Linda Mendoza was injured as a result of the negligent and reckless
driving of Emmanuel Rudy Lopez and Beverly Allen Poe.
9. Emmanuel Rudy Lopez had over twelve glasses of beer at the local tavern immediately prior to the
accident.
10. Beverly Allen Poe was negligent when she reached down to pick up and dial a number on her cell
phone, causing her to collide with the Mendoza Lopez accident.
11. Defendant Poe jumped from her car and pulled Mendoza out of her car and began to hit and kick
Mendoza repeatedly.
12. As a direct and proximate result of these injuries, Plaintiff Mendoza has incurred and expended
medical and related expenses and will, in the future, be required to incur and expend medical and
related expenses for the care and treatment of her injuries.
Count II
Assault
13. Plaintiff hereby adopts and incorporates all preceding paragraphs of this Complaint as if set forth
herein again in full.
14. The actions of Defendant Poe constituted assault in that the actions were performed with the
knowledge and intent to cause Plaintiff harm or offensive contact, or apprehension thereof, and
Plaintiff did suffer reasonable apprehension of such imminent contact.
15. Defendant Poe has severely injured and damaged Plaintiff and caused her great and permanent
psychological and emotional damage.
16. As a direct and proximate result of the injuries caused by Defendant Poe, Plaintiff has incurred, and
will incur in the future, medical bills, miscellaneous expenses and losses, lost earnings, employment
and/or loss of earning capacity, and other damages in an amount to be proven at the time of trial in
this matter.
17. As a further direct and proximate result of the physical and emotional injuries caused by Poe, Plain-
tiff has incurred, and will incur in the future, pain, suffering, emotional distress, anxiety, loss of rep-
utation, humiliation and inconvenience, and other general damages in the amount to be proven at
the time of trial in this matter.
18. The actions of Defendant Poe as described herein, were not only intentional and/or reckless, but were
malicious, wanton and willful, and performed with an evil hand guided by an evil mind, so as to war-
rant the imposition of punitive damages in the amount to be proven at the time of trial of this matter.
Count III
Battery
19. Plaintiff hereby adopts and incorporates all proceeding of this Complaint as if set forth herein again
in full.
20. The actions of Defendant Poe against Plaintiff as described above constitute battery in that offen-
sive contact, or apprehension thereof.
21. The actions as described on the part of Poe constitute violations of Kentucky law, statutes, and
regulations.
22. As a direct and proximate result of the battery on Plaintiff, Plaintiff has or will sustain the damages
referred to in count one.
Count IV
Intentional Infliction of Emotional Distress
23. Plaintiff hereby adopts and incorporates the preceding paragraphs of this Complaint as if set forth
herein again in full.
24. The conduct on the part of Defendant Poe as imposed on Plaintiff caused the intentional inflic-
tion of emotional distress in that said conduct was extreme, outrageous, was done with either
the intent, or the reckless disregard of the near certainty that such conduct would result in
severe emotional distress.
25. As a direct and proximate result of the infliction of emotional distress on Plaintiff, she has been
severely injured and is entitled to damages.
WHEREFORE, Plaintiff Mendoza respectfully requests judgment against Defendants:
a. For medical and related expenses in an amount to be ascertained at the time of arbitration/
mediation/trial;
b. For loss of earnings in an amount to be ascertained at the time of arbitration/mediation/trial;
c. For just and reasonable compensation for pain and suffering in an amount to be ascertained at
the time of arbitration/mediation/trial;
d. For loss of the use of her vehicle in an amount to be ascertained at the time of arbitration/
mediation/trial;
e. For property damage expenses in an amount to be ascertained at the time of arbitration/
mediation/trial;
f. For costs incurred by Plaintiff; and
g. For such other and further relief as the Court deems appropriate.
RESPECTFULLY SUBMITTED this 15th of February 2019
Cull Law Offices, LLC

By __________________
Traci L. Cull
Attorney for Plaintiff
Tort Teasers
1. What intentional torts were committed in the hypothetical scenario given at the beginning of this
chapter? What defenses could have been raised by each of the actors who committed a tort?
2. The defendant was charged with violating a city ordinance banning sleeping in designated public areas.
Defendant argued that their homelessness stemmed from economic conditions over which they had no
control and that on the night in question they had been turned away from every available shelter in town.
Was his conduct privileged? In re Eichorn, 81 Cal. Rptr.2d 535 (1998).
3. Plaintiffs sue Defendant veterinarian who attempted to spay their pet dog during a routine teeth clean-
ing. When they picked up their dog, she had a 3-inch scar on her belly. The plaintiffs sued for emotional
distress for themselves as well as their pet. The court dismissed the case because pets are considered
personal property. Is the vet liable for any torts in this case? Oberschlake v. Veterinary Assoc. Animal
Hosp., 785 N.E.2d 811 (Ohio Ct. App. 2003).
4. Defendant sees Plaintiff break into a vending machine. He yells at Plaintiff to stop, drop his weapon, and
wait for the police but Plaintiff and his companions continue to run. The thieves are carrying a money
box, a tire tool, and a lug wrench. When they are seventy to seventy-five yards away Defendant fires
three shots, one of which strikes Plaintiff in the back. Should Defendant be held liable? Bray v. Isbell, 458
So. 2d 594 (La. Ct. App. 1984), cert. denied, 462 So. 2d 210 (La. 1985).
5. Plaintiff is injured by Defendant’s vicious dog when he trespasses on Defendant’s land. Defendant has
posted a sign warning outsiders of the presence of the dog. Should Defendant be held liable? Hood v.
Waldrum, 434 S.W.2d 94 (Tenn. Ct. App. 1968).
6. What should the defendants in each of the following cases be found liable for?
a. Auctioneer sells stolen goods. Judkins v. Sadler-MacNeil, 376 P.2d 837 (Wash. 1962).
b. Defendant race steward posted security guards to prevent Plaintiff racehorse owner from retrieving
his horse from race grounds and required that the horse be raced against the owner’s wishes.
Jamgotchian v. Slender, 170 Cal. App. 4th 1384 (2009).
c. Plaintiff owns a tract of land on a hill. Defendant discovers the entrance to a cave on the land adjoin-
ing his own. The cave extends a considerable distance under Plaintiff’s land. Defendant develops the
cave, advertises it, and conducts tours through it. Edwards v. Sims, 24 S.W.2d 619 (Ky. 1929).
d. Defendant touches a woman in an indecent manner, Skousen v. Nidy, 367 P.2d 248 (Ariz. 1961).
e. Defendant threatens Plaintiff with an unloaded gun. Allen v. Hannaford, 244 P. 700 (Wash. 1926).
f. Plaintiff, a supervisor at an insurance company, terminates an employee because he threatens another
employee with a handgun. Immediately after his termination, the employee begins stalking Plaintiff,
making “hang-up telephone calls, sending unsolicited merchandise to her home, and making death
threats.” She asks for help from Defendant’s company but is denied assistance and told to call the
police. The man is ultimately arrested for stalking and criminal harassment. Plaintiff feels Defendant’s
company failed to take steps to make her work environment safe. Snead v. Metropolitan Property and
Casualty Insurance Co., 909 F. Supp. 775 (Ore. 1996).
g. Defendant, a police officer, observes Plaintiff’s dog running loose in violation of the city’s “dog
leash” ordinance. When Defendant demands that Plaintiff produce her driver’s license or go to
jail, she refuses to do so, although she does volunteer her name and address. Defendant arrests
her, charging her with a violation of the dog leash ordinance. Enright v. Groves, 567 P.2d 851
(Colo. Ct. App. 1977).
Internet Inquiries
This exercise will require you to go to the web page for your state’s highest court. You can use one of two ways
to get there. One way is to go to a frequently used legal portal called FindLaw at www.findlaw.com. At that
site, enter “state laws [your state]” as your search term and look for a link to your highest court.
Once you find the web page for your highest state, look for links to recent court decisions. If your
state’s highest court does not have links to its decisions, go to the Indiana Supreme Court web page for an
example—www.in.gov/judiciary/supreme
1. How far back can you get court decisions for your state’s highest court online?
2. Are summaries or full-text opinions available, or both?
3. Can you search for cases? If yes, look for cases on battery. How many cases come up?
4. Must you read each case, or are you provided with an abstract or brief of the case that allows you to scan
the cases more quickly?
You have been asked to do an intake interview of a potential client, Murray McDonald. This is what you
find out:
Murray was attending a bachelor party for his friend Steve at Steve’s house. Sometime during the party
Murray made a derogatory comment about the local professional football team—a comment to which many
of the people present apparently took great umbrage. About a half hour after he had made the comment,
Murray found himself surrounded by at least six angry partygoers. While he was trying to figure out what was
happening, one of them grabbed his glasses. Murray is extremely nearsighted and is virtually blind without
his glasses. The partygoers started tossing Murray’s glasses around like a football, making snide comments
about Murray’s “nerdiness” in the process. Eventually someone dropped the glasses and in the process
of trying to recover them, they were smashed. Murray, who said he became increasingly nervous as this
“game” went on, tried to extricate himself from the circle the instigators had created, but they would not let
him pass. They were standing near the pool when the incident began, and one of the men decided it would
be fun to push Murray in the pool. Murray, who was terrified of going underwater, frantically struggled to get
away but was eventually thrown into the deep end of the pool. Not being able to swim, Murray panicked
when he felt himself hit the bottom of the pool. The perpetrators allowed him to sink under the water several
times before anyone attempted to help him. Murray estimates he spent at least twenty terrifying minutes in
the pool, during which time he was certain he was going to drown before he was dragged out on the pool
deck. He lay there exhausted for about an hour until his friend Willard, who had been hiding in the bushes,
got the courage to gather him up and take him to an emergency room, where they treated him for mental
trauma and physical exhaustion.
Murray was unable to go to work for several days after this incident, and he is currently undergoing inten-
sive psychotherapy. This experience triggered some longstanding fears and phobias, which his psychiatrist
indicates may take several months or even years to treat. Murray continues to have nightmares in which he
relives this experience, he has lost considerable weight because of being too stressed to eat, and he experi-
ences panic attacks on a daily basis, making it difficult for him to function at work or socially.
One of his coworkers, John, who had also attended the party heard about Murray’s plight and stopped by
to visit him after work one day, ostensibly to apologize for the instigator’s behavior. Murray told John to leave
his house and hinted that he would call his lawyer. John suddenly became verbally abusive and shouted that
Murray had “better not do something stupid like file a lawsuit.” He warned Murray that he knew where Murray
lived and that if Murray caused any trouble for him or any of the other partygoers, he would come back and
finish what they started at the party.
1. What potential torts do you think were committed against Murray?
2. What information would you have to gather before a complaint could be filed?
3. Do you think Murray has any criminal charges available as well as tort?
4. What damages do you think would be appropriate in this case and what must be proven?
5. Are there any available defenses for the instigators?

2
Part
Reasons to Sue
Chapter 4: Negligence: Duty
Chapter 5: Negligence: Breach of Duty
Chapter 6: Negligence: Causation
Chapter 7: Negligence: Damages
Chapter 8: Negligence: Defenses
Chapter 9: Malpractice
Chapter 10: Misrepresentation, Nuisance, and
Other Torts
Chapter 11: Strict Liability
Chapter 12: Product Liability
Chapter 13: Defamation and Related Torts
Chapter 4
Negligence: Duty
Chapter Topics
Overview of Duty Outside the Possessor’s Property
Possessors of Land Landlord/Tenant Liability
Trespassers Sellers of Land
Trespassers as Rescuers Duty to Protect or Aid Others
Licensees Unborn Children
Invitees Vicarious Liability
Common Law Distinctions Today
Chapter Objectives
• Understand the general duty owed to others in • Describe the liability of the possessor of land
particular situations. regarding conditions that pose an unreasonable
• Describe the standard of care expected of a risk of harm to persons outside their property.
possessor of land toward those who enter their • Describe the standard of care that arises out of
land. certain special relationships (e.g., employer
• Describe the standard of care expected of a -employee) and special situations (e.g., rendering
possessor of land toward those who enter their emergency care).
land as a trespasser. • Describe the standard of care expected of
• Describe the standard of care expected of a landlords, tenants, and sellers of land.
possessor of land toward those who enter their • Discuss the duty of care owed to an unborn child.
land as a licensee. • Recognize the concepts of vicarious liability and
• Describe the standard of care expected of a the family-purpose doctrine.
possessor of land toward those who enter their • Discuss the standard of care owed to trespassers
land as an invitee. who are rescuers.
• Explain the difference in the standard of care by
some states no longer using the common law clas-
sifications for those who enter a possessor’s land.
CHAPTER 4 Negligence: Duty | 69
Overview of Duty Cardozo in Palsgraf v. Long Island Railroad (discussed

in more detail in Chapter 6). Under this analysis, the
Negligence is conduct that creates an unreasonable tortfeasor may owe a duty of care to those with whom
risk of harm to another. In any negligence claim, they have no direct contact, such as third parties
the concept of duty raises the question of whether whom they could reasonably anticipate being injured
the defendant is under any obligation to act for the by their conduct. A tavern owner, for example, could
benefit of the plaintiff. A duty is a legal obligation owe a duty of care to those injured by intoxicated
to act reasonably and arises out of our relationship patrons whom the tavern owner recognizes as being
to others. so intoxicated as to constitute a danger to those
In general terms, the defendant’s duty is to act about them.
reasonably. In other words, the defendant must Because the foreseeability approach seems to
exercise the degree of care that any reasonable add to the confusion surrounding the duty question,
person would exercise under similar circum- and because foreseeability is also used to analyze
stances. You will notice when you read cases that breach of duty and proximate cause, we will rely on
most courts spend relatively little time addressing the relational approach in this text. Although this
the question of duty but instead jump directly into approach is based on the concept of relationship
an analysis of breach of duty. Nevertheless, duty between plaintiff and defendant, that relationship
is a threshold question in every negligence case need not be a personal or ongoing one. A reckless
because a defendant is not liable, no matter how driver who runs over a pedestrian in a crosswalk
reckless their conduct, unless they owe a duty to owes a duty of care to that pedestrian even though
the plaintiff. Therefore, we will explore the concept the two have never seen one another before their
of duty in some depth in this chapter. unfortunate interaction.
The question of duty is essentially a question of Generally, a legal obligation exists only when
whether a defendant is under an obligation to protect a direct relationship between the defendant and
the plaintiff. Some courts use the relational approach the plaintiff exists. A duty to the plaintiff may also
to answer this question. Under this approach the arise, however, if a relationship exists between the
nature of the relationship between the parties deter- defendant and a third party whose negligence
mines whether the defendant has a duty to protect causes injury to the plaintiff. For example, a defen-
the plaintiff. This approach is also referred to as dant who loans their automobile to someone who
proximity between the defendant and claimant. It is is intoxicated and who injures others could, under
not necessarily the physical proximity, but a type of certain conditions, be found liable for the injuries
connection between the parties. Parents, for example, caused by the intoxicated individual.
owe a duty of care to children, airline companies owe In this chapter we examine the duty of care
a duty of care to their passengers, and hotels owe a owed by possessors of land and the duty of
duty of care to their guests. The nature of the duty care arising out of certain special relationships, such
varies depending on the nature of the relationship. as landlord-tenant, seller-buyer, and lessor-lessee. Be
Landowners owe a different duty of care to trespass- aware, however, that a legal duty arises out of many
ers than they do to those whom they invite on their relationships, such as doctor-patient, parent-child,
premises. Some courts analyze the existence of duty and employer-employee. We also touch lightly on
in the context of foreseeability. Under this analysis, the issue of vicarious liability (although that subject
a defendant owes a duty only to those persons the is discussed in greater detail in Chapter 14) and
defendant could reasonably foresee would be endan- consider how that doctrine affects employers and
gered. This was the approach advocated by Justice car owners.
In the News
General guidance to homeowners regarding the prevention of negligence suits is found in an interesting
article by the American Bar Association entitled “Floor Wax and Dog Attack—Homeowner’s Guide to Avoid-
ing Liability.” Go to www.americanbar.org/content and put “floor wax and dog attack” in the search bar. The
sections on attractive nuisance, social host liability, and artificial hazards are particularly topical for this chapter.
70 | Part II Reasons to Sue
Possessors of Land Exhibit 4–1 Duties of Possessor of Land
Throughout this chapter we refer to “possessors” Trespasser

No duty to make land
rather than owners of land. The possessor, not the
safe (with four
landowner, was the focus of protection under the exceptions, see
common law. The purpose of limiting the liability of Exhibit 4–2)
possessors was to encourage full utilization of the
land, unhampered by burdensome legal obligations
to others. For that reason, it was the tenant, not the Possessor of Land
landlord, who generally benefited from the common
law rules.
Licensee Invitee
Under the common law the duty of care owed by Duty to warn of Duty to inspect for
a possessor was determined by the class into which dangerous conditions hidden dangers
the plaintiff fell (see Exhibit 4–1). The three classes
of plaintiffs were trespassers, licensees, and invitees.
A trespasser was one who had no right to be on the
defendant’s land, a licensee was one who came on
Trespassers
the land as a social guest and hence with the own- Early common law established the principle that pos-
er’s consent, and an invitee was one who came on sessors of land could not deliberately set traps or
the land with a business purpose. The owner owed spring guns with the intent of injuring a trespasser.
the highest duty of care to the invitee and the low- From this principle evolved the rule that possessors
est duty of care to the trespasser. Note that although of land must refrain from willfully or intentionally injur-
most courts continue to apply these classifications, ing trespassers. Nevertheless, a trespasser otherwise
the differences between the classes have blurred assumes the risks inherent in entering the land and is
over time. Some courts have abandoned these dis- responsible for his own safety. A trespasser is a person
tinctions altogether. who has no right or permission to be on a possessor’s
land. In general, a possessor owes no duty of care to
a trespasser to make the land safe or to protect the
Local Links trespasser in any way. If the possessor is pursuing dan-
Do the courts in your state classify those gerous activities on the property, they need not warn
on other persons’ property as trespassers, the trespasser of such dangers nor avoid carrying on
licensees, and invitees, or do they use other such activities (Restatement [Second] of Torts § 333).
classifications? There are four exceptions, however, to this general rule
(see Exhibit 4–2). Some duty of care is owed when the
EXHIBIT 4–2 Exceptions to No Duty Rule for Trespassers
Attractive Nuisance Rescuers Known Trespasser Limited Trespass
• Knows children are likely to trespass • Possessor negligently causes • Possessor is aware of • Trespasser uses
harm to person or property trespasser only limited portion
of land
• Knows condition poses unreasonable • Harm must be imminent, real, • Possessor is aware of
risk of injury to children and require immediate action dangerous condition
• Child is unaware of danger posed
by condition
• Benefit in maintaining condition is
slight compared to risk posed
• Possessor fails to use reasonable
care to protect children
plaintiffs are (1) trespassing children, (2) rescuing some- Suppose a two-year-old child, left unattended
one in danger as a result of the defendant possessor’s for approximately ten minutes, wanders into a
negligence,, (3) individuals known to be trespassers, or neighbor’s backyard, falls into the pool, and drowns.
(4) trespassing on a very limited portion of the Assume the backyard is inadequately fenced and
possessor’s land. We will discuss each of these excep- that the owner is aware that on previous occa-
tions in more depth in the following sections. sions children have climbed over the fence into
the backyard. Does the swimming pool meet the
criteria of an attractive nuisance as set forth in the
Attractive Nuisance
Restatement? Yes. The owner knows that children
The notion that children who are trespassers should are likely to trespass, as they are aware they have
be entitled to greater protection than adults evolved trespassed in the past. A swimming pool certainly
from the attractive nuisance doctrine. Under this poses an unreasonable risk of serious injury or death
doctrine, a property owner has a duty to inspect to very young children, as they are not usually fully
their property for any potentially dangerous condi- cognizant of the danger posed. The owner has
tions that may attract children and/or induce them to failed to use reasonable care by failing to provide
enter the premises because the condition is enticing adequate fencing. Any benefit the owner gains from
to them. The status of a child of being a licensee, not expending the money to install safe fencing is
invitee, or trespasser is not usually considered in slight when weighed against the risk of injury posed
these cases. A construction site might be considered to trespassing children.
an attractive nuisance since it usually contains lum- The age, experience, and intelligence of the
ber, ladders, and other items that make wonderful child may determine whether the attractive-nuisance
props for fertile imaginations. Another example of an doctrine applies. The question is whether the child is
attractive nuisance may be old cars on property, or a able to appreciate the risk of the condition involved.
fishpond. Both of these seem interesting to children Even a relatively young child may be expected to
and can both pose imminent dangers. These types understand the risk of drowning or the risk of fall-
of conditions are often referred to as “invitations to ing from a great height. If the defendant can show
play” for children and require a greater standard of that the injured child, because of their experience
care. or intelligence, was aware of and appreciated the
Under the Restatement, a possessor can be danger, even if other children of their age might not
found liable to a trespassing child if the following have been so appreciative, the child will be barred
conditions are met (Restatement [Second] of Torts from recovery. This is on a case-by-case basis and
§ 339): a subjective view. The standard of care for children
• The possessor has reason to know that the con- is normally a higher standard than a reasonable
dition is on a place on the land where children person one.
are likely to trespass. If the condition causing the injury is a “natural”
• The possessor must have reason to know of the rather than an “artificial” condition, the courts are
condition and to know that it poses an unrea- less likely to allow the child to recover. The reasoning
sonable risk of serious injury or death to tres- seems to be that it is prohibitively expensive to pro-
passing children. tect children from a natural condition such as a lake;
also, a natural condition is one for which children
• Because of their youth, the children must not
are more likely to be familiar with the risk involved.
have discovered the condition or realized the
The distinction, however, between a natural and an
danger posed by coming into the area made
artificial condition is not an absolute and should not
dangerous by the condition.
be relied on as the sole basis for denying liability.
• The benefit to the possessor in maintaining the The public policy consideration here is that chil-
condition in its dangerous form must be slight dren cannot adequately assess risk with property
in comparison to the risk posed to the children. hazards. The bottom line for possessors is that they
• The possessor must fail to use reasonable must take reasonable measures to prevent harm to
care to eliminate the danger or to protect the children. This does not mean that they need to make
children. their premises childproof. Nor does it mean they

1. Is an objective or subjective standard used in assessing whether the attractive-nuisance doctrine applies
to a particular child?
2. Suppose a manufacturing company uses a pulley to hoist raw material up to a fifth story of its factory.
The company is aware that children like to visit its open yard and its employees actively try to drive the
children away. One day an employee forgets to shut off the engine that operates the pulley. A group of
children who walk by and see the ball and hook on the pulley going up and down dare one another to
grab hold of the pulley and be carried up to the fifth floor. Jed, an eight-year-old, accepts the dare and
is being carried up by the pulley when he becomes frightened and lets go of the pulley, falling to the
ground and sustaining serious injuries. Does the company owe Jed a duty under the attractive-nuisance
doctrine?
3. The owner of a small artificial pond is aware that children in the day-care center next to him often
wander away from the center and go near the pond. The owner could prevent this by closing and
locking his gate. Marie, a three-year-old child, falls into the pond while attempting to catch some
goldfish and almost drowns. Does the pond owner owe Marie a duty of care? Would your answer
change if Marie were ten years old? Would your answer be different if it were a swimming pool
instead of a pond?
4. A railroad company has a turntable that it knows creates a risk of unreasonable harm to children, and the
company is aware that children often trespass in the area to play on the turntable. The company could
easily prevent harm to children by installing a locking device on the turntable that would make it difficult
for children to set it in motion. Micki, who is nine, is injured when his foot gets caught in the turntable. Is
the railroad company liable to Micki? Would your answer change if installing such a locking device would
have prevented its effective operation? What if Micki had been warned to stay away and off of the turnta-
ble by employees in the past?
are required to inspect for dangerous conditions of another person is in danger or suffering, it is reason-
which they would otherwise have been unaware. ably foreseeable that a rescuer might intervene and
Placing too great of a burden on property owners get injured. The rescue doctrine holds the defendant
is not the purpose here, the purpose is to use liable for damages and/or injuries to the rescuer. As
reasonable methods of warning to trespassers and reiterated in Sears v. Morrison (1999) 76 Cal. App. 4th
especially to children if they are known to be antic- 577), “[A]lthough the rescuer may be said to have
ipated on the property. Posting a warning may in willingly exposed himself to the danger, such act
many instances be sufficient. Question—What if the does not eliminate or excuse the culpability created
child does not yet read or speaks another language? by the actor’s negligence.”
The doctrine was described this way in a 1921
New York court opinion, Wagner v. International Ry.
Co. (1921) 232 NY 176, 180, by Justice Cardozo:
Trespassers as Rescuers “Danger invites rescue. The cry of distress is
If a person intervenes to protect another person from the summons to relief. The law does not ignore
injury for which a defendant is liable, and the rescuer these reactions of the mind in tracing conduct to
is injured, the defendant will be held responsible for its consequences. It recognizes them as normal.
the injury under the legal principle called the rescue It places their effects within the range of the
doctrine. If a defendant creates a situation where natural and probable.
The wrong that imperils life is a wrong to the Known Trespassers

imperiled victim; it is a wrong also to his rescuer.
Another exception to the general rule regarding
The state that leaves an opening in a bridge is
trespassers involves those trespassers of whom the
liable to the child that falls into the stream, but
possessor is aware. Once a possessor knows that a
liable also to the parent who plunges to its aid.
particular person is trespassing on their property, they
… The railroad company whose train approaches
owe a duty of reasonable care to that person. This
without signal is a wrongdoer toward the traveler
duty clearly applies when the danger to the trespasser
surprised between the rails, but a wrongdoer
arises out of something the possessor has done, such
also to the bystander who drags them from the
as excavate their land, or build additional structures.
path…. The risk of rescue, if only it be not wan-
The nature of the duty is less clear, however, when the
ton, is born of the occasion.
condition is a natural one, such as a creek or a ditch.
The emergency begets the man. The wrongdoer (According to the Restatement [Second] of Torts
may not have foreseen the coming of a deliverer. § 337, cmt. b, the duty to exercise reasonable care
He is accountable as if he had.” should still apply when the condition is natural.)
The justification given for the imposition of this
Suppose, for example, a motorist was to neg-
duty is that the possessor’s continuing tolerance of
ligently run into a bicyclist, knocking them to the
the trespass constitutes implied permission to use
ground. If another driver who stopped to render aid
the land. Thus, the trespasser is elevated to the
were run over in the process of helping the bicyclist,
status of a licensee. As a practical matter, however,
the motorist causing the accident would be liable
defendants often do not attempt to thwart trespass-
for the injuries of the Good Samaritan. The rationale
ing because to do so would be expensive and prob-
behind this liability is that the negligent motorist
ably unproductive. Imagine the futility of a railroad
created a chain of events that foreseeably resulted
company spending time and money trying to deter
in injury to the rescuer of the tortfeasor’s victim. It
trespassers from using its tracks. Nevertheless, pos-
is foreseeable that a person will attempt to rescue
sessors have been shifted from a position of com-
those placed in danger. Willingly exposing oneself
plete exemption from liability to a more moderate
to danger by rescuing does not recuse the liability
position of limited liability when dealing with known
of the original negligent actor. Restatement (Second)
trespassers. The key here is “known” trespassers.
of Torts § 294, illus. 1, provides a slightly differ-
When a possessor knows or has reason to know
ent example involving a person sitting on the curb
that trespassers are in dangerous proximity to a haz-
watching children play ball on the sidewalk. A motor-
ard and has reason to believe that the trespassers
ist driving down the street sees the children but fails
will either not discover the hazard or not realize its
to slow down or take any preventive measures. One
hazardous nature, the possessor has a duty to use
of the children darts in front of the vehicle while in
reasonable care to warn the known trespassers of
pursuit of the ball, and the observer on the sidewalk
the hazard. In a Florida case, a landowner was found
lunges forward to pull the child to safety, meanwhile
liable for placing a highly dangerous condition on
slipping and falling under the car. The motorist is lia-
his land in proximity to an area where he knew tres-
ble for the broken leg sustained by the rescuer even
passers would go. The plaintiff sped through a stop
though the motorist was not driving in a negligent
sign, ran through the defendant’s fence straight into
manner in relationship to the rescuer. The driver’s
a large pile of wood behind the fence. The court
negligence in failing to anticipate the actions of the
ruled the defendant had purposely placed the pile
child created a situation that foreseeably justified
there to deter drivers from wrecking his fence when
the intervention of the rescuer.
he reasonably anticipated their presence. The plain-
The actual rescue in the rescue doctrine does
tiff later died, and defendant was found liable for the
not require physical intervention. The requirements
injuries (Dyals v. Hodges, 659 So. 2d 482).
to analyze are the plaintiff’s purpose in acting, the
plaintiff’s reasonable belief of the person’s imminent
peril, and the utility of the plaintiff’s actions. The Limited Trespass
doctrine exists to help protect those who have a Possessors of land also owe a limited duty of care to
genuine instinct to help others. frequent trespassers who use only a very limited area
of their land. Suppose a farmer knows of a well-worn higher duty of care if the possessor is carrying out
path across the edge of his property created by activities on the land than if the danger arises out of
children taking a shortcut to school. In such a case some natural condition on the land.
they would be expected to anticipate the traversal Social guests in an automobile are due the same
of these children and would be required to use rea- standard of care as are licensees on land. Unless
sonable care in their activities for their protection for there is a statute to the contrary, most courts have
that particular area. held that the guest is owed no duty of inspection.
Therefore, if the owner of a vehicle fails to inspect
the car’s brakes, which ultimately fail and cause
injuries to the guest, the owner will not be liable for
Licensees the failure to inspect. However, if the owner knew
A licensee is one step up from a trespasser. They or had reason to know of any mechanical issues or
have the possessor’s consent to be on the prop- failures, they would have a duty to warn the licensee
erty but do not have a business purpose for being before using the automobile.
there. Most licensees are social guests. The duty
a possessor owes to a licensee is to warn them of
any hidden dangers the owner knows or has reason Invitees
to know of, if the licensee does not know or have
reason to know of or discover them. In Douglas v. Invitees are those persons invited by the posses-
Irvin, 549 N.E. 2d 368 (In, 1990) the plaintiff failed to sor onto their land to conduct business. An invitee
prove that the property owner breached his duty of can be either a public invitee or a business invitee.
care when plaintiff fell over some plants and into a A public invitee is one who is invited and enters
hot tub sustaining injury. He was walking in the dark the land for the purpose for which the land is held
and there was no reason to think there needed to be open to the public. If a business owner maintains
any type of warning of the presence of the plants. It a free restroom for public use, anyone who enters
was not an unreasonable risk of injury present or a the premises for purposes of using the restroom is a
hidden danger that would not be easily discoverable public invitee. If the land is held open to the public,
under normal circumstances. the visitor need not pay admission to be considered
The most frequently litigated issue in reference a public invitee. Someone who attends a free public
to licensees pertains to the obviousness of a haz- lecture is just as much an invitee as someone who
ardous condition and the warning that is required pays admission to an exhibit. A business invitee is
to prevent harm. A warning that is adequate for an one who enters the land for a purpose connected
adult, for example, may be inadequate for a child, with the business dealings of the possessor. A gro-
as a peril that is obvious to an adult may not be so cery shopper, a museum goer, and a repair worker
to a child. A posted notice warning of danger is not who enter to make repairs are all invitees.
sufficient when the possessor knows that a licensee Even if the plaintiff is not engaged in business at
is unable to read (e.g., a child, a person with poor the time of his injury, they are considered an invitee
vision, or someone from a foreign country) and the so long as they have a general business relationship
possessor may thus be required to use reasonable with the possessor. This can include people coming
care to warn in some other way such as verbally to your house for a garage sale, cable workers, etc.
The possessor has, no duty of inspection or In Campbell v. Weathers, 111 P.2d 72 (Kan. 1941), the
affirmative care to make the premises safe for the plaintiff had been a longstanding customer of the
licensee. Social guests are considered licensees and defendant, who operated a lunch counter and cigar
assume the ordinary risks associated with a visit. As stand in an office building. After standing next to
with trespassers, the courts are more likely to find a the cigar stand for several minutes, the plaintiff used
In the News
To learn the number of highway rail crossing accidents for any year between 1981 and 2019, you can
generate a report based on data compiled by the Federal Railroad Administration. See if you can find it.
the toilet in the back of the building. On the way, enter purely for their own benefit. In one such case
he fell into an open trap door in the dark hallway. a customer who came to a store with the intent of
The defendant argued that the plaintiff was not an shopping was given permission, in her search for a
invitee because he had made no purchases on the particular saleswoman, to enter an alteration room
day of his injury and because the toilet was intended reserved for employees. When she entered the
for the defendant’s employees and not the general room, she fell down a stairway. The court held that
public. The court classified the plaintiff as an invitee she was a licensee because she entered the room
and pointed out that anyone who goes into a store for her own benefit and without invitation by the
with the intent of doing business at the present or in owner (although she had its permission to enter). As
the future is an invitee. The court noted that many a licensee she was required to take the premises as
people shop for hours without making any pur- she found them (Lerman Bros. v. Lewis, 126 S.W.2d
chases. Could they be denied invitee status in light 461 [Ky. 1939]).
of the fact that owners implicitly invite them for their Compare this case with Campbell v. Weathers, in
potential business purpose? The Campbell court which the plaintiff retained his invitee status because
thought not. he entered an area that reasonably appeared to him
A social guest does not rise to the status of an to be open to the public. Reasonable belief of the
invitee even by performing an incidental service plaintiff appears to be the operative fact on which
for their host, such as repairing a broken faucet, or the courts focus in these cases to determine their
fixing dinner. The host must gain some type of eco- status as either a licensee or invitee.
nomic benefit before the guest can be considered An invitee also loses their status if they stay on
an invitee. By the same token, a salesperson making the premises for longer than is reasonably neces-
an unsolicited call to a private home is not an invitee sary to conduct their business. Once their purpose
unless they are invited in (Restatement [Second] of becomes social rather than business, they become
Torts § 332, cmt. b). By contrast, a salesperson who a licensee.
calls on a business where they reasonably believe
that door-to-door salespeople are typically received
is considered an invitee. Nature of Duty to Invitee
The majority of “slip and fall” type cases involve A possessor owes a higher duty of care to an invi-
invitees. In such cases the question is whether the tee than they do to either a licensee or a trespasser.
store owner should be held liable for a customer’s Most importantly, they have a duty to inspect their
slip and fall caused by an unreasonably dangerous premises for hidden dangers when dealing with
condition, such as the proverbial banana peel. The invitees. Although they have no duty to ferret out
plaintiff must first show that a duty exists. If they all hidden dangers, they must use reasonable care
can show a duty as an invitee, it is important to in making their inspection (Restatement [Second]
note that the property owner does not have infinite of Torts § 343). They may even be liable for a dan-
liability. The standard is reasonable care under the gerous condition resulting from faulty construction
circumstances. or design even if the condition existed before they
came into possession of the property.
The definition of reasonable care varies depend-
Losing Invitee Status ing on the use of the premises. The possessor of
An invitee may become a licensee or trespasser if a shopping mall, who may readily anticipate the
they go to parts of the premises that extend beyond passage of thousands of customers, is held to a
their invitation. So long as the visitor reasonably higher duty of inspection than the owner of a private
believes that the premises are open to the public, home who invites an insurance salesperson in for the
however, they will be treated as an invitee even if, purpose of discussing coverage. However, both busi-
unknown to them, the possessor intends that the ness owners and homeowners have a duty to make
area be off limits to the general public. However, their property safe. The standard is not what the
even if a visitor receives explicit authorization from owner thinks is safe, it is what a reasonable person
the possessor to go onto a private portion of the considers safe. In some cases, the use of a warning
premises, they will lose their invitee status if they of a dangerous condition will meet the requirements
of reasonable care, but in other situations affirmative outside the premises (Restatement [Second] of Torts §§
action such as an inspection may be required. If a 364–365). This is particularly true where the hazardous
store owner knows, for example, that customers will condition is artificially created by the possessor. Artifi-
be distracted by goods on display and probably will cial conditions include man-made structures; additions
not notice a sign warning them of danger, then a to the land, such as trees; and alterations to the land,
warning will not be sufficient (Restatement [Second] such as excavations. If a possessor of land, for exam-
of Torts § 343A, illus. 2). ple, alters the condition of the premises so that the
Even if an invitee is aware of and appreciates the normal course of surface water is altered and it flows
danger involved, the possessor may be obligated out onto a highway, they may be held liable for inju-
to take reasonable steps to reduce the danger. In ries caused by their negligence. Courts are less likely
TXI Operations, LP v. Perry 278 S.W. 3d 763 (Tx. to impose liability, however, if the offending object is
2009), a truckdriver plaintiff sued a property owner something like a telephone pole or mailbox, which are
for injuries sustained while hitting potholes on his necessities and are also above-ground objects.
property. Defendant argued that posting a 15-mph In contrast, if the hazardous condition is a nat-
speed limit sign was sufficient warning. The court ural one, the possessor is under no duty to remove
disagreed. It stated that a speed limit sign did not it or protect others from it even if it poses an unrea-
warn of a particular hazard and was merely a general sonable danger of harm to people outside the
instruction. The plaintiff was going the speed limit property (Restatement [Second] of Torts § 363[1]).
and still sustained the injuries. This general rule becomes more complicated when
In some cases, reasonable care may require the dealing with trees. In urban and suburban areas, the
possessor to exercise control over third persons. courts have obligated possessors to prevent trees
A tavern owner, for example, may be obligated to from exposing people outside the premises to an
prevent their patrons from becoming so intoxicated unreasonable risk of harm. They have also required
that they cause injury to others. This situation is dis- the removal of rotten trees and have imposed an
cussed more in the section dealing with the duty to affirmative duty to inspect to discover potential
protect others, later in this chapter. defects in trees. In rural areas no duty to remove rot-
ten trees or to inspect for defects has been imposed.
Some modern courts have rejected the rural/urban
distinction in the case of fallen trees and have held
Common Law Distinctions possessors to a reasonable-care standard instead.
Today
It is interesting to note that several states have
rejected the rigid distinctions between invitee, Landlord/Tenant Liability
licensee, and trespasser and have instead adopted a
reasonable-person standard of liability. Some states Under the common law the reason for limiting a
have abolished the invitee/licensee distinction but possessor’s liability was to promote the possessor’s
continue to apply the old rules of liability regarding right to use the land to its fullest potential with min-
trespassers. The majority, however, still adhere to the imal interference from others. Therefore, protec-
common law classifications. tion was given to the actual possessor of the land
and not the abstract legal owner. As a result of this
principle a tenant who is in possession of the prop-
erty is entitled to the protection of the common law
Outside the Possessor’s rules. In addition, members of the tenant’s house-
Property hold, as well as those in his employ or working
the land for them as independent contractors, are
The reasons underlying the limitations on landowner also entitled to the protection of the common law
liability are less persuasive when the dangerous con- rules. A landlord, accordingly, was relieved of lia-
dition affects those outside the possessor’s property. bility under the traditional common law once they
Possessors are generally found liable for conditions surrendered possession of their property to the
that pose an unreasonable risk of harm to persons tenant. (See Exhibit 4–3.)

1. How would you classify the following?
a. salesperson soliciting magazines from door to door
b. children playing on a vacant lot where the landowner is aware that the children use the lot to play ball
and does nothing to chase them away
c. children playing on a vacant lot where the landowner has installed playground equipment and has
posted a sign welcoming children to play there
d. a truck driver who delivers goods that have been ordered by the homeowner
e. a customer who goes behind the counter in a department store without receiving permission to do so
f. a Jehovah’s Witness in your home to teach Bible study who was invited by you
A nineteen-month-old child falls into a pool and is seriously injured while her parents are houseguests of the
homeowner. The parents have been warned about the pool. Is the homeowner liable for the child’s injuries?
What duty of care is owed the child? A clothing store has a clothes rack in which the base protrudes into
the aisle. Although the rack is obvious to anyone who is looking, a person may trip over the base if they are
not paying attention. A customer who is intent on looking at the racks surrounding this one fails to see the
rack and trips over it, falling to the ground and injuring their arm. What duty does the clothing store owe to
the customer? Could the store be subject to liability? Is there anything the store could do to limit possible
liability?
Tenant’s Duties have reason to believe that the tenant is planning

on holding the premises open to the public. In such
A tenant is held to the same duty of inspection in ref-
cases the landlord has an affirmative duty to inspect
erence to invitees as is a landowner. Consequently, a
the premises to find and repair any damages.
tenant is liable for the injuries to an invitee resulting
from a defect that could have been discovered using
reasonable care even if the tenant did not in fact
Exhibit 4–3 Duties of Tenant versus Landlord
discover it. This liability does not extend, however,
to common areas such as elevators, stairways, and Tenant’s Duties Landlord’s Duties
entranceways if the building is an office building or a
• Same duties as • Liable for dangers they
dwelling with multiple tenants such as an apartment possessor of land know or should know
building. Exhibit 1–3 Torts versus about and tenant has no
Crimes
reason to know about
Landlord’s Duties • Duty does not extend to • Duty to inspect for
common areas dangers when landlord
The general rule of non-liability of landlords has knows property is to be
been significantly altered today by modern social held open to public
policy concerns. A landlord is liable, for example, to • Must use reasonable
the tenant and to the tenant’s invitees and licensees care if they contract with
tenant to keep premises
for those dangers that the landlord knows or should
in good repair
know about and that the tenant has no reason to
• If landlord begins to
know about (Restatement [Second] of Torts § 358). make repairs, they must
Most courts do not interpret this as requiring the perform them reasonably
landlord to inspect the premises. The thrust of this • In some cases, has duty to
rule is to protect the tenant from hidden dangers take security precautions
of which the landlord is aware or should reasonably to protect tenants from
criminal activity
anticipate. The landlord has a higher duty if they
What happens if the landlord contracts with the tenant’s consent who is injured by the landlord’s
the tenant to keep the premises in good repair? negligence will be allowed to recover against the
Certainly, the tenant can sue for breach of contract landlord. However, if the tenant is aware that the
if the landlord fails to make timely repairs. The repairs were incomplete or were done in a negligent
question is, however, whether the tenant can sue manner, the tenant and not the landlord will be held
in tort as well. The majority of courts allow a tort liable. If the landlord hires an independent contrac-
claim to anyone injured as a result of the landlord’s tor to carry out the repairs, they will usually be held
breach of their covenant to repair. In such a case liable for the contractor’s negligence. The reasoning
the plaintiff must show that the landlord failed to is that a landlord cannot delegate his responsibility
use reasonable care in performing their contrac- to a third party.
tual duties. The landlord, of course, must be given Does a landlord have a general duty to protect
a reasonable time to correct a condition once they tenants from a criminal attack? Does a landlord have
have been notified of it. a duty to repair a known dangerous or defective
Even if a landlord has no contractual duty to condition under their control to prevent a foresee-
perform repairs, once they begin performance, they able third-party attack upon a tenant within the
must do so reasonably. If they initiate repairs and leased premises? The court in Hemmings v. Pelham
then fail to complete them, they, in effect, make the Wood Ltd. Liability Ltd. Partnership 375 Md. 522
situation worse because tenants are implicitly led (Md. 2003) examined that question and identified
to believe that the dangerous condition no longer the circumstances under which a landlord owes such
exists. In such a case, anyone on the premises with a duty to its tenants.
In the News
Use your search engine to see if your state still uses classifications for distinctions of those on
possessor’s property such as licensee, invitee, and trespasser.
Case
Hemmings v. Pelham Wood Ltd.
Liability Ltd. Partnership
375 Md. 522 (Md. 2003)
Suzette Hemmings petitioned this Court to review Facts

an order for summary judgment entered in favor of On November 25, 1997, Ms. Hemmings, with her
Pelham Wood Limited Liability Limited Partnership and husband, Howard Hemmings, entered into an agree-
RLA Management, L.L.P. (hereinafter “the landlord”), ment with the landlord to lease a two-bedroom
the owner and manager, respectively, of Pelham Wood apartment at Pelham Wood, a multi-building apartment
Apartments (hereinafter “Pelham Wood”). We granted complex consisting of four hundred units in Baltimore
Ms. Hemmings’ petition to decide whether a landlord has County. The Hemmings’ lease provided in part:
a duty to repair a known dangerous or defective condi-
tion under its control to prevent a foreseeable third-party LANDLORD AND TENANT AGREE:
criminal attack upon a tenant within a leased apartment That [the] landlord has the right to enter the [apartment]
unit, and whether there is sufficient evidence of such at any time by master key or by force, if necessary, to
condition to make summary judgment inappropriate. inspect the Premises, to make repair/alterations in the
For the reasons explained below, we conclude that the [apartment] or elsewhere on [the] Landlord’s property,
Circuit Court’s entry of summary judgment was in error. to enforce any provision of this lease or to show the
(continued)
Case | Hemmings v. Pelham Wood Ltd. (continued)

[apartment] to prospective future tenants or purchasers and there was “interior lighting in the [common area]
without being liable to prosecution therefore, or dam- hallways.” For the “terrace” or ground level apartments
ages by reason thereof. only, the Landlord also provided alarm systems, which,
*** once armed, generated a “strong and loud noise” when
That … [the] landlord shall be responsible for repairs one opens an apartment door.
to the [apartment], its equipment, and appliances At approximately 1:17 a.m. on June 13, 1998, an
furnished by [the] landlord…. unidentified intruder entered the Hemmings’ apartment
*** through the sliding glass door and, upon encountering
LANDLORD AGREES: Mr. Hemmings in the apartment bedroom, shot him
That the [apartment] will be made available such that twice in the abdomen. Mr. Hemmings died from gun-
it will not contain conditions that constitute, or if not shot wounds later that morning at the University of
properly corrected would constitute, a fire hazard or Maryland Shock Trauma Center.
a serious and substantial threat to the life, health, or After the attack, the Baltimore County Police Depart-
safety of occupants. ment initiated an investigation. The police incident report
*** of the investigation noted that the intruder, who was not
TENANT AGREES: known to Mr. Hemmings, entered the apartment by forc-
That [the] landlord shall not be liable for an injury, dam- ing open the sliding glass door from the patio.
age, or loss to person or property caused by other ten- Patrick M. Gunning, a contractor whom the landlord
ants or other persons, or caused by theft, vandalism, had hired to repair the sliding glass door in the Hem-
fire, water, smoke, explosions, or other causes unless mings’ apartment on June 22, 1998, noted that the
the same is exclusively due to the omission, fault, neg- “whole left side of the [sliding glass door] frame [,the
ligence, or other misconduct of [the] landlord. area of] the locking mechanism[,] … was totally muti-
*** lated” and that the aluminum frame around the door
RULES AND REGULATIONS was “mangled, twisted, and destroyed.” He also stated
TENANT WILL NOT: that the locking mechanism no longer functioned and
*** that it appeared irreparable, as if “somebody had taken
Change the locks on the doors of the Premises or a jackhammer and actually beat it to death.” Accord-
install additional locks, door knockers, chairs, or other ing to Mr. Gunning, the marks on the door and locking
fasteners without the prior written permission of [the] mechanism, which he believed had been caused by an
landlord. object, were on the exterior side of the door, and no
The Hemmings resided at 5 Lynfair Court, one of marks appeared on the interior portion of the door. As
several apartment buildings at Pelham Wood. Their for the middle portion of the sliding door, Mr. Gunning
two-bedroom apartment unit, Apartment A–2, was recalled that “it was flexed outward as far as it could go
located on the second floor of 5 Lynfair Court, just without actually breaking the glass.”
above the ground level apartment. A sliding glass door Mr. Gunning also described the remains of a Charlie
in the Hemmings’ apartment allowed access to a rear Bar on the sliding glass door he repaired. Mr. Gunning
patio balcony overlooking a wooded area. believed a Charlie Bar had been on the door “at one
In an attempt to deter criminal activity at Pelham time” because “the cradle that [the Charlie Bar] lays
Wood, the landlord had implemented several security in” remained attached to the door at the time of his
devices. Howard Gartner, the landlord’s corporate repairs. As for the bar itself, though, he found “nothing
designee, stated that “[t]here is exterior lighting around of a [Charlie] bar whatsoever.” Mr. Gunning replaced
the property [and that] each apartment has a regular the old “housing mechanism,” disposing of it and
door lock on its front door as well as a deadbolt furnishing an entirely new Charlie Bar for the door.
door lock.” For the apartments with patio doors, Several tenants of the apartment building where
like the Hemmings’, the landlord provided “what is the Hemmings lived, 5 Lynfair Court, recalled the state
commonly referred to as a Charlie Bar,” a horizontally of the lighting around their building prior to the Hem-
mounted bar securing the sliding glass door. In addition, mings incident. One indicated that there was “not a light
“[t]he [apartment] windows ha[d] locks on them,” fixture against the wall … outside of [her] apartment” in
(continued)

the rear of 5 Lynfair Court. Another who lived imme- 395 (2002) (quoting Valentine v. On Target, Inc., 353
diately below the Hemmings’ apartment at the time of Md. 544, 549, 727 A.2d 947, 949 (1999) )
the incident, described the lighting at the rear of the The resolution of the present matter turns on our
building as follows: “Pitch dark. You can’t see anything. evaluation of the first two negligence elements: duty
Even if I would look outside, I couldn’t identify anyone and breach. Ms. Hemmings argues that the landlord’s
in that area because it is really dark.” That tenant stated duty involves more than providing working locks on
that the front of 5 Lynfair Court was well lit but that the apartment doors, as the Circuit Court’s ruling sug-
back of the building was not equipped with a work- gested. Instead, she maintains, the landlord must main-
ing light and was “too dark.” Still another tenant of 5 tain the areas under its control to prevent an attack
Lynfair Court recalled that the back of the building had upon a tenant within the apartment unit. She claims
“always been dark” until the landlord added additional that, among other allegations, the landlord controlled
lighting “[w]ay after” the Hemmings incident. and failed to maintain the exterior lighting located
The Pelham Wood property manager at the time within the common areas.
of the shooting, Marsha Sultan, provided a descrip- The landlord counters that it owed no duty to
tion of the exterior lighting around 5 Lynfair Court. She protect Mr. Hemmings from the criminal act because
stated that there is a light on the front “entrance door “it had no control over any aspect of the break-in.” For
into the building,” a roof light facing the “side of the example, according to the landlord, it “did not have
building,” and a roof light “in the back of the building.” day-to-day control over the apartment’s locks,” and
Ms. Sultan was not sure whether this exterior lighting “only the Hemmings could utilize the security devices
was working “at the time Mr. Hemmings was shot.” provided to them to keep crime out of their home.” The
Mr. Gartner, the landlord’s corporate designee, also landlord further contends that it did not breach any duty
declared that he could not tell “one way or the other” owed to Mr. Hemmings because it had “no notice of any
whether the exterior lights of 5 Lynfair Court were func- defect in, or inadequacy of, any security measures that
tioning on June 13, 1998. He was certain, however, that were in place” at the time of the Hemmings incident.
no lights were in place on the balcony of 5 Lynfair Court When a landlord has leased property but has not
on that date. parted control with a portion of it, we have held that
The Police Department had filed crime reports for the landlord may be liable for a foreseeable injury
twenty nine burglaries or attempted burglaries and two caused by a known dangerous or defective condition
armed robberies that had occurred at Pelham Wood over located within the part of the property over which the
the two-year period preceding the incident involving landlord retained control. As our discussion will high-
Mr. Hemmings. One of the alleged armed robberies took light, the duty of a landlord in these cases depends on
place inside an apartment unit; the other involved an the existence of three circumstances: (1) the landlord
assailant who, bearing a sub-machine gun, approached controlled the dangerous or defective condition; (2) the
the victim from the woods near an apartment build- landlord had knowledge or should have had knowl-
ing. The crime reports further indicated that, in five of edge of the injury causing condition; and (3) the harm
the burglaries, the intruder had entered the apartment suffered was a foreseeable result of that condition…
through its sliding glass door… We have applied this duty of a landlord to cases
Discussion in which a tenant’s injury has occurred within the
To succeed on a negligence claim, a plaintiff must common areas. For example, we have held that the
prove four well-established elements: “ ‘(1) that the landlord is liable for dangerous or defective physical
defendant was under a duty to protect the plaintiff conditions within common areas when the landlord
from injury, (2) that the defendant breached that duty, knew of the condition. See Langley Park Apts., 234 Md.
(3) that the plaintiff suffered actual injury or loss, and at 409–10, 199 A.2d at 624. In Langley Park Apts., a
(4) that the loss or injury proximately resulted from tenant suffered injuries when she slipped and fell
the defendant’s breach of the duty.’ ” Todd, 373 Md. on an icy walkway in the common areas of the land-
at 155, 816 A.2d at 933 (quoting Muthukumarana v. lord’s apartment complex. Id. at 403–04, 199 A.2d at
Montgomery County, 370 Md. 447, 486, 805 A.2d 372, 621. We held that: an accumulation of ice or snow
(continued)

upon the common approaches to tenement houses or deter criminal activity. That is, if the security devices
multi-family apartment buildings may result in imposing that the landlord provides require regular maintenance
on the landlord liability for injuries due to it, provided or inspection for them to properly function, the land-
he knew, or in the exercise of reasonable care should lord must do what is reasonable to maintain or inspect
have known, of the existence of a dangerous condition the devices. This obligation is analogous to a land-
and failed to act within a reasonable time thereafter to lord’s duty to “exercise ordinary care and diligence
protect against injury by reason of it… to maintain [areas under its control] in a reasonably
In its opinion in this case, the Court of Special safe condition.” Langley, 234 Md. at 407, 199 A.2d at
Appeals refused to apply our holding in Scott, reason- 623. See W. Page Keeton, et al., Prosser & Keeton on
ing that Scott “is not controlling because the case sub Torts § 63, at 440 (5th ed., 1984). (“[A landlord] is …
judice involves an act that occurred [not within a common under an affirmative obligation to inspect and repair
area but] within the leased premises.” Hemmings, 144 [common areas] for the protection of the lessee.”).
Md. App. at 317 n. 4, 797 A.2d at 855 n. Conclusion
Ms. Hemmings urges this Court, however, that In the case before us, the Circuit Court ruled that the
Scott should apply to the instant case because we landlord fulfilled any duty to the Hemmings solely by
have held that a landlord may be liable when a tenant providing a working lock on the patio door. The rul-
suffers a foreseeable injury in the leased premises ing, which was issued orally, stated: I mean, I can’t get
caused by a landlord’s failure to use reasonable care by the first tier. You say on one hand that the intruder
for the tenant’s safety in the common areas. We find had to break in. That obviously means the place was
Ms. Hemmings’ argument persuasive. secure and there were locks that properly worked and
Once a landlord takes reasonable security measures the door was secured. And if there was nothing wrong
to eliminate conditions that contribute to criminal activ- with it and he didn’t break in, that means the tenant
ity on the premises, all of its duties with respect to those in this particular case allowed the intruder in. Under
measures have not been fulfilled necessarily. Rather, a either theory, I don’t see where there is any duty of the
landlord has a continuing obligation to properly carry landlord to go any further than that. I think the Court of
out the security measures it provides. See Scott, 278 Special Appeals will have to sort it out.
Md. at 171, 359 A.2d at 555. In Scott, we recited the This analysis inaccurately described the landlord’s
“elementary principle of tort law” that “even if no duty duty and insufficiently contemplated the relevant
existed to employ the particular level of security mea- considerations for determining whether the landlord
sures provided by [a landlord], improper performance owed a duty and, thereafter, breached that duty. We
of such a voluntary act could in particular circum- believe the appropriate analysis demands a closer
stances constitute a breach of duty.” Id.; see Miller v. examination of the facts in the record to determine
Howard, 206 Md. 148, 155, 110 A.2d 683, 686 (1955). whether the landlord breached its duty in this case.
We believe that, to properly perform the security JUDGMENT OF THE COURT OF SPECIAL
measures provided, the landlord has a duty to main- APPEALS REVERSED AND REMANDED WITH
tain and regularly inspect the devices implemented to SPECIAL INSTRUCTIONS.

1. Summarize the key facts, i.e., those facts the court relied on in rendering its decision, in Hemmings.
2. What is the main issue in this case?
3. Does a private person have a duty to protect another person from criminal attacks and if so under what
circumstances?
4. How does foreseeability come into play in the Hemmings case?
Sellers of Land this doctrine has been subject to scathing criticism

by legal commentators and seems to be unique to
In general, a seller of land is released from tort liabil- Anglo-American law.
ity once the buyer takes possession of the property.
If, however, the seller fails to disclose a dangerous Special Relationships
condition of which they are or should be aware and More imposing than the duty to rescue others is the
which they should realize that the buyer will not duty to protect plaintiffs from the negligent, inten-
discover, they will be liable to anyone injured as a tional, or criminal acts of third parties—and the law
result of that condition (Restatement [Second] of is resistant to impose this duty. Generally speaking,
Torts § 353). Their liability ceases when the buyer such a duty arises only in the context of special rela-
has a “reasonable opportunity” to find and correct tionships, such as between parent and child, jailor
the defect, even if the buyer does not in fact dis- and prisoner, carrier and passenger, or employer
cover it (Restatement [Second] of Torts § 353[2]). If and employee (see Exhibit 4–4). Common carriers
the seller hides the defect or intentionally misleads such as airline, railroad, and bus companies have
the buyer into not looking for it, the seller’s liability a duty to protect their passengers. A bus company
will continue until the buyer actually discovers the may be liable, for example, if a brawl breaks out
condition and has a reasonable time to correct it. on a bus, resulting in injury to several passengers,
If the seller of a house is also its builder, some and the bus driver does nothing to intervene. An
courts hold the seller liable for any injuries caused by employer also has a duty to protect employees
defects in the house. A builder has an independent
duty to act with no negligence in the construction
of a home. Latent construction defects should be
known by a builder and disclosed to a buyer. The Exhibit 4–4 Duty of Care
courts in such cases analogize to product liability Special Relationships That May Create Duty of
cases, in which both negligence and strict liability Care
theories are utilized. See Chapter 12 for a discussion
Parent Child
of liability in this area.
Husband Wife
Teacher Pupil
Duty to Protect or Aid Jailor Prisoner
Others Common Carrier Passenger
Employer Employee
Common Law No-Duty Rule
University Student
Under the common law a defendant has no legal
obligation to aid a plaintiff in distress unless a Possessor of Land Licensee/Invitee
special relationship exists between the plaintiff and Innkeeper Guest
the defendant. This rule applies even though the
defendant could assist the plaintiff without causing Rescuer Victim
any harm to themself. The extent to which this doc- Defendant’s Relationship with Third Party Creating
trine can be taken is illustrated dramatically in Yania Duty of Care to Plaintiff
v. Bigan, 155 A.2d 343 (Pa. 1959). In this case the Attorney Client
defendant enticed his friend to jump into a strip-
mine trench with walls eighteen feet high, contain- Doctor Patient
ing eight to ten feet of water. The defendant refused Guardian Mentally Ill Person
to rescue his friend when it became obvious that he
was drowning. The court found that the defendant Tavern Owner Intoxicated Patron
was not liable for his friend’s death even though he Car Owner Intoxicated Driver
could have easily saved him. For obvious reasons
from those dangers from which they are not able stronger than the duty to warn and refuse to follow
to protect themselves. Such duty is limited to situa- Tarasoff.
tions within the scope and course of the employees’ An area in which the defendant’s relation-
responsibilities. ship with a negligent third party that is becoming
In some situations, a special relationship may increasingly significant involves situations in which
exist even between a university and a student. A the third party is intoxicated. A defendant who
university has a duty to warn or protect a student loans their vehicle to an intoxicated person, for
from any danger that the university may have con- example, may be liable for injuries caused by that
trol over. A student has a right to be protected from person. Similarly, under the so-called “dram shop”
foreseeable violence on school property. If a uni- laws, a tavern owner who sells liquor to an obvi-
versity has knowledge of a student’s violent mental ously intoxicated patron may be liable for injuries
state and does not provide adequate safeguards inflicted as a result of the patron’s negligence.
for others, they can be held liable. This would An increasing number of states are extending
make the violence more foreseeable and not simply such liability to social hosts, especially those who
unpredictable (Regents of University of California v. violate statutes prohibiting the sale of liquor to
Superior Court, 4 Cal. 5th 607 [Cal. 2018]). minors. As the public becomes more conscious of
the potential dangers associated with the immod-
Defendant’s Relationship with erate consumption of alcohol (and other drugs),
the courts appear to be more inclined to elevate
Third Parties
the standard of care to which providers of alcohol
In some cases, the duty to protect owed by the are held. It is still important to remember that
defendant to the plaintiff arises out of a special there must be a special relationship in order for
relationship the defendant has with a third party. For liability to occur.
instance, the guardian of a mentally-ill patient who is The Court in Seebold v. Prison Health Services,
potentially dangerous may be held liable for injuries Inc. held that a physician had no duty to warn
inflicted by their dangerous charge. a corrections officer that an inmate had a com-
The obligation to control a third party becomes municable disease. The court refused to find an
particularly problematic when the relationship adequate foundation to support imposing a new
between the defendant and the third party is that affirmative duty on physicians to make third-party
of attorney-client or doctor-patient. In the contro- interventions.
versial case of Tarasoff v. Regents of University of
California, 529 P.2d 553 (Cal. 1974), a patient told
his psychotherapist that he intended to kill the
Emergency Assistance
plaintiff (whom he did, in fact, kill). The court held Duty also arises out of the special relationship that
that the defendant’s psychotherapist had a duty is created when a defendant begins to render assis-
to warn the plaintiff of the patient’s intentions if a tance to a person in need. Once assistance is begun
reasonable person in those circumstances would it must be administered using reasonable care. Every
have done so. Admittedly, the doctor-patient priv- reasonable means possible must be utilized to keep
ilege was inapplicable in this case because disclo- the plaintiff safe. The rationale behind the good
sure was necessary to prevent threatened danger. Samaritan rule is to encourage people to assist oth-
Nevertheless, the Tarasoff holding blurs the line ers in emergency situations. If a person fears being
between professionals’ obligation to protect others sued for negligence, they are less likely to render
and their need to promote open communication assistance. Another issue is that once a party has
between themselves and their clients. Other states begun helping another, others will be less likely to
have found that the doctor-patient confidentiality is provide aid themselves.
In the News
What are the laws regarding social hosts in your state? Does your state follow the dram shop laws?
Case Seebold v. Prison Health Services, Inc.

618 Pa. 632 (Pa. 2012)
In this appeal, we consider whether a physician who compensation for pain and suffering, medical costs
treats prison inmates has a duty at common law to (which she noted may be subject to subrogation), and
warn specific corrections officers that a particular unspecified other financial losses occasioned by her
inmate has a communicable disease. injuries…
Background The common pleas court sustained PHS’s preliminary
Appellee Michelle Seebold filed suit against objections based on the no-duty contention. Initially,
Appellant Prison Health Services, Inc. (“PHS”), advanc- the court recited that, in determining whether a defen-
ing a single cause of action expressly grounded on dant owes a duty of care to a plaintiff, several factors
negligence theory. According to the complaint, in are considered, including: (1) the relationship between
January 2005 PHS was providing medical services at the parties; (2) the social utility of the actor’s conduct;
the State Correctional Institution at Muncy pursuant (3) the nature of the risk imposed and foreseeability of
to a contract with the Pennsylvania Department of the harm incurred; (4) the consequences of imposing a
Corrections (“DOC”). At that time, Appellee worked as duty upon the actor; and (5) the overall public interest
a corrections officer at the prison and was assigned to in the proposed solution. See Seebold v. Prison Health
strip search its female inmates before and after they Servs., Inc., No. 07–00024, slip op. at 2 (C.P.Lycoming,
received visitors. Upon information and belief, the Dec. 4, 2008) (citing Althaus v. Cohen, 562 Pa. 547, 553,
complaint asserted, approximately twelve such inmates 756 A.2d 1166, 1169 (2000))…
were infected with methicillin-resistant staphylococcus In the case at bar, the Plaintiff, a prison guard at
aureus (“MRSA”), a contagious bacterial infection. SCI Muncy alleges that she contracted a disease
Appellee also alleged that the skin condition of these from a prison inmate and that the treating physician
inmates was “characterized by PHS as ‘spider bites.’” and prison health service entity should have given
As a result of Appellee’s contact with the inmates, she notice to Plaintiff not the patient.
averred, she became infected with MRSA. That is, Plaintiff wishes this Court to hold that a
Appellee contended that PHS’s staff knew or healthcare provider owes a duty to warn all potential
should have known of the infections and owed a third parties that could conceivably come in contact
duty of reasonable care to “the staff and inmates at with a patient whom they have treated for a contagious
SCI Muncy to warn them of and protect them from or communicable disease. This Court is unwilling to
acquiring an MRSA infection from those inmates traverse the uncharted waters of a healthcare provid-
known to be carrying the bacteria in a communi- er’s duty to third parties without a map and compass
cable state.” According to the complaint, PHS’s provided by the Pennsylvania Supreme Court or [L]
staff breached this asserted duty by failing to: per- egislature.
form bacterial cultures on inmates with suspi- Discussion
cious skin lesions suggestive of MRSA; ensure The determination whether to impose affirmative
that inmates with MRSA were removed from the common-law duties as a predicate to civil liabil-
general prison population to prevent the spread of ity is a matter of law; accordingly, our review is ple-
the disease; advise the prison staff on how to avoid nary. See Shamnoski v. PG Energy, Div. of S. Union
acquiring MRSA from an infected inmate; and advise Co., 579 Pa. 652, 675, 858 A.2d 589, 603 (2004). Since
Appellee of precautions that she should take in strip the matter was resolved in the common pleas court on
searching inmates infected with MRSA. The complaint a demurrer, Appellee’s factual averments are taken as
asserted that, since PHS’s staff members were acting true and viewed in the light most favorable to her. See,
within the course and scope of their employment, lia- e.g., White Deer Twp. v. Napp, 590 Pa. 300, 302 n. 2,
bility should be imputed to PHS. Appellee requested 912 A.2d 781, 783 n. 2 (2006).
(continued)
Case | Seebold v. Prison Health Services, Inc. (continued)

A. DiMarco, Troxel, Emerich affirmative third-party interventions arising from
As discussed in our above treatment of the Superior information gained as a result of a physician-
Court’s opinion, we agree with PHS and its amici that patient relationship, it is apparent that the present
the Superior Court erred in holding that Appellee had matter is one of first impression.
stated a cause of action under DiMarco and Troxel. See
supra notes 7 & 8. The reviewing courts in those cases B. Section 324A of the Second Restatement
closely delineated a duty to advise a patient; the salient Limiting the nature of the duty in DiMarco to actions
duty was not to identify, seek out, provide informa- (or inaction) within the context of the physician-
tion to, or otherwise take affirmative steps outside the patient relationship is also consistent with Section 324A
physician-patient relationship to protect third-party of the Second Restatement, upon which DiMarco is
non-patients. See supra note 10. based. Section 324A provides, subject to several
In several important respects, the Superior Court’s additional limitations, that one who “undertakes” to ren-
reasoning and Appellee’s arguments conflate the der services should recognize as necessary for the pro-
nature of the duty prescribed in DiMarco and Trox- tection of others is subject to liability for physical harm
el (concerned exclusively with advice to the patient) “resulting from his failure to exercise reasonable care to
with the category of persons who may seek redress protect his undertaking.” RESTATEMENT (SECOND)
for a breach (the third-person inquiry in those cases). OF TORTS§ 324A (emphasis added). Although awk-
Whereas DiMarco and Troxel both expanded upon wardly worded, the provision expressly circles back to
the category of potential plaintiffs, neither purported the original undertaking, which, in the case of a phy-
to redefine the nature of the duty at issue to require sician, generally is the entry into the physician-patient
physicians to undertake interventions outside the relationship for treatment purposes. Thus, a physician
confidential physician-patient relationship. entering into such a relationship which he should rec-
As the common pleas court recognized, there is a ognize as necessary for the protection of others has the
patent, material difference between providing advice duty to exercise reasonable care in the patient’s treat-
to a patient within the contours of a confidential ment. Like DiMarco, Section 324A does not say that
physician-patient relationship and disclosing protected the service provider must assume additional duties,
medical information to third-party non-patients. Since such as third-party interventions, above and beyond
the averments of Appellee’s complaint point only to an the initial undertaking. Rather, it merely prescribes
asserted failure on the part of PHS staff members to for reasonable care to be taken vis-à-vis the original
take affirmative measures on Appellee’s behalf other undertaking and establishes liability to certain third
than advising their patients, the complaint does not parties where such care is lacking. See id. Again, this is
state a cause of action under DiMarco or Troxel. precisely the application of Section 324A reflected in
The only decision in which the Court has imposed the DiMarco duty to appropriately advise a patient for
a duty upon a healthcare professional to convey the benefit of a third person.
information (i.e., a warning) to an at-risk third party
is Emerich, which is unique in many respects and C. …
has been expressly cabined by the Court. As PHS D. The Field of Existing Duties
and its amici have related, there is no targeted threat Among other considerations, the courts’ reluctance to
of imminent violence here; the Court has stressed impose new affirmative duties reflects that the wider
that Emerich is so limited, see Emerich, 554 Pa. at 227, field of common-law duties is governed appropriately
720 A.2d at 1041; Witthoeft, 557 Pa. at 353, 733 A.2d by existing broad precepts which have been well trav-
at 630; and, thus, Emerich cannot reasonably serve as eled. In scenarios involving an actor’s affirmative con-
a springboard for the imposition of new and broader duct, he is generally “under a duty to others to exercise
duties upon healthcare providers vis-à-vis third-party the care of a reasonable man to protect them against
non-patients. an unreasonable risk of harm to them arising out of
Since none of the precedent imposes a common- the act.” RESTATEMENT (SECOND) OF TORTS § 302,
law duty on the part of physicians to undertake cmt. a (1965); see also Cardi & Green, Duty Wars, 81 S.
(continued)

CAL. L.REV.at 716 (describing the proposition that a other interventions which the complaint asserts are
defendant owes a duty of care not to act in a way that required of them. These include: physician-patient
creates a risk of harm for others as “black letter law confidentiality; protection of the physician-patient
repeated by an overwhelming majority of courts”). This relationship; maintenance of prison order and secu-
duty appropriately undergirds the vast expanse of tort rity; the burden of identifying individuals in prisons at
claims in which a defendant’s affirmative, risk-causing elevated risk for transmission; and practical barriers
conduct is in issue. Generally, however, there is no duty to physician access to, and ability to disseminate,
to protect or rescue someone who is at risk on account information in the prison setting. Further, PHS and
of circumstances the defendant had no role in creat- its amici have identified broader salient policy consid-
ing. See, e.g., Yania v. Bigan, 397 Pa. 316, 321–22, erations, including potentially expansive exposure to
155 A.2d 343, 346 (1959) (citing the Section 314 of the liabilities if the Court is to transform the DiMarco duty
Restatement of Torts for the proposition that a mere to advise patients into a requirement to undertake
observer has no duty to rescue). See generally Cardi & affirmative third-party interventions, depending on a
Green, Duty Wars, 81 S. CAL. L.REV. at 677. circumstance-by-circumstance assessment of foresee-
Affirmative duties, such as those at issue here, are ability of risk; and instability in the medical liability insur-
the primary exception to the no-duty rule in rescue/pro- ance arena associated with the breadth of the existing
tection scenarios where the defendant did not create liability exposure of physicians, which the Legislature
the risk resulting in harm to the plaintiff—these most has sought to address in many ways, not the least via
often arise out of special relationships of care between the creation and maintenance of a government-run
the parties. See Cardi & Green, Duty Wars, 81 S. CAL. administrative scheme of supplemental insurance and
L.REV. at 712. Whereas the longstanding general duty/ regulation. See, e.g., 40 P.S. §§ 1303.101–1303.1115.
no-duty framework is an engrained one, solicitations Appellee’s tack in responding to many of these con-
for new affirmative duties represent exceptions which siderations is to attempt to moderate her position. She
require concrete and substantial justification. suggests that, if she is permitted to proceed before
The healthcare arena is a microcosm of the above, a jury, perhaps the jurors will select duties of a less
overarching duty landscape. Physicians are subject to controversial nature than direct warnings and advice
the default duty of care in the actions they take (man- to prison guards. In Appellee’s words:
ifested, not the least in the principle of medical ethics [A] jury might find that a simple note to prison offi-
to first do no harm). They may be liable, for example, cials stating that a particular inmate should be placed
where they prescribe too much medication and patient in solitary confinement may satisfy PHS’ duties
injury results. Physicians may also be liable for an under Section 324A in this case. Alternatively, it could
omission, or a failure to protect a patient, by virtue of find that circulating a memorandum on recognizing
the special relationship of care they assume, for exam- suspicious lesions and methods of avoiding an infec-
ple, in failure to diagnose or to prescribe an appropriate tion would fulfill that duty. A jury may also conclude
course of medical treatment. The general touchstone that simply diagnosing the inmate’s infection correctly
for judging their performance in any of these scenarios and advising the inmate on methods to avoid spreading
is the applicable medical standard of care. See Brannan the infection would suffice. None of these alternatives
v. Lankenau Hosp., 490 Pa. 588, 595, 417 A.2d 196, could be characterized as an unwarranted breach of
199 (1980). Requests, such as Appellee’s, for third- confidentiality or privacy.
party interventions on the part of physicians push the Presently, there are several impediments to a mean-
inquiry outside these ordinary boundaries. ingful consideration of these policy factors stemming
from the manner in which this case has been litigated.
E. Application of the Default Approach As we have said, Appellee does not respond directly to
to Affirmative Duties of Physicians to many of the policy factors raised by PHS and its amici
Undertake Third-Party Intervention on their terms. Notably, Appellee’s narrower approach
Here, PHS and its amici identify a range of consid- is consistent with her presentation in the common
erations potentially impeding a physician’s ability to pleas court and the Superior Court, where she argued
provide the kinds of third-party warnings, advice, and primarily that DiMarco, Troxel, and Section 324A were
(continued)

controlling. Appellee also did not assert that she was of affirmative duties upon physicians to undertake
denied an adequate procedure in which to advance third-party non-patient interventions, this policy factor
evidence or argument on the policy matters at the must be considered in a larger context (including
heart of the duty decision. In such circumstances, to with reference to the DOC’s obligation and ability to
the extent that Appellee *659 attempts to do so at take appropriate measures to protect prison guards
the present stage of the appellate litigation, those via standardized procedures; the impediments to ad
arguments are unpreserved. See In re J.M., 556 Pa. hoc physician interventions relative to third-party
63, 83 n. 15, 726 A.2d 1041, 1051 n. 15 (1999) (find- non-patients in the prison environment, confidentiality
ing waiver of an issue, on the part of one who became concerns, impact on physician-patient relationships,
an appellee in the Supreme Court, that was not raised cabining excessive liability exposure, etc.). As we have
before the trial court or the Superior Court where that explained, this case has never been framed to solidify
party was the appellant); accord **1249 Common- a foundation to support such necessary, broad-scale
wealth v. McMullen, 599 Pa. 435, 443 n. 2, 961 A.2d assessment.
842, 846 n. 2 (2008) (holding that a litigant did not We do observe that there is a weakness in PHS
waive a claim “because it was the appellee in [the inter- and its amici’s particular emphasis on the DOC’s
mediate appellate] court ” (emphasis added)). In any responsibility to provide a safe work environment,
event, as a consequence of Appellee’s heavy reliance since it seems apparent that the Department may
on DiMarco and Troxel, her policy analysis is closely rely upon the prison medical companies with which
limited to two main considerations, foreseeability and it contracts as an integral component of the agen-
the social policy of protecting prison guards. cy’s institutional safety planning. The argument for
In terms of foreseeability, this is not a lone determi- imposition of a duty carries more force relative to
native of the duty question. Rather, in administering a the contractual obligations of the prison healthcare
broad policy assessment such as the Althaus inquiry, company itself, rather than the independent obliga-
the Court assigns appropriate weight to each salient tions of its individual staff members arising out of
policy factor, depending on the particularized nature physician-patient relationships. Cf. Guy, 501 Pa. at
of the asserted duty at hand and context. For exam- 58–63, 459 A.2d at 750–53 (opinion of the Court, in
ple, in Witthoeft, the Court prioritized other policy fac- relevant part) (recognizing limited third-party rights
tors over foreseeability. See, e.g., Witthoeft, 557 Pa. at in the context of an attorney-client professional
353, 733 A.2d at 630 (indicating that a motorist injured relationship where the plaintiff was the intended
by a physician’s patient with poor vision was “simply beneficiary of the prevailing standard of care). See
not a foreseeable victim that this court will recognize,” generally Brief for Amicus Pa. Med. Soc’y at 26, 34
given the expanse of the consequent liabilities which (urging that the Court, should it determine to recog-
would be imposed). See generally Cardi & Green, Duty nize any physician duties to non-patients, adopt the
Wars, 81 S. CAL. L.REV. at 678 (explaining that rule of Guy restricting the class of eligible third-party
“foreseeability may be present in cases in which there plaintiffs as per principles of contract law, not negli-
are good grounds nevertheless to deny liability—such gence principles). We are presented, however, with
as in cases involving economic loss or stand-alone a vicarious tort claim, which is dependent on the
emotional harm—where for other reasons of policy, imposition of a new affirmative common-law duty of
liability is foreclosed or limited”) intervention on the part of PHS physician staff mem-
As to Appellee’s second point—i.e., that corrections bers. In terms of such negligence claims—because
officers are deserving of a safe working environment— the prison environment is so highly regulated, given
we recognize these members of our community are the pervasive concerns for protocol and security, and
exposed to occupational risks in the institutional in light of the range of other unknown social effects—
environment, not the least of which is the poten- Appellee’s two-pronged argument for imposing new,
tial for contracting certain communicable diseases loose, affirmative duties on physicians is not strong
such as MRSA. Certainly, it is vital that their safety enough to overcome the default position in favor of
be maintained as a high priority in institutional man- the status quo.
agement. Again, however, in terms of the imposition
(continued)

F. Summary Moreover, the present appeal does not afford an ade-
In summary, the common pleas court was correct in quate foundation to make an informed social policy
determining that Appellee had not asserted a cause of assessment which would support the imposition of
action under DiMarco, Troxel, or Section 324A of the a new affirmative duty on physicians to make third-
Second Restatement. Rather, as the court recognized, party interventions. See generally Price Waterhouse
Appellee’s request for the imposition of a new, affirma- Coopers, 605 Pa. at 301 & n. 27, 989 A.2d at 332–33
tive, common-law duty in tort on the part of physicians & n. 27 (referencing the General Assembly’s superior
to undertake third-party interventions in a prison setting policymaking resources and commenting that respon-
required a broader policy assessment. In the absence sible decision-making in areas of public impact requires
of policy arguments or a request for an opportunity to consideration of broader potential social effects).
develop a record, the court did not err in applying the The order of the Superior Court is reversed, and the
default approach of declining to impose upon profes- matter is remanded for reinstatement of the common
sional undertakings new affirmative common-law duties pleas court’s order.
running to third parties to the professional relationship.
A plant worker complained of some chest pain The majority of jurisdictions have adopted the
and was perspiring. He visited the plant medical professional rescuer doctrine (also known as the
office with a nurse on duty. She checked his pulse police or firefighter’s rule), which states that when
and temperature and they were normal. He stated he negligent acts by parties cause a public safety
was fine and just wanted to go home. The nurse tried issue that necessitates a rescuer’s presence, no
to reach the doctor that the employee requested but damages may be recovered from those parties by
could not reach him, she also suggested he go see the rescuer. The thought is that there are hazards
the plant doctor two blocks away and he refused. He involved in emergency situations, and by the res-
walked out of the plant and was given a ride home. cuer’s position as a police or firefighter, it is fore-
The nurse then reached the doctor who visited the seeable that these types of risks will be involved.
employee at his house and checked on him. He was If the intervening negligence of separate party
taken to the emergency room at that point and died causes injury to the rescuer, then damages may
six days later from a coronary occlusion. The nurse be recovered, as long as it is not directly related
was found not liable for wrongful death since she to the actual original accident (Loiland v. State, 1
administered reasonable treatment to the employee Wash. App. 2d 861 [Wash. 2017]). The doctrine
(Burns v. Bakelite Corp. 17 N.J. Super. 441 [N.J. of assumption of risk is another reason justifying
1952]). Pursuant to the Good Samaritan statutes in the doctrine. It is felt that a private citizen has
many jurisdictions, anyone who renders emergency no duty to conduct themself in such a manner
medical assistance will not be held liable for civil not to require the services of a professional res-
damages arising from that assistance including acts cuer such as a firefighter or police officer. Thus, a
or omissions, as long as the care is provided in good tortfeasor has no legal duty to protect the profes-
faith and does not constitute gross negligence. The sional rescuer from the very danger that they are
intent of such statutes is to encourage people to employed to confront (Fordham v. Oldroyd, 131
render emergency assistance. P.3d 280 [Utah 2006]).
In the News
To read about the rescue doctrine and its ramifications in dog-bite cases, enter “legal rights of rescuers
dog bites” as your search term.
Voluntary-Undertaking Doctrine that imposes liability on the defendant. Suppose a

business hires a company, for example, to inspect
A defendant may be found liable even though
its elevators, and the company negligently reports
he has no legal duty to protect the plaintiff. In
that the elevators are in good condition when
Trevino v. Union Pacific R. Co., 916 F.2d 1230
they are not. If someone is injured when one of
(7th Cir. 1990), the defendant railroad company
the elevators falls or malfunctions, the business
constructed a fence across one side of a railroad
and the repair company owe a duty of care to the
track that had not been used for almost a decade.
injured person.
Plaintiff was injured when the car in which he was
a passenger collided with several railcars blocking
an abandoned crossing. The appellate court Public Entities
remanded the case finding that the plaintiff could The same theory of duty that applies to private indi-
potentially establish that the railroad had a duty viduals also applies to public entities. In other words,
to maintain a safe crossing and to warn that the the analysis of duty for a public body is essentially
crossing was being used to store rail cars. The the same as it is for private persons. A state may be
railroad might have voluntarily assumed such duty liable to an invitee just as if it were a private land-
when it erected the fence, warning traffic that the owner. Cities, of course, have unique duties, such
road was no longer in use. At that point, it should as providing police and fire protection and keep-
have been fenced on both sides. Some courts ing the streets safe for purposes of transportation.
have applied this so-called voluntary-undertaking The defense of limited sovereign immunity (a tort
doctrine even when the plaintiff did not rely on the defense that absolves the defendant of liability
defendant’s undertaking of services. In one Illinois because of the defendant’s status as a governmen-
case, for example, the court found an insurance tal entity, discussed in greater detail in Chapter 8)
company liable for negligently carrying out a of a governmental body can create some interesting
gratuitously undertaken safety inspection and twists, however.
concluded that liability was not restricted to those In one fascinating New York case, Riss v. New
who relied upon the inspection, but extended York, 22 N.Y.2d 579 (1968), the court used the doc-
to “such persons as defendant could reasonably trine of sovereign immunity to exempt the City of
have foreseen would be endangered as the result New York from liability even though the plaintiff
of negligent performance” (Nelson v. Union Wire had begged the New York City Police Department
Rope Corp., 199 N.E.2d 769, 779 [Ill. 1964]). to protect her from the man who hired someone
Some modern courts have allowed a plain- to assault her. The dissent’s eloquent rebuttal to
tiff who relied on a defendant’s promise to recover the majority’s rather curt finding of non-liability is
even if the defendant made no overt act of assist- excerpted here. Interestingly, the point of conten-
ing the plaintiff. In one case the sheriff’s department tion between the majority and dissent is largely
was found liable for failing to live up to its promise factual, and the dissent carefully presents facts as
to warn the plaintiff’s wife when a dangerous pris- well as reasoning to support its conclusion that
oner, whom she had assisted in having arrested, was the city should be liable for providing negligent
released. Shortly after his release he killed her. By police protection. Her danger was imminent and
inducing the plaintiff’s wife to rely on its promise to ongoing. It would have been easy to investigate
warn her, the defendant was held liable even though the man threatening her and possibly arrest him for
it had done nothing overtly to assist her (Morgan v. conspiracy to harm a human being. By failing to do
County of Yuba, 41 Cal. Rptr. 508 [1964]). anything more for Riss, the police failed her. You
Defendants may be liable to third parties as might be interested to know that Burton Pugach,
well when they undertake a service they have no the attorney (the man who hired the other man to
legal duty to perform and perform the service neg- maime Linda Riss), served a fourteen-year sentence.
ligently. Once again, it is the third party’s reliance After his release he proposed to Ms. Riss and they
on the reasonable performance of that service were ultimately married.
Case Linda Riss, Appellant, v. City of New York, Respondent

22 N.Y.2d 579 (N.Y. 1968)
KEATING, Judge (dissenting). record of Linda’s ordeal can reach a conclusion other
Certainly, the record in this case, sound legal anal- than that the City of New York, acting through its
ysis, relevant policy considerations, and even prece- agents, completely and negligently failed to fulfill this
dent cannot account for or sustain the result which the obligation to Linda.
majority have here reached. For the result is premised Linda has turned to the courts of this State for
upon a legal rule which long ago should have been redress, asking that the city be held liable in damages
abandoned, having lost any justification it might once for its negligent failure to protect her from harm. With
have had. Despite almost universal condemnation by compelling logic, she can point out that, if a stranger,
legal scholars, the rule survives, finding its continuing who had absolutely no obligation to aid her, had offered
strength, not in its power to persuade, but in its abil- her assistance, and thereafter Burton Pugach was able
ity to arouse unwarranted judicial fears of the conse- to injure her as a result of the negligence of the volun-
quences of overturning it. teer, the courts would certainly require him to pay dam-
Linda Riss, an attractive young woman, was for ages. (Restatement [Second] of Torts, § 323.) Why then
more than six months terrorized by a rejected suitor should the city, whose duties are imposed by law and
well known to the courts of this State, one Burton include the prevention of crime … and, consequently,
Pugach. This miscreant, masquerading as a respect- extend far beyond that of the Good Samaritan, not be
able attorney, repeatedly threatened to have Linda responsible? If a private detective acts carelessly, no
killed or maimed if she did not yield to him: “If I can’t one would deny that a jury could find such conduct
have you, no one else will have you, and when I get unacceptable. Why then is the city not required to live
through with you, no one else will want you.” In fear for up to at least the same minimal standards of profes-
her life, she went to those charged by law with the duty sional competence which would be demanded of a pri-
of preserving and safeguarding the lives of the citizens vate detective?
and residents of this State. Linda’s repeated and Linda’s reasoning seems so eminently sensible that
almost pathetic pleas for aid were received with little surely it must come as a shock to her and to every citizen
more than indifference. Whatever help she was given to hear the city argue and to learn that this court decides
was not commensurate with the identifiable danger. On that the city has no duty to provide police protection to
June 14, 1959 Linda became engaged to another man. any given individual. What makes the city’s position par-
At a party held to celebrate the event, she received a ticularly difficult to understand is that, in conformity to
phone call warning her that it was her “last chance.” the dictates of the law, Linda did not carry any weapon
Completely distraught, she called the police, begging for self-defense…. Thus, by a rather bitter irony she was
for help, but was refused. The next day Pugach car- required to rely for protection on the City of New York
ried out his dire threats in the very manner he had fore- which now denies all responsibility to her.
told by having a hired thug throw lye in Linda’s face. It is not a distortion to summarize the essence
Linda was blinded in one eye, lost a good portion of of the city’s case here in the following language:
her vision in the other, and her face was permanently “Because we owe a duty to everybody, we owe it to
scarred. After the assault, the authorities concluded nobody.” Were it not for the fact that this position has
that there was some basis for Linda’s fears, and for the been hallowed by much ancient and revered prece-
next three and one-half years, she was given around- dent, we would surely dismiss it as preposterous. To
the-clock protection. say that there is no duty is, of course, to start with
No one questions the proposition that the first duty the conclusion. The question is whether or not there
of government is to assure its citizens the opportunity should be liability for the negligent failure to provide
to live in personal security. And no one who reads the adequate police protection.
(continued)
Case | Linda Riss, Appellant, v. City of New York, Respondent (continued)

The foremost justification repeatedly urged for the Another variation of the “crushing burden” argument
existing rule is the claim that the State and the munic- is the contention that, every time a crime is committed,
ipalities will be exposed to limitless liability. The city the city will be sued, and the claim will be made that it
invokes the specter of a “crushing burden” … if we resulted from inadequate police protection. Here, again,
should depart from the existing rule and enunciate even is an attempt to arouse the “anxiety of the courts about
the limited proposition that the State and its municipal- new theories of liability which may have a far-reaching
ities can be held liable for the negligent acts of their effect”…. And here too the underlying assumption of
police employees in executing whatever police services the argument is fallacious because it assumes that a
they do in fact provide…. strict liability standard is to be imposed and that the
The fear of financial disaster is a myth. The same courts would prove completely unable to apply general
argument was made a generation ago in opposition to principles of tort liability in a reasonable fashion in the
proposals that the State waive its defense of “sover- context of actions arising from the negligent acts of
eign immunity.” The prophecy proved false then, and police and fire personnel. The argument is also made
it would now. The supposed astronomical financial as if there were no such legal principles as fault, prox-
burden does not and would not exist. No municipal- imate cause or foreseeability, all of which operate to
ity has gone bankrupt because it has had to respond keep liability within reasonable bounds. No one is con-
in damages when a policeman causes injury through tending that the police must be at the scene of every
carelessly driving a police car or in the thousands of potential crime or must provide a personal bodyguard
other situations where, by judicial fiat or legislative to every person who walks into a police station and
enactment, the State and its subdivisions have been claims to have been threatened. They need only act
held liable for the tortious conduct of their employ- as a reasonable man would under the circumstances.
ees. Thus, in the past four or five years, New York City At first there would be a duty to inquire. If the inquiry
has been presented with an average of some 10,000 indicates nothing to substantiate the alleged threat, the
claims each year. The figure would sound ominous matter may be put aside, and other matters attended
except for the fact the city has been paying out less to. If, however, the claims prove to have some basis,
than $8,000,000 on tort claims each year and this appropriate steps would be necessary.
amount includes all those sidewalk defect and snow The instant case provides an excellent illustration
and ice cases about which the courts fret so often…. of the limits which the courts can draw. No one would
Court delay has reduced the figure paid somewhat, claim that, under the facts here, the police were neg-
but not substantially. Certainly, this is a slight bur- ligent when they did not give Linda protection after
den in a budget of more than six billion dollars (less her first calls or visits to the police station in February
than two tenths of 1 percent) and of no importance as of 1959. The preliminary investigation was sufficient.
compared to the injustice of permitting unredressed If Linda had been attacked at this point, clearly there
wrongs to continue to go unrepaired. That Linda Riss would be no liability here. When, however, as time
should be asked to bear the loss, which should prop- went on and it was established that Linda was a rep-
erly fall on the city if we assume, as we must, in the utable person, that other verifiable attempts to injure
present posture of the case, that her injuries resulted her or intimidate her had taken place, that other wit-
from the city’s failure to provide sufficient police to nesses were available to support her claim that her life
protect Linda is contrary to the most elementary was being threatened, something more was required—
notions of justice. either by way of further investigation or protection—
The statement in the majority opinion that there are than the statement that was made by one detective to
no predictable limits to the potential liability for failure Linda that she would have to be hurt before the police
to provide adequate police protection as compared to could do anything for her.
other areas of municipal liability is, of course, unten- In dismissing the complaint, the trial court noted that
able. When immunity in other areas of governmental there are many crimes being committed daily and the
activity was removed, the same lack of predictable lim- police force is inadequate to deal with its “tremendous
its existed. Yet, disaster did not ensue. responsibilities.” The point is not addressed to the facts
(continued)

of this case. Even if it were, however, a distinction must practices in almost every tort case against the State
be made. It may be quite reasonable to say that the or a municipality, including even decisions of the
City of New York is not required to hire sufficient police Police Commissioner. Every time a municipal hospi-
to protect every piece of property threatened during tal is held liable for malpractice resulting from inade-
mass riots. The possibility of riots may even be fore- quate record-keeping, the courts are in effect making
seeable, but the occurrence is sufficiently uncommon a determination that the municipality should have hired
that the city should not be required to bear the cost of or assigned more clerical help or more competent help
having a redundancy of men for normal operations. But to medical records or should have done something
it is going beyond the bounds of required judicial mod- to improve its record-keeping procedures so that the
eration if the city is permitted to escape liability in a sit- particular injury would not have occurred. Every time
uation such as the one at bar. If the police force of the a municipality is held liable for a defective sidewalk,
City of New York is so understaffed that it is unable to it is as if the courts are saying that more money and
cope with the everyday problem posed by the relatively resources should have been allocated to sidewalk
few cases where single, known individuals threaten the repair, instead of to other public services.
lives of other persons, then indeed we have reached The situation is nowise different in the case of police
the danger line and the lives of all of us are in peril. protection. Whatever effects there may be on police
If the police department is in such a deplorable state administration will be one of degree, not kind….
that the city, because of insufficient manpower, is truly The truth of the matter, however, is that the courts
unable to protect persons in Linda Riss’ position, then are not making policy decisions for public officials. In all
liability not only should, but must be imposed. It will act these municipal negligence cases, the courts are doing
as an effective inducement for public officials to pro- two things. First, they apply the principles of vicarious
vide at least a minimally adequate number of police. If liability to the operations of government. Courts would
local officials are not willing to meet even such a low not insulate the city from liability for the ordinary negli-
standard, I see no reason for the courts to abet such gence of members of the highway department. There is
irresponsibility. no basis for treating the members of the police depart-
It is also contended that liability for inadequate ment differently.
police protection will make the courts the arbiters of Second, and most important, to the extent that
decisions taken by the Police Commissioner in allo- the injury results from the failure to allocate sufficient
cating his manpower and his resources. We are not funds and resources to meet a minimum standard of
dealing here with a situation where the injury or loss public administration, public officials are presented
occurred as a result of a conscious choice of policy with two alternatives: either improve public admin-
made by those exercising high administrative respon- istration or accept the cost of compensating injured
sibility after a complete and thorough deliberation of persons. Thus, if we were to hold the city liable here
various alternatives. There was no major policy deci- for the negligence of the police, courts would no more
sion taken by the Police Commissioner to disregard be interfering with the operations of the police depart-
Linda Riss’ appeal for help because there was abso- ment than they “meddle” in the affairs of the highway
lutely no manpower available to deal with Pugach. This department when they hold the municipality liable for
“garden variety” negligence case arose in the course of personal injuries resulting from defective sidewalks, or
“day-by-day operations of government”…. Linda Riss’ a private employer for the negligence of his employ-
tragedy resulted not from high policy or inadequate ees. In other words, all the courts do in these munic-
manpower, but plain negligence on the part of persons ipal negligence cases is require officials to weigh the
with whom Linda dealt.… consequences of their decisions. If Linda Riss’ injury
More significant, however, is the fundamental flaw resulted from the failure of the city to pay sufficient sal-
in the reasoning behind the argument alleging judicial aries to attract qualified and sufficient personnel, the
interference. It is a complete oversimplification of the full cost of that choice should become acknowledged
problem of municipal tort liability. What it ignores is the in the same way as it has in other areas of municipal
fact that indirectly courts are reviewing administrative tort liability. Perhaps officials will find it less costly to
(continued)

choose the alternative of paying damages than chang- that the failure to take it can be deemed unreasonable
ing their existing practices. That may be well and good, conduct.” This finding does not stand examination and
but the price for the refusal to provide for an adequate to its credit the city does not argue that this record
police force should not be borne by Linda Riss and all would not support a finding of negligence. The dan-
the other innocent victims of such decisions. ger to Linda was indeed imminent, and this fact could
What has existed until now is that the City of New easily have been confirmed had there been competent
York and other municipalities have been able to engage police work.
in a sort of false bookkeeping in which the real costs of Moreover, since this is an appeal from a dismissal
inadequate or incompetent police protection have been of the complaint, we must give the plaintiff the ben-
hidden by charging the expenditures to the individuals efit of every favorable inference. The Appellate Divi-
who have sustained often catastrophic losses rather sion’s conclusion could only have been reached by
than to the community where it belongs, because the ignoring the thrust of the plaintiff’s claim and the evi-
latter had the power to prevent the losses. dence in the record. A few examples of the actions
Although in modern times the compensatory nature of the police should suffice to show the true state of
of tort law has generally been the one most empha- the record. Linda Riss received a telephone call from a
sized, one of its most important functions has been and person who warned Linda that Pugach was arranging
is its normative aspect. It sets forth standards of con- to have her beaten up. A detective learned the identity
duct which ought to be followed. The penalty for failing of the caller. He offered to arrest the caller, but plaintiff
to do so is to pay pecuniary damages. At one time the rejected that suggestion for the obvious reason that
government was completely immunized from this sal- the informant was trying to help Linda. When Linda
utary control. This is much less so now, and the impo- requested that Pugach be arrested, the detective said
sition of liability has had healthy side effects. In many he could not do that because she had not yet been
areas, it has resulted in the adoption of better and more hurt. The statement was not so. It was and is a crime
considered procedures just as workmen’s compensa- to conspire to injure someone. True there was no basis
tion resulted in improved industrial safety practices. to arrest Pugach then, but that was only because the
To visit liability upon the city here will no doubt have necessary leg work had not been done. No one went
similar constructive effects. No “presumed cure” for the to speak to the informant, who might have furnished
problem of crime is being “foisted” upon the city as the additional leads. Linda claimed to be receiving tele-
majority opinion charges. The methods of dealing with phone calls almost every day. These calls could have
the problem of crime are left completely to the city’s been monitored for a few days to obtain evidence
discretion. All that the courts can do is make sure that against Pugach. Any number of reasonable alterna-
the costs of the city’s and its employees’ mistakes are tives presented themselves. A case against Pugach
placed where they properly belong. Thus, every reason could have been developed which would have at
used to sustain the rule that there is no duty to offer least put him away for a while or altered the situa-
police protection to any individual turns out on close tion entirely. But, if necessary, some police protection
analysis to be of little substance. should have been afforded.
*** Perhaps, on a fuller record after a true trial on the
The Appellate Division did not adopt the “no duty” merits, the city’s position will not appear so damaging
theory but said there was no negligence here because as it does now. But with actual notice of danger and
the danger was not imminent. Despite the fact that the ample opportunity to confirm and take reasonable
majority of the Appellate Division “agree[d] that certain remedial steps, a jury could find that the persons
rulings, and particularly the manner in which they were involved acted unreasonably and negligently. Linda
made, did not add to the appearance of a fair trial,” and Riss is entitled to have a jury determine the issue of
which, in fact, resulted in a wholly inadequate hearing, the city’s liability. This right should not be terminated by
the majority found that the “facts brought out on this the adoption of a question-begging conclusion that
trial do not show the presence of such imminent dan- there is no duty owed to her. The order of the Appellate
ger that extraordinary police activity was so indicated Division should be reversed, and a new trial granted.

1. According to the dissent in Riss, what is the basis of the majority’s argument?
2. What is the “crushing burden” argument and does it apply in this case?
3. How does the dissent counter the “crushing burden” argument?
4. How does the dissent respond to the argument that allowing liability for inadequate police protection will
make the courts the arbiters of decisions made by the police commissioner in allocating manpower and
resources?
What are some examples of healthy side effects from imposing liability? Does this court buy into the Appel-
late Court’s finding of no imminent danger?

Ms. Figueroa is abducted at knifepoint in the parking lot of the Child Care Center, where she has just dropped
her child off. She is assaulted and slashed with a knife. The parking lot is owned by North Park College,
which both informally and formally (via a letter written to the parents of children attending the Child Care
Center) allows parents to use the parking lot. North Park employs off-duty police officers to patrol its cam-
pus, including the parking lot. Before this incident only minor crimes had occurred anywhere on campus.
Ms. Figueroa sues North Park for negligent failure to provide adequate security in the parking lot. Should
Ms. Figueroa be treated as an invitee or a licensee? Is there any other legal theory she might rely on to
establish a duty of protection? Would it make any difference if she was in the lot after daycare hours for
personal reasons?
Unborn Children but all courts directly confronted with the issue
have allowed recovery even when the fetus was
An area that has been subject to considerable con- only a few weeks old at the time of injury. Such
troversy of late is whether a duty of care is owed to an reasoning has permitted recovery in cases such as
unborn child. Suppose a defendant assaults a preg- those involving fetuses suffering serious defects in
nant woman, recklessly injuring the fetus and caus- the initial stages of development as a result of their
ing defects that manifest physically when the child mothers’ ingestion of drugs, such as Thalidomide (a
is born. Under the common law the child could not medication designed to prevent morning sickness
recover for its injuries. Modern courts have reversed that was later discovered to cause devastating birth
this no-duty rule and have allowed recovery in most defects).
states where a causal link between the defendant’s Considerable controversy continues around
act and the fetus’s injury can be proven. This causal the question of whether a wrongful death action
link can be highly speculative with a recently con- can be brought if a fetus is stillborn as a result of
ceived embryo, and the Restatement suggests that its injuries. The Restatement suggests that recov-
courts require “convincing evidence” of causation in ery should not be allowed “unless the applicable
these circumstances (Restatement [Second] of Torts wrongful death statute so provides” (Restatement
§ 869, cmt. d). [Second] of Torts § 869[2]). The issue in these
Some cases have implied in dicta that only wrongful death cases is whether the statutes, which
fetuses that were viable (capable of surviving out- usually refer to “persons,” were intended to apply
side the uterus) at the time of injury could recover, to fetuses. The courts are divided on this issue,
although more courts allow recovery than deny it. injury sustained while in custody led to her child’s
The case of Castro v. Melchor, 414 P. 3d. 53 (Haw. death. This is one example of how courts can look
2018) presents the case of an inmate having a still- at a wrongful death suit in terms of a viable fetus
born child while incarcerated. Her claim was that and the definition of “person.”
Case Castro v. Melchor

414 P. 3d. 53 (Haw. 2018)
Introduction was delivered stillborn on August 10, 2007, at the

This case arises from a complaint filed by Respondent Kapiolani Medical Center. Available medical records
Leah Castro (Castro), who had a stillbirth while she indicated that Briandalynne’s death was caused by
was incarcerated. Castro brought suit against Leroy “significant fetal stress” and “hypoxia.” Castro con-
Melchor, Wanna Bhalang, Tomi Bradley (all in their offi- tended that the actions of correctional officers Pimental
cial capacities), the State of Hawaii, and the Hawaii and Choy Foo constituted assault and battery upon her
Department of Public Safety (HDPS) (together, “Peti- and her unborn fetus.
tioners”) for negligence, intentional infliction of emo- Castro also contended that Pimental, Choy Foo, the
tional distress, and negligent infliction of emotional State, and HDPS were negligent because they “knew
distress. Castro asserted that Petitioners’ failure to pro- or should have known” that Castro was pregnant, and
vide her with timely and adequate medical care led to that they “breached their duty of reasonable care by
the stillbirth of her child, Briandalynne. failing to protect [Castro] and her unborn child from
harm.” Castro additionally asserted that the State and
Factual Allegations and Circuit Court HDPS were liable for “negligent hiring, training, super-
Proceedings vision, and retention” of the correctional officers who
Castro filed a Complaint in her own capacity, and as assaulted her. Furthermore, she asserted that Officers
personal representative of the Estate of Briandalynne, Pimental, Choy Foo, and other “responsible medical
in circuit court on May 6, 2008, alleging assault and personnel” intentionally inflicted emotional distress on
battery, negligence, and intentional and negligent inflic- her, and that the State and HDPS negligently inflicted
tion of emotional distress against the State of Hawaii, emotional distress on her as well…
the HDPS, and two correctional officers at Oahu Com- The court entered its Findings of Fact and Conclu-
munity Correctional Center (OCCC) in their official sions of Law and Order on May 14, 2012, determining
capacities. that the Petitioners’ negligence was the legal cause of
The Complaint alleged that on June 30, 2007, while Briandalynne’s death. The court made the following
Castro was an inmate at OCCC, she was forced to the Findings of Fact (FOFs) relevant to this appeal:
ground, or “taken down,” by correctional officers Debra On July 2, 2007, Plaintiff was seen by OCCC nurse
Pimental and Ted Choy Foo. Castro was approximately practitioner, Amy Yasunaga, for her first pre-natal
seven months pregnant at the time. After the incident, visit. Ms. Yasunaga was the primary medical provider
Castro was transferred to the Women’s Community responsible for treatment and care of pregnant inmates
Correctional Center (WCCC). Castro developed prob- at OCCC…
lems with vaginal bleeding, which she reported to staff The court also made the following relevant Conclu-
at both OCCC and WCCC, but “was not provided with sions of Law (COLs):
timely or adequate medical care.” Under Hawaii’s wrongful death statute, a parent of a
Castro alleged that the actions of the correctional stillborn viable fetus, such as Plaintiff herein, is entitled
officers and the subsequent failure of medical person- to sue for the wrongful death of the fetus. Wade v. U.S.,
nel to provide her with treatment caused the stillbirth of 745 F.Supp. 1573, 1579 (D. Haw. 1990)…
her eight-month-old fetus, Briandalynne. Briandalynne
(continued)
Case | Castro v. Melchor (continued)

Based on all the facts and circumstances, an award Briandalynne’s estate. Id. The ICA pointed to the tes-
of damages against Defendant State, in the amount of timony of a doctor who examined Castro, who stated
$350,000.00 to Plaintiff individually ($250,000.00 for that “he could not find any ‘gross congenital anom-
NIED and $100,000.00 for loss of filial consortium), is alies’ ” nor “abnormalities of any kind” during his
fair and appropriate, for the State’s share of Plaintiff’s examination of Briandalynne as sufficient evidence
total damages. to support the court’s finding that the fetus had no
The court thus entered final judgment in Cas- congenital or development abnormalities. Id. at 201,
tro’s favor and awarded her $350,000 individually 366 P.3d at 1080. Finally, the ICA rejected Petitioners’
and $250,000 as the representative of Briandalynne’s argument challenging the award of $100,000 to
estate. Castro for loss of filial consortium and the award of
$250,000 for emotional distress. Id. at 201-02, 366
B. Petitioners’ Appeal to the ICA P.3d at 1080-81.
Petitioners appealed to the ICA, arguing, inter alia, that The ICA entered its Judgment on Appeal pursuant
the circuit court’s award of damages to the estate of to its Opinion on February 29, 2016.
the fetus was in error and that the damages awarded Discussion
to both Castro and Briandalynne’s estate were specu- Petitioners present two questions in their application
lative and improper. for certiorari:
The ICA rejected Petitioners’ argument that Cas-
(a) Whether the award of loss of enjoyment of life
tro was foreclosed from being awarded damages
damages for a stillborn fetus was error.
under HRS § 663-7, the survival statute, and was
(b) Whether the award of $250,000 damages to
limited to damages under HRS § 663-3, the wrongful
the estate of Briandalynne Castro was error
death statute. Id. at 199, 366 P.3d at 1078. The ICA
when there was no evidence presented to jus-
explained that although “Castro did not reference HRS
tify that monetary amount.
§ 663-7 in her complaint, a plaintiff’s failure to cite the
This case thus presents the narrow question of whether
statutory basis for her claim does not automatically ren-
the estate of a stillborn fetus may recover loss of enjoy-
der the complaint defective or insufficient.” Id. Quot-
ment of life damages under Hawaii’s survival stat-
ing our decision in In re Genesys Data Technologies,
ute, HRS § 663-7.
Inc., 95 Hawaii 33, 41, 18 P.3d 895, 903 (2001), the ICA
“Hedonic” damages are damages “for the loss of
stated that our “rules of notice pleading require that a
enjoyment of life, or for the value of life itself, as measured
complaint set forth a short and plain statement of the
separately from the economic productive value that an
claim that provides defendant with fair notice of what
injured or deceased person would have had.” Montalvo
the plaintiff’s claim is and the grounds upon which the
v. Lapez, 77 Hawaii 282, 284 n.2, 884 P.2d 345, 347
claim rests” and that “[p]leadings must be construed
n.2 (1994) (quoting Black’s Law Dictionary 391 (6th ed.
liberally.” Id. (internal citations omitted). According to
1990)). “Many tortious acts—particularly involving neg-
the ICA, “a liberal reading of Castro’s complaint would
ligence … inflict on the victim what is loosely termed a
put the State on notice” that Castro was bringing “a
‘loss of the enjoyment of life,’ or a loss of life’s pleasures,
claim on behalf of Briandalynne’s estate,” that “the
or the incapacity to lead a normal life, the inability to
claim arose out of the State’s negligence resulting in
enjoy one’s family, or games, sports, hobbies, avoca-
Briandalynne’s death,” and that “she would be pursu-
tional skills, and the like.” 2 Stuart M. Speiser et al., The
ing general damages in an amount to be proven at trial,
American Law of Torts § 8:20 (2014).
which could include damages for the loss of enjoyment
Petitioners contend that the circuit court erred in
of life.” Id. at 200, 366 P.3d at 1079. Thus, the ICA held
(1) allowing a viable fetus to recover hedonic dam-
that Castro’s complaint “was not insufficient” because
ages, and (2) awarding $250,000 in damages when
it “reasonably informed the State of what Castro’s
there was no evidence regarding the loss of enjoyment
claims were, their basis, and what the State would have
of life for Briandalynne, had she lived. In response,
to defend against.” Id.
Castro argues that the damages award was appropri-
The ICA further held that there was sufficient
ate because “[t]here is no reason why the amount of
evidence to support an award of damages to
(continued)

general damages for the loss of a life and the loss of a of the legislature. See Morgan v. Planning Dep’t, Cty. of
person’s enjoyment of life in the case of a stillborn child Kauai, 104 Hawaii 173, 179, 86 P.3d 982, 988 (2004).
cannot be determined” using the same factors that Because it is not clear from the plain language of the
courts consider when an infant “is a victim of wrongful statute whether HRS § 663-7 would apply to a viable,
death.” Castro argues that appellate courts will not dis- unborn fetus, we must look at the statute’s legisla-
turb the findings of the trial court on damages unless tive history. See Id. In reviewing the legislative history
they are clearly erroneous, and that Petitioners’ have of HRS § 663-7, the survival statute, there is nothing
not adduced any evidence or authority to support such to suggest that the legislature intended to exclude
a contention. a viable fetus from an HRS § 663-7 survival action.
We conclude that the relevant statutes, applicable Rather, the legislature expressly provided that recov-
case law, and policy considerations, support Castro’s ery under the survival statute be “broad” and endorsed
contention that the estate of an unborn, viable fetus this court’s broad judicial interpretation of the wrongful
is able to recover hedonic damages. We also find that death statute, HRS § 663-3 which was revised as part
there was sufficient evidence to support the circuit of the same bill in which HRS § 663-7, the survival stat-
court’s damages award. Accordingly, we conclude that ute, was implemented.
the ICA did not err in affirming the circuit court’s award House Bill 588 of 1955 revised the 1923 wrongful
of damages for loss of enjoyment of life. death statute, HRS § 663-3, and implemented for the
Petitioners argue that it is inappropriate to award first time the survival statute, HRS § 663-7. In rele-
hedonic damages to the estate of a viable fetus. In sup- vant part, the House Judiciary Committee stated as
port, Petitioners quote a leading treatise on personal follows:
injury, suggesting that hedonic damages are inappro- The purpose of this bill is to broaden the right of
priate in situations in which the decedent was killed action and the extent of recovery in wrongful death
instantly: “[i]n a survival action, a decedent’s estate suits.
generally may be allowed to recover hedonic damages ….
for the time between injury and death.” Petitioners also This bill, as amended, broadens the wrongful death
argue that there must be evidence of how a decedent statute by permitting a deceased person’s spouse,
enjoyed life, and a fetus cannot suffer hedonic dam- children, father, mother, or dependents to recover for
ages, since the fetus has not had time to develop the the wrongful death of the deceased….
ability to have loss of enjoyment of life damages. The right of action under the present wrong-
Petitioners’ arguments fail for four reasons. First, the ful death action is based on the archaic principal of
legislative history supports a finding that the legislature dependency. The provisions of this bill are consistent
did not intend to exclude a viable fetus from an HRS § with the theory of the majority of the statutes in the
663-7 survival action, but rather intended that recov- United States. This bill permits recovery for not only
ery be as broad as possible. This is consistent with the pecuniary losses but also for loss of love and affec-
well-established principle that remedial statutes should tion, including (1) loss of society, companionship,
be liberally construed. Kalima v. State, 111 Hawaii 84, comfort, consortium, or protection, (2) loss of marital
100, 137 P.3d 990, 1006 (2006). Second, Hawaii case care, attention, advice, or counsel, (3) loss of filial care
law is unique because it does not require the decedent or attention or, (4) loss of parental care, training, guid-
to have actually experienced the loss of enjoyment ance, or education.
of life to recover hedonic damages. Third, disallow- The provisions of this bill follow, in substance, the
ing hedonic damages in this situation would not ade- doctrine of the case of Gabriel [v]. Margah, 37 Haw.
quately compensate the injured party. Fourth, children 571, which extended the interpretation of the existing
may recover hedonic damages for injuries sustained in statutory right of action.
the womb; accordingly, disallowing hedonic damages This bill also provides for a survival statute. In the
to viable, unborn fetuses under HRS § 663-7 would majority of the states in the United States, broad sur-
provide perverse incentives to the tortfeasor. vival statutes have been passed to permit the survival
In interpreting a statute, we start with our foremost of right of action arising out of a tort despite the death
obligation: to ascertain and give effect to the intention of the wrongdoer or of the injured person.
(continued)

Under the common law, death terminated the right Third, disallowing hedonic damages in this
of action arising out of a tort. This archaic doctrine has situation would not adequately compensate
caused untold hardship and injustice. Briandalynne’s estate. Under HRS § 663-8.5(a),
The present Territorial statutes are not broad enough Briandalynne’s estate could recover damages for
to cover all of the hardship situation which might arise, “pain and suffering, mental anguish, disfigurement,
and your Committee feels that this bill will help fill a loss of enjoyment of life, loss of consortium, and all
void in the tort laws of the Territory. other nonpecuniary losses or claims.” However, it
Construing HRS § 663-7 to provide recovery for is unclear to what extent Briandalynne could have
viable, unborn fetuses is also consistent with our guid- recovered for pain and suffering, since our case law
ing principle that remedial statutes should be liberally requires consciousness. See Brown v. Clark Equip.
construed. See Kalima, 111 Hawaii at 100, 137 P.3d at Co., 62 Haw. 530, 537, 618 P.2d 267, 272 (1980)
1006. HRS § 663-7 is a remedial statute. See Greene, (“Rohlfing … established the rule that recovery
54 Haw. at 236, 505 P.2d at 1173 (“Our interpretation for pain and suffering depended on the existence
of HRS § 663-7 recognizes that the aim of the stat- of conscious pain and suffering.”) (emphasis added).
utes in this area of the law is compensation for loss[.]”) Accordingly, hedonic damages may be the only way
“This court has stated that remedial statutes should be to appropriately compensate Briandalynne’s estate
liberally construed to suppress the perceived evil and for her injury.
advance the enacted remedy and has disfavored nar- Fourth and finally, to not allow hedonic damages
row interpretations that impede rather than advance in this case would create perverse incentives for the
the remedies provided by such statutes.” Kalima, 111 tortfeasor. In Omori, the ICA held that children may
Hawaii at 100, 137 P.3d at 1006 (internal citations recover hedonic damages for injuries sustained in the
omitted). womb. 91 Hawaii at 162, 981 P.2d at 719. Policy con-
Second, we reject Petitioners’ arguments that a dece- siderations counsel against barring recovery of hedonic
dent must experience consciousness of her loss of enjoy- damages for the death of a viable, unborn fetus under
ment of life and that there must be evidence of how a the survival statute, but allowing a child who is tortu-
decedent enjoyed life, as we are persuaded by the ICA’s ously injured while in the womb to bring a negligence
decision in Polm v. Dep’t of Human Servs., 134 Hawaii claim for damages after birth. See Ozaki, 87 Hawaii at
305, 339 P.3d 1106, 2014 WL 7390879 at *21 (App. 2014). 289, 954 P.2d at 668. In Ozaki, the ICA held that the
There, the ICA affirmed the circuit court’s order finding estate of an adult decedent could recover damages
the Department of Human Services liable for damages for loss of enjoyment of life under HRS § 663-7. Id. In
to a one-year-old child’s estate. Id. The defendant had so holding, the ICA relied on the concurring opinion
argued that “since [the Decedent] lost consciousness in Jones v. Shaffer:
almost immediately and there was no evidence of how A person tortiously injured, and permanently dis-
he had enjoyed life or how he would have enjoyed life, abled in consequence, may recover for the dimin-
only minimal damages could be awarded for loss of ished joy of living…. If this view does not hold in
enjoyment of life.” Id. (internal quotation marks omitted). wrongful death cases, our law gives off unfortunate
The ICA rejected these arguments and awarded dam- incentives. We invite the tortfeasor who runs over a
ages under HRS § 663–7. Id. Other jurisdictions have also pedestrian to back up and do it again and be sure his
held that consciousness is not required to recover loss of victim is dead.
enjoyment of life damages. See Holston v. Sisters of Third Thus, based on the survival statute’s legislative his-
Order of St. Francis, 165 Ill. 2d 150, 209 Ill.Dec. 12, 650 tory, Hawaii precedent, and policy considerations, we
N.E.2d 985 (1995) (holding that damages may be awarded hold that Briandalynne’s estate was properly allowed to
for the loss of enjoyment of life to a disabled person even recover damages for loss of enjoyment of life.
if she was unaware of her loss); Flannery v. United States, This holding would not subject to civil liability a
171 W. Va. 27, 33, 297 S.E.2d 433, 439 (1982) (holding woman carrying a fetus whose negligence caused
comatose patient could recover loss of enjoyment of life the viable fetus to die in utero or who exercised her
damages “even though he may not be able to sense his rights under the law to terminate a pregnancy through
loss of enjoyment of life”). abortion.
(continued)

Regarding negligence, the question of whether nature, but merely conclusory expressions that, in
recovery is possible under HRS § 663-7 and whether cases of a particular type, liability should be imposed
a legal duty of care exists are two separate inqui- for damage done. In determining whether or not a duty
ries. HRS § 663-7 does not define against whom a is owed, we must weigh the considerations of policy
decedent’s estate may sue, and its legislative history which favor the appellants’ recovery against those
does not manifest intent on the part of the legislature which favor limiting the appellees’ liability.
to impose a legal duty of care on particular defendants. Thus, given its findings, we conclude that the
Accordingly, the existence of a legal duty of care for circuit court was within its discretion to set $250,000
recovery under HRS § 663-7 is a question of law for the as the appropriate compensation for Briandalynne’s
courts to decide. Ah Mook Sang v. Clark, 130 Hawaii injury.
282, 290, 308 P.3d 911, 919 (2013). Conclusion
In considering whether to impose a duty of reason- For the foregoing reasons, we hold that Briandalynne’s
able care on a defendant, we recognize that duty is estate could maintain a survival action against Petition-
not sacrosanct in itself, but only an expression of the ers for hedonic damages, and that the circuit court did
sum total of those considerations of policy which lead not err in awarding the estate $250,000 in damages
the law to say that the particular plaintiff is entitled to for loss of enjoyment of life. Accordingly, we affirm the
protection. Legal duties are not discoverable facts of ICA’s judgment on appeal.
Vicarious Liability theirs employment. If the employee is acting only

out of personal motives and unrelated to the fur-
Under the principle of vicarious liability, a defen- therance of employer’s business, then the employer
dant may be liable for the tortious acts of another can escape liability. Suppose an employee is
even though they are not at fault. An employer instructed to use a vehicle to run an errand for their
is vicariously liable for the tortious acts of their employer but, in the course of running the errand,
employees under the doctrine of respondeat they deviate substantially from their route to see
superior, which means, literally, “Let the superior their partner. If the employee negligently causes
respond.” Vicarious liability also arises under the a vehicular accident upon leaving their partner’s
family-purpose doctrine, which holds the owner house, their employer will be absolved of liability
of a car vicariously liable for the torts committed because the employee was acting outside the
by those members of their immediate household scope of their employment.
whom they allow to drive their car. If a father loans The rationale underpinning this doctrine is
his car to his daughter (who is a member of his that employers, rather than employees, should
immediate family) and she negligently injures some- bear the expense of any accidents resulting from
one, the father could be held vicariously liable for conduct in furthering employer’s business. Such
his daughter’s negligence if he had some amount of expense, it is reasoned, should be considered
control or ownership over the car. Some states have part of the price of doing business. The bottom
extended this liability by statute and have provided line is that an employer owes a duty of care to
that the owner of an automobile is vicariously liable any plaintiff injured by an employee acting in
for the negligence of anyone who uses their car with the scope and furtherance of their duties as an
their permission. Because these doctrines impose a employee. There are many cases that demon-
duty of care on people who are not directly at fault, strate the “going and coming” rule which states
we discuss them in this chapter even though they that when an employee is simply going or coming
are discussed in greater depth in other chapters. from work and not performing any aspect of the
Under the doctrine of respondeat superior, job and is involved in an accident, the employer
the employer is liable for any torts committed by will generally not be liable.
an employee during the scope and furtherance of
In the News
To read sample jury instructions specific to your state on such topics as res ipsa loquitur, the rescue
doctrine, the Good Samaritan rule, and related concepts, enter “Your state Civil Jury Instructions” as
your search term and review the result.
Practice Pointers
Jury instructions may be the deciding factor in a case—not because of the influence they have on jurors (most
jurors have made up their minds long before they are read the jury instructions), but because of the impact they
may have on appeal. Jury instructions that incorrectly state the law may provide grounds for reversal. There-
fore, judges are well aware of the significance of jury instructions at the appellate level and place the burden
on the attorneys for both sides to draft proposed instructions. These proposals are usually submitted before
trial, giving the judge (and opposing counsel) ample time to review them and do any necessary research. After
hearing the evidence presented at trial and listening to the arguments of both attorneys regarding jury instruc-
tions, the judge prepares instructions that most clearly and accurately present the law as it pertains to the case
at hand.
Jury instructions are the definitive statement of the elements of the plaintiff’s case. Plaintiff’s counsel must
make sure that the evidence presented covers each required element (as set forth in the jury instructions),
whereas defense counsel must evaluate the weakest elements in the plaintiff’s case and focus an attack on
those elements. Therefore, from a trial preparation standpoint, jury instructions assist attorneys in focusing on
the essential elements of a case and seeing its weakest points.
Attorneys often use legal assistants in the researching and drafting of jury instructions. Jury instructions
for the most common causes of action (e.g., motor vehicle accidents and slip-and-fall cases) can be found in
books of recommended jury instructions compiled by the court, state bar associations, or some other authori-
tative source.
An example of a jury instruction that might be used in the case involving Teddy and the Baxters is shown
here.
Negligence of a Child
Duty of Adult to Anticipate Behavior of Children
A child is not held to the same standard of care as an adult in terms of being a trespasser on a possessor’s land.
A child who does not use the degree of care that is ordinarily exercised by children of the same age, intel-
ligence, knowledge, and experience under the existing circumstances is negligent.
An adult must anticipate the ordinary behavior of children, and that children might not exercise the
same degree of care for their own safety as adults and must take reasonable measures to prevent harm to
children.
Summary
The first question that arises in any negligence case The duty owed by possessors of land to those
is one of duty. Generally, a defendant is expected to on their land depends on the latter’s status as either
exercise the same degree of care that any reason- a trespasser, licensee, or invitee. No duty of care is
able person would use under similar circumstances. owed to a trespasser to make the land safe or to
The nature of the relationship between the defen- protect the trespasser in any way. There are four
dant and the plaintiff is important in determining the exceptions, however, to this general rule. Some duty
degree of duty owed. of care is owed to trespassing children, to rescuers,
to known trespassers, and to those trespassers using and which they should realize that the buyer will not
only a very limited portion of the possessor’s land. discover, they will be liable for any injuries resulting
A possessor has the duty to warn a licensee of any from that dangerous condition.
dangerous conditions of which the possessor is In Anglo/American law people generally have
aware and should reasonably anticipate that the no obligation to assist others in danger. However,
licensee will not discover on their own. Invitees are when a special relationship exists between plaintiff
owed the highest duty of care. A possessor has a and defendant, liability may be found for failure to
duty to inspect their premises for hidden dangers act. A duty of care may also arise out of a special
when dealing with invitees. Possessors may be liable relationship between the defendant and a third
for those conditions that pose an unreasonable risk party. Those who render aid to others in need or
of harm to persons outside their premises, especially voluntarily undertake to render services to another
if the hazardous condition was artificially created by establish a temporary special relationship. The res-
the possessor. The analysis of duty for public enti- cue doctrine comes into play in this case. Once they
ties is essentially the same as the analysis for private initiate assistance or perform services, they have an
individuals except when the doctrine of sovereign obligation to use every reasonable means possible
immunity is applicable. to use reasonable care.
In the special relationship of the landlord and Under the common law, children could not
tenant, the tenant is the one entitled to the protec- recover for injuries sustained by them while in utero.
tion of the common law rules. Although the land- Modern courts are more inclined to allow recovery,
lord generally escaped liability under the common but usually require the child to be born alive in order
law once they transferred possession to the tenant, to recover.
today they are liable for failure to keep premises in The respondeat superior doctrine and the
good repair and are liable for those dangers that family-purpose doctrine are examples of vicarious
they know or should know about and about which liability, in which the defendant is liable for the tortious
the tenant has no reason to know. acts of another even though the defendant was not
Like landlords, sellers of land are released from at fault. The doctrine of respondeat superior pertains
tort liability once they turn the property over to the primarily to employers, whereas the family-purpose
buyers. However, if a seller fails to disclose a danger- doctrine applies to car owners who allow members of
ous condition of which they are or should be aware their immediate household to use their car.
Key Terms
attractive nuisance invitees
Dangerous condition on the defendant’s prop- Persons invited by possessor of land onto
erty that is likely to induce children to trespass their property for the purpose of conducting
business invitee business
One who enters the land for a purpose connected licensee
with the business dealings of the possessor Person who has possessor’s consent to be
duty present on land such as a social guest
Legal obligation to act reasonably that arises out negligence
of our relationship to others Conduct that creates an unreasonable risk of
family-purpose doctrine harm to another
Doctrine that makes the owner of a car liable for professional rescuer doctrine
the tortious acts of immediate family members Limits or bars the liability of tortfeasors to
committed while driving professional rescuers such as police officers and
Good Samaritan statutes firefighters who sustained injuries as a result of
Law providing that anyone who provides medical ordinary negligence
assistance is not liable for damages arising from public invitee
that assistance as long as care is provided in good One who enters the land for the purpose for
faith and does not constitute gross negligence which the land is held open to the public
rescue doctrine trespasser

Doctrine under which anyone who negligently One who has no right or permission to be on a
causes harm to a person or property may be possessor’s land
liable to one who is injured in an effort to rescue vicarious liability
the imperiled person or property Liability for the tortious acts of others
respondeat superior
Doctrine that makes an employer liable for the
tortious acts of employees committed in the
scope and furtherance of their employment
Review Questions
1. What duty of care is owed a trespasser? 10. To what extent is a seller of land liable to a
a. What are the four exceptions to this general plaintiff injured by a defect the seller does not
rule? disclose to the buyer?
a. What if the seller intentionally conceals the
2. What conditions must be met to have an
defect?
attractive nuisance?
b. What if the buyer has a reasonable opportu-
a. What characteristics of a child are taken into nity to find and correct the defect?
consideration when deciding whether the
attractive-nuisance doctrine applies? 11. Is there a common law duty to rescue someone
in distress?
3. What is the rescue doctrine?
a. Under what conditions does such a duty
exist? Give an example.
4. What duty is owed a known trespasser?
a. What duty is owed to someone who tres- 12. What duty of care does a person have once
passes on a limited area of a possessor’s they have begun to render emergency aid?
land?
13. What is the voluntary-undertaking doctrine?
5. Who is considered a licensee, and what duty of
care is owed a licensee? 14. How does the duty of a public entity compare
to that of a private individual?
6. Who is considered an invitee, and what duty of
care is owed an invitee? 15. Can a fetus recover for injuries sustained in
a. How can one lose one’s invitee status? utero as a result of a defendant’s actions?
7. What duty of care does a possessor owe to

16. What is the doctrine of respondeat superior?
those outside their property?
a. What distinction is made between artificial 17. What is the family-purpose doctrine?
and natural conditions?
18. What standard of care do states use if they no
8. What are the duties of a tenant?
longer use the common law classification for
those entering a possessor’s land?
9. What are the duties of a landlord?
Practice Problem
One beautiful summer afternoon Jonathan and indignities she had endured as a result of Teddy’s
Teddy, both age six, were engaged in a particularly tormenting.
rollicking game of football in the backyard of Teddy’s Goaded by these memories, as well as her
house. In an effort to emulate the quarterback hero instinctual drive to protect her domain, Gertrude
of his fantasies, Jonathan took aim at Teddy and went after Teddy. When Teddy felt Gertrude grab
catapulted the ball into the air. Unfortunately, his hold of one of his pant legs he screamed in ter-
aim was off, and the ball landed in the backyard of ror and tried desperately to kick Gertrude away.
Teddy’s neighbors, Mr. and Mrs. Baxter. The Baxter Incensed by the kicking, she received from Teddy,
backyard was surrounded by a six-foot wooden Gertrude plunged her teeth deeper, piercing Teddy’s
fence. Undeterred by this obstacle between him and flesh. Teddy’s continual thrashing about only made
his ball, Teddy attempted unsuccessfully to scale Gertrude more determined to maintain her viselike
the fence. Jonathan, who was two months older grip on Teddy’s leg.
than Teddy and, therefore, proportionately wiser, Meanwhile, Jonathan, a spectator to this whole
suggested that they try the gate to the yard. drama, valiantly attempted to rescue his friend by
Teddy knew that the Baxters always kept the pelting Gertrude with rocks he found in the Baxters’
gate locked, and he also remembered that he had driveway. Unfortunately, the sting of the rocks further
been warned repeatedly by both the Baxters and his enraged Gertrude and, not realizing their source,
parents that he should never enter the Baxter yard she reinforced her grip on Teddy’s leg.
without supervision. Jonathan urged him to try the Drawn by Jonathan’s pleas for help and Teddy’s
gate anyway, but Teddy was hesitant. He was circum- screams of terror, a passerby, Mr. Goodright, came
spect about entering the yard not only because of running into the Baxters’ backyard. Immediately siz-
his parents’ and the Baxters’ admonitions, but also ing up the situation, Mr. Goodright began kicking at
because of the presence of Gertrude, the Baxters’ Gertrude with all his might to induce her to release
German shepherd. Gertrude and Teddy had a some- Teddy. Gertrude, stunned by his blows, let loose of
what strained relationship because Teddy, in some Teddy to attack the object that was causing her pain.
of his less enlightened moments, had taken a certain Seizing this opportunity to escape, Teddy dragged
perverse pleasure in provoking Gertrude into a bark- himself toward the gate and Jonathan pulled him to
ing frenzy by teasing her through the gate. He was the safety of the driveway.
reluctant to test her capacity for forgiveness, but, The courageous Mr. Goodright now pitted his
egged on by Jonathan, he tried the gate latch and wits against 120 pounds of wrath. Gertrude, enraged
found, much to his surprise, that it was unlocked. by the kicks she had received, lashed out wildly
Hesitantly, he opened the gate and peered inside. and caught Mr. Goodright’s right hand. Pummeling
With Gertrude nowhere in sight he bolted across the Gertrude’s head with his free arm, Mr. Goodright
yard to retrieve the ball. struggled desperately to free his hand from Gertrude’s
Gertrude, her hearing somewhat impaired jaws.
by advanced age, was deeply immersed in canine The duo might have continued this struggle
daydreams and was oblivious to Teddy’s activities. until one of them collapsed from exhaustion, but,
Because of this Teddy might have escaped unde- as fate would have it, Mr. Baxter arrived home early
tected had he not stubbed his toe on a sprinkler and from work. As he drove in and caught sight of the
let out a loud yell. The slumbering Gertrude, awak- fracas taking place in his backyard, he vaulted out of
ened by Teddy’s cries, sprang to her feet. Some- his car, yelling at Gertrude as he ran. When her mas-
what disoriented but drawing on her instincts as a ter’s commands finally penetrated her conscious-
guard dog, Gertrude leaped off the porch in the ness, Gertrude released her prey.
direction of the unknown intruder. When she was But the damage had already been done. Both
within lunging distance of the now-panicked Teddy, Teddy and Mr. Goodright were bleeding profusely
vague memories of loathing filtered into Gertrude’s from their wounds, and Teddy, his attention no lon-
consciousness as she began to recall the many ger diverted by the combat between Mr. Goodright
and Gertrude, was beginning to become painfully she will have to ask whether the Baxters had reason
aware of the full extent of his injuries. Both Mr. to know that children were likely to trespass in their
Goodright and Teddy sustained serious injuries from backyard and whether Gertrude posed an unrea-
their battles with Gertrude. sonable risk of injury to trespassing children. Most
Teddy would bear emotional as well as physi- importantly, she will have to argue that the Baxters
cal scars as a result of his encounter with Gertrude. failed to use reasonable care in protecting children
In the future he would experience a phobic disorder from Gertrude by failing to keep the gate locked.
connected to dogs, to the extent that the approach She will also have to be able to prove that Teddy
of any dog in his direction would trigger an anxi- was not aware of the danger posed by Gertrude and
ety attack. Mr. Goodright, a longtime animal lover that children of his age, intelligence, and experience
and therefore more sympathetic to Gertrude’s acts, would not have perceived the danger.
would experience no emotional reactions from his A n o t h e r q u e s t i o n t o b e a d d re s s e d i s
trauma but would have to suffer the long-term con- whether the Baxters owed any duty of care to
sequences of his heroic efforts. He would endure Mr. Goodright as a rescuer. At first it may appear that
several operations to repair the damage to his hand Mr. Goodright was a trespasser; however, because
and would never gain full control of his hand again. he entered the land with the express purpose of
As a result, his career as a much-heralded concert rescuing another, he would not be considered a
pianist would come to an untimely end, and he trespasser. Consequently, Teddy’s attorney would
would be relegated forever to the humble life of a have to research the standard of care accorded
piano teacher. rescuers under the case law in her state.
In this case involving Teddy, Mr. Goodright, and Mr. Baxter did, in fact, have a duty to assist
Gertrude, several questions come to mind in refer- Mr. Goodright once he saw him being attacked by
ence to duty. Did the Baxters, for example, owe any Gertrude. Remember that although generally there
duty of care to Teddy, who was a trespasser on their is no duty to render assistance to one in need, an
land? To answer that question Teddy’s attorney will exception exists when the danger has been created
have to determine if Teddy was a known trespasser. by the defendant’s own conduct or by an instrument
Is a different duty owed to a child than to an adult? under his control. In this case, because Gertrude was
Also, she will want to consider whether Gertrude is legally under Mr. Baxter’s control, Mr. Baxter had a
an attractive nuisance. In answering this question, duty to aid Mr. Goodright.
Tort Teasers
In each of the following cases, discuss whether a property. The injury requires corrective surgery.
duty of care is owed by the defendant to the plaintiff. Plaintiff sues Defendant, the owner of the
baseball park, for his injuries. Halliburton v.
1. Plaintiff was injured by a trespassing bull on his
Town of Halls, 295 S.W. 3d 636 (Tenn. App.
property. The bull had escaped from a group
2008).
being driven from one piece of land to another
via a public road. The bull escaped from the 3. Plaintiff, who was shopping in Defendant’s
group and entered a corral on plaintiff’s prop- store, is bitten by Defendant’s cat who was
erty. While plaintiff was attempting to lure the on the premises. Defendant promises to lock
bull out of the corral, he stepped in front of his up the cat for fourteen days so that he can be
own calves and the bull left the ring and turned tested for rabies. Defendant fails to live up
back around and charged and ran over the to his promise and the cat disappears for a
plaintiff injuring him (Foland v Malander, 381 month, requiring Plaintiff to undergo a series
N.W. 2d 914 (Neb. 1986)). of painful rabies shots. After Plaintiff completes
the treatment the cat returns to its owner in
2. Plaintiff, who lives across the street from a
perfect health. Marsalis v. La Salle, 90 So. 2d
baseball park, is struck on the shoulder by a
120 (La. 1957).
baseball hit from the park while on his own
4. Plaintiffs allege that homeowner defendant 5. Plaintiff golfer was struck in the eyes by a golf
negligently allowed her son who had a history ball from a fellow golfer’s misdirected ball. Is
of mental illness to keep guns and ammunition the other golfer liable? The golf course? Anand
on her property, which he in turn used to kill v. Kapoor, 61 Ad. 3d 787, (N.Y. App. Div Dep’t.
Plaintiffs’ relative who was performing yard 2009).
work. The victim and defendant were next door
neighbors. Defendant testified that she did not
know her son kept guns and ammunition on
her property, and she could not have foreseen
that he would shoot anyone as he did not have
a history of such violence. Volpe v. Gallagher,
821 A.2d 699 (R.I. 2003).
Your firm’s client, Arnold, attended a graduation party hosted by an acquaintance of his, Steven. Steven’s
parents, at Steven’s request, agreed to stay out of sight of his guests and they were not seen all evening. They
stayed in a guest cottage on the property, watching television and drinking martinis. They were oblivious to the
fact that Arnold was severely beaten by one of the guests, Patrick, who has a vicious temper when he has been
drinking. Patrick had harbored a grudge against Arnold for comments Arnold made several months previously,
but Patrick never had the courage to act on his resentment until this time. Arnold, who was not expecting to be
assaulted and who has no self-defense skills, was badly injured.
Some of the guests at the party were minors; Arnold himself is seventeen (below legal drinking age in his
state). Assume that a state statute makes it illegal to provide liquor to minors.
1. What argument would you make on behalf of Arnold that Steven’s parents had a legal obligation to
protect him from being attacked by Patrick? Did they have a duty to Arnold? If so, what type of duty?
2. What argument would you anticipate Steven’s parents making in response?
3. What are the laws, both statutory and case law, in your state regarding social host liability? In light of
those laws, whom do you think would prevail in this scenario and why?
Internet Inquiries
American Law Sources Online (ALSO) www.lawsource.com is one of those phenomenal sources of links into
federal and state legal resources. From this site you can access the United States Supreme Court, Court of
Appeals, bankruptcy panel, and district court decisions as well as a multitude of uniform laws, the United States
Code, the United States Constitution, and court rules and practices. It includes state codes, acts, bills, regula-
tions, court rules, state constitutions, court information, forms, and even secondary resources. It also includes
publications explaining the legal system and how it works.
Chapter 5
Negligence: Breach of Duty

Chapter Topics
What Is Reasonable Conduct? Emergencies
Learned Hand Formula Custom
Restatement Position Professions
Reasonable-Person Standard—Objective versus Negligence Per Se
Subjective Automobile-Guest Statutes
What the Reasonable Person Is Expected to Know Res Ipsa Loquitur
Defendants with Special Characteristics Application
Children
Chapter Objectives
• Identify the criteria used to assess the reason- • Use the Learned Hand formula.
ableness of a person’s conduct. • Apply the concepts of negligence per se and res
• Distinguish between objective and subjective ipsa loquitur.
standards.
A s we first discussed in Chapter 4, if it can be established that the Baxters owed a duty of care to Teddy
and to Mr. Goodright, the next question is whether they breached that duty. Because the duty required in
most instances is to use reasonable care, that duty is breached by engaging in unreasonable conduct. Did the
Baxters exercise the precautions expected of a reasonable person in their maintenance of Gertrude? Was she
adequately confined for a dog of her size and temperament? Did the Baxters create an unreasonable risk of
harm for Teddy and other children by failing to lock the latch on their gate?
CHAPTER 5 Negligence: Breach of Duty | 107
What Is Reasonable quarterbacking” is not allowed. What is important is

how reasonable people would perceive the defen-
Conduct? dant’s acts at the time they occurred. What a per-
son does on a regular basis is not important for this
Breach of duty occurs when the defendant fails to
purpose. The plaintiff, consequently, is not permit-
conform to the required standard of care. Deter-
ted to use the self-serving argument that they were
mining whether a breach of duty has occurred
injured as a direct result of the defendant’s conduct
requires (1) a determination of the relevant stan-
and that, therefore, the defendant must have been
dard of care and (2) an evaluation of the defen-
unreasonable.
dant’s conduct in light of that standard. In other
The characteristics of the proverbial “reasonable
words, if the plaintiff is able to prove that they
person” will be discussed shortly. But first we must
were owed a duty of care by the defendant, that
consider how a reasonable person decides what to
duty gives rise to a general standard of con-
do in a predicament. We can assume that any rea-
duct—to use reasonable care. Using reasonable
sonable person will avoid creating an unreasonable
care requires the defendant to recognize the
risk of harm for others. The tough question is how
risks created by his actions (or omissions) and to
they calculate such risks and avoid actions that cre-
act reasonably in light of those risks. The general
ate unreasonable risks.
standard must then be applied to the specific cir-
cumstances of the case to determine the specific
standard of care governing the defendant’s con-
duct. The jury is asked to establish this specific Learned Hand Formula
standard of care, usually guided by only very gen-
eral jury instructions defining negligence. Judge Learned Hand, an influential jurist well
The question of reasonable care boils down known for his pragmatic approach to determining
to what a reasonable person would have done breach of duty, advocated a type of cost/benefit
under similar circumstances. As Prosser and Keeton analysis (see Exhibit 5–1). The judge asked the
explain: court to consider the probability that harm would
occur as a result of the defendant’s conduct (P), the
The standard of conduct which the community
gravity of the potential harm (L), and the burden
demands must be an external and objective
of precautions that would have to be borne by the
one, rather than the individual judgment, good
defendant to avoid the possible risk (B). He reduced
or bad, of the particular actor; and it must be,
these considerations into a formula and concluded
so far as possible, the same for all persons,
that a defendant breached his duty if
since the law can have no favorites. At the same
time, it must make proper allowance for the risk P×L>B
apparent to the actor, for their capacity to meet
it, and for the circumstances under which they
must act.
Exhibit 5–1 Learned Hand Formula
The courts have dealt with this very difficult
Burden of precautions
problem by creating a fictitious person, who
never has existed on land or sea: the “reasonable
person of ordinary prudence.” Sometimes they Gravity of harm/
are described as a reasonable person, or a person Likelihood of harm
of ordinary prudence, or a person of reasonable
prudence, or some other blend of reason and
caution. (The Law of Torts § 32, 173 [5th ed.
1984])
A defendant’s conduct must be evaluated at
the time of the plaintiff’s injury. “Monday-morning Defendant is liable
In other words, according to this equation the Notice that under the Learned Hand formula,
defendant would be liable if the probability of harm the more serious the potential injury that could be
occurring (P) multiplied by the gravity of such harm incurred, the less probable its occurrence must
(L) exceeded the defendant’s burden of taking pre- be before the defendant is obligated to guard
cautions to avoid the harm (B). against it. Suppose, for example, the risk of injury is
In considering B, the burden of precautions, less than 20 percent and yet the type of injury likely
the courts look not only at the cost involved in tak- to occur is death or serious physical injury. The
ing precautions but also at the social utility of the court would be more likely to find the defendant
defendant’s conduct. What is the social value of negligent for failure to redesign the vehicle under
the defendant’s conduct? If society would be bet- those circumstances than if there was a 40 percent
ter served by allowing all defendants in the defen- chance of an accident, but the anticipated injuries
dant’s position to act as they did, the courts are less were relatively minor.
likely to require the defendant to alter that course In assigning a value to B, the courts would
of conduct. This puts the burden on the courts to not only calculate the cost of altering the design
determine the risk of accidents occurring and the but would also consider the social consequences
cost of avoiding them after the fact. This formula of requiring similarly situated defendants to alter
assumes people know the consequences of their their comparably defective designs. If consumers
actions before engaging in risk-creating behavior. could no longer afford a redesigned vehicle, the
This is a most uncertain thing to know, as is what a new design would have little social utility. Sup-
proper precaution would be to avoid such risk and pose the court in our hypothetical case concludes
what that precaution cost is. that the cost of redesigning the vehicle would be
prohibitive and that the likelihood and gravity of
Application of Learned Hand injuries resulting from the defect would be rela-
tively slight. The court would then conclude that
Formula the defendant manufacturer had not breached its
Let us apply this equation to a hypothetical prob- duty of care to its consumers. Note, however, that
lem. Suppose an automobile manufacturer discovers the plaintiffs in such cases could still opt for strict
a defect in the design of its automobile that under liability and warranty causes of action (both dis-
certain circumstances has the potential of creating cussed in Chapters 11 and 12). It is clear how this
harm to the occupants of the vehicle. Will the manu- formula requires predictive values which can be
facturer be acting unreasonably if it fails to alter this argued both ways. The risk of accidents occurring
defective design? and the cost of avoiding them after the fact seems
In answering that question, one would have to be uncertain. If someone does not know with
to calculate the statistical likelihood of accidents certainty the risk of something before it occurs,
resulting in injury to a vehicle’s occupants occur- modification of behavior will unlikely occur. If lia-
ring. Next, one would have to consider the grav- bility is uncertain then taking protective measures
ity of the types of injuries that would most likely will not be a main concern.
occur, as well as the burden to the manufacturer of To see the Learned Hand formula applied in
altering the design. Suppose it can be anticipated an actual case, read Pinsonneault v. Merchants
that 100 of those vehicles having this defect will & Farmers Bank & Trust Company, 738 So. 2d
be involved in serious accidents within one year, 172 (3 rd Cir. 1999), excerpted here. In deciding
and that those accidents will result in injuries cost- whether parents of a 23-year-old night depository
ing an average of $1 million in medical expenses. patron, who was fatally shot by escaped prisoners
If altering the design would cost the manufacturer during robbery, could bring a wrongful death suit
$1 million, the manufacturer would be obligated against bank, alleging various breaches of security,
to make the alteration because 100 ×$1 million the Louisiana Court applied the Learned Hand
>$1 million. risk-utility analysis.
Case Opinion
THIBODEAUX, Judge
Jesse Pinsonneault was murdered on November 3, deposit box, his body shaking, and his face streaked
1992, as he attempted to deposit his employer’s daily with tears. Jesse became paralyzed and ultimately
receipts into the night depository of Merchants & Farm- died at an Alexandria hospital nine hours after the
ers Bank & Trust Company. His parents, James and shooting.
Debra Mae (Debbie) Pinsonneault, filed a wrongful Lawson Strickland and his primary accomplice,
death suit against the defendant bank alleging vari- Christian Boyd, escaped into the woods behind the
ous breaches of security. Following a bench trial, the bank and were apprehended approximately three
trial court determined that Merchants Bank had not days later. At the time of the shooting, Strickland and
breached its duty to provide security to its patrons. The Boyd had five days earlier escaped from the Vernon
Pinsonneaults appeal the judgment dismissing their Parish Jail, where they were trustees. Strickland, who
wrongful death suit against Merchants Bank. is on death row, pleaded his Fifth Amendment right
For the following reasons, we reverse the finding of to silence, and he refused to testify in the civil trial of
the trial court and assess damages of $1,236,890.87 to this matter. However, Christian Boyd testified that
Merchants Bank for its failure to provide security for its he and Strickland planned to rob a customer at the
patrons. The attackers were trustees who had escaped night drop of Merchants Bank at Entrance Road in par-
from the Vernon Parish Jail five days before the shoot- ticular, because it offered the best cover with regard
ing; we find no liability against the Vernon Parish Sheriff to shrubbery, lighting, the side location of the night
because the attackers were no longer in the process of deposit box, and the absence of surveillance cameras.
escaping when the shooting occurred. We further find Boyd further testified that he and Strickland had hid-
that this is not an appropriate case in which to assess den out in the area behind the bank and had watched
damages to the intentional tortfeasors even though we the night deposit for hours the night before the robbery
are mandated by La.Civ.Code art. 2323 to quantify the and planned their escape through the woods behind
fault of the intentional tortfeasors. the bank. Merchants Bank is located in an area of Ver-
I. non Parish which had the second highest crime rate
FACTS in 1992 for the parish. Two previous armed robberies
On November 3, 1992, at approximately 1:30 a.m., had occurred at this Merchants Bank branch at the
twenty-three-year-old Jesse Pinsonneault left work at time of the shooting, with the perpetrators escaping
Sambino’s Pizza and drove around to the Merchants once through the woods behind the bank, and once by
& Farmers Bank & Trust Company (Merchants Bank) helicopter.
in order to deposit the evening’s receipts and operat- Jesse’s parents brought a wrongful death suit and
ing cash into the bank’s night deposit box. The bank survival action against Merchants Bank and its insurer,
branch is located at Entrance Road which leads to Fort Aetna Casualty & Surety Company (both hereinafter
Polk in Leesville, Louisiana. Jesse was the assistant referred to as “Merchants Bank”), for its failure to pro-
manager of Sambino’s Pizza, which is approximately vide security for its customers after inviting them to
300 feet from the bank. As Jesse got out of his car bring money to the bank’s night deposit box. Suit was
and walked up to the night drop, Lawson Strickland also filed against the Sheriff of Vernon Parish for allow-
suddenly appeared and demanded the deposit money. ing the perpetrators to escape. The Sheriff settled with
Strickland then shot Jesse in the area of the clavicle the Pinsonneault family prior to trial. Jesse’s mother,
and took the bag containing $64.06 in cash. The bul- Debra Mae Pinsonneault (Debbie), before her death
let severed Jesse’s spinal cord and caused profuse due to cancer, also brought a claim for the severe emo-
bleeding. Jesse’s mother, Debra Mae Pinsonneault, tional distress she suffered upon seeing Jesse within
was called to the scene where she witnessed her son an hour of the shooting as he lay bleeding and dying at
lying in a pool of blood on the cement near the night the bank night depository. After her death, Jesse’s twin
(continued)
Case | Opinion (continued)

brother, Orin David Pinsonneault, became succession “you’d have to run from the woods, and there’s too
representative and was substituted as the party assert- much chance of getting caught.” When asked whether
ing the claims of Debra Pinsonneault… the shorter bushes depicted in later photographs would
II. have altered their decision to commit the robbery, he
LAW AND DISCUSSION responded, “It probably would have, yes.” He further
CAUSE–IN–FACT ELEMENT stated that he and Strickland had discussed this issue
Under the duty-risk analysis, cause-in-fact is gen- when planning the robbery. After the robbery, they ran
erally a “but for” inquiry. The plaintiff need only show into the woods behind the bank and got away on foot.
that he probably would not have sustained the inju- Boyd further stated that the lights at the night
ries that befell him but for the negligent conduct of the deposit did not deter them because it was such a short
defendant. See Stroik v. Ponseti, 96–2897 (La.9/9/97); distance to the surrounding areas where it was not very
699 So.2d 1072. In the present case, the only eye wit- light. He stated that
ness to the shooting of Jesse Pinsonneault, other than There’s not that much space there. You can walk
the shooter, Lawson Strickland, was the accomplice, that in a second. I mean, it would be too late. Those
Christian Boyd. Boyd testified that he was familiar with lights didn’t matter. They didn’t stop us.
the Merchants Bank branch at Entrance Road Fort Polk As to the lighting away from the night deposit,
because he had been there earlier in 1992. He stated Boyd indicated that it contributed to Strickland’s abil-
that this particular bank was chosen for the robbery ity to hide behind the bank until Jesse got out of his
because “it was just an easy place to go to … you could car. Boyd acted as lookout and hid atop a hill where he
go there, you could pull off the crime, you could hide, could see Sambino’s Pizza and the back of the bank.
and you’d make it … if it was dark, and there was noth- Strickland, when hiding in the bushes behind the bank,
ing else in there to stop you from doing it.” He stated could see Boyd, but Boyd could not see Strickland in
that the other banks in the area were out in the open the bushes because of the lighting.
and surrounded by businesses but that this branch had That’s why I couldn’t see him. There’s—back here,
woods around it which offered a hiding place and an there’s really not any lighting, and in the parking lot, it’s
escape route. real dim.
Boyd stated that he and Strickland went to Mer- Boyd stated that he saw small boxes installed over-
chants Bank the night before the actual robbery and head under the overhang at the night drop but did not
hid behind the bank’s fence for hours watching the see cameras in them. When asked whether surveillance
night depository and looking for places to hide. Their cameras would have deterred him, he stated If I saw
intent initially was to rob the person making a deposit cameras that I knew were working, I think it would have
for the nearby Shell Station until they determined that affected it big time …
Shell did not make night deposits. Upon seeing Jesse If I knew they were there? Oh, I’m pretty sure we
Pinsonneault bring the deposit from Sambino’s Pizza, wouldn’t have done it. Been stupid then.
they decided to come back the next night and take Boyd further stated that the fence at the time of
the Sambino’s deposit. Boyd stated that [w]e had to the shooting was all the way back to the edge of the
find a place where he [Strickland] could see me and I woods behind the bank but did not come around to
could see him, plus I could see over there to tell when enclose the sides of the premises, and that if it had,
they were leaving, when they were coming around and “We wouldn’t have had nowhere to go.” When asked
whatever. So, I hid up on top of the hill behind them big whether the fence affected their decision to rob a Mer-
trees, and he hid down behind the bushes behind the chants Bank customer, Boyd responded “Definitely….
bank—so we could see each other. Because he would have to run into the road, and it
Boyd stated that the bushes along the back wall would be wide open. A lot of people would be able
and corner of the bank were thick, three and a half to to see him then…. It wouldn’t have been able to be
four feet tall, and formed a straight-lined hedge that he done….”
could not see through. Boyd stated that if the bushes Boyd further testified that if the night deposit box,
had not been there, or had been low to the ground, which was located on the side of the bank, had been in
there would not have been anywhere to hide, and that front where the ATM machine is, that “[w]e couldn’t’ have
(continued)

done it…. Because it’s facing the road…. [E]verybody of the “legal cause” or “scope of protection” element of
would see. It’s too much traffic.” the duty-risk analysis, we find that “a safe condition for
Based upon the foregoing, it is probable that but use in a manner consistent with the purposes thereof”
for Merchants Bank’s decisions to maintain high thick when applied to the defendant bank, includes whatever
shrubbery along its unlighted back wall, place a par- safety features and protections are reasonably needed
tial fence only at the edge of the woods and down one to protect from attack those patrons who are invited to
side of the property, locate its night depository at a bring money to its night depository.
less visible side location, and maintain low lighting in RISK—SCOPE OF PROTECTION—LEGAL
the parking area, the armed robbery and shooting of CAUSE ELEMENT
Jesse Pinsonneault would not have occurred. There- In order to prove that a defendant’s substandard
fore, Merchants Bank’s conduct is a cause-in-fact of conduct was the legal cause of the injuries, the
the plaintiffs’ harm, and the first element in the duty- Pinsonneault family must show that the risk of criminal
risk analysis is met. We must now decide whether attack is within the scope of protection contemplated
Merchants Bank owed a duty to Jesse Pinsonneault to by the imposition of a duty. A landmark case instruct-
protect him and whether the scope of protection con- ing the law of negligence on the scope of protection
templated by the imposition of the duty encompassed issue and preparing the soil for the development of
the risk of harm that befell him. If there was a duty, and the duty-risk analysis is Palsgraf v. Long Island R.
the duty encompassed the risk, then breach of the Co., 248 N.Y. 339, 162 N.E. 99 (App.1928). The thrust
duty is the legal cause of the shooting death of Jesse of Palsgraf was to personalize the duty such that the
Pinsonneault, and damages are due his family. unintentional act as to the plaintiff “had possibilities of
DUTY ELEMENT danger so many and apparent as to entitle him to be
The law is clear that the owner of a business who per- protected against the doing of it though the harm was
mits the public to enter his establishment has a duty unintended.” Palsgraf, 162 N.E. at 101.
to exercise reasonable care to protect those who do In Palsgraf, the court declined to find that the defen-
enter. This duty extends to keeping the premises safe dant railroad owed a duty to protect a plaintiff at the
from unreasonable risks of harm or warning persons of far end of the platform from falling scales which tipped
known dangers. Rodriguez v. New Orleans Pub. Serv., over due to an explosion caused by firecrackers fall-
Inc., 400 So.2d 884 (La.1981); Bordelon v. Pelican ing on the rails at the other end of the platform. The
State Mut. Ins. Co.,599 So.2d 511 (La.App. 3 Cir.1992). firecrackers fell on the rails because a company guard
The duty of a landowner is not to insure against the caused a passenger to drop the package containing
possibility of an accident on his premises, but rather the fireworks when the guard pushed the passenger
to act reasonably in view of the probability of injury to forward to keep him from falling backward after he
others. Shelton v. Aetna Cas. & Sur. Co., 334 So.2d jumped aboard a moving train…
406 (La.1976). Storekeepers and property owners are The risk reasonably to be perceived defines the
under a duty to keep their premises in a safe condi- duty to be obeyed, and risk imports relation … It [is]
tion for use in a manner consistent with the purposes not necessary that the defendant should have had
thereof. Mumphrey v. Rollins, 468 So.2d 580 (La.App. notice of the particular method in which an accident
3 Cir.1985). would occur if the possibility of an accident was clear
Hence, it is well-settled that business establish- to the ordinarily prudent eye. Palsgraf, 162 N.E. at 99,
ments of all kinds have a general duty to keep the 100 (citations omitted).
premises safe for those patrons invited to do business Hence, the well-established and pivotal question in
thereon. This jurisprudential duty is widely applied to determining the scope of the duty is whether this defen-
cover a multitude of incidents including vehicular and dant owes a duty to protect this plaintiff from this risk
pedestrian incidents such as slip and fall accidents. which occurred in this manner. Accordingly, in the pres-
The question in this case, however, is whether the duty ent case, where two previous robberies had already
to protect encompasses the risk of robbery by third occurred at this particular branch of Merchants Bank,
persons, and thus becomes a “scope of protection” a vigilant eye could easily perceive the risk of another
inquiry. As more fully explained in the following analysis armed robbery at the same location. Moreover, the fact
(continued)

that the previous robberies were inside the bank in security for bank employees, the public, and bank
daylight should only have made the prudent eye more assets against crime and other hazards and to com-
watchful of easier methods of attack attempted under ply with the provisions of the Federal Deposit Insurance
cover of darkness in the more isolated conditions of Corporation Regulations as detailed in subpart A sec-
after-hour banking at a night drop. tion 326.0 through 326.4.
Our circuit has not previously decided whether the The plan went on to describe its security officer’s
scope of the duty owed by a bank extends to protect functional responsibilities to ensure that all provisions
its patrons from criminal activity. However, all types of its security program were implemented, including
of businesses have been found to be duty-bound if security training, and to render periodic reports to
the crime and damages were foreseeable or if the the Board of Directors to insure their awareness of all
business itself assumed a duty to protect its patrons. security matters at all locations. Hence, Merchants
Harris v. Pizza Hut of Louisiana, Inc., 455 So.2d 1364 Bank, through its own security program, assumed
(La.1984). In fact, our Louisiana Supreme Court in a duty to provide security for “the public” which
Harris v. Pizza Hut looked at cases from other jurisdic- specifically included Jesse Pinsonneault. Similarly,
tions, including Banks v. Hyatt Corporation, 722 F.2d 214 in Schaus, 233 A.D.2d 919, 649 N.Y.S.2d 752, the
(5 Cir.1984), and acknowledged that while Banks dealt court acknowledged a duty to protect where the
with an innkeeper’s liability, “any business” which defendant bank recognizes the need for safety pre-
invites the company of the public must institute reason- cautions in its own safety manual. Consequently, the
ably necessary acts to guard against the “predictable trial court’s finding of an assumed duty pursuant to
risk of assaults.” Harris, 455 So.2d at 1369…. the bank’s security manual was correct.
Assumed Duty Moreover, in the present case, Merchants Bank
At least one other court has indicated that a duty of invited surrounding businesses to bring money to its
protection against assault is automatically assumed by night depository, which was located in a high crime
banks and inns because of the kinds of services they area in a branch bank that had undergone two previ-
offer. In Caronia v. McKenzie’s Pastry Shoppes, 97–681 ous armed robberies, at least one of which involved
(La.App. 4 Cir. 10/01/97); 700 So.2d 1315, 1320, writ a shooting. Jesse Pinsonneault was the assistant
denied,97–2695 (La.01/09/98); 705 So.2d 1113, Judge manager of Sambino’s Pizza which was located
Byrnes in a concurring opinion observed that: approximately 300 feet away from the bank’s night
The “duty of protection voluntarily assumed” should depository. Jesse usually made the last night depos-
be reserved for those cases where the business owner its of the receipts and operating cash around 1:30 a.m.
expressly or tacitly assumes the duty of protection … after closing and balancing the store at midnight. The
businesses such as banks or innkeepers where secu- accomplice, Christian Boyd, stated that he and the
rity is considered to be an intrinsic part of the service shooter, Lawson Strickland, had watched Jesse bring
offered. the deposit the preceding day and lay in wait for him
However, in the present case, it is not necessary to or whoever brought the Sambino deposit at 1:30 a.m.
rely on a tacit assumption by banks in general of the on November 3, 1992. Based upon the bank’s invitation
duty to protect. Merchants Bank expressly assumed to Sambino’s Pizza to bring money to the depository,
this duty when, based upon the FDIC regulations, Mer- the bank’s experience with prior shooting and criminal
chants Bank developed a security plan of its own in attacks, the foreseeability of future criminal conduct,
April of 1992. The trial court acknowledged the security and the bank’s assumed duty of security pursuant to its
plan of the bank and found that Merchants Bank owes written plan, Merchants Bank was duty-bound to pro-
a duty to its patrons “to provide a reasonably safe place vide security to its patrons.
to conduct normal banking business at its various bank Given Jesse’s job to nightly deposit the proceeds
locations.” Accordingly, this written plan of Merchants of his employer, and the employer’s proximity to the
Bank specifically created a duty to protect its patrons bank, it was particularly foreseeable that Jesse could
in its stated purpose, which provided as follows: be shot and that “the act as to him had possibilities
The purpose of bank security is to produce and initi- of danger” so apparent as to render the bank duty-
ate a positive program of action designed to maximize bound to protect him. Accordingly, we find that armed
(continued)

robbery is a risk that threatens bank patrons at a facil- GRAY, supra, § 16.9. The foregoing conception has
ity where robberies have occurred before, and that the been referred to by legal scholars as the “Hand for-
duty of security at Merchants Bank extended to protect mula,” the “Learned Hand test” or the “risk-benefit”
Jesse Pinsonneault from the robbery which was perpe- balancing test. See PROSSER & KEETON, supra, § 31
trated against him at night outside the bank at its night at 173 n. 46; HARPER, JAMES & GRAY, supra, § 16.9
depository. at 468 n. 5; G. RODGERS, RATIONALITY AND TORT
BREACH ELEMENT THEORY, 54 S.Cal.L.Rev. 1, 8 (1980); R. EPSTEIN, A
Once it has been established that the scope of the THEORY OF STRICT LIABILITY, 2 J.Legal Stud. 151,
duty encompassed the risk of robbery and assault, 154 (1973); R. POSNER, A THEORY OF NEGLIGENCE,
the question becomes whether Merchants Bank 1 J.Legal Stud. 29, 33 (1972); G. CALABRESI & J. HIR-
breached that duty because it failed to perform the SCHOFF, TOWARD A TEST FOR STRICT LIABILITY OF
duty in a reasonable and prudent manner. If the duty TORTS, 81 Yale L.J. 1055, 1056 (1972).
was breached, the breach is the legal cause of Jesse’s In the present case, where foreseeability of armed
injuries, and damages are due his family. In the present robbery at the night depository has been established,
case, the Pinsonneault family asserts that Merchants the likelihood that the bank’s failure to provide secu-
Bank failed in its duty to take reasonable precautions rity would lead to the shooting death of a night deposit
to protect Jesse Pinsonneault from criminal attack patron far outweighs the cost of installing surveillance
because it did not install video cameras, or cut its cameras, cutting down shrubbery, upgrading lighting,
shrubbery, extend its fence, or improve its lighting, any and/or extending a fence. The argument of Merchants
one of which would have helped to deter this robbery. Bank that it was in the process of implementing its April
The Pinsonneault family urges that it was manifest 1992 security plan is not sufficient to illustrate reason-
error for the trial court to find that the duty had not ableness wherein the bank had been operating for well
been breached. We agree. over ten years. As stated, the FDIC, under the Bank
The generally accepted view is that negligence Protection Act of 1968, mandated a security officer
is defined as conduct which falls below the standard designation and a security plan implementation within
established by law for the protection of others against thirty days of membership in the FDIC. The regulations
an unreasonable risk of harm. RESTATEMENT (SEC- called for an investigation of crime statistics and inci-
OND) OF TORTS, § 282 (1965); HARPER, JAMES & dences including robberies, burglaries and larcenies,
GRAY, THE LAW OF TORTS, § 16.1 at 381–382; W. consultations with law enforcement officers, and the
PAGE KEETON, ET AL., PROSSER & KEETON ON THE installation of appropriate surveillance equipment at all
LAW OF TORTS, § 31. The test for determining whether banking locations.
a risk is unreasonable is supplied by the following for- The bank’s own security plan, when it finally wrote
mula. The amount of caution “demanded of a person one in April of 1992 before the shooting in November
by an occasion is the resultant of three factors: the like- 1992, rendered it duty-bound to enforce the FDIC reg-
lihood that his conduct will injure others, taken with the ulations and to protect the public as well as the bank’s
seriousness of the injury if it happens, and balanced assets. A duty of protection which has been volun-
against the interest which he must sacrifice [or the cost tarily assumed must be performed with due care.
of the precaution he must take] to avoid the risk.” L. Harris, 455 So.2d at 1369. Yet, the record indicates
Hand, J. in Conway v. O’Brien, 111 F.2d 611, 612 (2d that Merchants Bank installed video surveillance
Cir.1940). equipment at its other branch night depositories, but
If the product of the likelihood of injury multiplied not at the Entrance Road branch, which was the only
times the seriousness of the injury exceeds the bur- branch in the high crime area and the only branch
den of the precautions, the risk is unreasonable and which had already experienced two armed robberies.
the failure to take precautions or sacrifice the inter- It is apparent that the bank did not investigate crime
est is negligence. Id. See also Levi v. SLEMCO, 542 statistics, consider its own history, or update its
So.2d 1081 (La.1989); Allien v. Louisiana Power & Light equipment, which the CEO admitted was antiquated,
Co., 202 So.2d 704 (La.App. 3 Cir.), writ denied, 251 on a greatest-need-first basis. The trial court indi-
La. 392, 204 So.2d 574 (1967); HARPER, JAMES & cated that statistics eventually obtained showed that
(continued)

night deposit crimes were less frequent than daytime SPECIAL DAMAGES
robberies, employee thefts, and ATM crime. How- The stipulated special damages in this case are
ever, this analysis does not reconcile the actions $36,890.87 and are awarded accordingly. Hence, the
of the bank in installing video cameras at its other total amount recoverable by the Pinsonneault family is
two branches’ night depositories, instead of in the $1,236,890.87.
branch in the higher crime area in general. Moreover, COMPARATIVE FAULT
while statistics are often beneficial, the foreseeability The trial court found that Merchants Bank was not
of armed robbery somewhere on the premises is suffi- at fault, and the court did not deem it necessary to
cient to render the bank duty-bound to protect against determine the fault of Sheriff Howard, who settled
it everywhere on the premises.… with the plaintiffs prior to trial, or of Lawson Strickland,
DAMAGE ELEMENT Christian Boyd, and Kimberly Atkins, who were added
Wrongful Death Claims as third-party defendants by Merchants Bank. Because
The awards for damages in a wrongful death action we reverse and find Merchants Bank liable, we must
are determined by the degree of affection which address the other defendants who may or may not be
existed between the deceased and the various dif- liable along with Merchants Bank…
ferent plaintiffs. Buckbee v. Aweco, Inc., 626 So.2d Further, the discretionary power of the court has
1191 (La.App. 3 Cir.1993), writ denied, 93–2691 been preserved in the current and unchanged ver-
(La.1/13/94); 631 So.2d 1162. Moreover, it is well sion of La.Civ.Code art. 2324.1, which states: “In the
settled that in awarding damages for loss of society assessment of damages for offenses, quasi offenses,
and companionship, Louisiana courts take into and quasi contracts, much discretion must be left to
consideration the closeness of the family relation- the judge or jury.” Therefore, while we are mandated
ship. Mathieu v. State, Dep’t of Transp. & Dev., 598 to quantify the fault of all persons causing injury, we are
So.2d 676 (La.App. 3 Cir.),writ denied, 600 So.2d 665 not under express mandate to assess damages to all
(La.1992). .. persons causing injury.
Mrs. Pinsonneault’s Bystander Claim More specifically, the 1996 amended version of La.
Debbie Pinsonneault arrived at Merchants Bank Civ.Code art. 2323, which applies retroactively to the
within minutes of the shooting and witnessed Jesse shooting death of Jessie Pinsonneault, provides as fol-
lying in a pool of blood, his body shaking all over, lows: Art. 2323.…
and his face lined with tears. The medics were just IV.
beginning to cut his clothes off in order to attend to CONCLUSION
him. A witness at the scene stated that Debbie was Based upon the foregoing, we reverse the judgment
hysterical. Jesse’s first words to his mother were of the trial court which dismissed the plaintiffs’ case
“Mom, I love you,” as he reached out to hold her and award the total amount of $1,236,890.87 with
hand. This image stayed with her thereafter, through legal interest from the date of judicial demand for all
sessions with a psychiatric nurse and friend, Debra elements of the plaintiffs’ damages, assessing Mer-
Bower, and until Debbie Pinsonneault died four years chants Bank with one hundred percent of that amount
later of cancer. Accordingly, we award $100,000 for the shooting death of twenty-three-year-old Jesse
for the Lejeune-type bystander damages of Debbie Pinsonneault.
Pinsonneault…. REVERSED AND RENDERED.

1. It is well-settled that business establishments of all kinds have a general duty to keep the premises safe
for those patrons invited to do business thereon. Does that scope of protection extend to a chance of
robbery occurring? How many robberies had already occurred at this bank?
2. Did Palsgraf apply here to make the robbery a foreseeable act in this case?
3. Some courts have found a duty of protection against assault is automatically assumed by ___________
and _________ because of the services they offer.
4. The FDIC, under the Bank Protection Act of 1968, mandated a security officer designation and a security
plan implementation within this many days of membership in the FDIC?
5. In tort cases such as this one, where the conduct of both negligent and intentional tortfeasors caused the
plaintiff’s injuries, this doctrine could be used to compare negligence and intent.
6. Does the fact that the bank had installed security cameras in two other less crime-laden areas affect the
decision here?
7. In awarding damages for loss of society and companionship, should Louisiana courts take into consider-
ation the closeness of the family relationship?
8. Was a breach on the defendant’s part the legal cause of the injuries of Jesse Pinsonneault?
Restatement Position
The Restatement (Second) of Torts § 291 basically The factors used to determine the magnitude of
incorporates the Learned Hand formula and states the risk are:
that an act is negligent if “the risk is of such magni- 1. the significance of the social interest that is
tude as to outweigh what the law regards as the util- threatened by the conduct.
ity of the act or of the particular manner in which it is
2. the probability that the conduct will invade
done.” The following factors are used to determine
an interest of another or a class of which
the utility of the defendant’s conduct:
they are a member.
1. The law attaches a significant social value 3. the probability of harm and the degree of
to the result of the conduct. harm that could be caused by the social
2. Will the social value be advanced or interest threatened.
enhanced by the conduct? 4. the population of individuals whose social
3. Can the social interest adequately be pro- interests would be impaired if the risk
tected by another, less dangerous, con- actually occurs (Restatement [Second] of
duct? (Restatement [Second] of Torts § 292) Torts § 293).

Susan, who is a minor, goes hiking with friends at a state park. While hiking, one of her friends tells the
group about a trail that is close by. Susan and the others set out to hike the trail. They see other people
ahead of them on the trail. While traveling up a very steep hill, Susan goes closer to the edge to see a water-
fall and loses her footing on some loose rocks and slips. She falls about 20 feet to a landing area below and
is injured. She cannot walk and emergency crew have to come and lift her out. Susan has permanent injuries
to her legs and will require several surgeries and physical therapy.
Susan had never hiked that specific trail before and did not notice how steep it was. She saw the people
ahead of her walking it just fine and never thought she would slip. There were no warning signs or guardrails
up to prevent anyone from slipping or to warn of all the loose rocks in the area. Susan does state that if she
had seen warning signs, she never would have gotten close to the edge.
If Susan is classified as an invitee, did the state park take reasonable precautions to protect her from
harm? Did the state have an obligation to discover the danger posed by the falling rocks and unprotected
edge? Would a reasonable property owner have posted signs warning of the rocks and possibility of falling
if they could not remove the danger? Use the criteria set forth in the Restatement (Second) of Torts in §§
291–293 to help you answer these questions.
Reasonable-Person under a subjective standard, one would ask whether

the driver themself perceived any risks. If they did
Standard—Objective not, they would be deemed to have used reason-
Versus Subjective able care and, hence, would not be negligent.
From this example you can probably deduce
In assessing whether the defendant imposed an why the objective standard is used in most instances
unreasonable risk of harm to others, their conduct is in tort law. To use a subjective standard is to ask what
compared to that of a reasonable person (see Exhibit someone’s state of mind is at the time of the tort,
5–2). In essence, the question put before a jury in a and that is virtually impossible. To reduce the uncer-
negligence case is whether a reasonable person of tainty in our legal system and to maximize safety to
ordinary prudence standing in the defendant’s shoes members of society, the peculiar idiosyncrasies of
would have done the same thing the defendant did. defendants are generally not taken into consider-
Phrasing the question this way requires the use of an ation in assessing the reasonableness of their con-
objective standard in that the defendant’s conduct duct. With few exceptions, then, in tort law we use
is compared to that of a hypothetical reasonable an objective standard.
person. By contrast, if a subjective standard were
used, the question would be whether the defendant
believed that they were behaving in a reasonable
manner. Under a subjective standard the reason-
What the Reasonable
ableness of one’s acts varies depending on one’s Person Is Expected to
perception. Know
Let us illustrate the difference in outcome of
these two standards by using a hypothetical prob- If the reasonable-person standard serves as the
lem. Suppose a driver pulled out in front of oncom- barometer for all negligence cases, just what can
ing traffic, causing an accident. The driver had poor we expect from the reasonable person? Reason-
depth perception and was unable to accurately able persons are expected to know the “qualities
estimate the distance between themself and other and habits of human beings and animals and the
vehicles. If an objective standard were used, one qualities, characteristics, and capacities of things
would ask whether a reasonable driver of ordinary and forces in so far as they are matters of common
prudence would have pulled out in front of the traf- knowledge at the time and in the community”
fic. If the driver did not conform to that reasonable as well as “common law, legislative enactments,
standard, their conduct would be considered negli- and general customs in so far as they are likely to
gent. What if the driver knew they were extremely affect the conduct of the other or third persons”
night blind and drove at night anyway? In contrast, (Restatement [Second] of Torts § 290).
Exhibit 5–2 Factors Taken into Consideration in Determining Reasonableness
Physical
Profession
Characteristics
Custom Reasonable Age

Person
Emergency Violation of Statute Mental and Emotional

Characteristics

1. Grant drives his car at high speeds on an icy road. Having lived in the tropics all his life, he is totally
oblivious to the dangerousness of what he is doing and is shocked when he loses control of his car
and careens into a parked vehicle. Has he behaved negligently? What if he had lived in Minnesota his
entire life?
2. Margaret detects an odor of gas in her basement and lights a match to look for the leak. She is unaware
of the danger of explosion from gas until she wakes up in the emergency room. Do her visitors at the time
of the explosion have grounds to recover damages for the injuries they sustain? Would a reasonable per-
son be expected to know of such danger?
3. A city ordinance requires trolley cars to stop at the near side of every boulevard crossing. Susan is fol-
lowing behind a trolley car in her car and intends to pass between the trolley and the curb. As the trolley
approaches the boulevard crossing, Susan speeds up to pass. As a visitor to the area, she is unaware of
the ordinance and sees no evidence that the trolley is preparing to stop and no sign. When she is sud-
denly aware of the trolley stopping and a passenger stepping out of the car, she is going too fast to stop
and hits the trolley passenger. Is she negligent? Should a reasonable person be expected to know this?
4. Frank invites Carole to ride his daughter’s eleven-year-old show horse, “Blue.” Carole tells Frank she is
a novice rider, so Frank gives her some basic riding instructions before she mounts Blue, but does not
explain how to mount, sit, use the reins, turn, stop, or dismount. Allison observes Carole as she rides
Blue around the ring; Frank is riding another horse in the same ring. After about twenty-five minutes Car-
ole brings Blue over to Allison to dismount, and as she does, she drags her right foot over Blue’s rump
and jabs her foot into his left side. Blue suddenly bolts, runs through an open gate, and knocks off Carole
(who has since regained her seat on him) as he runs beneath a metal overhang. Carole sustains injuries
from being knocked off. Carole sues Frank. Frank argues that he used reasonable care in assisting Carole
to ride and that it was unforeseeable that Blue, a previously gentle, predictable horse, would suddenly
bolt and that this was caused by her jabbing Blue. Do you agree?
Reasonable persons are assumed to possess and should take precautions when driving to pre-
knowledge of scientific and natural laws that is vent injury to them. Furthermore, the reasonable
common to laypersons in the community. They are, person is expected to conform to statutory law and
for example, presumed to be aware of the poison- judicial decisions and cannot claim ignorance of the
ous qualities of certain animals, insects, drugs, and law even if the standard of conduct required by the
chemicals; to appreciate the explosive nature of law contradicts the custom of the community. In
certain compounds and dangerous potential of short, ignorance of the law is no excuse under the
high-voltage power lines, and to anticipate basic reasonable-person standard, nor is living in a com-
weather phenomena (frigid weather in the North- mune or extremely sheltered community.
east in the winter and extremely hot temperatures
in the deserts of the Southwest in the summer). Even
if they have never been on a farm, the reasonable Defendants with Special
person is presumed to understand that stallions and Characteristics
bulls are potentially dangerous, that horses are likely
to be frightened by certain objects and actions, and Special allowances are not made for defendants who
that even the gentlest of dogs may bite an intruding are emotionally unstable or of substandard intelli-
hand while she is nursing her pups. They should also gence. The Restatement (Second) of Torts maintains
be aware of the peculiarities and behavioral traits of this position even for persons whose intelligence is
particular groups of people. They should anticipate, so low that they are not aware that their conduct
for example, that children may behave recklessly creates any danger. The majority rule is, however, at
odds with the Restatement and does not impose lia- may be precluded from recovering because of their
bility where there is an extreme mental deficiency. own negligence. The same would go for a person
An intoxicated person is held to the standard of a who is hearing impaired. If they claim they could
reasonable sober person (Restatement [Second] of not hear the siren behind them and failed to pull
Torts § 283C, cmt. d). For policy reasons a person out of the way and receive a citation, they would be
who voluntarily consumes alcohol or becomes intox- held to a standard of a reasonable hearing impaired
icated, and thereby deliberately risks creating harm person.
to others, cannot be absolved of liability simply This rule applies to known physical conditions.
because they lack the physical and mental faculties A defendant who suffers a seizure while driving
of a sober person. and has an accident will not be found negligent
Even insane people are generally held to because they lost control of their car. If, however,
a reasonable-person standard, although some the person had had several previous seizures, they
courts are beginning to deviate from that standard might be found to be negligent merely because
when the insane person is unable to understand they were driving a car (Restatement [Second] of
or avoid the danger. Three policy considerations Torts § 283C, cmt. c).
are used to justify this apparently harsh rule. First,
the allowance of an insanity defense would lead to
fraudulent claims of insanity in an effort to avoid Children
liability. Second, when injury results from an inter-
action between two innocent persons, the one Children are not held to the standard of care
causing the injury should bear the consequences. expected of an adult but instead are held to the
Third, the potential of liability provides an incen- standard of a “reasonable person of like age, intel-
tive to the caretakers of the mentally incompetent ligence, and experience under like circumstances”
to supervise their patients closely and to prevent (Restatement [Second] of Torts § 283A). This is some-
them from harming others. what of a subjective standard because the intelli-
In considering the attributes of the reasonable gence and experience of the child, both of which
person, the physical characteristics of the defendant are relative, are taken into consideration. Therefore,
are taken into consideration. A visually impaired a ten-year-old child of above-average intelligence is
person, for example, is held to the standard of a held to a higher standard of conduct than a ten-year-
reasonable visually impaired person. Such a person old child of below-average intelligence.
may be expected to use a cane, a seeing eye dog, Children are held to an adult standard when
or some other form of assistance to make their way they engage in potentially dangerous activities
through town. If such a person fails to use any form that are normally reserved for adults. A child
of assistance and sues the city for injuries resulting who drives a car is held to the standard of care
from falling into a depression in the sidewalk, they expected of a reasonable adult driver. The courts

1. A driver suddenly becomes convinced that God is taking control of her steering wheel, and as she nears
a truck she accelerates “in order to become airborne because she knew she could fly because Batman
does it.” Will she be held liable for the injuries sustained by the truck driver? To what standard of care
should she be held?
2. A seventeen-year-old negligently shoots their minor friend while they are out deer hunting. To what stan-
dard of care should they be held?
3. A driver with a history of blinding migraines, for which they have been successfully treated (no blinding
episodes) for more than ten years, suffers a blinding migraine and is involved in an accident. To what
standard of care should they be held?
are split as far as the standard of care to be applied Emergencies

when children engage in dangerous activities that
are not necessarily pursued only by adults. For In addition to considering the age and unique char-
example, should a child who goes hunting be acteristics of the defendant, the courts also look at
held to the standard of care of a child or an adult? the circumstances in which the defendant was oper-
Some courts reason that because we can reason- ating. In an emergency, for example, people are not
ably anticipate that children will engage in this expected to act with the same rational and calm con-
activity, they should be held to a standard of care sideration that one would expect in a less stressful
of other children. Others emphasize the inherent situation. But even in an emergency a defendant is
dangerousness of the activity and hold children to expected to act reasonably, and if they do not, they
an adult standard. can be found liable for their actions. For example, in
the process of rendering emergency medical assis-
tance, a person who takes no reasonable precautions
in moving the victim from one position to another may
Local Links be found negligent for any injuries they cause. A case
How do the courts in your state deal with that is illustrative (in content, not form) of the analy-
children who negligently engage in activities sis employed by the courts in emergency situations is
not necessarily reserved for adults, such as Cordas v. Peerless Transportation Co., 27 N.Y.S.2d 198
hunting? (1941). The court’s whimsical presentation of the facts
makes this a particularly entertaining opinion to read.
Case
Cordas v. Peerless Transportation Co.
27 N.Y.S.2d 198 (N.Y. City Ct. 1941)
CARLIN, Justice
This case presents the ordinary man—that problem allay the ardor of his pursuit. He then centered on for
child of the law—in a most bizarre setting. As a lowly capture the man with the pistol whom he saw board
chauffeur in defendant’s employ, he became in a trice defendant’s taxicab, which quickly veered south toward
the protagonist in a breath-bating drama with a 25th Street on 2d Avenue where he saw the chauffeur
denouement almost tragic. It appears that a man, jump out while the cab, still in motion, continued toward
whose identity it would be indelicate to divulge was 24th Street; after the chauffeur relieved himself of the
feloniously relieved of his portable goods by two non- cumbersome burden of his fare the latter also is said to
descript highwaymen—in an alley near 26th Street and have similarly departed from the cab before it reached
Third Avenue, Manhattan; they induced him to relin- 24th Street. The chauffeur’s story is substantially the
quish his possessions by a strong argument ad homi- same except that he states that his uninvited guest
nem couched in the convincing cant of the criminal and boarded the cab at 25th Street while it was at a stand-
pressed at the point of a most persuasive pistol. Laden still waiting for a less colorful fare; that his “passenger”
with their loot, but not thereby impeded, they took an immediately advised him “to stand not upon the order
abrupt departure and he, shuffling off the coil of that of his going but to go at once” and added finality to his
discretion which enmeshed him in the alley, quickly command by an appropriate gesture with a pistol
gave chase through 26th Street toward 2d Avenue, addressed to his sacroiliac. The chauffeur in reluctant
whither they were resorting “with expedition swift as acquiescence proceeded about fifteen feet, when his
thought” for most obvious reasons. Somewhere on that hair, like unto the quills of the fretful porcupine, was
thoroughfare of escape they indulged the stratagem of made to stand on end by the hue and cry of the man
separation ostensibly to disconcert their pursuer and despoiled accompanied by a clamorous concourse of
(continued)
Case | Cordas v. Peerless Transportation Co. (continued)

the law-abiding which paced him as he ran; the con- with unusual emergency which “took his reason pris-
catenation of “stop thief,” to which the patter of per- oner.” The learned attorney for the plaintiffs concedes
sistent feet did maddingly beat time, rang in his ears as that the chauffeur acted in an emergency but claims a
the pursuing posse all the while gained on the receding right to recovery upon the following proposition taken
cab with its quarry therein contained. The hold-up man verbatim from his brief: “It is respectfully submitted that
sensing his insecurity suggested to the chauffeur that the value of the interests of the public at large to be
in the event there was the slightest lapse in obedience immune from being injured by a dangerous instrumen-
to his curt command that he, the chauffeur, would suf- tality such as a car unattended while in motion is very
fer the loss of his brains, a prospect as horrible to a superior to the right of a driver of a motor vehicle to
humble chauffeur as it undoubtedly would be to one of abandon same while it is in motion even when acting
the intelligentsia. The chauffeur apprehensive of certain under the belief that his life is in danger and by aban-
dissolution from either Scylla, the pursuers, or Charyb- doning same he will save his life.” To hold thus under
dis, the pursued, quickly threw his car out of first speed the facts adduced herein would be tantamount to a
in which he was proceeding, pulled on the emergency, repeal by implication of the primal law of nature written
jammed on his brakes and, although he thinks the in indelible characters upon the fleshy tablets of sen-
motor was still running, swung open the door to his left tient creation by the Almighty Lawgiver, “the supernal
and jumped out of his car. He confesses that the only Judge who sits on high.” There are those who stem the
act that smacked of intelligence was that by which he turbulent current for bubble fame, or who bridge the
jammed the brakes in order to throw off balance the yawning chasm with a leap for the leap’s sake or who
hold-up man who was half-standing and half-sitting “outstare the sternest eyes that look, outbrave the
with his pistol menacingly poised. Thus, abandoning heart most daring on the earth, pluck the young suck-
his car and passenger the chauffeur sped toward 26th ing cubs from the she-bear, yea, mock the lion when he
Street and then turned to look; he saw the cab pro- roars for prey” to win a fair lady and these are the admi-
ceeding south toward 24th Street where it mounted the ration of the generality of men; but they are made of
sidewalk. The plaintiff-mother and her two infant chil- sterner stuff than the ordinary man upon whom the law
dren were there injured by the cab which, at the time, places no duty of emulation. The law would indeed be
appeared to be also minus its passenger who, it fond if it imposed upon the ordinary man the obligation
appears, was apprehended in the cellar of a local hos- to so demean himself when suddenly confronted with a
pital where he was pointed out to a police officer by a danger, not of his creation, disregarding the likelihood
remnant of the posse, hereinbefore mentioned. He did that such a contingency may darken the intellect and
not appear at the trial. The three aforesaid plaintiffs and palsy the will of the common legion of the earth, the
the husband-father sue the defendant for damages fraternity of ordinary men,—whose acts or omissions
predicating their respective causes of action upon the under certain conditions or circumstances make the
contention that the chauffeur was negligent in aban- yardstick by which the law measures culpability or
doning the cab under the aforesaid circumstances. innocence, negligence or care. If a person is placed in a
Fortunately, the injuries sustained were comparatively sudden peril from which death might ensue, the law
slight…. In Steinbrenner v. M. W. Forney Co. [cite omit- does not impel another to the rescue of the person
ted], it is said, “The test of actionable negligence is endangered nor does it condemn him for his unmoral
what reasonably prudent men would have done under failure to rescue when he can; this is in recognition of
the same circumstances”; Connell v. New York Central the immutable law written in frail flesh. Returning to our
& Hudson River Railroad Co. holds that actionable neg- chauffeur. If the philosophic Horatio and the martial
ligence must be predicated upon “a breach of duty to companions of his watch were “distilled almost to jelly
the plaintiff. Negligence is ‘not absolute or intrinsic,’ with the act of fear” when they beheld “in the dead vast
but ‘is always relevant to some circumstances of time, and middle of the night” the disembodied spirit of
place or person.’” In slight paraphrase of the world’s Hamlet’s father stalk majestically by “with a counte-
first bard, it may be truly observed that the expedition nance more in sorrow than in anger” was not the chauf-
of the chauffeur’s violent love of his own security outran feur, though unacquainted with the example of these
the pauser, reason, when he was suddenly confronted eminent men-at-arms, more amply justified in his
(continued)
Case | Cordas v. Peerless Transportation Co. (continued)

fearsome reactions when he was more palpably con- that mature judgment required of him under circum-
fronted by a thing of flesh and blood bearing in its hand stances where he has an opportunity for deliberate
an engine of destruction which depended for its lethal action. He is not required to exercise unerring judgment,
purpose upon the quiver of a hair? When Macbeth was which would be expected of him, were he not con-
cross-examined by Macduff as to any reason, he could fronted with an emergency requiring prompt action.”
advance for his sudden despatch of Duncan’s grooms, The circumstances provide the foil by which the act is
he said in plausible answer “Who can be wise, amazed, brought into relief to determine whether it is or is not
temperate and furious, loyal and neutral, in a moment? negligent. If under normal circumstances an act is done
No man.” Macbeth did not by a “tricksy word” thereby which might be considered negligent it does not follow
stand justified as he criminally created the emergency as a corollary that a similar act is negligent if performed
from which he sought escape by indulgence in added by a person acting under an emergency, not of his own
felonies to divert suspicion to the innocent. However, making, in which he suddenly is faced with a patent
his words may be wrested to the advantage of the danger with a moment left to adopt a means of extrica-
defendant’s chauffeur whose acts cannot be legally tion. The chauffeur—the ordinary man in this case—
construed as the proximate cause of plaintiff’s injuries, acted in a split second in a most harrowing experience.
however regrettable, unless nature’s first law is arbi- To call him negligent would be to brand him coward;
trarily disregarded. * * * “The law presumes that an act the court does not do so in spite of what those swag-
or omission done or neglected under the influence of gering heroes, “whose valor plucks dead lions by the
pressing danger was done or neglected involuntarily. It beard,” may bluster to the contrary. The court is loathe
is there said that this rule seems to be founded upon to see the plaintiffs go without recovery even though
the maxim that self-preservation is the first law of their damages were slight but cannot hold the defen-
nature, and that, where it is a question whether one of dant liable upon the facts adduced at the trial. Motions,
two men shall suffer, each is justified in doing the best upon which decision was reserved, to dismiss the com-
he can for himself.” Laidlaw v. Sage. (Italics ours.) plaint are granted with exceptions to plaintiffs. Judg-
Kolanka v. Erie Railroad Co. says: “The law in this state ment for defendant against plaintiffs dismissing their
does not hold one in an emergency to the exercise of complaint upon the merits.
In some situations, the reasonable person will reasonableness of conduct but is not necessarily
be expected to anticipate the actions of others. conclusive. It is possible, although not likely, that a
A driver making their way down a residential street court might conclude that an entire industry is neg-
where children are playing will be expected to ligent if it fails to adopt certain safety precautions. If
anticipate that children may run into the street. They custom in an area is always for horse and riders to
will be expected to exercise special care to guard be on the right side of the road and a horse is hit
against their carelessness. A reasonable person is while walking on the left side, custom may be used
not, however, expected to anticipate the crimes or to argue they were negligent.
intentional torts of another unless their relationship
with that person is such that they should reasonably
anticipate such behavior.
Professions
A defendant who possesses a higher degree of
Custom knowledge or skill as a result of training or expe-
rience will be held to a higher standard of care.
Custom may also be considered in determining Lawyers, doctors, accountants, and police officers,
reasonable care. Courts will look at the standard among others, are held to the standard of care com-
practices of a trade or community in assessing the monly exercised by members in good standing of
reasonableness of the defendant’s conduct. Adher- their profession (Restatement [Second] of Torts §
ence to custom is persuasive evidence of the 299A). A medical doctor who administers first aid
In the News
To read about the standard of care in medical malpractice cases, including a discussion of res ipsa
loquitur and negligence per se, enter “standard of care in malpractice cases” as your search term.
to someone injured on the street is held to a higher Local Links

standard of care than someone lacking that train-
ing. Professionals who have specialized in a partic- How do the courts in your state treat evi-
ular area are held to a specialist’s standard of care, dence of a statutory violation for negligence
which exceeds that of the minimal standard of care per se?
expected of other members of the profession.
The standard of care applied to professionals
is an objective one. Therefore, the question in mal- To prove negligence per se the plaintiff must
practice cases is whether the professional met the first show that they are a member of the class of
standard of care expected of members of the pro- persons whom the statute was intended to protect.
fession. Relative inexperience is not taken into con- The plaintiff must also show that the statute was
sideration. Novices in the profession are held to the designed to protect against the kind of harm that
same standard of competence as more experienced was sustained. An unforeseen harm will most likely
members of the profession. We discuss malpractice not be protected.
in greater depth in Chapter 9. The following case illustrates these two require-
ments: Plaintiffs were driving along a country dirt
road when they approached an intersection. At the
intersection they looked for cars, and when they
Negligence Per Se saw none, they entered the intersection; there they
were hit by an oncoming car. The plaintiffs claimed
In some cases, reasonable conduct is established by
that their view was obstructed by weeds growing
statute. A statute mandating that freeway drivers are
in a ditch along the roadway. Pointing to a statute
limited to speeds under 65 mph establishes a safety
criminalizing the “shipping, selling, or permitting [of]
standard. A defendant who violates this statute and
growing of noxious weeds,” they sued the county
who injures someone as a result of this violation will
for negligence per se.
be considered negligent per se (“negligent in itself”)
They argued that the county had violated the
in most courts. This doctrine, as applied by the
statute by permitting weeds to grow in the ditch.
majority of the courts, requires that (1) the violated
The court, however, held that the defendants were
statute be applicable to the facts of the case, and (2)
not negligent per se because the plaintiffs did not
a causal link between the act constituting a violation
belong to the class of persons whom the statute was
of the statute and the plaintiff’s injury be established
designed to protect. The statute, the court reasoned,
(see Exhibit 5–3). In a few courts, however, a statu-
was designed to protect farmers and ranchers from
tory violation is considered merely evidence of neg-
an infestation of weeds and was not designed to
ligence and may be outweighed by other evidence
protect travelers on the highway (Hidalgo v. Coch-
of due care.
ise County, 13 Ariz. App. 27 [1970]). Note also that
the harm the statute was intended to protect against
Exhibit 5–3 Negligence Per Se was the spread of weeds, not accidents on the high-
ways. The determination as to whether the type of
• Is the statute applicable to the case?
harm that occurred was that anticipated by statute
• Is wrongdoer a member of a class designed has been particularly problematic in cases involving
to be protected by the statute? keys left in cars. In such cases someone usually uses
• Did wrongdoer violate the statute? the keys to steal the car and ultimately becomes
• Did the wrongful act cause the type of involved in an accident. The question then becomes
harm intended to be prevented by statute? whether the driver who left the keys in the car should
be liable for the injuries caused by the person who
stole the car. Plaintiffs in states having statutes that In some jurisdictions the violation of a statute is
prohibit the leaving of keys in a car have argued construed as setting forth a presumption of negli-
negligence per se in these cases. If the purpose of gence, which the defendant can rebut by introduc-
the statute is to prevent reckless driving by thieves, ing evidence of reasonable care. Other courts treat
plaintiffs making this argument should prevail, but if a statutory violation as negligence per se but accept
there is some other purpose for the statute, the ele- excuses for noncompliance. Under the Restatement
ments of negligence per se are not satisfied. Even if (Second) of Torts “excuse” approach, violation of a
negligence per se cannot be proved, plaintiffs can statute is excused for the following reasons:
cite statutory violations as evidence of negligence.
1. the mental or physical incapacity of the
In some cases, the statute in question is a crim- individual renders the violation reasonable
inal one. Some penal statutes specifically provide because of the incapacity.
that their violation will result in civil liability, but
2. the individual neither knew, nor had reason
ambiguity exists when no reference to civil liability is
to know, of the requirements of the statute.
made. Under the majority rule and out of deference
to the legislature, the courts will apply the criminal 3. the individual lacks the ability to comply
after exercising reasonable diligence.
statutory standard to civil cases as a matter of law.
4. the individual is presented with an emer-
gency to which they did not help create.
Defenses to Negligence Per Se
5. the individual’s conformance to the statute
In rare instances courts have found an absolute duty
would enhance the probability of harm to
to comply with a statute and have refused to accept others or themself. (Restatement [Second]
even reasonable excuses for failure to comply. A of Torts § 288A[2])
defendant violating a statute prohibiting the sale of
firearms to minors would likely be found negligent Even if negligence per se is established, the
despite their good-faith argument that they believed defendant can still assert the defenses of contribu-
the minor to be an adult. tory negligence and assumption of risk so long as
For the most part, however, statutes are not the statute does not impose an absolute duty on the
deemed to impose an absolute duty of compliance. defendant.
“REASONABLE PERSON” DEFINED

There seems to be confusion as to what constitutes a look to what the defendant actually knew in addition to
“reasonable person” and who falls within that defini- determining if they acted reasonably. If they had actual
tion for negligence cases. The “reasonable person” is knowledge of a fact that a reasonable person may not
not clearly defined and seems to be more of a fictitious have, they will be held to that higher level. An example
entity. It is more of a standard or test to determine if would be if a person works on a construction site and
a person acts as others would act in a similar situa- knows for a fact that children have been known to play
tion. It is an objective view that takes into account an on the dirt piles located on the property. When navigat-
average person of reasonable intelligence using rea- ing the construction site, the person would be held to a
sonable judgment, and assumes people are acting for higher standard than a reasonable one since they have
their benefit and the benefit of others. (Supreme Beef actual knowledge of possible children on site. This duty
Packers Inc. v. Maddox, 67 S.W. 3 rd 453 [Tx 2002]). would be imposed only if the person owed a duty to
There is no way to know the person’s state of mind at the children. These things would have to be proven as
the time of their action, so this “reasonable” standard part of a negligence case. If facts are known to a par-
must be imposed. This starting point gives the courts ticular group of persons in a particular location, such as
somewhere to begin in determining a person’s behav- common knowledge or custom, those facts would be
ior for a particular situation. Being careless or having imposed on the person as well. Acting with caution and
a lower intelligence is not considered when comparing predictability will help to ensure one is “reasonable” for
with a reasonable person standard. A judge or jury can purposes of being a reasonable person.
One might conclude from the foregoing dis- a reasonable person would have taken precautions
cussion that compliance with a statute establishes beyond those mandated by statute. A reasonable
that a defendant was not negligent. But that is not person, for example, would be expected to drive
true. The trier of fact is always free to conclude that below the speed limit on icy roads.

1. A statute prohibits walking on a highway or main thoroughfare. Bob’s car stalled and he knew there was
an exit a very short distance ahead so was walking to the exit. He was hit by a car while walking. Would
he be protected for purposes of negligence per se? The purpose of the statute is to keep pedestrians
safe. Is the driver negligent?
2. A man holds himself out as being able to diagnose and treat disease, but he is in fact not licensed to
practice medicine as required by the New York Public Health Law. He gives a woman herbal supple-
ments, after which she suffers severe intestinal issues with lingering effects. If she consented to his treat-
ment, is the man negligent per se?
3. Marjorie, an employee, and her friend Helena, who is visiting Marjorie at her workplace, are both injured
when an elevator falls because of the lack of a safety device. A statute requires all factory elevators to
have a particular safety device for the express purpose of protecting employees from injury. Can Marjorie
and Helena rely on this statute to establish the standard of care?
4. Jim is a mail carrier and is attempting to deliver a package to a remote property. Jim drives his own
vehicle since it is a remote and rural route. The property owner, Jerry, sees someone and thinks it is a
trespasser. He accidentally shoots Jim while yelling at him to get off his property. Is the property owner
liable to Jim? Does he owe Jim a duty under negligence per se?
At trial, the police argue that Jerry is negligent per se if the jury finds he violated the criminal statutes
regarding assault (whose definition is similar to that of civil assault) and self-defense. The reasoning is that it
was late, and Jim was driving a non-marked vehicle. Would the reasonable person standard be used here?
Would Jerry be considered a reasonable person? Is Jim liable for anything for not marking his vehicle?
Case
Milbert v. Wells Township Haunted House, Inc.
70 N.E. 3d 1143 (Oh 2016)
ROBB, J. Judge
This is an appeal of the Jefferson County Common However, in addition to operating the haunted house,
Pleas Court’s decision denying the motion for sum- the township designed and constructed a swinging
mary judgment filed by the defendants Wells Town- coffin ride which ejected the plaintiff after the coffin lid
ship Haunted House, Inc. and Wells Township Board opened prematurely. The township admitted this failure
of Trustees. The township claims political subdivision was due to a bolt which became loose. The plaintiff sub-
immunity in the premises liability suit filed by the plain- mitted an affidavit wherein a safety consultant opined
tiff Elizabeth Milford. the lid opening was foreseeable due to the use of an
Specifically, the township asserts there was no evi- ungraded eye bolt and the design by which the release
dence its employees were negligent in performing the mechanism traveled across the eye bolt securing the
proprietary function of operating a haunted house. lid. Reasonable minds could differ on the question of
(continued)
Case | Milbert v. Wells Township Haunted House, Inc. (continued)

whether a township employee negligently designed loosened slightly, which caught on the lid as the ride
and constructed the ride which resulted in a hazardous was being released.”
condition. Therefore, the trial court’s denial of the town- In seeking political subdivision immunity, the
ship’s request for summary judgment is upheld. township’s motion for summary judgment acknowl-
STATEMENT OF THE CASE edged: operation of the haunted house was a propri-
etary rather than a government function; and there is
The township owned and operated a haunted
an exception to immunity if the harm was caused by
house containing three swinging coffin rides. The
the negligence of its employees in the performance of
coffin rides were designed and constructed by the
proprietary functions. In arguing there was no negli-
township. Upon being led to the second floor of
gence, the township argued it had no duty as the injury
the house, two to three participants would enter the
was not foreseeable. The township urged there was no
ride by lying side-by-side in a large “coffin.” The lid was
evidence it had actual or constructive knowledge of the
then closed and secured via an eye bolt. The coffin was
circumstances causing the lid to open prematurely.
lowered through the floor by gravity to the first floor.
Regarding Wells Township Haunted House, Inc., the
The ride ended with the coffin in an upright position,
motion asserted the corporation should be dismissed
at which point a ride operator was to open the lid. On
from the lawsuit as it did not exist at the time of the
October 19, 2012, the plaintiff was riding in a coffin
accident. In addition to the affidavit of the police cap-
when the lid opened prematurely.
tain explaining the corporation was formed subse-
On October 2, 2014, the plaintiff filed a negli-
quent to the accident; the articles of incorporation were
gence suit against the defendants for injuries sustained
attached. The plaintiff’s response did not address the
when she fell from the coffin to the floor. The com-
latter argument, but at the oral hearing, plaintiff’s coun-
plaint alleged the defendants: failed to use reasonable
sel agreed Wells Township Haunted House, Inc. could
care to provide reasonably safe premises for its invi-
be dismissed from the suit.
tees; allowed a dangerous condition to exist due to
On the topic of duty owed, the plaintiff agreed the
inadequate construction, design, and maintenance of
township had the duty to its invitees to exercise ordi-
the coffin ride; knew or should have known a danger-
nary care in maintaining reasonably safe premises, to
ous condition existed; and failed to warn of or correct
warn of latent and hidden dangers of which it knew or
the danger. The answer asserted political subdivision
should have known, and to refrain from negligent activ-
immunity among other defenses.
ities. In countering the claimed lack of knowledge or
On August 5, 2015, the defendants filed a motion
notice, the plaintiff pointed out the township designed
for summary judgment. They submitted the affidavit
and constructed the coffin ride, knew how it worked,
of the township’s police captain who was the attrac-
and knew the coffin’s release mechanism (which
tion’s director at the time of the accident. At that time,
started the ride) traveled across the eye bolt used to
the haunted house was run by the township’s recre-
secure the lid. To the contrary, the plaintiff could not
ational department and operated by volunteers. He
know these facts as she was led to the second floor
reported that Wells Township Haunted House, Inc. was
of a dark house and placed in a coffin with no chance
not formed until a year after the plaintiff’s accident; he
to study whether the safety devices were adequate.
is the agent of this non-profit corporation formed to
The plaintiff concluded that factual questions clearly
help local youth programs.
remained as to whether the lid failure was foreseeable,
The police captain attested the ride was inspected
and the design/construction was negligent.
directly before and after each ride, no defects or dan-
The plaintiff submitted the affidavit of a safety ana-
gers were found prior to the plaintiff’s accident, and
lyst and consultant, who explained he was a specialist
neither the township nor its employees knew of any
on the safety and operation of amusement attractions.
defects or dangers prior to the accident. He noted
He inspected the coffin ride and spoke to the police
there were no prior accidents in the weeks the ride had
captain, who designed the ride. The consultant opined
been open, during which hundreds of daily participants
the use of ungraded eye bolts in the design and con-
experienced the ride. He explained that an inspec-
struction was negligent as graded eye bolts were
tion conducted after the accident showed “a bolt was
(continued)

needed for this type of load bearing usage. He said it v. Xenia, 115 Ohio St.3d 77, 2007-Ohio-4839, 873
was foreseeable an ungraded eye bolt could lead to a N.E.2d 878, ¶ 27. This is true even if the order makes
lid failure such as the one here. The consultant addi- no Civ.R. 54(B) determination where it would otherwise
tionally opined it was negligent to design and construct be required. Sullivan v. Anderson Twp., 122 Ohio St.3d
the ride, so the release mechanism traveled across the 83, 2009-Ohio-1971, 909 N.E.2d 88, ¶ 12–13.
eye bolt securing the door. He concluded the township However, an order denying a motion predicated on
should have foreseen the release mechanism could some other defense does not deny the benefit of immu-
catch the eye bolt securing the door which would nity and is not a final, appealable order even though
loosen it and cause the lid to open. it arose along with a political subdivision’s immunity
On September 22, 2015, the trial court denied the claim. Riscatti v. Prime Properties Ltd. Partnership,137
motion for summary judgment, finding there remained Ohio St.3d 123, 2013-Ohio-4530, 998 N.E.2d 437,
genuine issues of material facts. The township filed ¶ 19. For instance, the denial of a motion raising the
a timely notice of appeal. Although Wells Town- statute of limitations for actions against a political sub-
ship Haunted House, Inc. is listed on the brief as an division was not immediately appealable by a political
appellant, they are not included in the notice of appeal subdivision even though it was appealed along with a
which provides: “defendant, Wells Township Board of judgment denying a motion seeking immunity, which
Trustees, hereby appeals [from the judgment] “which latter motion was immediately appealable. Id. at ¶
denied defendant’s motion for summary judgment 12–14, 19–20.
asserting immunity * * *.” This may relate to assignment The only order subject to immediate appeal in this
of error number two, which is discussed first. case was the one denying *1149 the benefit of immu-
ASSIGNMENT OF ERROR TWO: CORPORATE nity. The court’s failure to address a request to dis-
DEFENDANT miss the corporate defendant, who did not exist at
the time of the plaintiff’s injury, is not an order denying
The second assignment of error provides:
the benefit of immunity. Even though the issue arose
“THE TRIAL COURT ERRED BY FAILING TO DIS- along with the political subdivision’s immunity claim,
MISS THE WELLS TOWNSHIP HAUNTED HOUSE, it is not immediately appealable. We therefore cannot
INC. WHEN THE CORPORATION DID NOT EXIST address this issue at this time. This assignment of error
AT THE TIME OF THE ACCIDENT.” is overruled.
The township points to the undisputed affidavit Before addressing the immunity assignment of error,
explaining that Wells Township Haunted House, Inc. we set forth the general law applicable to this case.
did not exist at the time of the October 2012 accident GENERAL LAW: SUMMARY JUDGMENT &
and the attached articles of incorporation showing this IMMUNITY
entity’s formation in June 2014. At the summary judg-
Civ.R. 56 must be construed in a manner that balances
ment hearing, the plaintiff agreed the township was the
the right of the non-movant to have a jury try claims
appropriate party and the “corporation formed after this
and defenses that are adequately based in fact with the
accident could be dismissed from this lawsuit. It seems
right of the movant to demonstrate, prior to trial, that
appropriate.” As no dismissal entry was thereafter filed
the claims and defenses have no factual basis. Byrd v.
by the plaintiff and the trial court denied summary judg-
Smith, 110 Ohio St.3d 24, 2006-Ohio-3455, 850 N.E.2d
ment without remedying this issue, the township asks
47, ¶ 11, citing Celotex Corp. v. Catrett, 477 U.S. 317,
this court to dismiss Wells Township Haunted House,
327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary
Inc. as a party. Appellee’s response brief does not
judgment can be granted when there remains no gen-
address this contention.
uine issue of material fact and when reasonable minds
An order denying a political subdivision the benefit
can only conclude the moving party is entitled to judg-
of an alleged immunity from liability is a final order. R.C.
ment as a matter of law. Civ.R. 56(C).
2744.02(C). Although the denial of summary judgment
In determining whether there exists a genuine issue
is not appealable in the standard case, the denial of
of material fact to be resolved at trial, the court is to
summary judgment can be appealed where it denies
consider the evidence and all reasonable inferences to
the political subdivision the benefit of immunity. Hubbell
be drawn from the evidence in the light most favorable
(continued)

to the non-movant. See, e.g., Jackson v. Columbus,117 with respect to proprietary functions of the political
Ohio St.3d 328, 2008-Ohio-1041, 883 N.E.2d 1060, ¶ subdivisions.” R.C. 2744.02(B)(2). The parties agree
11. Doubts are to be resolved in favor of the non-movant. the operation of the haunted house involved a propri-
Leibreich v. A.J. Refrig., Inc., 67 Ohio St.3d 266, 269, etary, rather than a government, function. See R.C.
617 N.E.2d 1068 (1993). A court “may not weigh the 2744.01(G)(1)(b) (the function is not listed as a govern-
proof or choose among reasonable inferences.” Dupler ment function and “is one that promotes or preserves
v. Mansfield Journal Co., 64 Ohio St.2d 116, 121, 413 the public peace, health, safety, or welfare and that
N.E.2d 1187 (1980). involves activities that are customarily engaged in by
The movant has the initial burden to show that no nongovernmental persons.”)
genuine issue of material fact exists. Byrd, 110 Ohio The application of this exception is the sole issue
St.3d 24, 2006-Ohio-3455, 850 N.E.2d 47, at ¶ 10, cit- in this case; the question of whether the township
ing Dresher v. Burt, 75 Ohio St.3d 280, 294, 662 N.E.2d was entitled to immunity depends upon whether an
264 (1996). The non-moving party then has a reciprocal employee negligently performed an act that caused the
burden. Id. The non-movant’s response, by affidavit or plaintiff’s injury. Essentially, the issue is the same as is
as otherwise provided in Civ.R. 56, must set forth spe- presented in a regular negligence case alleging prem-
cific facts showing that there is a genuine issue for trial ises liability in the design, construction, and mainte-
and may not rest upon mere allegations or denials in nance of a property feature.
the pleadings. Civ.R. 56(E). In order to prevail on a claim of negligence, the plain-
“The material issues of each case are identified tiff must establish the existence of a duty, the breach of
by substantive law.” Byrd, 110 Ohio St.3d 24, 2006- that duty, and an injury proximately resulting from the
Ohio-3455, 850 N.E.2d 47, at ¶ 12. “Only disputes breach of duty. Menifee v. Ohio Welding Prod., Inc., 15
over facts that might affect the outcome of the suit Ohio St.3d 75, 77, 472 N.E.2d 707 (1984). Under the
under the governing law will properly preclude the law of negligence, a defendant’s duty to a plaintiff
entry of summary judgment.” Id., quoting Anderson v. depends upon the foreseeability of injury to a person in
Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, the plaintiff’s position and the relationship between the
91 L.Ed.2d 202 (1986). We consider the propriety parties. Simmers v. Bentley Constr. Co., 64 Ohio St.3d
of granting summary judgment under a de novo stan- 642, 645, 597 N.E.2d 504 (1992). Injury is foreseeable if
dard of review. Comer v. Risko, 106 Ohio St.3d 185, a reasonably prudent person would have anticipated an
2005-Ohio-4559, 833 N.E.2d 712, ¶ 8. injury was likely to result from the performance or non-
Political subdivision immunity involves a three-tiered performance of an act. Menifee, 15 Ohio St.3d at 77,
statutory analysis evaluating: (1) the general grant of 472 N.E.2d 707. “Once the existence of a duty is found,
immunity in division (A) of R.C. 2744.02; (2) the excep- a defendant must exercise that degree of care which
tions in division (B) of R.C. 2744.02, which strip the an ordinarily careful and prudent person would exer-
political subdivision of immunity; and (3) the defenses cise under the same or similar circumstances.” Huston
to liability, such as those in R.C. 2744.03, which rein- v. Konieczny, 52 Ohio St.3d 214, 217, 556 N.E.2d 505
state the stripped immunity. Elston v. Howland Local (1990).
Schools, 113 Ohio St.3d 314, 2007-Ohio-2070, 865 When negligence is alleged in the context of prem-
N.E.2d 845, ¶ 10–13. In general, “a political subdivi- ises liability, the applicable duty is defined by the
sion is not liable in damages in a civil action for injury, relationship between the landowner and the plaintiff,
death, or loss to person or property allegedly caused such as invitee, licensee, or trespasser. Lang v. Holly
by any act or omission of the political subdivision or Hill Motel, Inc., 122 Ohio St.3d 120, 2009-Ohio-2495,
an employee of the political subdivision in connec- 909 N.E.2d 120, ¶ 10. A business invitee enters upon
tion with a governmental or proprietary function.” R.C. the premises of another, by invitation, express or
2744.02(A)(1). implied, for some purpose which is beneficial to the
The pertinent exception to this general grant of owner. Light v. Ohio Univ., 28 Ohio St.3d 66, 68, 502
immunity provides: “political subdivisions are liable for N.E.2d 611 (1986) (whereas a licensee enters by per-
injury, death, or loss to person or property caused by mission or acquiescence for his own pleasure or bene-
the negligent performance of acts by their employees fit without invitation).
(continued)

The premises owner or operator is not the insurer of 359, 48 N.E.2d 103, 109 (1943) (“Precaution is a duty
an invitee’s safety. Paschal v. Rite Aid Pharmacy, Inc., 18 only so far as there is reason for apprehension.”). The
Ohio St.3d 203, 203–204, 480 N.E.2d 474 (1985). The township insists it was unforeseeable that a bolt would
mere happening of an accident does not give rise to become loose, asserting the imposition of liability in
a presumption of the owner’s negligence. *1151 Parras this case would make the township the insurer of its
v. Std. Oil Co., 160 Ohio St. 315, 319, 116 N.E.2d 300 property.
(1953). The township asserts it only had a duty to conduct
Still, business invitees are owed a duty of ordinary reasonable inspections and points to its evidence that
care in maintaining the premises in a reasonably safe its employees inspected the coffin ride between rides
condition, so they are not unnecessarily and unreason- and found no defects. The township then states it
ably exposed to danger. Paschal, 18 Ohio St.3d at 203, had no duty to inspect for a loose bolt after each ride.
480 N.E.2d 474. “[T]he obligation of reasonable care The township notes there were no previous incidents
is a full one, applicable in all respects, and extending regarding the ride. The township generally concludes
to everything that threatens the invitee with an unrea- there was no employee negligence and claims the
sonable risk of harm.” Perry v. Eastgreen Realty Co., 53 plaintiff cannot demonstrate the township had superior,
Ohio St.2d 51, 52, 372 N.E.2d 335 (1978) (“The obliga- actual, or constructive knowledge of the circumstances
tion extends to the original construction of the prem- causing the coffin lid to open prematurely.
ises, where it results in a dangerous condition.”). Regarding the latter claim, the plaintiff emphasizes
The invitee has three alternative avenues of demon- the township both designed and constructed this ride
strating a premises liability negligence case: (1) the and knew what safety mechanisms it chose to employ
defendant or an employee negligently created the in the design and construction. In viewing the design,
hazard; (2) the defendant or an employee had actual the plaintiff urges one can clearly see the release mech-
knowledge of the hazard and neglected to remove it anism was built so that it travels across the eye bolt
promptly or give adequate warning of its presence; which secures the lid. She points out that she was led
or (3) the defendant or an employee had constructive into a dark room prior to*1152 being put in the coffin
knowledge of the hazard, such as where it existed and had no opportunity to protect against this dan-
for a sufficient length of time to reasonably justify ger. She concludes foreseeability is a genuine issue of
an inference that the failure to correct the matter or material fact.
warn against it was attributable to a want of ordi- In the reply brief, the township suggests the safety
nary care. Anaple v. Standard Oil Co., 162 Ohio St. consultant improperly set forth an opinion regarding
537, 541, 124 N.E.2d 128 (1955). See also Johnson v. a legal standard and states the expert cannot create
Wagner Provision Co., 141 Ohio St. 584, 589, 49 a duty where none exists. The township focuses on
N.E.2d 925 (1943). the police captain’s affidavit stating no defects were
ASSIGNMENT OF ERROR ONE: IMMUNITY discovered in the inspections occurring before and
after every ride. The township characterizes this as
The first assignment of error contends:
a premises liability case for failure to warn and sug-
“THE TRIAL COURT ERRED AS A MATTER OF LAW gests that negligent design and construction, although
BY FAILING TO FIND WELLS TOWNSHIP BOARD alleged in the complaint, are not at issue because this
OF TRUSTEES WAS IMMUNIE FROM APPELLEE’S is not a product liability case.
CLAIMS AND ENTITLED TO SUMMARY JUDGMENT However, a premises liability case is not limited in
WHEN TOWNSHIP HAD NO NOTICE OF A DANGER- such fashion. A proprietor’s duty to the invitee does not
OUS CONDITION ON ITS PROPERTY AND APPEL- merely involve “a failure to warn against latent defects
LEE’S ACCIDENT WAS UNFORESEEABLE.” of which the owner knew or should have known.” The
In discussing duty, the township says a reasonable cases applying this language, preface the test with a
person would not have anticipated an injury was likely statement such as: “due to a hazardous condition not
to result, stating “there is no duty to guard when there created by the proprietor or his employees * * *.” See,
is no danger reasonably to be apprehended.” See Het- e.g., Presley v. City of Norwood, 36 Ohio St.2d 29, 31,
rick v. Marion–Reserve Power Co., 141 Ohio St. 347, 303 N.E.2d 81 (1973) (emphasis added).
(continued)

For instance, where a defendant stacked up heavy is not entitled to judgment as a matter of law on the
wooden posts without utilizing a restraining device to grounds that he lacked actual or constructive knowl-
protect its invitees, it was emphasized that the propri- edge of the hazardous condition that ended up result-
etor or his employee created the hazardous condition, ing from the prior negligent act.
as opposed to the typical slip-and-fall case involv- The ride was designed to be used by invitees in
ing an evaluation of actual or constructive notice of a a haunted house, and it was used for the purpose con-
latent defect not created by the proprietor. Kemper v. structed. An injury to a participant of such a ride was
Builder’s Square, Inc., 109 Ohio App.3d 127, 136, 671 foreseeable in the absence of a reliable mechanism to
N.E.2d 1104 (2d Dist.1996). The Second District found keep the lid shut during movement and a design that
reasonable minds could reach different conclusions would reasonably prevent that mechanism from failing.
on whether the failure to employ a restraining device The defendant had a “full” duty to exercise ordinary and
(to prevent the posts from toppling onto an invitee) reasonable care for the protection of its invitees enter-
violated the duty of ordinary care. Id. at 134–135, ing the premises. Perry, 53 Ohio St.2d at 52–53, 372
671 N.E.2d 1104 (“the alleged negligence was [the N.E.2d 335. One aspect of that duty was to refrain from
defendant’s] failure to employ any restraining device injuring a visitor as a result of the defendant’s own neg-
to prevent the four-foot posts on an upper shelf from ligent activities. Id. In designing and constructing the
toppling forward and striking a customer, a reasonably ride for use of its invitees, the defendant was required
foreseeable contingency.”) to exercise the degree of care which an ordinarily care-
The Tenth District has pointed out that if the defen- ful and prudent person would exercise under the same
dant negligently placed a doormat in a controversial or similar circumstances. See, e.g., Huston, 52 Ohio
position, the knowledge or notice options are irrelevant St.3d at 217, 556 N.E.2d 505.
(and established by the placement in any event). See, The affidavit submitted by the township stated that
e.g., Tandy v. St. Anthony Hosp., 10th Dist. No. 88AP– a loose bolt caught on the lid as the coffin was being
551, 1988 WL 129161 (Nov. 29, 1988), citing Stephens v. released; that inspections were conducted between
Akron Palace Theatre, 53 Ohio App. 434, 437, 5 N.E.2d rides; and that no defects were discovered prior to the
499 (1936) (“as to defects in instrumentalities furnished plaintiff’s accident. The township’s affidavit made no
or maintained by the owner, his knowledge, actual or mention of design and construction of this ride. The
implied, is not a necessary predicate of negligence on affidavit submitted by plaintiff in response pointed out
his part.”) In two Supreme Court cases, a proprietor’s the township designed the ride and constructed the
treatment of its floor (with a substance intended for ride. This case is not merely about a failure to notice
the treatment of floors) was not negligent by the mere a loose bolt between rides. The township through its
application of the substance. See Boles v. Montgomery employee designed and constructed a swinging coffin
Ward & Co., 153 Ohio St. 381, 92 N.E.2d 9 (1950); J.C. ride for haunted house participants to ride. In design-
Penny Co. v. Robison, 128 Ohio St. 626, 633–634, ing and constructing the ride to be used by its invi-
193 N.E. 401 (1934). However, the plaintiff could have tees, the township had the obligation to use ordinary
established a breach of the duty of ordinary care if care in those initial stages of design and construction,
there was some indication the substance was improp- not merely in the operation of the ride later. Whether
erly applied. See id. reasonable care was exercised in the design and con-
Where the hazard is created by a negligent act of struction of the swinging coffin ride remains a question
the defendant or the defendant’s employees, the actual of material fact.
or constructive knowledge options to premises liabil- In response to the request for summary judgment,
ity are irrelevant. See Anaple, 162 Ohio St. at 541, 124 the plaintiff submitted the affidavit of a safety consul-
N.E.2d 128 (whereas: if the defendant’s act created the tant who personally inspected the ride. He provided
hazard but was not negligent or if a third person cre- some factual observations about the ride’s design and
ated the hazard, then actual or constructive knowledge construction: ungraded eye bolts were used instead of
are required). The case law establishes that if there is graded eye bolts; and the release mechanism traveled
evidence the hazard was the result of a negligent act across the eye bolt which secured the coffin lid. As to
of the defendant or his employee, then the defendant the initial observation, the safety consultant opined
(continued)

that graded eye bolts were needed for load bearing been negligence. Rather, it appears she provided some
usage and it was foreseeable the use of ungraded eye evidence from which a reasonable person could con-
bolts could lead to a failure such as the one occur- clude the design created an unreasonable risk of harm
ring here. He also expressed it was foreseeable, from to invitees. The failure of a hazard to manifest itself ear-
the designed path of travel, that the release mecha- lier does not necessarily mean a ride was designed and
nism could catch the eye bolt which secured the door, constructed with ordinary care.
loosen that bolt, and cause the lid to open. In sum, this court finds the township failed to estab-
The affidavit raises a genuine issue of material fact lish it was entitled to judgment as a matter of law
as to whether the ride was properly designed and on the topic of whether there was negligence in the
constructed, an issue the township seems to avoid. design and/or construction of the ride. We must view
The affidavit outlined two perceived flaws in the ride’s the evidence and all reasonable inferences in the light
design and construction. Contrary to the township’s most favorable to the plaintiff as the non-movant. See,
suggestion, the affidavit was not an improper attempt e.g., Jackson, 117 Ohio St.3d 328, 2008-Ohio-1041,
to create a legal duty where none existed (merely 883 N.E.2d 1060 at ¶ 11. Doubts must be resolved in
because it used the word “negligent” after describing favor of the non-movant. Leibreich, 67 Ohio St.3d at
the designed travel path and the use of ungraded eye 269, 617 N.E.2d 1068. It appears reasonable minds
bolts). See Evid.R. 704 (testimony in the form of an could differ as to whether the defendant exercised ordi-
opinion or inference otherwise admissible is not objec- nary care in designing and building this swinging coffin
tionable solely because it embraces an ultimate issue ride for the use of its invitees. This assignment of error
to be decided by the trier of fact). is overruled, and the trial court’s decision, denying the
The plaintiff did not merely respond with an asser- township’s motion for summary judgment, is affirmed.
tion that the ride failed and thus there must have WAITE, and DeGENARO, JJ., concur.
In the News
Administrative regulations can be used as well as statutes to establish the standard of care. If you need
to find a federal regulation, you can start by going to the web page for the federal agency in which you
are interested. Listings of website addresses for federal agencies can also be found at www.fedworld.gov,
and www.usgovsearch.com.
Following are website addresses for some of the more commonly used agencies:
Department of Justice: www.usdoj.gov
Environmental Protection Agency: www.epa.gov
Americans with Disabilities Act www.ada.gov
Equal Employment Opportunity Commission: www.eeoc.gov
Federal Bureau of Investigation: www.fbi.gov
Food and Drug Administration: www.fda.gov
Internal Revenue Service: www.irs.gov
Occupational Safety and Health Administration: www.osha.gov
Securities and Exchange Commission: www.sec.gov
Social Security Administration: www.ssa.gov
Regulations for the federal agencies are compiled in the Code of Federal Regulations (CFR), which can be
located through your search engine. The Federal Register is published daily and informs readers of the status
of proposed new and amended regulations. It can also be found by entering it as a search term or by going to
www.govinfo.gov/app/collection/cfr/.
Automobile-Guest Statutes and could have contributed to the plaintiff’s injuries,

the plaintiff, because they were unconscious, will
Whereas some statutes have been used to estab- have difficulty proving who did and who did not act
lish a minimal standard of care, other statutes, spe- negligently. A court-developed doctrine that makes
cifically the automobile-guest statutes, have been the plaintiff’s task easier is the doctrine of res ipsa
used to limit the duty of care. These statutes only loquitur, which means, literally, “the thing speaks for
exist in a handful of states, otherwise the driver is itself.” This doctrine allows the plaintiff to create an
held to an ordinary negligence standard. Such stat- implication that the defendant was negligent with-
utes hold a driver of a vehicle liable to a guest in out providing direct evidence of that negligence
their car only under circumstances of extreme mis- (see Exhibit 5–4).
conduct. Typically, such statutes require that the Before a plaintiff can rely on the doctrine of res
driver’s misconduct be willful and wanton, grossly ipsa loquitur, they must prove the following:
negligent, or reckless before they will be held liable
• The instrument that caused the plaintiff’s injury
for the injury or death of a family member or hitch-
was under the exclusive control of the defen-
hiker. This does not apply to common carriers or
dant or, stated another way, the negligence was
demonstration cars.
probably due to the defendant.
The rationale underlying these statutes was two-
fold. First, at the time these statutes were enacted, • The injury suffered by the plaintiff was of a type
automobile liability insurance was not widely avail- that does not ordinarily occur except as a result
able, so drivers who were successfully sued by their of someone’s negligence.
guests had to bear the cost themselves. Many leg- • The plaintiff did not voluntarily contribute to
islatures thought that such “ingratitude” should be their own injuries.
discouraged since they were riding voluntarily and • Some courts also require that the plaintiff show
gratuitously. Second, when insurance was available, that the defendant is better able to explain the
collusion between driver and guest (who were most events that transpired than the plaintiff.
likely friends or relatives) was feared. In other words,
Let us examine each of these factors in some
some thought that the driver of the vehicle might
detail.
concede negligence to assist the injured passenger
or collude with them in recovering damages.
In an effort to evade these statutes, plaintiffs Defendant in Control or Cause of
have spent considerable effort litigating the ques- Injuries
tion of who is a “guest,” as well as what specific
Older cases required the plaintiff to show that the
acts by the driver constitute the conduct defined
instrumentality that caused the harm was under the
by statute. Beginning in the 1970s a number of
automobile-guest statutes were either repealed
or found unconstitutional. As stated, only a handful
of states still have these statutes in existence. Exhibit 5–4 Elements of Res Ipsa Loquitur
• Event that resulted in plaintiff’s injuries does

not usually happen except as a result of
Res Ipsa Loquitur negligence.
Suppose the plaintiff in a medical malpractice case is • Instrument that caused plaintiff’s injury was
injured while on the operating table. If several doc- under the defendant’s exclusive control.
tors and nurses were present during the operation • Plaintiff did not cause their own injuries.
• Defendant is in better position to explain
events causing plaintiff’s injuries than is
Local Links plaintiff.1
Does your state have an automobile-guest
statute? Did they ever? 1 Not all courts require proof of this element.
exclusive control of the defendant. Modern courts show which defendant. In one famous case (Ybarra
have required instead that the plaintiff show that v. Spangard, 154 P.2d 687 [Cal. 1944]), for example,
the negligence was due to the defendant and not a man had an appendectomy and after the surgery
to someone else. To do this the plaintiff must often suffered pains in his right shoulder, having sustained
produce evidence demonstrating that it is more injuries while being operated on that he could not
probable that the defendant caused the plaintiff’s explain. He sued the surgeon, attending physician,
injuries than that someone else did. If it is just as anesthesiologist, and owner of the hospital, claiming
likely that someone other than the defendant caused that at least one of them (or a nurse they were super-
the injury, res ipsa loquitur will not apply. vising) must have been negligent. The court held
A classic case of res ipsa loquitor can be seen that res ipsa loquitur applied because it was unrea-
in a case where a patient suffered permanent nerve sonable to require someone who was unconscious
damage after having a craniotomy surgery. He con- to identify the negligent defendant. In this case each
tests that there was negligence on the part of the of the defendants had interrelated responsibilities
surgeon and that res ipsa loquitor should apply. In and therefore a combined duty to prevent harm
proving the element of exclusive control, the plain- to the plaintiff. The courts seem less willing, how-
tiff is not required to eliminate with certainty all ever, to apply res ipsa loquitur if the defendants are
other possible causes but must show either that the strangers to one another and act independently of
injury can be traced to a specific instrumentality or one another.
cause for which the defendant was responsible, or
that the defendant was responsible for all reason- Injury Is Consequence
ably probable causes to which the accident could
of Negligence
be attributed. (Shull, 477 N.E.2d at 931.) Plaintiff
argued even though there were many others present The plaintiff must demonstrate that the accident
during surgery and possibly involved, that it was ulti- would have been unlikely to occur in the absence of
mately the surgeon’s responsibility to ensure safety. any negligence. They are not required to show that
Here, there were many involved and present during only negligence is the cause of such events but must
the surgery and not naming all of those precludes prove that such events are generally a consequence
the plaintiff from asserting res ipsa loquitor. There of negligence. In some cases that awareness will lie
must be expert testimony as to the standard of care within the experience of the jury and will not have to
of all involved including the nurses, and that was be proved explicitly by the plaintiff.
not provided. This left open the possibility that the In a case in which an airplane disappeared
nurses did not know that a certain position or move- over the Pacific Ocean, leaving no debris that was
ment during surgery could cause nerve damage. ever found, the plaintiff (suing on behalf of one of
Without proof that none of the participants in the the deceased passengers) was unable to produce
surgery utilized a standard of care appropriate in this evidence of actual negligence. Even though the
situation, res ipsa loquitor cannot apply (Vogler v. defendant airline produced evidence that the
Dominguez, 624 N.E.2d 56 [In. 1993]). In contrast, in plane was properly maintained that the weather
a later case, the same court allowed the doctrine to was normal, and that the personnel were ade-
apply when the plaintiff slipped and fell on garbage quately trained, the court allowed the fact finder
lying on the sidewalk at the rear of the defendant’s the right to infer that negligence was more proba-
restaurant. The court reasoned that the employees bly than not the cause of the accident. The plaintiff
were in a position to have caused the accident and was not required to disprove every possible cause
the probability of anyone else causing it was very of the accident in order for the inference of neg-
remote (Noble v. Cavalier Restaurant, 235 P.2d 396 ligence to be allowed (Cox v. Northwest Airlines,
[Cal. 1951]). Inc., 379 F.2d 893 [7th Cir. 1967]).
Proving responsibility becomes particularly prob-
lematic in cases involving multiple defendants. In Lack of Contributory Negligence
such cases the plaintiff may be able to demonstrate The plaintiff must also provide evidence showing
that the injury was caused by the negligence of at that they acted properly. If the plaintiff was con-
least one of the defendants but may not be able to tributorily negligent, the doctrine is probably not
applicable. Suppose, for example, that a boiler on negligence, which the defendant must rebut to
a locomotive explodes, killing the engineer whose avoid a directed verdict. In a few courts, once res
job includes keeping the right amount of water ipsa loquitur applies, the defendant must prove by
in the boiler. If testimony is offered that the engi- a preponderance of the evidence that they did not
neer properly tended the boiler and did nothing to act negligently.
cause the explosion (used a reasonable standard of
care), the doctrine of res ipsa loquitur may apply;
in the absence of such testimony, the doctrine may
not apply (Restatement [Second] of Torts § 328D, Application
illus. 11). In contrast, if the engineer was negligent Breach of duty is the key question in the case
in running the train at an unsafe speed but that against the Baxters. Teddy and Mr. Goodright will
negligence had nothing to do with the explosion, have to prove that the Baxters acted unreasonably
the doctrine could still apply. In the latter case, the by failing to lock the gate to their backyard. If stat-
plaintiff’s contributory negligence would do noth- utes or ordinances within their jurisdiction mandate
ing to reduce the likelihood that the defendant was that dogs be confined in an area that is inaccessible
also negligent. to children, the Baxters could be found negligent
per se. At the very least, statutes and ordinances
Evidence More Available could be used to establish the reasonable standard
to Defendant of care expected of dog owners. Compliance with
these statutory requirements would not necessarily
Some courts also require the plaintiff to show that
absolve the Baxters, however, because their con-
evidence of negligence was more available to the
duct could still be deemed unreasonable. Even
defendant(s) than to the plaintiff. Most courts, how-
if found negligent per se, they could assert that
ever, apply the doctrine of res ipsa loquitur even
the defendants were contributorily negligent or
when evidence is no more available to the defen-
assumed the risk.
dant than to the plaintiff. This element seems to be
The plaintiffs could integrate the Learned Hand
more of a rationale for applying the doctrine than an
formula into any arguments before the court by
evidentiary requirement.
showing that the probability of harm occurring if
This rationale was used in Ybarra v. Spangard,
Gertrude was not locked in the yard and the gravity
involving the doctors who testified that they knew
of injuries that would occur if she attacked someone
no reason why the plaintiff’s shoulder became pain-
greatly outweighed the minimal inconvenience of
ful after his appendectomy. Application of the doc-
ensuring that the gate was locked. They would have
trine in cases such as this requires the defendants
to assign numerical figures to these factors to make
either to explain what happened or to risk being
this formula meaningful. This formula is somewhat
found liable.
esoteric and is designed to provide a guideline to
the courts in assessing the defendants’ conduct, so
Procedural Consequences the attorneys would present the formula in argu-
In a res ipsa loquitur case the jury is allowed to infer ments to the court and not to the jury.
negligence. In some courts, meeting the require- The Baxters would argue that Teddy fell short of
ments of the doctrine creates a presumption of the conduct expected of a child of his age, intelli-
gence, and experience. They would especially want
Local Links
Does your state require plaintiffs who are Local Links
using the doctrine of res ipsa loquitur to In your state what is the consequence of
prove that they were not contributorily negli- a plaintiff proving the elements of res ipsa
gent, or is that up to the defendant to prove? loquitur? What options does the defendant
What about proving the element of duty? have?
In the News
Jury instructions for res ipsa loquitur for your state can be found by entering “jury instructions res ipsa
loquitur” as your search term and entering your state name.
to emphasize that Teddy was aware of Gertrude’s between Teddy and Gertrude, they would probably
propensity to defend her domain and that, having fail. As long as Mr. Goodright acted reasonably con-
been forewarned to stay out of the Baxters’ yard, sidering the frightening circumstances in which he
he was aware of the danger inherent in entering became involved, he would not be found negligent.
that yard without the Baxters being present. If the Reasonableness does not preclude acts of heroism.
Baxters tried to argue that Mr. Goodright behaved The rescue doctrine would apply in that instance
negligently by interjecting himself in the altercation (discussed in Chapter 4).
Summary
Breach of duty raises the question of whether the If a defendant violates a statute that is applica-
defendant engaged in unreasonable conduct. We ble to the facts of the case and if someone is injured
presume that a reasonable person will avoid creating as a result of that violation, the defendant will be
an unreasonable risk of harm for others. Under the considered negligent per se. The plaintiff must
Learned Hand formula, a defendant has breached show that they are a member of the class of persons
their duty if the probability of the harm their act pres- whom the statute is intended to protect and that
ents multiplied by the gravity of such harm exceeds the statute was designed to protect against the type
the defendant’s burden of taking precautions to of harm sustained. Criminal as well as civil statutes
avoid the harm. An objective standard is used in may be used to prove negligence per se. Generally,
assessing the defendant’s conduct and not a subjec- however, statutes do not impose an absolute duty of
tive one since it is impossible to know a defendant’s compliance, and their violation may be excused for a
state of mind. number of reasons.
Generally, there are no special allowances In contrast to the doctrine of negligence per
made for defendants who are emotionally unstable, se, automobile-guest statutes absolve defendants
of substandard intelligence, or declared insane. The of liability unless their conduct is willful and wanton,
physical characteristics of a defendant are, however, grossly negligent, or reckless. Few states still have
taken into consideration. A person who is visually such statutes in operation.
impaired would be held to a standard of other visu- In some cases, the plaintiff is unable to prove
ally impaired persons. Children are held to the stan- negligence because they lack any direct evidence.
dard of care of a child of similar age, intelligence, The doctrine of res ipsa loquitur allows the plain-
and experience. The fact that a defendant acted in tiff to create an inference of negligence. Under
an emergency situation is taken into consideration this doctrine the plaintiff must prove that (1) the
in determining the reasonableness of the conduct. negligence was due to the defendant and not to
The custom of a particular industry or community someone else; (2) the experience suffered by the
is looked at in reviewing the reasonableness of a plaintiff was of a sort that does not ordinarily occur
defendant’s conduct. Professionals are held to the except as a result of negligence; (3) the plaintiff
standard of care commonly exercised by members in did not voluntarily contribute to their own injuries;
good standing of their profession, whereas special- and, in some courts, (4) the defendant is better
ists are held to a specialist’s standard of care higher able to explain the event that occurred than is the
which is even higher. plaintiff.
Key Terms
automobile-guest statutes objective standard
Laws holding a driver of a vehicle liable to a Comparison of a defendant’s conduct to that of
guest in their car only under circumstances of a reasonable person.
extreme misconduct. subjective standard
breach of duty Use of the defendant’s own subjective per-
Failure to conform to the required standard ceptions to determine whether the defendant
of care. behaved reasonably.
Review Questions
1. How is breach of duty determined? 9. How does custom affect the evaluation of
reasonableness?
2. What is the Learned Hand formula, and how
does it help in assessing reasonableness? 10. To what standard of care are professionals
held? What about specialists?
3. Explain how the Learned Hand formula could
be used to assess whether defendants who fail 11. What is negligence per se and how does it
to provide a childproof lock on the gate that assist a plaintiff in proving negligence?
leads to their swimming pool should be liable
for the drowning death of their neighbor’s two- 12. What must a plaintiff show to prove negligence
year-old child. per se?
4. Why is an objective standard used to evaluate 13. What are some of the defenses to negligence
the reasonableness of a defendant’s conduct? per se?
How would using a subjective standard affect
these cases? 14. What are automobile-guest statutes and why
were they introduced?
5. What is a reasonable person expected to
know? 15. What is the status of automobile-guest statutes
today?
6. Which of the following characteristics of a
defendant are taken into consideration when 16. What is the doctrine of res ipsa loquitur and
assessing reasonableness? how does it help plaintiffs?
a. mental state
b. intelligence 17. What must a plaintiff prove before being able
c. emotional state to rely on the doctrine of res ipsa loquitur?
d. intoxication
e. physical challenges, such as blindness 18. What are the possible consequences to the
defendant if the plaintiff proves all of the ele-
7. To what standard of care are children held? ments of res ipsa loquitur?
8. To what standard of care are people held in

emergency situations?
Practice Exam
True-False
1. To assess whether a defendant breached his 12. A reasonable person is never expected to
duty of care, it must be determined whether anticipate the criminal acts or intentional torts
the defendant acted reasonably. of others.
2. In evaluating a defendant’s conduct, a jury is 13. Adherence to custom is always conclusive evi-
allowed the benefit of information the defen- dence of reasonableness of conduct.
dant did not have at the time they acted.
14. The courts can find an entire industry negligent
3. Under the Learned Hand formula, a cost/ ben- even if no one in the industry has adopted
efit analysis is rejected. adequate safety measures.
4. In determining whether a defendant acted 15. Professionals who are novices are held to the
reasonably, the jury must consider the situation same standard of care as other more experi-
from the defendant’s perspective and state of enced members of the profession.
mind.
16. Specialists are held to a higher standard of
5. In most instances in tort law an objective stan- care than other members of the profession.
dard is used to assess the reasonableness of a
defendant’s conduct because doing so reduces 17. Most courts consider a defendant’s violation
the uncertainties in the legal system and maxi- of a statute as evidence of mere negligence
mizes safety to members of the community. rather than negligence per se, and mere neg-
ligence can be negated by evidence of due
6. A reasonable person is expected to know mat- care.
ters of common knowledge and scientific and
natural laws of common knowledge. 18. In states that prohibit leaving keys in a parked
car, a defendant is not necessarily negligent
7. Ignorance of the law is no excuse even if the per se if they leave their keys in their car and
law contradicts the custom of the community. the thief who steals the car is involved in an
accident-causing injury to the plaintiff.
8. Courts generally do not hold insane people to
a reasonable-person standard because they 19. Violation of a statute always imposes an abso-
should not be held responsible for their actions. lute duty of compliance.
9. The physical characteristics of a defendant are 20. Under the majority rule, when a criminal statute
never taken into consideration when determin- is violated, courts do not apply the criminal
ing the reasonable-person standard. statutory standard to civil cases.
10. Children who engage in activities reserved for 21. Compliance with a statute does not necessarily
adults are always held to the standard of care establish that a defendant was negligent.
of a reasonable adult.
22. The purpose of automobile-guest statutes was
11. Defendants acting under emergency condi- to discourage guests from suing their host driv-
tions must act reasonably, but they are not ers and prevent collusion between drivers and
held to the standard of care of a medical their guests.
professional.
23. Res ipsa loquitur is a court-created doctrine 26. The courts are less willing to apply the doctrine
that allows plaintiffs to create an inference of of res ipsa loquitur in cases in which the defen-
negligence without having to provide direct dants are strangers and act independently.
evidence of negligence.
27. Most courts require plaintiffs to prove that the
24. To prove res ipsa loquitur, the plaintiff must evidence is more available to the defendant
show that the negligence was due to the than to the plaintiff before they will allow the
defendant and not someone else, and that the doctrine of res ipsa loquitur to be applied.
injury the plaintiff suffered was of the type that
does not ordinarily occur except as a result of 28. If the plaintiff is able to prove the elements of
negligence. res ipsa loquitur, all courts allow juries to infer
negligence but do not allow a presumption of
25. A plaintiff can be contributorily negligent and negligence to be created that the defendant
still rely on the doctrine of res ipsa loquitur. would have to rebut.
Fill-in-the-Blank
1. Under the Learned Hand formula, the 5. Professionals are held to a ____________
____________ and ____________ of harm standard of care than those not in the
created by the defendant’s conduct are profession.
considered.
6. ____________ ____________ statutes hold driv-
2. When determining the standard of care for ers of vehicles liable for injuries resulting to
a child, the ____________, ____________, guests in their car only under circumstances of
and ____________ of the child are taken into extreme misconduct.
consideration.
7. ____________ ____________ ____________
3. The _________ standard is used in determining means “the thing speaks for itself.”
whether defendant’s conduct is reasonable.
8. In a res ipsa loquitor case, the jury is allowed to
4. In an emergency, a defendant is expected to infer ___________.
act __________ or can be found to be liable for
their actions.
Multiple-Choice
1. In considering the burden-of-precaution factor b. if the likelihood of harm times the gravity of
in the Learned Hand formula, courts: harm outweighs the burden of precaution.
a. consider the cost to the defendant in taking c. if the burden of precaution equals the grav-
precautions. ity of harm multiplied by the likelihood of
b. consider the social utility of the defendant’s harm.
conduct. d. If the burden of precaution outweighs the
c. consider both a and b. likelihood of harm.
d. do not consider either a or b. 3. Those who are generally held to the standard
2. Under the Learned Hand formula, a defendant of care of a reasonable person include:
is liable: a. intoxicated people.
a. if the burden of precaution outweighs the b. people who are emotionally unstable.
gravity of harm multiplied by the likelihood c. people who are of substandard intelligence.
of harm. d. all of the above.
4. When a defendant violates a statute, they are b. the plaintiff was a member of the class the
negligent per se if: statute was intended to protect.
a. the statute applies to the facts of the case. c. both a and b.
b. there is a causal link between the defen- d. neither a nor b.
dant’s act and the plaintiff’s injury. 6. A plaintiff cannot resort to the doctrine of res
c. both a and b. ipsa loquitur if:
d. neither a nor b.
a. it is just as likely that someone other than
5. To prove negligence per se, the plaintiff must the defendant caused the plaintiff’s injury.
show that the defendant violated a statute and b. there are multiple defendants.
that the: c. they cannot show that negligence is the
a. statute was designed to protect against the only possible cause of their injuries.
kind of harm sustained by the plaintiff. d. all of the above.
Practice Pointers
In cases of negligence per se, the task of locating the appropriate statutory standard may fall to the
paralegal. Therefore, you should be aware of the most common sources of statutory law. When laws are
first enacted they are published separately as “slip laws”; at the end of a legislative session the slip laws
for that session are bound in volumes referred to as “session laws.” The official source of session laws is
a government publication, United States Statutes at Large, which orders the session laws by public law
numbers (e.g., Pub. L. No. 97-334). Session laws are difficult to access because they are arranged chrono-
logically rather than by subject. Therefore, federal statutes are easier to locate using arrangements of laws
by subject matter, referred to as “codes.” Unless you are looking for a recently enacted law, you will begin
statutory research at the federal level using one of three federal codes: United States Code (the official
version published by the government), United States Code Annotated (published by West Publishing); or
United States Code Service (published by Lawyers Cooperative Publishing). The official version contains
only the text of the federal code, but the two unofficial versions also contain annotations (information
about decisions that have applied or discussed certain sections of the code), historical notes, and refer-
ences to other sources that interpret and analyze the code.
Codes are updated using supplementary volumes or pamphlets or by pocket parts (annual supplements
found in the back inside cover of the hardbound volume). Codes can be accessed using the index, which lists
statutes alphabetically according to subject matter, or the titles listed in the front of each volume. The United
States Code is divided into fifty titles and then further subdivided into chapters and subchapters.
All states have subject compilations of state statutes; these compilations may be referred to as “Statutes,”
“Codes,” “Revisions,” “Compilations,” or by other terms. All state codes are organized based on subject mat-
ter, but the numbering schemes vary from state to state. Many jurisdictions have both official and unofficial
codes; some have annotated codes and others are unannotated. Consult your law librarian to familiarize your-
self with the organizational structure, frequency of updates, and research features of the codes published in
your state. Net News
In the News
To read the United States Code or any state statutory code, enter “United States Code” or “{Your State}
Code or Statutes.
Tort Teasers
1. How would you go about determining whether the Baxters had breached their duty to Teddy and Mr.
Goodright? Suppose in your research you found a statute in your state that read as follows: “Owners of
dogs known to have dangerous propensities must adequately restrain such dogs so as to prevent injury
to others.” The Restatement (Second) of Torts § 509 provides that
A possessor of a domestic animal that they know or have reason to know has dangerous propensities
abnormal to its class, is subject to liability for harm done by the animal to another, although they have
used the utmost care to prevent it from doing the harm.
What arguments would you make on behalf of the Baxters? On behalf of Teddy and Mr. Goodright?
2. If you were to interview Teddy and his parents, what questions would you ask them to help establish that
the Baxters had violated their duty of care?
3. If you were to interview the Baxters, what questions would you ask them to help establish that Teddy and
Mr. Goodright have viable claims against the Baxters?
4. What arguments could be made that the Baxters did not breach their duty or that there was an assump-
tion of risk?
5. Plaintiff and Defendant are both driving down the road when Defendant attempts to pass Plaintiff’s
vehicle. In doing so his left rear tire blows out, causing him to swerve into Plaintiff’s vehicle. Testimony
is presented showing that the tire was very worn but Defendant claims that he was unaware of the dan-
gerous condition of the tire. Was Defendant’s failure to examine his tire unreasonable conduct? Delair
v. McAdoo, 188 A.181 (Pa. 1936).
6. Defending attorney represents a wife in a divorce proceeding. Under California community-property law
she is entitled to a claim to her husband’s retirement benefits. Defendant fails to make this claim for his
client because he erroneously believes that the wife is not entitled to the benefits. The law, in fact, is rela-
tively clear on this issue and provides that retirement rights are community property. Defendant does not
research the issue. Was Defendant negligent? How would you assess the reasonableness of his actions?
Smith v. Lewis, 530 P.2d 589 (Cal. 1975).
7. A statute requires banks to perform background checks and fingerprint applications of job candidates
before employing them. Plaintiff was shot by the bank’s security guard who was attempting to rob the
bank. The bank failed to fingerprint and perform a background check on the guard. What information
do you need to determine if the bank was negligent per se? Mahan v. Am-Gard, Inc., 841 A.2d 1052
(Pa.Super. 2003).
8. Plaintiff drinks from a bottle of Coca-Cola he purchased from the drugstore and spits up a fly. Defendant
introduces evidence that the bottling plant was operated under sanitary conditions and that Coca-Cola
bottles can be opened, and their caps replaced without any obvious indication of tampering. Is the doc-
trine of res ipsa loquitur applicable? Crystal Coca-Cola Bottling Co. v. Cathey, 317 P.2d 1094 (Ariz. 1957).
Internet Inquiries
1. Paralegals are frequently asked to conduct statutory research. You can do this online by going to www
.law.cornell.edu and select “State law resources.” Follow the link to your state code and find a statute(s)
relating to the selling of cigarettes to underage persons.
a. Give the number(s) of the statute(s) you find.
b. Summarize the provisions of each statute.
2. Paralegals are generally expected to serve as liaisons with court personnel. Most state trial courts have
websites that provide basic information to the public and helpful links to legal professionals. To become
familiar with legal resources in your jurisdiction use your search engine to locate them.
Your firm has a client, Marvin, who was injured when he ran into a stalled truck on the highway. The acci-
dent occurred shortly after sundown. Marvin said he did not see the truck until shortly before he ran into
it. The driver of the truck concedes that he had not put any reflectors around the truck to warn oncoming
motorists and did not have his flashers on.
Your supervising attorney asks you to find a statute in your state that pertains to this situation. You can
either go to the law library and get a hard copy of your state’s statute, or you can find them online by going to
www.findlaw.com.
1. What statute(s) do you find that are applicable, and what do they provide?
2. What will you have to prove if you want to use these statutes in proving Marvin’s case?
3. How will these statutes make the proof of negligence easier?

Chapter 6
Negligence: Causation
Chapter Topics
Actual Cause Intervening Causes
Proximate Cause Jury Question
Exceptions to the Cardozo Rule Application
Chapter Objectives
• Distinguish between actual cause and proximate • Identify the exceptions to the Cardozo rule of
cause. foreseeability.
• Prove the element of actual cause. • Distinguish between an intervening and a super-
• Distinguish between the Cardozo and Andrews seding cause.
approaches to proximate cause.
I f Teddy and Mr. Goodright are able to hurdle the “duty” and “breach of duty” obstacles, they must then
set their sights on the element of causation. Causation entails two separate considerations: actual cause
(sometimes referred to as causation in fact) and proximate cause (or legal cause). Actual cause means, quite
literally, that the defendant’s actions were the direct, factual cause of the plaintiff’s injuries. Proximate cause, in
contrast, means that the defendant’s conduct was so closely connected to the plaintiff’s injuries that the defen-
dant should be held liable. If the plaintiff is injured by a bizarre and extraordinary chain of events that is only
remotely connected to the defendant’s negligence, proximate cause is lacking.
Actual Cause in this chapter (Ontiveros v. Borak, 667 P.2d 200

[Ariz. 1983]), the court allowed a jury to find actual
But-For Test causation when a tavern owner served at least thirty
beers to a patron who was involved in an accident
The question of whether the defendant was the after he left the bar. The court reasoned that a
actual cause of the plaintiff’s injuries is usually a “defendant may be held liable if his conduct con-
factual one (see Exhibit 6–1). The “but-for” or “sine tributed to the result and if that result would not
qua non” test is usually used to determine actual have occurred ‘but for’ defendant’s conduct.” The
cause. Under this test, if the plaintiff’s injuries would court noted, however, that some factual scenarios
not have occurred but for the defendant’s negli- would not support a finding of actual causation. If,
gence, the defendant will be deemed the actual for example, the patron had consumed thirty beers
cause of the plaintiff’s injuries (Restatement [Second] at the defendant’s bar and then had gone across
of Torts § 432). the street for “one for the road,” the court opined
Let us apply this test to an actual situation. that “it would be difficult to argue that the accident
A motorcyclist collided with an automobile and would not have happened ‘but for’ the last drink.”
died. His family argued that the adjoining property
where the accident occurred should be held liable
due to the fact of vegetation growing and obstruct-
Substantial-Factor Test
ing a clear view for drivers. The burden was not met Notice that the but-for test is extremely broad and
and the “but for” test not satisfied that the vegeta- can rope defendants in for many reasons. But as
tion alone was the cause of the accident. The driver sweeping as the but-for test is, it does not cover
had a clear view and did not see the motorcyclist. situations involving concurrent causes of harm to
The driver of the motorcycle was double the legal the plaintiff. Concurrent causes are those events
limit of intoxication and there is no indication he that combine (concur) to cause the plaintiff’s harm,
was using his headlights. The tree growth did not although either one of them alone could cause
in any way contribute to the motorcyclist’s death the harm without any contribution from the other.
and the defendant’s negligence of trimming the Under the substantial-factor test, an alternative
bushes was not considered the actual cause of the to the but-for test, the question is whether the
plaintiff’s death. The court found no proof of actual defendant was a substantial factor in producing the
or proximate cause (Bickler v. The Raquet Club plaintiff’s injury. If the concurrent causes produce a
Heights Associates, 850 P.2d 967 [Mont. 1993]). single, indivisible harm in which the damage from
In a more modern context, actual cause arises one event cannot be separated from that caused
in cases involving tavern owners who negligently by the other, the courts have generally found both
serve liquor to patrons who are obviously intoxi- events to be a substantial factor in producing the
cated. If those patrons drive and injure someone, plaintiff’s injuries and allows plaintiffs to sue either
the question is whether the tavern owner’s serving defendant for damages.
of liquor was the actual cause of the harm done to To illustrate the application of this test, suppose
the injured person. In a case that is excerpted later the plaintiff is riding down a narrow road in his
Exhibit 6–1 Actual cause
Substantial-
But-For Test Burden of Proof
Factor Test
But for defendant’s negligence Two or more concurrent or Plaintiff bears burden of proof
plaintiff would not have been successive events combine to Except:
injured. cause the plaintiff’s injury and 1. Alternate liability (Summers v.
each of them is a substantial Tice)
factor in producing the injury. 2. Market-share liability (Sindell v.
Abbott Labs)
3. Concerted action
CHAPTER 6 Negligence: Causation | 143
horse-drawn wagon when two motorcycles roar To prove causation, plaintiffs in toxic tort cases
around him, one on each side. The frightened horse must often rely on expert testimony, epidemiological
bolts, and the plaintiff is injured. Although either studies (studies that demonstrate a statistical asso-
motorcycle by itself would have been sufficient to ciation between a disease and a toxic substance),
frighten the horse, the harm created by both of the and experimental studies conducted on humans
motorcycles produces a single, indivisible harm. and animals that measure and observe the effects of
Consequently, both motorcyclists are the actual exposure to chemicals. The evidence presented by
cause of the plaintiff’s injuries (Corey v. Havener, 65 plaintiffs must not only prove that the toxin in ques-
N.E. 69 [Mass. 1902]). tion is capable of producing the type of injury suf-
Modern courts have struggled with the concept fered by the plaintiffs, but also that each individual
of causation in “toxic tort” cases and have often plaintiff’s injury was caused by that particular toxin
adopted the less stringent substantial-factor test. and not other causes. The evidentiary rules govern-
In one case, the plaintiff developed cancer after ing the admissibility of such evidence go beyond the
working in a plant for twenty-six years cleaning and scope of this text but suffice it to say that plaintiffs
refurbishing drums that had contained toxic chem- must overcome a number of evidentiary obstacles
icals. Proving causation is definitely more compli- before they can introduce evidence to prove their
cated in a toxic tort case. There is usually a long allegations of causation.
latency period of illnesses caused by exposure to
certain toxic chemicals on a repeated basis. This
long period of time makes proving causation dif-
Causation Problems in Mass Tort
ficult. In this particular case, it is almost impossi- Cases
ble to prove which exposure to which drum of Mass torts involving generic products that are inher-
asbestos caused plaintiff to develop cancer. It was ently toxic present complex causation issues. The
undisputed that he had been exposed on almost plaintiff is not able to identify the specific product,
a daily basis and that the effects of asbestos are brand, retailer, or manufacturer because of the
cumulative, so much so that each exposure can be generic nature of the product. The risk-contribution
considered a single and separate injury. This fre- theory has been used to relax the plaintiff’s burden of
quency, regularity, and proximity test pronounced proof to establish causation in a mass tort case where
in Sholtis v. American Cyanamid Co., 238 N.J. a young boy ingested lead paint, resulting in brain
Super. 8, 568 A.2d 1196 (1989), was followed and damage. The plaintiff was not able to identify the
the court held that a plaintiff in a toxic tort case manufacturer of the paint he ingested. In applying the
may demonstrate medical causation by estab- risk-contribution theory to the case the court found
lishing factual proof of the regular and proximate that many of the individual defendants knew of the
exposure to a defendant’s products, and medical harm caused by white lead carbonate pigments and
or scientific proof of a nexus between exposure continued production and promotion of the product.
and the plaintiff’s condition (James v. Bessemer The court held that each industry defendant contrib-
Processing Co, Inc., 155 N.J. 279 [N.J. 1998]). uted to the creation of a risk of harm to the public
The problem in cases of this sort is proving generally and the plaintiff specifically (Thomas v.
that the toxin at issue, and not some other factor, Mallett 701 N.W.2d 523 [Wis. 2005]).
was the cause of the plaintiff’s injury. To illustrate,
in another radiation case the plaintiffs were unable
to prove causation because the defense produced Proof of Actual Cause
evidence that one plaintiff’s smoking of 1.5 packs The plaintiff bears the burden of proving actual
of cigarettes per day for forty-five years was just as causation by a preponderance of the evidence. In
much a cause of his lung cancer as the radiation other words, they must prove that it is probable that
to which he had been exposed, and that another the injury would not have occurred but for the defen-
plaintiff’s high-cholesterol/low-fiber diet was just as dant’s acts. Suppose, however, the defendant argues
likely a cause of his colon cancer as his exposure that the plaintiff would have been injured even if
to radiation (Prescott v. United States, 858 F. Supp. the defendant had not been negligent. The plain-
1461 [D. Nev. 1994]). tiff must then show that the defendant’s negligence
greatly enhanced the chances of harm occurring in of the judgment that represented the defendant’s
order to sustain the burden of proof. share of the overall DES market at the time of the
If two defendants are negligent but only one mother’s consumption.
could have caused the plaintiff’s injury, the burden Notice that market-share liability differs from
of proof will be thrust back on the defendants to res ipsa loquitur in that the latter is used when a
show who actually caused the harm (Restatement plaintiff has no way of proving the nature of the
[Second] of Torts § 433B[3]). Under the theory of defendant’s conduct. If the plaintiff can meet
alternate liability, as developed in Summers v. Tice, the proof requirements of res ipsa loquitur, the
199 P.2d 1 (Cal. 1948), each negligent tortfea- defendant’s negligence will be inferred. With
sor must prove that his actions did not cause the market-share liability the plaintiff can show that all
plaintiff’s injuries. If one fails to prove such, both of the defendants were negligent (or produced a
defendants will be found liable. In Summers v. Tice dangerous product) but is unable to pin the injuries
the plaintiff and the two defendants went hunting on one specific defendant.
together. The defendants simultaneously shot at a Other courts, when confronted with multiple
quail and the plaintiff was struck by one of the shots. defendants, have imposed liability using a concerted-
Because it could not be determined from which action theory set forth in the Restatement [Second]
gun the bullet was fired, the court held that each of Torts § 876. Under this theory, plaintiffs must
of the defendants had the burden to show that it show that a tacit agreement existed among the
was the other’s shot that wounded the plaintiff. defendants to perform a tortious act. To do this the
This theory has been expanded to encompass plaintiff must show the existence of a common plan
three or more defendants in the area of product lia- or that the defendants assisted or encouraged each
bility. The so-called market-share-liability theory was other in accomplishing a tortious result. Regardless
developed in Sindell v. Abbott Laboratories, 607 of which theory the court relies on, clearly a defen-
P.2d 924 (Cal. 1980) to allow recovery to the plaintiff dant may be considered the actual cause of the
who can show that the defendants were negligent plaintiff’s injury even if another defendant’s negli-
but cannot prove which of the defendants caused gence also contributed to that harm.
the injury. In Sindell at least 200 manufacturers Proof of actual cause can be particularly prob-
used an identical formula to produce diethylstil- lematic in medical malpractice cases in which a
bestrol (DES). The plaintiff, whose mother took the doctor’s failure to diagnose may have contributed
drug during pregnancy, alleged that her cancer to a patient’s death. One such case was (Mohr v.
was a direct result of her mother’s consumption of Grantham, 262 P.3d 490 [Wash. 2011]) in which the
DES. The plaintiff sued five drug companies, which doctors failed to notice neurological symptoms
she maintained manufactured 90 percent of the after a minor automobile accident. The physician
DES ever marketed but was unable to show which sent plaintiff home where she continued having
of the manufacturers produced the drug that her symptoms and returned later in the evening. Delays
mother actually took. ensued in treating her properly, and she suffered
The court concluded that it was impossible for a trauma induced stroke and permanent disability.
the plaintiff to provide such proof, in part because Note the court’s finding that the but-for test was
the ill effects caused by the drug did not become not satisfied, and causation was not shown. In this
apparent for many years after consumption. case, the court stated that a plaintiff bears the bur-
The court reasoned that when it came down to a den to prove duty, breach, and that such breach
conflict between an innocent plaintiff and negligent of duty proximately caused a loss of chance of a
defendants, the latter should bear the cost of any better outcome. The loss of a chance is the com-
injuries. The court also found that the defendants pensable injury. So, the court uses this alternate
were better able to bear the cost of injury, as they theory of recovery—the “lost chance of recovery”
could discover and guard against any defects and theory which allows medical malpractice plaintiffs
could also warn consumers of potential harmful to recover if they can prove a loss of the chance to
effects. Any defendant unable to prove that it did recover, even if they cannot prove that the doctor’s
not produce the particular dosages consumed by negligence resulted in a loss of life or permanent
the plaintiff’s mother would be liable for the portion disability.
Case
Mohr v. Grantham
262 P.3d 490 [Wash. 2011]
Judge, Owens, J.
Linda Mohr suffered a trauma-induced stroke and is Following those neurological tests, however, Mrs.
now permanently disabled. She and her husband, Mohr reported and was observed to have neurological
Charles, claim that negligent treatment by her health symptoms, including being wobbly on her feet and hav-
care providers diminished her chances of avoiding or ing severe pain after being administered pain medication.1
greatly minimizing her disability. Dr. Grantham informed one of Mrs. Mohr’s physician sons,
This case compels consideration of whether, in Dr. Brandt Mohr, by phone that he would carry out another
the medical malpractice context, there is a cause of neurological assessment before discharging her. He did
action for a lost chance, even when the ultimate result not. Instead, he prescribed a narcotic, Darvocet, and sent
is some serious harm short of death. We hold that there Mrs. Mohr home with her husband. At that point, Mrs.
is such a cause of action and, accordingly, reverse the Mohr could not walk herself to or from the car and had to
order of summary judgment. be carried to bed by her husband when they arrived home.
Linda Mohr suffered a trauma-induced stroke and The Mohrs were not given discharge instructions that
is now permanently disabled. She and her husband, included specific information about head injuries.
Charles, claim that negligent treatment by her health Mrs. Mohr was again transported to KMC by
care providers diminished her chances of avoiding or ambulance just after 7:00 a.m. on September 1,
greatly minimizing her disability. In other words, they 2004, because her husband was concerned that she
claim that negligence caused Mrs. Mohr a loss of the remained very lethargic through the night. Dr. Brian
chance of a better outcome. In Herskovits v. Group Dawson was the attending emergency room physician
Health Cooperative *847 of Puget Sound, 99 Wash.2d that morning. By around 9:30 a.m., Mrs. Mohr was
609, 611, 614, 664 P.2d 474 (1983) (Dore, J., lead opin- diagnosed as having a stroke. Specifically, she was first
ion), this court recognized the lost chance doctrine in found to have an “evolving infarct ... in the right mid-
a survival action when the plaintiff died following the dle cerebral artery territory,” Clerk’s Papers (CP) at 119,
alleged failure of his doctor to timely diagnose his lung which relates to a cause of a stroke.2 A magnetic res-
cancer. onance imaging (MRI) examination, performed shortly
This case compels consideration of whether, in after 9:30 a.m., confirmed that Mrs. Mohr was in fact
the medical malpractice context, there is a cause of having a stroke.3 However, Dr. Dawson did not provide
action for a lost chance, even when the ultimate result any anticoagulant or antithrombotic treatment or ther-
is some serious harm short of death. We hold that there apy. Around 11:30 a.m. Mrs. Mohr was transferred to
is such a cause of action and, accordingly, reverse the the intermediate care unit, under the care of Dr. Brooks
order of summary judgment. Watson II.
FACTS Before the transfer, Mrs. Mohr’s two physician sons
had arrived at KMC to be by her side. They tried to get
In Richland, Washington, on the afternoon of August
both Dr. Dawson and then, after her transfer, Dr. Watson
31, 2004, Mrs. Mohr suffered a hypoglycemic event
to order a CT angiogram. A CT angiogram was not done
that caused her to run her car into a utility pole
until 2:30 p.m., after the Mohr sons had Dr. Watson
at approximately 45 mph She was taken by ambulance
repeatedly paged. Then, although the results were
to the emergency room at Kadlec Medical Center (KMC).
available at 3:27 p.m., Dr. Watson was not located or
Having visible lacerations on her face from the car acci-
informed until 4:50 p.m. that the CT angiogram showed
dent, Mrs. Mohr was given a neurological assessment
a dissected carotid artery. He still did not order anyone
upon arrival, at around 4:00 p.m., and a computerized
to administer anticoagulant therapy, antiplatelet agents,
tomography (CT) scan of her brain about an hour later.
or any other treatment. Dr. Watson had *849 pre-
These tests were overseen or authorized by Dr. Dale
scribed aspirin around 2:00 p.m. but did not order its
Grantham, who was charged with Mrs. Mohr’s care at
immediate administration.
KMC on August 31. The results were normal.
(continued)
Case | Mohr v. Grantham (continued)

Mrs. Mohr’s sons finally arranged a transfer and 26 P.3d 257 (2001). The standard formulation for
transport to Harborview Medical Center. Dr. Watson proving proximate causation4 in tort cases requires,
signed the transfer form as a formality. Only shortly “first, a showing that the breach of duty was a cause
before her transport at 6:00 p.m. on September 1, in fact of the injury, and, second, a showing that as
2004, was Mrs. Mohr finally given aspirin, though it had a matter of law liability should attach.” Harbeson
to be administered in suppository form because, by v. Parke–Davis, Inc., 98 Wash.2d 460, 475–76, 656
then, she could no longer swallow. P.2d 483 (1983). In a medical malpractice case, for
Mrs. Mohr is now permanently brain damaged; a example, a plaintiff would traditionally seek to prove
quarter to a third of her brain tissue was destroyed. In “cause in fact” by showing “that he or she would not
particular, the portions of her brain that were damaged have been injured but for the health care provider’s
are involved with motor control, sensation, and spatial failure to use reasonable care.” Hill v. Sacred Heart
reasoning. Med. Ctr.,143 Wash.App. 438, 448, 177 P.3d 1152
Mrs. Mohr and her husband filed suit, claiming that (2008) (citing McLaughlin v. Cooke, 112 Wash.2d
Mrs. Mohr received negligent treatment, far below 829, 837, 774 P.2d 1171 (1989)). However, as the plu-
the recognized standard of care. They argue that the rality noted in Herskovits, “[t]he word ‘cause’ has a
doctors’ negligence substantially diminished her notoriously *851 elusive meaning (as the writings on
chance of recovery and that, with nonnegligent care, legal causation all agree).” 99 Wash.2d at 635 n. 1,
her disability could have been lessened or altogether 664 P.2d 474 (Pearson, J., plurality opinion). For this
avoided. The Mohrs’ claim relies, at least in part, on reason, and in service of underlying tort principles,
a medical malpractice cause of action for the loss of this court and others have recognized some limited
a chance. In support of their claim, the Mohrs pre- exceptions to the strict tort formula, including recog-
sented the family’s testimony, including her two sons nition of lost chance claims. See, e.g., id. at 619, 664
who are doctors, and the testimony of two other doc- P.2d 474 (Dore, J., lead opinion), 634–35 (Pearson, J.,
tors, Kyra Becker and A. Basil Harris. The testimony plurality opinion)…
included expert opinions that the treatment Mrs. Mohr The plurality similarly noted that traditional all-or-
received violated standards of care and that, had Mrs. nothing causation in lost chance cases “ ‘subverts
Mohr received nonnegligent treatment at various points the *852 deterrence objectives of tort law.’
between August 31 and September 1, 2004, she would The lead and plurality opinions split over how, not
have had a 50 to 60 percent chance of a better out- whether, to recognize a cause of action.
come. The better outcome would have been no disabil- Rather than looking to the causation element, the
ity or, at least, significantly less disability. plurality opinion in Herskovits focused instead on the
On April 16, 2009, the Benton County Superior nature of the injury. Herskovits, 99 Wash.2d at 634, 664
Court granted summary judgment for the defendants P.2d 474 (Pearson, J., plurality opinion) (“[T]he best res-
on the basis that the Mohrs did not show “but for” olution of the issue before us is to recognize the loss
causation and **493 the hesitancy of the court to of a less than even chance as an actionable injury.”).
expand Herskovits to the facts of *850 this case. The The plurality noted among its concerns about the “all
Mohrs appealed, and the Court of Appeals certified or nothing” traditional tort approach to recovery that it
the case for our review. “creates pressure to manipulate and distort other rules
ANALYSIS affecting causation and damages in an attempt to miti-
gate perceived injustices.” Id. In part, this characterizes
Lost Chance of a Better Outcome
what the Herskovits lead opinion does by prescribing
The medical malpractice statute requires the same that causation in all lost chance cases is to be exam-
elements of proof as traditional tort elements of ined under the substantial factor doctrine. The plural-
proof: duty, breach, injury, and proximate cause. RCW ity found it more analytically sound to conceive of the
7.70.040. Whether there is a cause of action for injury as the lost chance. Id.
a lost chance of a better outcome in the medical mal- Though this court has not reconsidered or clarified
practice context is a question of law, which we review the rule of Herskovits in the survival action context
de novo. Berger v. Sonneland, 144 Wash.2d 91, 103, or, until now, considered whether the rule extends
(continued)

to medical malpractice cases where the ultimate harm Washington, as demonstrated by the few cases rely-
is something short of death, the Herskovits majority’s ing on Herskovits that have been heard by Washington
recognition of a cause of action in a survival action has appellate courts.
remained intact since its adoption. “Washington rec- We hold that Herskovits applies to lost chance claims
ognizes loss of chance as a compensable interest.” where the ultimate harm is some serious injury short
Shellenbarger v. Brigman, 101 Wash.App. 339, 348, of death. We also formally adopt the reasoning of the
3 P.3d 211 (2000); see Zueger v. Pub. Hosp. Dist. No. Herskovits plurality. Under this formulation, a plaintiff
2, 57 Wash.App. 584, 591, 789 P.2d 326 (1990) bears the burden to prove duty, breach, and that such
We note that, significantly, nothing in the medical breach of duty proximately caused a loss of chance
malpractice statute precludes a lost chance cause of of a better outcome. This reasoning of the Herskovits
action. In relevant part, chapter 7.70 RCW provides plurality has largely withstood many of the concerns
that, in order to prove “that injury resulted from the fail- about the doctrine, particularly because it does not
ure of the health care provider to follow the accepted prescribe the specific manner of proving causation
standard of care,” a plaintiff must establish: in lost chance cases. Rather, it relies on established
(1) The health care provider failed to exercise that tort theories of causation, without applying a particu-
degree of care, skill, and learning expected of lar causation test to all lost chance cases. Instead, the
a reasonably prudent health care provider at loss of a chance is the compensable injury.
that time in the profession or class to which he The significant remaining concern about considering
belongs, in the state of Washington, acting in the loss of chance as the compensable injury, applying
the same or similar circumstances; established tort causation, is whether the harm is too
speculative. We do not find this concern to be dissua-
(2) Such failure was a proximate cause of the injury
sive because the nature of tort law involves complex
complained of.
considerations of many experiences that are difficult
RCW 7.70.040. The chapter does not define “proximate to calculate or reduce to specific sums; yet juries and
cause” or “injury.” RCW 7.70.020. courts manage to do so. We agree that [s]uch difficulties
The principal arguments against recognizing a are not confined to loss of chance claims. A wide range
cause of action for loss of a chance of a better out- of medical malpractice cases, as well as numerous other
come are broad arguments, similar to those raised tort actions, are complex and involve actuarial or other
when Herskovits was decided: concerns of an over- probabilistic estimates.
whelming number of lawsuits and their impact on the Matsuyama, 452 Mass. at 18. Moreover, calculation
health care system; distaste for contravening traditional of a loss of chance for a better outcome is based on
tort law, especially regarding causation; and discomfort expert testimony, which in turn is based on significant
with the reliance on scientific probabilities and uncer- practical experience and “on data obtained and ana-
tainties to value lost opportunities. See Joseph H. King, lyzed scientifically ... as part of the repertoire of diagno-
Jr., ‘‘Reduction of Likelihood” Reformulation and Other sis and treatment, as applied to the specific facts of the
Retrofitting of the Loss–of–a–Chance Doctrine, 28 plaintiff’s case.” Id. at 17. Finally, discounting damages
U. MEM. L.REV. 491, 506 (1998); Matsuyama, 452 responds, to some degree, to this concern.
Mass. at 15, 890 N.E.2d 819 (noting criticisms of the In Herskovits, both the lead and concurring
doctrine, namely that it “upends the long-standing pre- opinions discussed limiting damages. 99 Wash.2d
ponderance of the evidence standard; alters the burden at 619 (Dore, J., lead opinion), 635 (Pearson, J.,
of proof in favor of the plaintiff; undermines the unifor- plurality opinion). This is a common approach
mity and predictability central to tort litigation; results in lost chance cases, responsive in part to the criticism
in an expansion of liability; and is too complex to of holding individuals or organizations liable on the
administer”) However, none of these arguments effec- basis of uncertain probabilities. RESTATEMENT
tively distinguish the Mohrs’ claim from Herskovits and (THIRD) OF TORTS: LIABILITY FOR PHYSICAL AND
seem instead to agitate for its overruling. Now nearly EMOTIONAL HARM § 26 cmt. n at 356 (“Rather than
30 years since Herskovits was decided, history assures full damages for the adverse outcome, the plaintiff
us that Herskovits did not upend the world of torts in is only compensated for the lost opportunity. The
(continued)

lost opportunity may be thought of as the adverse of outcome even with a nonnegligent standard of
outcome discounted by the difference between the care. See King, supra, 28 U. MEM. L.REV. at 554–57
ex-ante probability of the outcome in light of the (“conjunction principle”).
defendant’s negligence and the probability of the out- We find that the Herskovits plurality has withstood the
come absent the defendant’s negligence.”). Treating broad policy criticisms raised against it and comports
the loss of a chance as the cognizable injury “permits with the medical malpractice statute. We find no mean-
plaintiffs to recover for the loss of an opportunity for a ingful basis to distinguish permanent disability from
better outcome, an interest that we agree should be death for the purposes of raising a loss of chance claim.
compensable, while providing for the proper valuation Accordingly, we hold that Herskovits applies to med-
of such an interest.” Lord v. Lovett, 146 N.H. 232, 236, ical malpractice cases that result in harm short of death
770 A.2d 1103 (2001). In particular, the Herskovits and formally adopt the rationale of the plurality opin-
plurality adopted a proportional damages approach, ion that the injury is the lost chance. For the reasons
holding that, if the loss were a 40 percent chance of discussed, as it relates to the facts of this case, we
survival, the plaintiff could recover only 40 percent reverse the order of summary judgment…
of what would be compensable under the ultimate
CONCLUSION
harm of death or disability (i.e., 40 percent of tradi-
tional tort recovery), such as lost earnings. Herskovits, We hold that there is a cause of action in the medical
99 Wash.2d at 635, 664 P.2d 474 (Pearson, J., plu- malpractice context for the loss of a chance of a better
rality opinion) (citing, King, supra, 90 YALE L.J. at outcome. A plaintiff making such a claim must prove
1382). This percentage of loss is a question of fact duty, breach, and that there was an injury in the form
for the jury and will relate to the scientific mea- of a loss of a chance caused by the breach of duty. To
sures available, likely as presented through experts. prove causation, a plaintiff would then rely on estab-
Where appropriate, it may otherwise be discounted lished tort causation doctrines permitted by law and
for margins of error to further reflect the uncertainty the specific evidence of the case.
Proximate Cause judicial concern that limits should be put on a defen-

dant’s liability. This judicial constraint arises from a
If the plaintiff is successful in showing that the defen- sense that a defendant should not be liable for a
dant’s negligence was the actual cause of the injury, highly improbable or extraordinary consequence
they must then show that the defendant proximately stemming from their negligence—to do so would be
caused the injury. Some writers feel that the term unfair. In reading cases you will discover that some
legal cause is more descriptive because it reflects a courts blur the concepts of actual causation and

1. Was there a cause of action in the medical malpractice context for the loss of a chance of a better
outcome?
2. Does a lost chance cause of action apply to medical malpractice claims where the ultimate harm is some
serious injury short of death?
3. What is the compensable injury in a cause of action for lost chance?
4. Did the court find meaningful basis to distinguish permanent disability from death for purposes of raising
a loss of chance claim?
5. What must the plaintiff prove for a loss of chance claim? Is anything needed above proving a prima facie
case of the requisite elements of proof?
proximate cause. For example, if a court finds that a 4. The plaintiff refuses medical care, con-
defendant’s conduct was not the actual cause of the tracts an infection that could be treated
plaintiff’s harm, it may label this a lack of proximate but quickly spreads to their brain and can
cause. Throughout this text, however, we treat these be traced to the injuries they received from
two concepts separately. the defendant, and dies as a result of that
infection.
We will deal with these situations later on in this
Foreseeability
chapter. But be aware that only limited consensus
The question of proximate cause basically boils exists in the area of proximate cause. The courts
down to a question of foreseeability. Was the plain- have struggled, and continue to struggle, with their
tiff’s injury a reasonably foreseeable consequence determination of what is fair to a defendant.
of the defendant’s conduct? The difficulty that the
courts struggle with is where to draw the line in Palsgraf
holding defendants liable.
The most famous case dealing with the issue of
Suppose a defendant and plaintiff are playing
foreseeability is Palsgraf v. Long Island Rail Co.,
around and the defendant accidentally but negli-
162 N.E. 99 (N.Y. 1928). In Palsgraf, one of the
gently cuts the plaintiff with a knife, causing relatively
defendant railroad’s employees, attempting to
mild injuries. In which of the following circumstances
assist a man running to board the defendant’s train,
do you think the defendant should be held liable for
accidentally dislodged a package from the passen-
the plaintiff’s death?
ger’s arm. Unbeknownst to anyone, the package
1. The plaintiff panics at the sight of blood, contained fireworks, which exploded when they
passes out and falls, hitting their head on fell on the ground. As a result of the shock of the
the concrete and dies. explosion, scales at the other end of the platform
fell and hit the plaintiff. Arguably, the defendant’s
2. The plaintiff contracts sepsis and dies as a
employee was negligent in pushing the passenger
result of negligence on the part of the facil-
in the effort to assist him on the train. The real
ity that treats them.
question, however, was whether the defendant’s
3. The ambulance transporting the plaintiff to a negligence toward the passenger should give rise
hospital is driving recklessly and is involved to liability to the plaintiff, who was injured by a
in an accident in which the plaintiff dies. series of fluke events in a domino effect.

1. A buyer purchases a condominium based on a false statement by the bank’s broker that the association
dues are $100 per month when they are in fact $500 per month. One month after the purchase the
plumbing breaks down and the buyer has to pay $25,000 to replace the pipes. The buyer says she relied
on the statement about the dues in purchasing the condominium and would not have bought it had it
not been for the broker’s misrepresentation. Does the buyer have a claim against the bank for the broken
pipes? Was the bank broker’s negligence the proximate cause in this case?
2. Ford Dealers Association Advertising sponsors a $1 million drag race. Although the Ford logo is used
in promotional materials, Ford itself, takes no part in preparing the materials or in making any of the
representations that are made in the materials. The winner of the drag race sues Ford when the promoters
of the race refuse to give him his prize money. Does he have a valid claim against Ford? What about the
Advertising Company? Are they one and the same?
3. Veterans of the Vietnam War sue the government for damages they claim to have suffered as a result of
exposure to Agent Orange. What problems in relationship to actual causation do you anticipate they will
have? What types of evidence will they have to present?
Case
Palsgraf v. Long Island Rail Co.
162 N.E. 99 (N.Y. 1928)
CARDOZO, C.J., Justice
Plaintiff was standing on a platform of defendant’s rail- itself the quality of a tort because it happened to be a
road after buying a ticket to go to Rockaway Beach. A wrong, though apparently not one involving the risk of
train stopped at the station, bound for another place. bodily insecurity, with reference to someone else. “In
Two men ran forward to catch it. One of the men every instance, before negligence can be predicated of
reached the platform of the car without mishap, though a given act, back of the act must be sought and found
the train was already moving. The other man, carrying a a duty to the individual complaining, the observance
package, jumped aboard the car, but seemed unsteady of which would have averted or avoided the injury.” …
as if about to fall. A guard on the car, who had held the “The ideas of negligence and duty are strictly correla-
door open, reached forward to help him in, and another tive.” … The plaintiff sues in her own right for a wrong
guard on the platform pushed him from behind. In this personal to her, and not as the vicarious beneficiary of
act, the package was dislodged, and fell upon the rails. a breach of duty to another.
It was a package of small size, about fifteen inches ***
long, and was covered by a newspaper. In fact, it con- A different conclusion will involve us, and swiftly too,
tained fireworks, but there was nothing in its appear- in a maze of contradictions. A guard stumbles over a
ance to give notice of its contents. The fireworks when package which has been left upon the platform. It
they fell, exploded. The shock of the explosion threw seems to be a bundle of newspapers. It turns out to
down some scales at the other end of the platform be a can of dynamite. To the eye of ordinary vigilance,
many feet away. The scales struck the plaintiff, causing the bundle is abandoned waste, which may be kicked
injuries for which she sues. or trod on with impunity. Is a passenger at the other
The conduct of the defendant’s guard, if a wrong end of the platform protected by the law against the
in its relation to the holder of the package, was not a unsuspected hazard concealed beneath the waste? If
wrong in its relation to the plaintiff, standing far away. not, is the result to be any different, so far as the dis-
Relatively to her it was not negligence at all. Nothing in tant passenger is concerned when the guard stumbles
the situation gave notice that the falling package had in over a valise which a truckman or a porter has left upon
it the potency of peril to persons thus removed. Negli- the walk? The passenger far away, if the victim of a
gence is not actionable unless it involves the invasion wrong at all, has a cause of action, not derivative, but
of a legally protected interest, the violation of a right. original and primary. His claim to be protected against
“Proof of negligence in the air, so to speak, will not invasion of his bodily security is neither greater nor less
do.” … “Negligence is the absence of care, according because the act resulting in the invasion is a wrong to
to the circumstances.” … The plaintiff, as she stood another far removed. In this case, the rights that are
upon the platform of the station, might claim to be pro- said to have been violated, the interests said to have
tected against intentional invasion of her bodily secu- been invaded, are not even of the same order. The man
rity. Such invasion is not charged. She might claim to was not injured in his person nor even put in danger.
be protected against unintentional invasion by conduct The purpose of the act, as well as its effect, was to
involving in the thought of reasonable men an unrea- make his person safe. If there was a wrong to him at
sonable hazard that such invasion would ensue. These, all, which may very well be doubted, it was a wrong
from the point of view of the law, were the bounds of to a property interest only, the safety of his package.
her immunity, with perhaps some rare exceptions, Out of this wrong to property, which threatened injury
survivals for the most part of ancient forms of liability, to nothing else, there has passed, we are told, to the
where conduct is held to be at the peril of the actor… plaintiff by derivation or succession a right of action for
. If no hazard was apparent to the eye of ordinary vig- the invasion of an interest of another order, the right to
ilance, an act innocent and harmless, at least to out- bodily security. The diversity of interests emphasizes
ward seeming, with reference to her, did not take to the futility of the effort to build the plaintiff’s right upon
(continued)
Case | Palsgraf v. Long Island Rail Co. (continued)

the basis of a wrong to someone else. The gain is one These cases aside, wrong is defined in terms of the
of emphasis, for a like result would follow if the inter- natural or probable, at least when unintentional…. The
ests were the same. Even then, the orbit of the danger range of reasonable apprehension is at times a ques-
as disclosed to the eye of reasonable vigilance would tion for the court, and at times, if varying inferences are
be the orbit of the duty. One who jostles one’s neighbor possible, a question for the jury. Here, by concession,
in a crowd does not invade the rights of others standing there was nothing in the situation to suggest to the
at the outer fringe when the unintended contact casts most cautious mind that the parcel wrapped in news-
a bomb upon the ground. The wrong doer as to them paper would spread wreckage through the station. If
is the man who carries the bomb, not the one who the guard had thrown it down knowingly and willfully,
explodes it without suspicion of the danger. Life will he would not have threatened the plaintiff’s safety, so
have to be made over, and human nature transformed, far as appearances could warn him. His conduct would
before prevision so extravagant can be accepted as not have involved, even then, an unreasonable proba-
the norm of conduct, the customary standard to which bility of invasion of her bodily security. Liability can be
behavior must conform. no greater where the act is inadvertent.
*** Negligence, like risk, is thus a term of relation.
The argument for the plaintiff is built upon the shift- Negligence in the abstract, apart from things related, is
ing meanings of such words as “wrong” and “wrong- surely not a tort, if indeed it is understandable at all….
ful,” and shares their instability. What the plaintiff must Negligence is not a tort unless it results in the com-
show is “a wrong” to herself; i.e., a violation of her own mission of a wrong, and the commission of a wrong
right, and not merely a wrong to someone else, nor con- imports the violation of a right, in this case, we are told,
duct “wrongful” because unsocial, but not “a wrong” the right to be protected against interference with one’s
to anyone. We are told that one who drives at reckless bodily security. But bodily security is protected, not
speed through a crowded city street is guilty of a negli- against all forms of interference or aggression, but only
gent act and therefore of a wrongful one, irrespective of against some. One who seeks redress at law does not
the consequences. Negligent the act is, and wrongful in make out a cause of action by showing without more
the sense that it is unsocial, but wrongful and unsocial that there has been damage to his person. If the harm
in relation to other travelers, only because the eye of was not willful, he must show that the act as to him
vigilance perceives the risk of damage. If the same act had possibilities of danger so many and apparent as
were to be committed on a speedway or a racecourse, to entitle him to be protected against the doing of it
it would lose its wrongful quality. The risk reasonably to though the harm was unintended. Affront to personality
be perceived defines the duty to be obeyed, and risk is still the keynote of the wrong….
imports relation; it is risk to another or to others within The law of causation, remote or proximate, is thus
the range of apprehension…. This does not mean, of foreign to the case before us. The question of liability
course, that one who launches a destructive force is is always anterior to the question of the measure of the
always relieved of liability, if the force, though known consequences that go with liability. If there is no tort
to be destructive, pursues an unexpected path. “It to be redressed, there is no occasion to consider what
was not necessary that the defendant should have had damage might be recovered if there were a finding of
notice of the particular method in which an accident a tort. We may assume, without deciding, that neg-
would occur, if the possibility of an accident was clear ligence, not at large or in the abstract, but in relation
to the ordinarily prudent eye.” … Some acts, such as to the plaintiff, would entail liability for any and all con-
shooting are so imminently dangerous to anyone who sequences, however novel or extraordinary…. There
may come within reach of the missile however unex- is room for argument that a distinction is to be drawn
pectedly, as to impose a duty of prevision not far from according to the diversity of interests invaded by the
that of an insurer. Even today, and much oftener in act, as where conduct negligent in that it threatens an
earlier stages of the law, one acts sometimes at one’s insignificant invasion of an interest in property results
peril…. Under this head, it may be, fall certain cases of in an unforeseeable invasion of an interest of another
what is known as transferred intent, an act willfully dan- order, as, e.g., one of bodily security. Perhaps other
gerous to A resulting by misadventure in injury to B…. distinctions may be necessary. We do not go into the
(continued)

question now. The consequences to be followed must conduct. But here neither insanity nor infancy lessens
first be rooted in a wrong. responsibility….
*** As has been said, except in cases of contributory
The Judgment of the Appellate Division and that of negligence, there must be rights which are or may be
the Trial Term should be reversed, and the complaint affected. Often though injury has occurred, no rights
dismissed, with costs in all courts. of him who suffers have been touched. A licensee or
ANDREWS, J. (dissenting). Assisting a passenger trespasser upon my land has no claim to affirmative
to board a train, the defendant’s servant negligently care on my part that the land be made safe…. Where
knocked a package from his arms. It fell between the a railroad is required to fence its tracks against cattle,
platform and the cars. Of its contents the servant knew no man’s rights are injured should he wander upon the
and could know nothing. A violent explosion followed. road because such fence is absent…. An unborn child
The concussion broke some scales standing a consid- may not demand immunity from personal harm….
erable distance away. In falling, they injured the plain- But we are told that “there is no negligence
tiff, an intending passenger. unless there is in the particular case a legal duty to
Upon these facts, may she recover the damages she take care, and this duty must be one which is owed
has suffered in an action brought against the master? to the plaintiff himself and not merely to others.” …
The result we shall reach depends upon our theory as This I think too narrow a conception. Where there is
to the nature of negligence. Is it a relative concept—the the unreasonable act, and some right that may be
breach of some duty owing to a particular person or affected there is negligence whether damage does or
to particular persons? Or, where there is an act which does not result. That is immaterial. Should we drive
unreasonably threatens the safety of others, is the doer down Broadway at a reckless speed, we are negligent
liable for all its proximate consequences, even where whether we strike an approaching car or miss it by an
they result in injury to one who would generally be inch. The act itself is wrongful. It is a wrong not only
thought to be outside the radius of danger? This is not to those who happen to be within the radius of dan-
a mere dispute as to words. We might not believe that ger, but to all who might have been there—a wrong to
to the average mind the dropping of the bundle would the public at large. Such is the language of the street.
seem to involve the probability of harm to the plaintiff Such is the language of the courts when speaking of
standing many feet away whatever might be the case contributory negligence. Such again and again their
as to the owner or to one so near as to be likely to be language in speaking of the duty of some defendant
struck by its fall. If, however, we adopt the second and discussing proximate cause in cases where such
hypothesis, we have to inquire only as to the relation a discussion is wholly irrelevant on any other theory.
between cause and effect. We deal in terms of proxi- Due care is a duty imposed on each one of us to
mate cause, not of negligence. protect society from unnecessary danger, not to
Negligence may be defined roughly as an act or protect A, B, or C alone.
omission which unreasonably does or may affect the It may well be that there is no such thing as negligence
rights of others, or which unreasonably fails to pro- in the abstract. “Proof of negligence in the air, so to
tect one’s self from the dangers resulting from such speak, will not do.” In an empty world negligence would
acts. Here I confine myself to the first branch of the not exist. It does involve a relationship between man and
definition. Nor do I comment on the word “unreason- his fellows, but not merely a relationship between man
able.” For present purposes it sufficiently describes and those whom he might reasonably expect his act
that average of conduct that society requires of its would injure; rather, a relationship between him and those
members. whom he does in fact injure. If his act has a tendency to
There must be both the act or the omission, and harm someone, it harms him a mile away as surely as
the right. It is the act itself, not the intent of the actor, it does those on the scene. We now permit children to
that is important…. In criminal law both the intent and recover for the negligent killing of the father. It was never
the result are to be considered. Intent again is mate- prevented on the theory that no duty was owing to them.
rial in tort actions, where punitive damages are sought, A husband may be compensated for the loss of his wife’s
dependent on actual malice—not on merely reckless services. To say the wrongdoer was negligent as to the
(continued)

husband as well as to the wife is merely an attempt to with the negligence that the latter may be said to be the
fit facts to theory. An insurance company paying a fire proximate cause of the former.
loss recovers its payment of the negligent incendiary. We These two words have never been given an inclusive
speak of subrogation—of suing in the right of the insured. definition. What is a cause in a legal sense, still more
Behind the cloud of words in the fact they hide, that the what is a proximate cause, depend in each case upon
act, wrongful as to the insured, has also injured the com- many considerations, as does the existence of negli-
pany. Even if it be true that the fault of father, wife, or gence itself. Any philosophical doctrine of causation
insured will prevent recovery, it is because we consider does not help us. A boy throws a stone into a pond.
the original negligence, not the proximate cause of the The ripples spread. The water level rises. The history
injury…. of that pond is altered to all eternity. It will be altered
In the well-known Polemis Case, … Scrutton, L. J., by other causes also. Yet it will be forever the resultant
said that the dropping of a plank was negligent, for it of all causes combined. Each one will have an influ-
might injure “workman or cargo or ship.” Because of ence. How great only omniscience can say. You may
either possibility, the owner of the vessel was to be speak of a chain, or, if you please, a net. An analogy
made good for his loss. The act being wrongful, the is of little aid. Each cause brings about future events.
doer was liable for its proximate results. Criticized and Without each the future would not be the same. Each
explained as this statement may have been, I think it is proximate in the sense it is essential. But that is not
states the law as it should be and as it is…. what we mean by the word. Nor on the other hand do
The proposition is this: Everyone owes to the world we mean sole cause. There is no such thing.
at large the duty of refraining from those acts that Should analogy be thought helpful, however, I prefer
may unreasonably threaten the safety of others. Such that of a stream. The spring, starting on its journey, is
an act occurs. Not only is he wronged to whom harm joined by tributary after tributary. The river, reaching
might reasonably be expected to result, but he also the ocean, comes from a hundred sources. No man
who is in fact injured, even if he be outside what would may say whence any drop of water is derived. Yet for a
generally be thought the danger zone. There needs be time distinction may be possible. Into the clear creek,
duty due the one complaining, but this is not a duty to brown swamp water flows from the left. Later, from the
a particular individual because as to him harm might right comes water stained by its clay bed. The three
be expected. Harm to someone being the natural result may remain for a space, sharply divided. But at least
of the act, not only that one alone, but all those in fact inevitable no trace of separation remains. They are so
injured may complain. We have never, I think, held commingled that all distinction is lost.
otherwise…. As we have said, we cannot trace the effect of an
If this be so, we do not have a plaintiff suing by act to the end, if end there is. Again however, we may
“derivation or succession.” Her action is original and trace it part of the way. A murder at Serajevo may
primary. Her claim is for a breach of duty to herself— be the necessary antecedent to an assassination in
not that she is subrogated to any right of action of the London twenty years hence. An overturned lantern may
owner of the parcel or of a passenger standing at the burn all Chicago. We may follow the fire from the shed
scene of the explosion. to the last building. We rightly say the fire started by the
The right to recover damages rests on additional lantern caused its destruction.
considerations. The plaintiff’s rights must be injured, A cause, but not the proximate cause. What we
and this injury must be caused by the negligence. We do mean by the word “proximate” is that, because
build a dam but are negligent as to its foundations. of convenience, of public policy, of a rough sense of
Breaking, it injures property downstream. We are not justice, the law arbitrarily declines to trace a series
liable if all this happened because of some reason other of events beyond a certain point. This is not logic. It
than the insecure foundation. But, when injuries do is practical politics. Take our rule as to fires. Sparks
result from our unlawful act, we are liable for the con- from my burning haystack set on fire my house and
sequences. It does not matter that they are unusual, my neighbor’s. I may recover from a negligent railroad.
unexpected, unforeseen, and unforeseeable. But there He may not. Yet the wrongful act as directly harmed
is one limitation. The damages must be so connected the one as the other. We may regret that the line was
(continued)

drawn just where it was but drawn somewhere it had law. There is in truth little to guide us other than com-
to be. We said the act of the railroad was not the prox- mon sense.
imate cause of our neighbor’s fire. Cause it surely There are some hints that may help us. The proximate
was. The words we used were simply indicative of our cause, involved as it may be with many other causes,
notions of public policy. Other courts think differently. must be, at the least, something without which the
But somewhere they reach the point where they can- event would not happen. The court must ask itself
not say the stream comes from any one source. whether there was a natural and continuous sequence
Take an illustration given in an unpublished manu- between cause and effect. Was the one a substantial
script by a distinguished and helpful writer on the law factor in producing the other? Was there a direct con-
of torts. A chauffeur negligently collides with another nection between them, without too many intervening
car which is filled with dynamite, although he could causes? Is the effect of cause on result not too atten-
not know it. An explosion follows. A, walking on the uated? Is the cause likely, in the usual judgment of
sidewalk nearby, is killed. B, sitting in a window of a mankind, to produce the result? Or by the exercise of
building opposite, is cut by flying glass. C, likewise, prudent foresight, could the result be foreseen? Is the
sitting in a window a block away, is similarly injured. result too remote from the cause, and here we consider
And a further illustration: A nursemaid, ten blocks remoteness in time and space…. Clearly, we must so
away, startled by the noise, involuntarily drops a baby consider, for the greater the distance either in time or
from her arms to the walk. We are told that C may space, the more surely do other causes intervene to
not recover while A may. As to B it is a question for affect the result. When a lantern is overturned, the firing
court or jury. We will all agree that the baby might of a shed is a fairly direct consequence. Many things
not. Because, we are again told, the chauffeur had contribute to the spread of the conflagration—the force
no reason to believe his conduct involved any risk of of the wind, the direction and width of streets, the char-
injuring either C or the baby. As to them he was not acter of intervening structures, other factors. We draw
negligent. an uncertain and wavering line but draw it we must as
But the chauffeur, being negligent in risking the col- best we can.
lision, his belief that the scope of the harm he might Once again, it is all a question of fair judgment,
do would be limited is immaterial. His act unreasonably always keeping in mind the fact that we endeavor to
jeopardized the safety of anyone who might be affected make a rule in each case that will be practical and in
by it. C’s injury and that of the baby were directly trace- keeping with the general understanding of mankind.
able to the collision. Without that, the injury would Here another question must be answered. In the
not have happened. C had the right to sit in his office, case supposed, it is said, and said correctly, that the
secure from such dangers. The baby was entitled to chauffeur is liable for the direct effect of the explosion,
use the sidewalk with reasonable safety. although he had no reason to suppose it would fol-
The true theory is, it seems to me, that the injury to low a collision. “The fact that the injury occurred in
C, if in truth he is to be denied recovery, and the injury a different manner than that which might have been
to the baby, is that their several injuries were not the expected does not prevent the chauffeur’s negligence
proximate reason of the negligence. And here not what from being in law the cause of the injury.” But the
the chauffeur had reason to believe would be the result natural results of a negligent act—the results which
of his conduct, but what the prudent would foresee, a prudent man would or should foresee—do have a
may have a bearing—may have some bearing, for the bearing upon the decision as to proximate cause. We
problem of proximate cause is not to be solved by any have said so repeatedly. What should be foreseen? No
one consideration. It is all a question of expediency. human foresight would suggest that a collision itself
There are no fixed rules to govern our judgment. There might injure one a block away. On the contrary, given
are simply matters of which we may take account. We an explosion, such a possibility might be reasonably
have in a somewhat different connection spoken of expected. I think the direct connection, the foresight
“the stream of events.” We have asked whether that of which the courts speak, assumes prevision of the
stream was deflected—whether it was forced into new explosion, for the immediate results of which, at least,
and unexpected channels…. This is rather rhetoric than the chauffeur is responsible.
(continued)

It may be said this is unjust. Why? In fairness he sequence—direct connection. The only intervening
should make good every injury flowing from his negli- cause was that, instead of blowing her to the ground,
gence. Not because of tenderness toward him we say the concussion smashed the weighing machine which
he need not answer for all that follows his wrong. We in turn fell upon her. There was no remoteness in time,
look back to the catastrophe, the fire kindled by the little in space. And surely, given such an explosion
spark, or the explosion. We trace the consequences, as here, it needed no great foresight to predict that
not indefinitely, but to a certain point. And to aid us the natural result would be to injure one on the plat-
in fixing that point we ask what might ordinarily be form at no greater distance from its scene than was
expected to follow the fire or the explosion. the plaintiff. Just how, no one might be able to pre-
This last suggestion is the factor which must dict. Whether by flying fragments, by broken glass,
determine the case before us. The act upon which by wreckage of machines or structures, no one could
defendant’s liability rests is knocking an appar- say. But injury in some form was most probable.
ently harmless package onto the platform. The act Under these circumstances I cannot say as a matter
was negligent. For its proximate consequences, the of law that the plaintiff’s injuries were not the proximate
defendant is liable. If its contents were broken, to result of the negligence. That is all we have before us.
the owner; if it fell upon and crushed a passenger’s The court refused to so charge. No request was made
foot, then to him; if it exploded and injured one in the to submit the matter to the jury as a question of fact,
immediate vicinity, to him also as to A in the illustra- even would that have been proper upon the record
tion. Mrs. Palsgraf was standing some distance away. before us.
How far cannot be told from the record—apparently The judgment appealed from should be affirmed,
25 or 30 feet, perhaps less. Except for the explo- with costs.
sion, she would not have been injured. We are told POUND, LEHMAN, and KELLOGG, JJ., concur with
by the appellant in his brief, “It cannot be denied that CARDOZO, C. J.
the explosion was the direct cause of the plaintiff’s ANDREWS, J., dissents in opinion in which CRANE
injuries.” So, it was a substantial factor in producing and O’BRIEN, JJ., concur.
the result—there was here a natural and continuous Judgment reversed, etc.
The court, in an oft-quoted decision authored harm might reasonably be expected to result,
by Judge Cardozo, held that the defendant was not but they also who are in fact injured, even if they
liable (see Exhibit 6–2). The court reasoned that the be outside what would generally be thought the
defendant’s conduct did not create an unreason- danger zone.” (Cardozo’s formulation of foresee-
able risk of harm to the plaintiff and that the injury ability is often referred to as the “zone of danger”
she sustained was not a foreseeable one. “Proof of test.) Judge Andrews did realize that liability must
negligence in the air,” the court said, “will not do.” be cut off at some point. Although he fell short
The wrong in relationship to the passenger holding of defining the cutoff point, he suggested that if
the package did not extend to the plaintiff. Accord- the result were “too remote from the cause” in
ing to the Cardozo rule, which is generally followed terms of time and space or if there were too many
today, “[a] wrong is defined in terms of the natural “intervening causes,” the defendant’s negligence
and probable, at least when unintentional.” should not be considered the proximate cause of
Judge Andrews, in his famous dissent, argued the plaintiff’s injuries.
that the defendant had a duty to “protect society
from unnecessary danger, not to protect A, B, or C
alone.” According to Andrews, “everyone owes to Local Links
the world at large the duty of refraining from those What test do the courts in your jurisdiction
acts that may unreasonably threaten the safety follow in reference to proximate cause?
of others…. Not only are they wronged to whom
Exhibit 6–2 Proximate Cause
Majority Rule Minority Rule

Cardozo Andrews
• Defendant is liable for all reasonably foreseeable • Defendant owes a duty to world at large and not just to
consequences of their negligence. They owe a duty of those in “danger zone.”
care to the reasonably foreseeable plaintiff. • Similar to “direct causation”: defendant is liable for all
consequences flowing directly from their actions no
matter how unforeseeable.
Exceptions to Cardozo Rule

• “Eggshell skull” rule-defendant must take plaintiff as they find them.
• Defendant is liable for harm occurring in an unforeseen manner if harm is of the same general type that made
defendant’s conduct negligent.
• Defendant is liable if plaintiff is member of class to which there is general foreseeability of harm even if plaintiff was not
particularly foreseeable.
• Defendant is liable even if there is an unforeseeable intervening cause leading to same type of harm threatened by
defendant’s negligence.
Direct Causation unloading a ship, which they had chartered from

Andrews’s position parallels that of a view com- the plaintiffs, they negligently dropped a plank into
monly known as direct causation. Under this view the hold. Somehow the plank struck a spark, which
a defendant is liable for all consequences of his ignited petroleum the ship was carrying, and the
negligent acts, no matter how unforeseeable those resulting fire destroyed the ship. Although plainly no
consequences may be, so long as they flow directly one could reasonably have foreseen that dropping
from his actions. A famous case that illustrates the a plank would strike a spark and destroy the entire
direct causation view is In re Polemis, 3 K.B. 560 ship, the defendants were held liable because the
(Eng. 1921). In Polemis, while the defendants were fire was the direct result of their negligent act.

1. In Palsgraf, was the defendant’s conduct negligent in relationship to the passenger carrying the package?
Did the negligence to this passenger transfer to Mrs. Palsgraf?
2. Before negligence can be found, what must be found “back of the act,” according to Justice Cardozo?
3. According to the majority, what must a plaintiff show in reference to being “wronged”? How does the
majority define a “wrong”?
4. What is meant by the majority when stating “risk imports relation”?
5. When does negligence become a tort, according to the majority?
6. How does the dissent define “due care”?
7. Does the fact that the injury occurs in a different manner from what is expected prevent recovery?
8. How does the dissent view the duty to the world at large? Is this duty restricted to those within the “danger
zone”?
9. How does the dissent define “proximate cause”?
10. What are some questions for the court to ask to determine proximate cause?
11. According to the dissent, why might C and the baby in the hypothetical case involving the chauffeur not
be expected to recover? What argument does the dissent give to support C’s recovery?
12. Can a clear line be drawn between proximate cause and causes that are too remote in time and space?
What does the question of proximate cause ultimately boil down to, according to the dissent? Why did
the dissent think the plaintiff’s injuries were a proximate result of the negligence?
13. Was Mrs. Palsgraf’s injury a natural and probable consequence of the explosion, according to the
dissent? What about the majority?
Although the direct-causation rule is commonly Exceptions to the Cardozo

criticized because a logical extension of the rule
would result in limitless liability, proponents of the Rule
view argue that a loss should be borne by the guilty
Although the Cardozo position has generally been
rather than by the innocent. The courts that follow
followed by American courts, there are a few nota-
the direct-causation rule will not take into account
ble exceptions. Under these exceptions, recovery is
the extent of the harm, the foreseeability of the
allowed even though the consequences are argu-
result, the manner in which the injury occurred, or
ably unforeseeable.
the timing of the cause and effect. It is more compa-
rable to strict liability.
“Eggshell Skull” Rule
Duty versus Proximate Cause The first exception requires that a defendant “take his
plaintiff as he finds him.” In Watson v. Rinderknecht,
You will probably notice in the course of reading
84 N.W. 798 (Minn. 1901), the case that set forth this
opinions that courts frequently blur the issues
exception, the plaintiff, a sixty-year-old man who was
of duty and proximate cause together. In fact,
receiving a pension resulting from injuries he had
the Palsgraf opinion itself was centered around
sustained during a war, was assaulted by a much
a discussion of duty. The question, as posed by
younger and more vigorous defendant. The court
Cardozo, was whether the defendant had a duty of
held the defendant liable for the full extent of the
care to the plaintiff. Whether phrased in terms of
plaintiff’s injuries even though the average person in
duty or proximate cause, the question is essentially
that same confrontation would have suffered much
the same. A defendant is liable only if their conduct
lesser injuries. Under the so-called “eggshell skull”
poses a foreseeable risk to the plaintiff. Similarly,
rule, if the plaintiff suffers any foreseeable injury, the
a defendant owes a duty of care only if there is
defendant is also liable for any additional unforeseen
a foreseeable risk to the plaintiff. Keep in mind,
physical consequences. In other words, if a defendant
however, that proximate cause is basically a policy
inflicts a relatively minor impact on a plaintiff who
question. It allows the courts to cut off liability in
dies because he has a skull of eggshell thinness,
cases in which it would be inherently unfair to hold
the defendant will be liable for his death. Suppose
a defendant liable.

Read the facts for “Putting It into Practice 5:2” (the plaintiff who was injured when she slipped down a hiking
trail). Is the state’s failure to post warning signs the cause of Susan’s injuries? How would you analyze the
question of actual cause? How would that analysis differ from an analysis of proximate cause?
a defendant assaults a plaintiff who, unknown to is the same kind of general risk that made the
him, has a blood disease. If the plaintiff dies from defendant’s conduct negligent initially. The fact that
these injuries because of his specific condition, the the discharge occurs by an unforeseeable means
defendant will be liable for his death even though (dropping the gun) is irrelevant.
such injuries would have been minor to any healthy If, however, the child drops the gun on someone’s
individual. foot, causing injuries, the defendant is not liable. The
risk of injuring someone by dropping a gun on his
Same General Type of Harm but foot is not one of the risks that makes the defendant’s
conduct negligent and is not a foreseeable risk
Unusual Manner (Restatement [Second] of Torts § 281, illus. 3).
In the second exception to the Palsgraf general
rule, a defendant is liable if the harm suffered by the Plaintiff Member of Foreseeable
plaintiff is of the general type that made the defen-
dant’s conduct negligent even if the harm occurs in Class
an unusual manner. Suppose a defendant hands a The same rationale is applicable when injury occurs
loaded pistol to a child, who carries it over to the to a plaintiff who is not a particularly foreseeable
plaintiff. In the process of handing the pistol to the plaintiff. As long as the plaintiff is a member of a
plaintiff, if the child drops it and the gun goes off class to which there is a general foreseeability of
and wounds the plaintiff, the defendant is liable. harm, the defendant is liable. To illustrate, suppose
The rationale is that the risk of accidental discharge the defendant is practicing baseball and throws a

1. A driver of an automobile runs into the rear end of a truck carrying a shipment of large rocks. The accident
is minor but occurs on a hill and the driver of the truck had failed to engage their parking brake. Upon
the slight impact, the truck slides backward and pushes the car onto adjoining train tracks where a train
is quickly approaching. The train cannot stop in time and collides with the car. The train then derails and
causes a chemical spill which costs hundreds of thousands of dollars and hundreds of hours to cleanup
as well as evacuation of local homes. Would the driver of the car be the proximate cause of the chemical
spill damage? Could the citizens who had to evacuate bring suit against the driver of the car? The truck?
The train company? Would the driver of the truck have any responsibility as to proximate cause? This
bizarre chain of events shows how proximate cause can often be confusing.
2. Helen is a worker in a government munitions plant where she handles nitroglycerine. After working at the
plant for a few months, Helen begins experiencing chest pains (on the weekends only), severe enough
on one occasion to require hospitalization. Ultimately, she is diagnosed as having suffered a heart attack
or coronary insufficiency (inadequate blood flow to the heart). After her return to work, she experiences
weekend chest pains with increasing frequency until she leaves her job four years later.
Helen is convinced that her handling of nitroglycerine is causing her heart problems. Only one of the
many doctors she consults with agrees with her. Helen continues to experience health problems after
she leaves the plant (continuing but less severe chest pains, dizziness, fatigue, high blood pressure,
and coughing spells that lead to vomiting). At trial, the district court judge finds the government to be
negligent and the cause of her heart disease. She is awarded $50,000 in damages. The judge refuses,
however, to make an award for what doctors determine to be hypochondriasis (a neurotic behavior that
results in obsessive concern over the state of one’s health). If the government’s negligence is the actual
cause of Helen’s hypochondriasis, should the government be considered the proximate cause of her
continuing poor health? How can it be proven the government is the proximate cause? What other argu-
ments could diffuse the government’s liability?
baseball at a high speed that hits a scaffolding work- section on foreseeability. In the scenario in which
ing on a building. The scaffolding then collapses the wounded plaintiff died as a result of the doc-
seriously injuring the two workers who were on it at tor’s negligence, the doctor would be considered
the time of impact. Even though there is no way the an intervening cause. Similarly, the reckless driver of
defendant could have known the scaffolding was the ambulance who caused the accident in which the
unstable, they will be liable because a reasonable plaintiff was a passenger would also be an interven-
person (worker) should have an expectation of their ing cause. The question in these cases is whether the
scaffolding not being hit. Therefore, the plaintiffs are negligence of others was sufficiently foreseeable that
members of a class (workers) to whom injury is a rea- the defendant was negligent in not anticipating and
sonably foreseeable consequence of impact. Unless guarding against such negligence. If the negligence
the scaffolding company was blatantly negligent in of third persons is not surprising, then any acts of the
their maintenance of the scaffolding, the plaintiff defendant that precipitate the third person’s conduct
will be liable for the injuries. The fact that the harm will be considered a proximate cause of the plaintiff’s
occurs in a different manner than might be antici- injuries.
pated does not absolve the defendant of liability Is it surprising that an ambulance might be
(Restatement [Second] of Torts § 281, illus. 2). involved in an accident as a result of a driver’s neg-
ligence? Probably not, and the defendant driver will
remain the proximate cause of the plaintiff’s injuries.
Intervening Causes Is it surprising that someone admitted to a hospital
might be further injured as a result of the negligence
An intervening cause is anything that occurs after of his medical professional? Most courts have found
the defendant’s negligent act and that contributes medical malpractice to be sufficiently foreseeable,
to the plaintiff’s injury (Restatement [Second] of Torts as long as it is not gross malpractice, and therefore
§ 441[1]). If the intervening cause rises to such a not a superseding cause. Similarly, if the defen-
level of importance that it precludes the defendant’s dant causes the plaintiff to be in a weakened state,
negligence from being the proximate cause of the making them susceptible to disease or accidents,
plaintiff’s injury, it becomes a superseding cause they will be held liable for any subsequent disease
(Restatement [Second] of Torts § 440). A superseding or accidents the plaintiff suffers. In the scenario in
cause supersedes or negates, the defendant’s liability. which the plaintiff is killed in an attempt to flee from
If the defendant should have foreseen the possibility the defendant, the plaintiff’s attempted escape will
that an intervening cause or one like it might occur, not be a superseding cause as long as the plaintiff’s
they remain liable (see Exhibit 6–3). response was not totally extraordinary or bizarre. If
Examples of intervening forces can be seen someone attempts to rescue the plaintiff and causes
in the hypothetical situations listed earlier in the part or all of the plaintiff’s injuries, the defendant will
Exhibit 6–3 Liability
Defendant is Liable Defendant is not Liable

Intervening acts Superseding acts
Accidents “Acts of God”
Medical Malpractice of doctor occurring after defendant’s Gross medical malpractice of doctor occurring after
negligence defendant’s negligence
Escape attempts Bizarre escape response to defendant’s negligence
Rescue Grossly careless acts of rescuer
Foreseeable negligence of others Unforeseeable negligence of others
Foreseeable criminal or intentionally tortious conduct Unforeseeable criminal or intentionally tortious

conduct
be liable to the plaintiff and to the rescuer as well had there been no delay—most courts would con-
for any injuries sustained by either. However, if the sider the act of nature a superseding cause. To avoid
rescuer is grossly negligent, his conduct will be con- this holding a plaintiff must show that an increase in
sidered a superseding cause. the risk of such a catastrophe as a result of the delay
The rationale that the foreseeable negligence of was foreseeable.
others will not be considered a superseding cause has A contemporary problem that aptly illustrates the
been used to hold tavern owners liable for the neg- issue of superseding causes is the liability of tavern
ligence of their intoxicated patrons. Although courts owners for serving obviously intoxicated patrons who
are less likely to impose such liability on social hosts, inflict injuries on others when they drink. Under a dram
some courts have done so when the guest served was shop statute, when the injury is “inflicted by” an intoxi-
known to the host to be one who would be driving. cated person, the only question, as it relates to causation
A third person’s criminal conduct or intentional in fact, is whether the intoxicated person committed
tortious act may also, in some cases, be sufficiently the injurious act, and the court does not reach the
foreseeable that such conduct will not be considered proximate cause issue, because the legislature made
a superseding cause. As a practical matter, however, the policy decision to impose liability on the one who
proving that the risk of such criminal or tortious con- furnished the intoxicating beverage to the one who
duct was actually foreseeable is often difficult. inflicted the injury. Does the drinking of the patron or
To illustrate foreseeable criminal conduct, con- any other superseding action, override the negligence
sider the case in which an alarm company installed of the tavern owner? As you read the excerpt from
a burglar alarm in a pawnshop but, for the conve- Patterson v. Thunder Pass, Inc., note the public
nience of its maintenance people, left the key to policy requirements of the tavern owners to take
the control box (which regulated the sensitivity reasonable steps for public safety. The question in
of the alarm system) on top of the box. A burglar this case is whether the tavern owner took reasonable
used the key to lower the sensitivity of the alarm so steps to do so.
that he could carry out his illegal mission without
detection. The court found the alarm company’s Unforeseeable Intervention
negligence to be the proximate cause of the
Thus far we have looked at cases in which the inter-
pawnshop’s loss, refusing to classify the burglary
vening cause was foreseeable. If the intervention was
as a superseding cause, in that the burglary was
not foreseeable but, in fact, led to the same type of
no doubt foreseeable considering that the whole
harm as that threatened by the defendant’s negli-
purpose of the alarm system was to prevent such
gence, the courts typically find the intervention not
burglaries (Central Alarm v. Ganem, 567 P.2d 1203
to be a superseding cause (Restatement [Second] of
[Ariz. 1977]).
Torts § 442B). The reasoning is that the defendant
exposed the plaintiff to an unreasonable risk of harm
Superseding Causes of the same type as that which occurred. Allowing the
An “act of God,” such as being struck by lightning, defendant to escape liability simply because the harm
is considered a superseding cause, as it is an act of was produced by an unforeseeable intervention or
nature that is extraordinary and not foreseeable. If act would be unfair.
our plaintiff in the hypothetical case given earlier was Let us consider the case of Derdiarian v. Felix
killed by a bolt of lightning while in the process of Contracting Corp., 414 N.E.2d 666 (N.Y. 1981) as an
running from the defendant, the lightning would be illustration of this principle. In this case the plaintiff, an
considered a superseding cause that would relieve employee of a subcontractor, was sealing a gas main
the defendant of liability. at a work site in the street when he was struck by a
Another example of a superseding cause is a driver who had just suffered an epileptic seizure and
common carrier’s negligent delay in the transporting lost control of his vehicle. When struck, the plaintiff
of goods, resulting in the destruction of the goods was catapulted into the air and landed in 400°F liq-
by a natural catastrophe, such as a flood or fire. Even uid enamel, causing him to be ignited into a fireball,
though the delay might clearly be the cause of the which he miraculously survived. The plaintiff alleged
damage—the goods would not have been destroyed that the defendant contracting company had failed to
Case
Patterson v. Thunder Pass, Inc.
153 P.3d 1064 (Ariz. 2007)
WINTHROP, Justice
Peter Patterson appeals the trial court’s summary judg- accident with him. Patterson sought damages under
ment in favor of Thunder Pass, Inc. (“Thunder Pass”), the theories of negligence, negligence per se pur-
and dismissal with prejudice of his complaint alleg- suant to Arizona Revised Statutes (“A.R.S.”) section
ing dram shop liability. The issues are whether a tavern 4–244 (Supp.2006),1 and respondeat superior. Thunder
fulfilled its duty of reasonable care by driving an intox- Pass filed an answer, denying liability.
icated patron home and whether the patron’s return to Later, Thunder Pass also filed a motion for summary
the tavern constituted a superseding, intervening event judgment, arguing that it had fulfilled any duty owed
that broke the chain of proximate causation, thereby because Roque had been safely driven home and that
relieving the tavern of subsequent liability. For the fol- Roque’s decision to return that night to retrieve her
lowing reasons, we affirm the judgment. vehicle was unforeseeable and a superseding, inter-
FACTS AND PROCEDURAL HISTORY vening event that negated any alleged negligence on
the part of the tavern or its employees. After further
Because we are reviewing a decision granting sum-
briefing and oral argument, the trial court granted the
mary judgment in favor of Thunder Pass, we construe
motion in a minute entry dated May 1, 2006:
the facts and reasonable inferences in the light most
favorable to Patterson, the non-moving party. Wells IT IS ORDERED granting Defendant Thunder Pass,
Fargo Bank v. Ariz. Laborers, Teamsters & Cement Inc.’s Motion for Summary Judgment.
Masons Local No. 395 Pension Trust Fund, 201 Ariz. The Court in granting this Motion finds that for pur-
474, 482, ¶ 13, 38 P.3d 12, 20 (2002); Strojnik v. Gen. poses of this Motion, the third party Dawn Roque was
Ins. Co. of Am., 201 Ariz. 430, 433, ¶ 10, 36 P.3d 1200, “obviously intoxicated” as defined by A.R.S. § 4–311,
1203 (App.2001). requiring the Defendant to take reasonable steps
Thunder Pass operates a tavern known as Spirits to protect the public safety. Once the Defendant’s
Bar and Grill (“the tavern”) in Mesa. On the evening employee[s] recognized that Roque was impaired, they
of February 8, 2005, Dawn Roque went to the tavern, took steps to procure a cab for her, and when those
where she drank liquor and was observed to be intox- efforts failed, an employee of the Defendant drove
icated. When Roque tried to leave the premises, she Roque home, a distance of more than five miles from
backed her vehicle into a parked Jeep and then drove the bar.
forward over a parking block. A tavern employee con- The Court finds as a matter of law that it was not
fiscated her keys and called a taxicab to transport her reasonably foreseeable that Roque would return to the
home, but the taxicab never arrived. Another tavern Defendant’s bar within 45 minutes after being left at
employee eventually drove Roque home and then her residence to then operate her motor vehicle while
returned her keys. However, within an hour, and unbe- intoxicated. The Defendant had little choice but to
knownst to the tavern employees, Roque returned to give Roque her keys as they had no authority to either
the parking lot behind the tavern to get her vehicle. take her keys or to impound her vehicle. Additionally,
She exited the parking lot and began traveling west- they were under no obligation to seek law enforcement
bound in the eastbound lane of Apache Trail at a high assistance as, until Roque drove her motor vehicle, she
rate of speed. Roque’s vehicle collided head-on with was not in violation of the law.
a vehicle driven by Patterson, who was traveling east- Additionally, even if this Court were to determine
bound on Apache Trail. Both drivers were transported that it was reasonably foreseeable that she would
to a hospital. return to the bar, her independent action, without aid or
Patterson subsequently filed a complaint against assistance of the Defendant, would be a superseding
Thunder Pass, alleging that he had sustained dam- intervening cause, and a recovery would be precluded
ages as a result of the tavern serving intoxicating under [Ontiveros v. Borak, 136 Ariz. 500, 667 P.2d 200
liquor to Roque, who later caused the motor vehicle (1983)].
(continued)
Case | Patterson v. Thunder Pass, Inc. (continued)

On May 24, 2006, the trial court issued a signed United States, 56 F.3d 1039, 1042 n. 4 (9th Cir.1995)).
judgment in favor of Thunder Pass. The other elements are generally factual issues
On June 13, 2006, Patterson filed a timely notice decided by a jury. Id. (citing Markowitz, 146 Ariz. at
of appeal. We have jurisdiction pursuant to A.R.S. §§ 358, 706 P.2d at 370). However, “summary judgment
12–120.21(A)(1) (2003) and 12–2101(B) (2003). may be appropriate if no reasonable juror could con-
ANALYSIS clude that the standard of care was breached or that
the damages were proximately caused by the defen-
Patterson argues that the trial court erred in granting
dant’s conduct.” Id. at 143 n. 1, 150 P.3d 228, 150
Thunder Pass’s motion for summary judgment. He
P.3d at 230 n. 1 (citing Markowitz, 146 Ariz. at 357–58,
contends that summary judgment was inappropriate
706 P.2d at 369–70; Coburn v. City of Tucson, 143 Ariz.
because the tavern had a duty not to serve alcohol to
50, 53, 691 P.2d 1078, 1081 (1984)); see also Rogers v.
Roque when she was obviously intoxicated, it violated
Retrum, 170 Ariz. 399, 402–03 n. 4, 825 P.2d 20, 23–24
that duty, it did not extinguish its liability merely by driv-
n. 4 (App.1991) (noting that, “ in approaching the ques-
ing Roque home, and Roque’s return to retrieve her
tion of negligence or unreasonable risk, ‘the courts set
vehicle was not a superseding, intervening event reliev-
outer limits. A jury will not be permitted to require a
ing Thunder Pass from liability. Thunder Pass argues
party to take a precaution that is clearly unreason-
that it fulfilled its common law and statutory duties and
able.’” (quoting 3 F. Harper, F. James, & O. Gray, The
Roque’s return to the tavern was a superseding, inter-
Law of Torts § 15.3, at 355–57 (2d ed.1986))).
vening event precluding recovery by Patterson.
Before 1983, the common law rule in Arizona
We review the trial court’s summary judgment de
was that a tavern owner could not be held liable
novo. Wells Fargo Bank, 201 Ariz. at 482, ¶ 13, 38 P.3d
for injuries sustained off-premises by third persons
at 20; Strojnik, 201 Ariz. at 433, ¶ 10, 36 P.3d at 1203.
as the result of the acts of an intoxicated tavern
Summary judgment is proper only if no genuine issues
patron, even though the tavern owner’s negligence
of material fact exist and the moving party is entitled to
in serving that patron was a contributing cause of
judgment as a matter of law. Orme Sch. v. Reeves, 166
the accident. Ontiveros, 136 Ariz. at 504, 667 P.2d
Ariz. 301, 309, 802 P.2d 1000, 1008 (1990); Ariz. R. Civ.
at 204 (citing Cruse v. Aden, 127 Ill. 231, 20 N.E. 73,
P. 56(c)(1). Accordingly, we will affirm only if the facts
74 (1889); Waller’s Adm’r v. Collinsworth, 144 Ky. 3,
produced in support of the claim have so little probative
137 S.W. 766, 767 (1911); 45 Am.Jur.2d Intoxicating
value, given the quantum of evidence required, that no
Liquors § 553 (1969)).
reasonable person could find for its proponent. See Orme
In 1983, however, the Arizona Supreme Court
Sch., 166 Ariz. at 309, 802 P.2d at 1008.
decided Ontiveros v. Borak and a companion case,
Generally, a plaintiff may maintain an action in
Brannigan v. Raybuck, 136 Ariz. 513, 667 P.2d 213 (1983),
negligence if the plaintiff proves (1) a legal duty or
in which the court abolished the common law doctrine of
obligation requiring the defendant to conform to
tavern owner nonliability in Arizona. See Ontiveros, 136
a certain standard of conduct, for the protection of
Ariz. at 513, 667 P.2d at 213. In Ontiveros, the court
others against unreasonable risks; (2) a failure on the
further concluded that tavern owner liability could be
defendant’s part to conform to the standard required;
premised on statutory authority, specifically A.R.S.
(3) a reasonably close causal connection
§ 4–244(14) (making it unlawful for a licensee to furnish
between the conduct and the resulting injury; and (4)
alcohol to an intoxicated person). Id. at 509, 667 P.2d
actual loss or damage. Ontiveros, 136 Ariz. at 504,
at 209.
667 P.2d at 204 (citing William L. Prosser, Handbook
The supreme court held that a tavern owner is under
on the Law of Torts § 30, at 143 (4th ed.1971); Wisener
a duty, imposed both by common law principles and
v. State, 123 Ariz. 148, 149, 598 P.2d 511, 512 (1979)).
statute, to exercise affirmative, reasonable care in
The first element, whether a duty exists, is a
serving intoxicants to patrons who might later injure
question of law for the court to decide. Gipson v.
themselves or an innocent third party, whether on or off
Kasey, 214 Ariz. 141, 143, ¶ 9, 150 P.3d 228, 230
the premises.2 Ontiveros, 136 Ariz. at 508–11, 667 P.2d
(2007) (citing Markowitz v. Ariz. Parks Bd., 146 Ariz.
at 208–11; see also Brannigan, 136 Ariz. at 515–17, 667
352, 356, 706 P.2d 364, 368 (1985), superseded by
P.2d at 215–17. If a tavern owner breaches that duty
statute on other grounds as recognized in Maher v.
(continued)

of reasonable care, the owner may be held liable for summary judgment, we assume, without decid-
injuries or damages caused by his or her negli- ing, from the facts presented that Roque purchased
gence. 3 Ontiveros, 136 Ariz. at 513, 667 P.2d at and consumed liquor from the tavern while she was
213; Hebert, 145 Ariz. at 353, 701 P.2d at 849. Thus, “obviously intoxicated.” See Wells Fargo Bank, 201
a plaintiff must still show causation, Hebert, 145 Ariz. Ariz. at 482, ¶ 13, 38 P.3d at 20; Strojnik, 201 Ariz.
at 353, 701 P.2d at 849, and actual causation, or at 433, ¶ 10, 36 P.3d at 1203. However, we conclude
“causation-in-fact,” exists if a defendant’s act con- that the tavern’s employees nonetheless fulfilled
tributed to the final result and if that result would their legal duty of affirmative, reasonable care to
not have occurred but for the defendant’s conduct.4 Roque and the public by separating Roque from her
Ontiveros, 136 Ariz. at 505, 667 P.2d at 205. vehicle and arranging for, as well as subsequently
Nevertheless, a tavern owner may be relieved of lia- providing, the safe transportation of Roque to her res-
bility for an injury to which the owner has in fact made a idence. Cf. Davis v. Cessna Aircraft Corp., 182 Ariz.
substantial contribution if a plaintiff’s injury occurs due 26, 31, 893 P.2d 26, 31 (App.1994) (noting that a party
to a later, intervening event of independent origin for should not be required to take precautions that are
which the owner is not responsible. Id. at 505–06, 667 unreasonable). Indeed, the express language found
P.2d at 205–06. To constitute a cause relieving the tavern in § 4–244(14) contemplates compliance being met by
owner of liability, the intervening event must have also (1) stopping the further service, sale, or furnishing of
been superseding: that is, it must have been unfore- spirituous liquor; and (2) arranging for transportation
seeable by a reasonable person in the position of the of the intoxicated individual off of the premises by a
tavern owner and, when looking back after the event, non-intoxicated person. Further, no evidence exists in
the intervening event must appear extraordinary. Id. at the record that the tavern’s employees knew or should
506, 667 P.2d at 206; Herzberg v. White, 49 Ariz. 313, have known that Roque intended to return shortly
321, 66 P.2d 253, 257 (1937). Thus, if “an injury is pro- thereafter. Accordingly, the trial court correctly found
duced by an intervening and superseding cause, even that the tavern fulfilled its duty of due care as a matter
though the original negligence may have been a sub- of law. See Gipson, 214 Ariz. at 143 n. 1, ¶ 9, 150 P.3d
stantial factor in bringing about the injury, the original at 230 n. 1.
actor is not legally responsible therefor” because the Even were we to conclude that the tavern’s employ-
necessary proximate causation is lacking. Herzberg, 49 ees failed to fulfill their legal duty of affirmative, rea-
Ariz. at 321, 66 P.2d at 257; accord Hebert, 145 Ariz. at sonable care to Roque and the public, or to conclude
353, 701 P.2d at 849. that A.R.S. § 4–311(A) does not allow for consider-
Three years after Ontiveros and Brannigan were ation of the employees’ ameliorative acts as related
decided, our state legislature passed A.R.S. § 4–311, to duty, the question, then, is whether the tavern’s act
apparently in an effort to more specifically codify the of serving alcohol to Roque and her consumption of
law established by Ontiveros regarding licensee liabil- the alcohol may be held to be a proximate cause of
ity for serving intoxicated persons or minors. See 1986 Patterson’s injury and property damage. See A.R.S.
Ariz. Sess. Laws, ch. 329, § 1 (2nd Reg.Sess.); Andrews § 4–311(A); Herzberg, 49 Ariz. at 321, 66 P.2d at
ex rel. Woodard v. Eddie’s Place, Inc., 199 Ariz. 240, 257; Chavez v. Tolleson Elem. Sch. Dist., 122 Ariz. 472,
242, ¶ 6, 16 P.3d 801, 803 (App.2000). Subsection (A) 475, 595 P.2d 1017, 1020 (App.1979) (“The well-settled
of A.R.S. § 4–311 (2002)5 provides that a licensee is lia- standard of liability is based upon a duty owed to the
ble for property damage and personal injuries if a court plaintiff and a breach of the duty which is the proxi-
or jury finds that the licensee sold spirituous liquor mate cause of the injury.”); see also W. Page Keeton et
to a purchaser who was obviously intoxicated,6 the al., Prosser and Keeton on Torts § 42, at 273–74 (5th
purchaser consumed the spirituous liquor sold by ed.1984) (recognizing that limitations on the scope of
the licensee, and the consumption of the spirituous a defendant’s liability may be analyzed under the rubric
liquor was a proximate cause of the injury or property of “proximate cause”).
damage. In Ontiveros, our supreme court stated “that fur-
In this case, for the purpose of reviewing the trial nishing alcohol, consumption of alcohol and subse-
court’s ruling granting Thunder Pass’s motion for quent driving of a vehicle which is then involved in an
(continued)

accident are all foreseeable, ordinary links in the chain policy implications). Instead, we hold that Roque’s
of causation leading from the sale to the injury.” 136 decision to return that night to retrieve her vehicle
Ariz. at 507, 667 P.2d at 207. As a general rule, we do while she was still intoxicated was unforeseeable
not quarrel with that statement. Certainly, it is fore- and extraordinary and thus constituted a supersed-
seeable to a tavern owner that patrons of the tavern ing, intervening event of independent origin that
may become involved in a motor vehicle accident after negated any negligence on the part of the tavern or
being served liquor past the point of intoxication. its employees. Accordingly, the trial court did not err
However, that statement does not end our analy- in granting Thunder Pass’s motion for summary judg-
sis because the question remains whether the inter- ment. See Gipson, 214 Ariz. at 143 n. 1, ¶ 9, 150 P.3d
vening acts of separating Roque from her vehicle and at 230 n. 1 (“[S]ummary judgment may be appropri-
driving her home broke the chain of legal causation ate if no reasonable juror could conclude ... that the
such as to relieve Thunder Pass of liability in this damages were proximately caused by the defen-
case. We conclude that they did. Although, as Pat- dant’s conduct.”).
terson correctly notes, “[I]t is well known that highly
CONCLUSION
intoxicated people make poor decisions,” finding
proximate causation based on such reasoning is For the aforementioned reasons, we affirm the trial
simply too attenuated and might ultimately sub- court’s summary judgment in favor of Thunder Pass.
ject tavern owners to unlimited liability, a result that Thunder Pass requests an award of its costs incurred
would no more serve public policy than finding non- on appeal. We grant Thunder Pass’s request, contin-
liability in all circumstances. See Rogers, 170 Ariz. gent upon its compliance with Rule 21(a) and (b) of the
at 403–04, 825 P.2d at 24–25 (considering public Arizona Rules of Civil Appellate Procedure.
take adequate measures to ensure the safety of work- Jury Question

ers on the excavation site. The defendant argued that
the plaintiff was injured as a result of the driver’s neg- The issue of proximate cause is a jury question as
ligence and that there was no causal link between the long as there is a possibility that reasonable per-
defendant’s breach of duty and the plaintiff’s injuries. sons could differ on this issue. The judge must first
The court refused to find the driver’s negligence a formulate the appropriate legal rule in the form of
superseding cause, noting that an intervening act does a jury instruction. But once that standard has been
not serve as a superseding cause “where the risk of the formulated, the final decision is a factual one left to
intervening act occurring is the very same risk which the jury.
renders the actor negligent.”

1. What legal duties are there for tavern owners?
2. Was there a sufficient intervening event that superseded the tavern owner’s liability?
3. Was the intervening event foreseeable by a reasonable person?
4. What was the common law rule of Arizona that the court referred?
5. In which two cases did the Arizona Supreme Court abolish the common law doctrine of tavern owner
nonliability?
6. What statute further codified the liability of tavern owners in Arizona?
7. If the tavern owner had not used reasonable care in getting the cab for Roque upon leaving the tavern,
would they have been liable for the accident?
Application It is reasonably foreseeable that if a person fails to

lock a gate to a yard housing a watchdog, some-
In the case of Gertrude’s attack on Teddy and one, especially a child, may enter the yard and be
Mr. Goodright, Gertrude was unquestionably the attacked.
actual cause of Teddy’s and Mr. Goodright’s inju- The Baxters might argue that Mr. Goodright’s
ries. Of course, the Baxters might argue that Mr. volunteering to rescue Teddy, which was of his
Goodright’s injuries were due to Teddy’s negligence own volition and not a duty imposed upon him,
in entering their backyard. Under the but-for test, was a superseding cause that should absolve them
however, the rebuttal would be that but for the of liability. Remember, however, that rescue is not
Baxters’ negligence in leaving their gate unlocked considered an intervening cause unless it is per-
Teddy would not have been able to enter the yard. formed in a grossly negligent manner. Based on
Even under the substantial-factor test the Baxters’ the famous Cardozo rationale that “danger invites
failure to lock their gate would be a significant fac- rescue,” a rescue is foreseeable when the defen-
tor in the cause of Mr. Goodright’s injuries. Assum- dant’s negligence has created a danger that could
ing that Teddy would not have been able to enter result in injury to somebody. An argument on the
the Baxters’ backyard except for the presence of part of the Baxters that Teddy’s negligence was
the unlocked gate, both he and the Baxters would a superseding cause would also fail. Such negli-
be considered causes of Mr. Goodright’s injuries. As gence was reasonably foreseeable if children were
such they would both be liable for his injuries. able to gain access to the Baxters’ backyard via
The Baxters would also be considered the prox- the unlocked gate.
imate cause of Teddy’s and Mr. Goodright’s injuries.

1. Marilyn was driving her four-wheeler and negligently runs over Lucinda, breaking her leg. While Lucinda
is learning to walk on crutches, she slips on some ice, falls, and breaks her arm. Is Lucinda’s fall a super-
seding cause of her broken arm? Would your answer change if you knew that at the time Lucinda was try-
ing to walk across an extremely narrow walkway and that she was doing this on a dare from her friends?
2. Bob is riding in an elevator in his office building when an earthquake hits. The elevator stops between
floors and the power goes out. Bob attempts to use the escape hatch which is faulty and will not open.
He then attempts to use the emergency phone, and it is out of order. If Bob suffers injuries due to being
stuck for an extended period of time, would the faulty equipment on the elevator be considered the prox-
imate cause of his injuries or would the earthquake be a superseding and intervening cause for liability?
Would the elevator company be successful in arguing such?
3. The Exxon tanker, the Houston, was delivering oil into a pipeline through two floating hoses when a
storm arose, causing the line linking the tanker to the single point mooring system (SPM) to break. During
this “breakout,” when the hoses were disengaged from the SPM and threatening to damage the ship’s
propeller, another vessel arrived and helped the crew of the Houston to regain control of the hoses. The
captain was able to safely navigate the ship back out to sea so that it was no longer in danger of being
stranded. While the crew was working to disconnect the hoses, the captain negligently failed to have
someone plot the ship’s position. Without knowing this position, the captain could not effectively use a
navigational chart to check for hazards. Failure to fix the ship’s position constituted gross and extraordi-
nary negligence. When the captain did order someone to plot the ship’s position, he noticed too late that
the ship was heading for a reef, and moments later the ship ran aground.
Exxon sues the owner and operator of the mooring facility for the losses incurred by the loss of its ship.
Do you think Exxon is likely to be successful in its suit?
Summary
The issue of causation consists of two separate con- recovery to the plaintiff because of a lack of foresee-
siderations—actual cause (causation of fact) and ability. Justice Andrews, in his dissent, argued that
proximate cause (legal cause). If the plaintiff can one owes a duty to the “world at large” and not just
prove that the defendant’s actions were the actual to those in the “danger zone.” Andrews’s position
and factual cause of their injuries, they have proven parallels the view of courts that follow the theory of
actual cause. If the plaintiff can further prove that direct causation.
their injuries were a reasonably foreseeable result of The Cardozo position is generally followed
the defendant’s conduct, they can show proximate by most American courts. There are, however, a
cause. few notable exceptions. First, under the “eggshell
The but-for and substantial-factor tests are skull” rule, if a plaintiff suffers any foreseeable
used in proving actual cause. The plaintiff bears the injury, the defendant is liable for any additional
burden of proving actual cause and must do so by unforeseeable physical consequences due to their
a preponderance of the evidence. If the plaintiff compromised condition. Second, a defendant is
cannot prove which defendant actually caused their liable if the harm suffered by the plaintiff is of the
injuries, they can shift the burden back on the defen- general type that made the defendant’s conduct
dants to show who actually caused the harm using negligent, even if the harm occurs in an unantici-
the theory of alternate liability or market-share lia- pated manner. Third, a defendant is liable as long
bility. If the tortfeasors are unable to prove that they as the plaintiff is a member of a class to which
did not cause the plaintiff’s injuries, they will all be there is a reasonable foreseeability of harm, even
found liable. If a plaintiff can prove the existence of if the plaintiff themself is not a particularly foresee-
a common plan or that the defendants assisted or able plaintiff.
encouraged each other in accomplishing a tortious A defendant is expected to foresee the possi-
result, they have proven actual causation using the bility of an intervening cause. Even if the interven-
concerted action theory. ing cause is not foreseeable, but the kind of harm
The purpose of proximate, or legal, cause is suffered by the plaintiff is, the defendant will remain
to restrict a defendant’s liability by absolving them liable. If an intervening cause rises to such a level
of liability when the plaintiff’s injury occurred as a that it becomes a superseding cause, the defendant
result of a series of highly improbable or extraordi- is absolved of liability. To be a superseding cause, it
nary events stemming from the defendant’s negli- must be unforeseen. The foreseeable negligence of
gence. The question of proximate cause is a policy others is not considered a superseding cause. Nei-
question; the question of actual cause is a factual ther is a person’s criminal or intentionally tortious
one. The issue of foreseeability was addressed most conduct considered a superseding cause if it is suffi-
notably in Palsgraf, in which Judge Cardozo denied ciently foreseeable.
Key Terms
actual cause direct causation
Cause in fact of the plaintiff’s injuries A defendant is liable for all consequences of
but-for test their negligent acts, no matter how unforesee-
If the plaintiff’s injuries would not have occurred able those consequences may be
but for the defendant’s negligence, the defen- eggshell skull rule
dant will be deemed the actual cause of the If a plaintiff suffers any foreseeable injury, the
plaintiff’s injuries defendant is also liable for any additional unfore-
custodian of the records seen physical consequences (take the plaintiff as
The person in an organization who knows about you find them)
its filing system and records
intervening cause substantial-factor test

Act that contributes to the plaintiff’s injuries but Test that asks whether the defendant was a sub-
does not relieve the defendant of liability stantial factor in producing the plaintiff’s injury
proximate cause unforeseeable intervention
Legal cause of the plaintiff’s injuries; emphasis is If an intervention was not foreseeable but, in
on the concept of foreseeability fact, led to the same type of harm as that threat-
superseding cause ened by the defendant’s negligence, the courts
Act that contributes to the plaintiff’s injuries find the intervention not to be a superseding
to the extent that the defendant is relieved of cause
liability
Review Questions
1. What is the difference between actual cause 8. What is the direct-causation rule?
and proximate cause? a. How was it developed in Polemis?
b. Why is this rule criticized?
2. Describe how each of the following is used to
prove actual cause. 9. What is the relationship between duty and
a. but-for test proximate cause?
b. substantial-factor test
c. alternate-liability theory 10. Explain the eggshell skull rule that is an excep-
d. market-share-liability theory tion to Cardozo’s rule of foreseeability.
e. concerted-action theory
11. Explain the difference between intervening and
3. When do courts opt to use the substantial- superseding causes.
factor test rather than the but-for test? a. Give an example of an intervening cause.
b. Give an example of a superseding cause.
4. How do the alternative-liability and market-
share-liability theories assist plaintiffs in proving 12. Under what circumstances will the courts find
their case? How are they different? an unforeseeable intervening cause not to be a
superseding cause?
5. What is the “lost chance of recovery” theory,
and how does it help plaintiffs? 13. Is proximate cause a jury question or a ques-
tion for the judge?
6. Why is proximate cause sometimes referred to
as legal cause? 14. When is rescue considered an intervening
cause?
7. What are the facts in Palsgraf?
a. What was the issue before the court?
b. What did the majority rule, and why?
c. Why did the dissent disagree?
d. Do most courts follow the majority or the
dissent?
Practice Exam
True-False
1. Actual causation relates to the closeness of the 8. Under the lost chance of recovery theory, a
connection between the defendant’s conduct plaintiff can recover even if they cannot prove
and the plaintiff’s injuries. that the defendant’s negligence resulted in a
loss of life.
2. The but-for test does not encompass situations
involving concurrent causes. 9. Proximate cause reflects a judicial concern
that defendants should not be liable for highly
3. Under the substantial-factor test, if concurrent improbable consequences stemming from their
causes produce a single, indivisible harm, both negligence.
factors can be deemed the actual cause of the
plaintiff’s injuries. 10. Direct causation holds defendants liable for the
consequences arising from their actions that
4. The plaintiff must prove with clear and convinc- are unforeseeable.
ing evidence that the defendant was the cause
of their injuries. 11. A third person’s criminal or intentionally tor-
tious conduct is never considered a supersed-
5. If two defendants are negligent but only one ing cause.
could have caused the plaintiff’s injury, the
burden is on the plaintiff to prove which defen- 12. If the acts of a third party are not surprising,
dant caused their injury. they will be considered intervening causes,
and the acts of the defendant that precipitate
6. Under the market-share-liability theory, a plain- the third party’s conduct will be considered the
tiff can recover even if they cannot prove which proximate cause of the plaintiff’s injuries.
defendant from among multiple defendants
actually caused their injury. 13. If an intervening cause is unforeseeable, a
defendant is never liable.
7. With the market-share-liability theory, the
plaintiff can prevail even if they cannot prove 14. A plaintiff must be a foreseeable plaintiff to
the nature of the defendant’s conduct. recover.
Matching
GROUP 1
________ 1. Legal cause a. substantial-factor test
________ 2. Factual cause b. but-for test
________ 3. Concurrent causes c. concerted-action theory
________ 4. Broadest test for causation d. actual cause
________ 5. Sindell v. Abbott Labs e. proximate cause
________ 6. Tacit agreement f. market-share-liability theory

GROUP 2
________ 1. Negligence in the air will not do a. Andrews
________ 2. Duty to the world at large b. Cardozo
________ 3. Opinion followed by most courts today c. concerted-action theory
________ 4. Majority opinion for Palsgraf Answers for Matching: Group 2 are either
a, b, or c; therefore, answers will be used
more than once.
________ 5. Duty to protect those in danger zone
________ 6. Duty to protect society from unnecessary

danger
GROUP 3
________ 1. Cause that precludes defendant liability a. eggshell skull rule
________ 2. Cause that contributes to plaintiff’s injury b. direct cause
________ 3. Virtually limitless liability c. superseding cause
________ 4. Liability for unforeseen consequences d. intervening cause

suffered by plaintiff
Fill-in-the-Blank
1. Under the _______________ _______________ 5. Courts sometimes blur the concept of proxi-
test the defendant will be considered the mate cause and _______________.
actual cause of the plaintiff’s injuries if those
injuries would not have occurred but for the 6. Courts that follow the _______________
defendant’s negligence. causation rules do not take into account the
foreseeability of the result and the extent of
2. With the _______________ _______________ the harm.
_______________ theory the plaintiff can prevail
if they can prove the defendants were neg- 7. Under the _______________ _______________
ligent even though they cannot show which rule a defendant must take their plaintiff as
defendant caused their injury. they find them.
3. Under the _______________ _______________ 8. Ordinary medical malpractice is an example of

theory the plaintiff must show that the defen- a(n) _______________ cause whereas a fire or
dants encouraged or assisted each other in flood is an example of a(n) _______________
performing a tortious act. cause.
4. Proximate cause boils down to a question of

_______________.
Multiple-Choice
1. In toxic tort cases b. Justice Cardozo concluded that the harm
a. the problem faced by plaintiffs is proving that occurred to the plaintiff was reasonably
that the toxin in question is capable of pro- foreseeable.
ducing the type of injury suffered by the c. Andrews felt liability should be cut off if
plaintiffs. there were too many intervening causes or if
b. plaintiffs must rely on expert testimony but the result was too remote from the cause in
not epidemiological studies. terms of time or space.
c. plaintiffs do not have to prove that the d. all of the above.
toxin in question and not some other toxin 4. A superseding cause
caused their injury.
d. all of the above. a. does not relieve the defendant of liability.
b. is not an issue when it comes to the liability
2. In Sindell v. Abbott Laboratories, the court of tavern owners.
a. felt that the defendants were in a better c. is exemplified by gross negligence by a
position to bear the cost of the plaintiff’s rescuer.
injuries than was the plaintiff. d. all of the above.
b. reasoned that when there was a conflict 5. Proximate cause
between an innocent plaintiff and negligent
defendants, the plaintiff should prevail. a. is a policy question.
c. concluded that any defendant manufacturer b. is a question only the judge can answer.
that could not prove that it had not pro- c. is an easy question for courts to answer.
duced the dosages of DES consumed by d. all of the above.
the plaintiff’s mother would be liable for the 6. With unforeseeable intervention
portion of the judgment that represented its
share of the DES market at the time of the a. the defendant is always liable.
mother’s consumption. b. the intervention is a superseding cause.
d. all of the above. c. it must be the same type of harm threat-
ened by defendant’s conduct.
3. In Palsgraf d. the defendant is liable because they did not
a. the question was whether the defendant foresee intervention.
was negligent in pushing a passenger to
help that passenger board a train.
Practice Pointers
Plaintiffs are not entitled to compensation for preexisting conditions, i.e., physical or emotional conditions that
existed prior to the damage inflicted by the defendant. Suppose, for example, the plaintiff was a horse trainer
who had suffered a number of riding accidents prior to her vehicular accident involving the defendant. If the
plaintiff was suffering from the pain of lower back injury due to these riding accidents, she could not recover
damages for her lower back injuries from the defendant if the vehicular accident had not contributed in any
way to her preexisting condition. If, however, the vehicular accident had aggravated her preexisting back con-
dition or had caused additional injuries, she could still recover. Remember that under the “eggshell skull” rule
she could recover for the full extent of her injuries even if she was more susceptible to injury than a normally
healthy individual, and even if the healthy individual might not have suffered similar injuries.
Paralegals are often assigned the task of determining the nature and extent of preexisting conditions.
To do so they must meticulously review the medical records of the plaintiff. If their firm represents the plain-
tiff, they must interview the plaintiff to gain a clear comprehension of the plaintiff’s preexisting complaints
and to distinguish them from the currently existing injuries. They will also need to examine employment
records and any previous insurance or workers’ compensation claims. All these records must be compiled
in preparation for a review by the medical expert(s). Such careful preparation prevents surprise at subse-
quent depositions or at trial. Preexisting conditions are a hotly contested issue at all stages of a case and
therefore must be carefully documented by both sides in personal injury cases.
Medical records are confidential. Therefore, the client must sign a written authorization before the
doctor’s office or hospital will release them. Most firms have standard release forms. The form should be
reviewed, however, before using it to make sure it provides everything that you need. If clients are asked
to sign several authorization forms in advance, they will not need to return to the office every time an
authorization is needed. Some institutions will not accept copies, so a duplicate original should be sent.
Other institutions require authorizations to be notarized; time can be saved by having them all notarized
at once.
Before requesting medical records, the healthcare facility should be contacted to see what proce-
dures it requires. Are any fees charged, and if so, must they be paid before the records will be released?
How long is the turnaround for getting records? Many doctors charge nominal fees for their notes and
several hundred dollars for their narrative reports; others charge substantial fees for both. Inquiries should
be made about the name of the custodian of the records (the person in an organization who knows
about its filing system and records) from whom the records should be requested.
Following is an example of a medical authorization release.
AUTHORIZATION FOR USE AND DISCLOSURE OF PRIVATE HEALTH INFORMATION AND
MEDICAL RECORDS
Identification of Records
Patient Identification Provider Identification
Recipient
Custodian of Records Kino
Elizabeth Scotty The Ceasar Law Office
Hospital
3155 Montgomery Way Tucson, AZ 2455 E. Ajo Way Tucson, AZ 89563 3800 North Central Avenue, Suite 615,
89563 Phoenix, AZ 85012
SSN: 611-77-5025
DOB: 09-30-83 602-267-1945
I, Elizabeth Scotty, hereby authorize the above-identified health care provider to disclose and release to
The Ceasar Law Office, its representatives, employees, consultants, experts, co-counsel or others desig-
nated by the firm, the following from my medical chart to include all dates of treatment between March
31, 2005 and the present:
All Records, Reports, Bills and Correspondence, including, but not limited to:
X Assessments X Pathology Reports

X Consultations X Laboratory Reports and Results
X Discharge Summaries X X-ray Films
X Diagnostic Tests X MRI Films
X Diagnostic Imaging Reports/Films X Bills (or equivalents)
X ER Reports X Therapy Evaluations and Notes
X Physicians’ Notes and Orders X Plans of Care
X Nursing Assessments/Notes X Operative Reports
In addition, I authorize release of any and all records that may contain references to, or specific infor-
mation about, the following:
X Diagnosis and/or treatment for alcoholism and/or drug abuse
X Diagnosis and/or treatment of mental health issues
X HIV antibody test results and/or AIDS diagnosis and treatment
X Genetic test results and/or related treatment
This Authorization will expire within one-hundred twenty (120) days from the date of my signature
below, or on ___.
This Authorization shall be considered renewed upon my request or upon the request of my attor-
ney, Silly Ceasar and may be revoked by me at any time. It is my intention that this Authorization revoke
and replace all other Authorizations signed by me or on my behalf by any and all parties.
I hereby authorize use of photostatic copies of this Authorization in place of the original by The
Ceasar Law Office.
SIGNATURE
I have had the opportunity to consider and review the contents of this Authorization and confirm that
the contents are consistent with my direction to the health care provider. I understand that by signing
this Authorization, I do hereby confirm that the health care provider may release and disclose my private
health care information to: Ceasar Law Office, 3800 North Central Avenue, Suite 615, Phoenix, AZ 85012.
I understand that by release of my medical records from the care of the above-identified provider, that
they may be seen by others not intended or identified.
________________
Patient Signature DATE
Custodian of Records
Kino Hospital
2455 E. Ajo Way
Tucson, AZ 89563
Re: Your Patient/JLO Client: Elizabeth Scotty
Dear Sir or Madam:
The Ceasar Law Office represents Elizabeth Scotty. Enclosed, please find an Authorization for
Release of Medical Records signed by Ms. Scotty authorizing you to provide us with any and all medical
records, billing records/statements related to services/treatment she received from you during the time
period of March 31, 2005 to the present.
Please provide us with copies of the requested medical records and itemized billing statements as
soon as possible. If advance payment for copying the requested records is required, please contact me
and we will forward the payment.
Thank you for your anticipated cooperation. If you have any questions, please do not hesitate to call me.
Respectfully,
Liliani G. Mendoza
Paralegal
Tort Teasers
1. Plaintiff boilermaker welder is injured as a result of exposure to manganese fumes over the course of
his twenty-seven year career as a welder. Defendant manufacturers began placing a product label on
welding-rod containers warning that welding may produce fumes and gases hazardous to one’s health
and cautioned users to avoid breathing the fumes and gas and to use proper ventilation. Plaintiff failed
to read the warnings on the welding-rod containers. Is Defendant’s failure to warn an actual cause of
Plaintiff’s injury? Boyd v. Lincoln Elec. Co., 902 N.E 2d 1023 (Ohio App.8 Dist. 2008).
2. Just before Defendant’s industrial “dinky” engine collides with a train on a crossing, the engineer of the
“dinky” reverses the engine, shuts off the steam, and jumps. The collision causes the throttle to jar loose,
and the “dinky” engine backs up, gathers momentum, and travels around a loop to a second crossing
where it collides with a train. Plaintiff, who is a passenger on the train, is injured in the second collision.
Even though the second collision occurred in an unforeseeable manner, should Defendant be held liable?
Bunting v. Hogsett, 21 A.31 (Pa. 1890).
3. Suppose Defendant drives a truck at excessive speed. Which of the following consequences do you think
are foreseeable?
a. The truck narrowly misses a pregnant woman, who is frightened into a miscarriage. Mitnick v. Whelan
Bros., 163 A. 414 (Conn. 1932).
b. Defendant injures a man who suffers a second accident six months later while he is walking on
crutches as a result of the first accident. Squires v. Reynolds, 5 A.2d 877 (Conn. 1939).
c. A truck knocks a taxicab up against a stone wall, the wall is weakened, and as a result a stone falls
off the top of the wall as the taxi is being disengaged from the wall. A pedestrian is injured when the
stone falls on her. In re Guardian Casualty Co., 2 N.Y.S.2d 232 (N.Y. Sup. Ct. 1938).
4. A waitress employed at Defendant’s restaurant spills hot coffee on Plaintiff’s lap, resulting in first-degree
burns. When Plaintiff jumps up, she strikes her knee on an adjoining stool, requiring her leg to be put
in a cast. Because of her obesity and neurotic anxiety, Plaintiff is disabled for eight months. If the nor-
mal recovery time is one to two weeks, should Defendant be held liable for the full extent of damages?
Thompson v. Lupone, 62 A.2d 861 (Conn. 1948). If so, under what theory?
5. A rock radio station with an extensive teenage audience sponsors a contest that rewards the first con-
testant to locate a particular disc jockey. Two minors, driving in separate automobiles in pursuit of the
illustrious disc jockey, reach speeds of up to 80 mph. One of the minors negligently forces another car off
the highway, killing the driver. A wrongful-death action is filed against the radio station. Should the rock
station be held liable, or is the negligence of the minor a superseding cause? Weirum v. RKO General
Inc., 539 P.2d 36 (Cal. 1975).
6. A motorist was injured when driver’s car rear-ended motorist’s car because driver failed to respond
quickly enough to the traffic congestion caused by operator’s vehicle running off the road 30 minutes
earlier. Motorist sued original operator for damages. Was the later accident sufficiently foreseeable to
hold original operator liable? Hale v. Brown, 167 P.3d 362 (Kan. 2007).
Internet Inquiries
Parties to litigation often find it helpful to learn about the litigation history of their opponents. Are they, for
example, frequent participants in the litigation process, either as plaintiffs or defendants? Do they have a num-
ber of judgments recorded against them? Are they currently involved in litigation pertaining to an issue similar
to which the parties are now litigating or planning to litigate? Information about existing or previous court
cases is relatively easy to find and many times worth the time and effort invested.
Local courts at the county and city levels typically house files of active and inactive cases. They may be
stored online, in paper files, or even microfiche. Older cases are often stored in remote places within the court
clerk’s office or even in another building so it can sometimes take days or weeks to retrieve an older case.
Cases are typically filed under the plaintiffs’ names, defendants’ names, and case number. Note that if more
than one plaintiff or defendant is involved, the case may be filed under the first plaintiff’s name, which means
you may not find the case using the name of the plaintiff or defendant for whom you are looking. Courts have
indexes organized according to the names of the parties. These indexes give the names of all the parties, the
disposition of the case, and the assigned case number. Giving the court clerk this number will allow you to get
a copy of the entire file. The beauty of getting the actual court file is that it contains all the documents pre-
pared by the litigants, motions that were made, discovery materials, and many other potentially useful pieces
of information about the parties and the witnesses.
Federal district court records can be accessed in one of three ways: (1) going to the district court and
asking for an individual’s records; (2) subscribing to a database called “PACER” (Public Access to Electronic
Records) that allows you to look up specific records; (3) paying a national information retrieval company to pull
up the desired records. Additionally, certified copies of decrees, orders, and petitions relating to district court
proceedings can be obtained through the clerk’s office. In every case you will need either the individual’s or
business entity’s name or the case number.
Go to the Internet and using the name of a local state court in your jurisdiction as search terms, find out if
this court has a web page.
1. How far back can you get court decisions for your state’s highest court online?
a. Can you access this court online? If yes, describe the steps you must take to pull up court records.
If no, find a court in your state that does have a web page, and use it to answer the following ques-
tions. (Go to the National Center for State Courts site at www.ncsc.org and select “information &
resources” and “browse by states” to find links to courts in your state.)
b. How far back do these records go online?
c. Can you access both active and inactive cases online?
d. Call the court clerk for your local court and find out what procedure you must follow to get court
records?
(1) What information must you have?
(2) Are these records on microfilm or paper files?
(3) How much does it cost to make copies of documents in these files?
(4) What kinds of information are contained in the court files in this court? Are, for example, discov-
ery materials available?
Your firm has agreed to represent Michael, the victim of a school shooting. The evidence your investiga-
tor has been able to gather at this point indicates that the suspected assailants had been avid fans of an
incredibly violent video game, Death Stalker, and that they shot Michael as part of their attempt to replicate
what happened in that game. Your supervising attorneys want to sue the company that created this game,
but they are concerned about being able to prove causation.
1. What will they have to show to prove the link between the game designer and Michael’s shooting?
2. Why do you think causation may be a problem?
3. What evidence will need to be presented if they are going to meet their burden of proof?
Chapter 7
Negligence: Damages
Chapter Topics
Categories of Damages Recovery for Loss of Consortium
Illustration of Damages Assessment of Damages
Shortened Life Expectancy Wrongful-Death and Survival Actions
Collateral-Source Rule Discounting Future Damages
Expenses of Litigation Structured Settlements
Damages for Physical Harm to Property Mitigation of Damages
Damages in Product Liability Cases Mental Suffering
Punitive Damages Application
Chapter Objectives
• Categorize damages. • Appreciate the controversy surrounding punitive
• Recognize the various components of damages. damages.
• Appreciate the practical problems inherent in • Distinguish between wrongful-death and survival
calculating damages. actions.
• Recognize the limitations on what a plaintiff

can recover.
L iability and damages typically go hand in hand. If the defendant is clearly liable but the plaintiff suffers
minimal injuries, recovery will also be minimal. Clearly, if the attorney’s fees exceed the anticipated recovery,
the client cannot afford to have an attorney take the case. Therefore, the attorneys representing Teddy and
Mr. Goodright will want to determine early if the anticipated damages warrant the expenditure of time and
resources necessary to litigate the case. (For organizational purposes, damages are discussed throughout this
chapter in the context of negligence only, even though damages can certainly be awarded in cases involving
intentional torts and strict liability as well.)
Categories of Damages defendants who have acted with ill will or in conscious
disregard for the welfare of others. An additional
Damages are generally divided into three categories: purpose of punitive damages is to deter future
compensatory damages, punitive damages, and misconduct by the defendant and similarly situated
nominal damages (see Exhibit 7–1). Compensatory defendants. Punitive damages are not awarded
damages are designed to compensate the victim against all defendants; they are awarded against
for their losses and restore them to the position they defendants who act in a particularly egregious
were in before they were injured by the defendant. It manner. It is sometimes said with punitive damages
is sometimes referred to as restitution and includes that a jury is expressing moral condemnation for the
economic as well as non-economic damages. Punitive behavior.
damages are intended to punish the defendant for Nominal damages are awarded in intentional
reckless, malicious, or egregious misconduct, and deter and strict liability cases in which liability is estab-
others from engaging in the same or similar wrongful lished but where the harm was insignificant to
conduct. Nominal damages are awarded when no none. A jury could find the defendant liable for
actual damages are proved but a tort is shown to have assaulting the plaintiff yet conclude that the plain-
been committed. Because actual damages must be tiff, although wronged, suffered no actual harm and
proved in negligence cases, nominal damages are not thus could award nominal damages of only $10.
available in negligence suits. Nominal damages cannot be awarded in a negli-
Compensatory damages are further divided gence case because negligence requires proof of
into two categories: general damages and special an actual injury. Nominal damages allow a plaintiff
damages. General damages are of the type that to be vindicated but do nothing in the way of
generally result from the kind of conduct engaged compensating either the plaintiff or the attorneys
in by the defendant; special damages are specific involved. Nominal damages may also be used if
or unique to the plaintiff and more like out-of-pocket the plaintiff cannot prove the actual value of their
expenses. Some good examples of general dam- losses from the harm. If nominal damages are
ages are compensation for pain and suffering, loss anticipated, an hourly or set fee will usually be the
of a loved one, and loss of the ability to live in the basis for an attorney’s reimbursement rather than a
manner before the accident or injury. Anyone injured contingency-fee arrangement.
in a motor vehicle accident, for example, will be Exhibit 7–2 lists some questions plaintiffs and
expected to endure a certain amount of pain and defendants may have about damages. The remainder
suffering as a result of the injuries. Examples of spe- of the chapter is structured around these questions.
cial damages are medical expenses, lost wages, and
future impairment of earnings as well as property
damage if applicable. In most cases, special damages Illustration of Damages
must be specifically pleaded in a complaint, whereas
general damages need not be. Let us consider the facts of a real case to illustrate the
Punitive damages are not intended to make various components of damages. In Anderson v. Sears,
the plaintiff whole but instead are used to punish Roebuck & Co., 377 F. Supp. 136 (E.D. La. 1974), the
Exhibit 7–1 Categories of Damages
Compensatory Punitive Nominal

• To compensate and restore • Designed to punish defendant • Allows plaintiff to be vindicated
1. Special damages are damages • No actual damages

that are specific
to plaintiff.
2. General damages are
damages that are generally
anticipated.
CHAPTER 7 Negligence: Damages | 177
Exhibit 7–2 Questions about Damages pain she endured during her initial and subsequent
hospitalizations as well as the mental and emotional
Questions Plaintiffs Ask about Damages trauma she underwent, manifesting in bedwetting,
• Can I prove pain and suffering? For past and future? having nightmares, withdrawing, and develop-
ing speech impediments. She was further awarded
• Can I prove impaired present and future earning capacity?
$750,000 for future physical and mental pain. The
• Am I entitled to recover for shortened life expectancy? pain anticipated here was that of an estimated 27
• Can I recover for expenses for which I have already
future operations, along with the pain and crippling
been reimbursed? caused by the extensive scarring she had sustained.
• Can I recover attorney’s fees? These damages were also intended to compensate
her for the likely deprivation of social life that she
• Am I entitled to punitive damages? would surely suffer.
• Can I recover for property damage? The jury awarded $1 million for permanent
disability and disfigurement. Examples of the types of
• Can spouses, parents, or children of victims recover for permanent losses she was expected to suffer included
loss of consortium?
permanent loss of use of her legs, permanent injury
• Can spouses, parents, or children recover if the victim dies?
to the left elbow and left arm, permanent destruc-
Questions Defendants Ask about Damages tion of 40 percent of her skin, permanent impairment
• Should plaintiffs be compensated for pain and suffering?
of speech, and permanent impairment of a normal
social, recreational, and educational life. The obvious
• Can an award be discounted to present value? problem in awarding damages in this area is that no
• Can an award be paid using a structured settlement? accurate monetary value can be affixed. How does
one assign a monetary value to a person’s suffering?
• Did the plaintiff mitigate their damages? Could $1 million, $2 million, or any amount of money
• Did the plaintiff suffer actual physical harm? compensate the plaintiff in this case for the excruciating
pain she suffered and the social rejection she would
experience in the future?
“Day-in-the-life” videos are often used by
plaintiff was a young child who was severely burned in
plaintiffs’ attorneys to graphically represent the
a house fire that was started by a heater negligently
plaintiff’s suffering. These films document the
manufactured by the defendant. The child was burned
everyday activities of the plaintiff and are designed
over 40 percent of her body, with third-degree burns
to display in concrete and poignant terms the
covering 80 percent of her scalp. She was hospitalized
plaintiff’s everyday activities prior to the incident
for twenty-eight days, during which time she devel-
and the full extent of how the plaintiff’s injuries have
oped infections and related problems and underwent
limited and complicated her life. Although criti-
repeated skin grafts. Furthermore, she had to undergo
cized by defense attorneys as unfairly appealing to
extensive subsequent operations and treatment.
jurors’ sympathies and prejudicing them against the
The plaintiff’s compensatory damages were
defendant, they are generally admissible and often
divided into five categories: past and future medi-
used by plaintiffs to buttress damage claims.
cal expenses, past physical and mental pain, future
Some attorneys have attempted to solidify this
physical and mental pain, permanent disability and
process by assigning a numerical value to the amount
disfigurement, and impaired earning capacity. Future
of suffering experienced on a daily, hourly, or even
medical expenses included the anticipated cost for
minute-by-minute basis. That number is then multi-
plastic surgeons, psychiatrists, sociologists, and private
plied by the total number of days, hours, or minutes
tutors. The $250,000 allocated for these damages was
the pain is expected to last. This so-called per diem
also intended to cover the cost of future operations.
technique has been disallowed by some courts
because it can lead to deceptively high figures. The
Pain and Suffering majority of courts have, however, allowed the use
The jury awarded the plaintiff $600,000 for past of this argument and leave it up to defendants to
physical and mental pain. The pain included the dissuade juries as to its reasonableness.
A multiplier method has also been used and The More Adequate Award” [Asae and Pinney, 1952,
uses a variable (ranging from 1.5–5) and multi- pp. 33–34].)
plies that variable by the total amount of economic
damages including medical expenses, lost wages, Criticism of Pain and Suffering Awards
and any property damage. This method would take The problem of subjectivity in reference to the awarding
into consideration many things including: the seri- of damages for pain and suffering has been the sub-
ousness of the injury, the type of injury, the prognosis ject of much debate. Quantification of such damages
for the plaintiff, the level of impact the injury has on is often difficult. Nevertheless, some argue that if the
the plaintiff’s daily activities and life, medical treat- law is able to compensate a businessperson who sus-
ments to date, future anticipated treatments, and tains commercial damage, it can do no less for those
the percentage of fault the defendant holds. Some who have suffered “a more poignant infliction” (Gray
insurers and adjusters may use a combination of v. Washington Power Co., 71 P. 206 [Wash. 1930]).
the multiplier and per-diem method, allowing one Even though no gauge is available for measuring such
method for economic damages and one for pain damages, which are to some degree sentimental, it
and suffering. It is not always a clear decision since has been observed, that sentiment is an element in all
there is not a magic test to calculate a person’s pain damages. Furthermore, the reasoning goes, the lack
and suffering and it is entirely subjective. There are of precision in assessing damages should not preclude
computer programs available which integrate all the their approximate measurement, and they should be
factors of the injuries and compute what seems fair submitted to the jury to decide.
and appropriate. The concept of compensating plaintiffs for their
Melvin Belli, who first advocated the per diem pain has been criticized, however. Some maintain that
argument, gave the following closing argument to such damages should be allowed only when there is
illustrate how one might use this approach. The case a physiological basis for the pain. Cornelius Peck,
involved a man with an irreparably injured back and at the University of Washington Law School, argues
a 30-year life expectancy. that pain is a social and psychological as well as
You are asked to evaluate in dollars and cents a physiological phenomenon (Peck, Compensation
what pain and suffering is. This honorable court will for Pain: A Reappraisal in Light of New Medical
instruct you that a man of this age has a life expec- Evidence, 72 Mich. L. Rev. 1355 [1974]). One study
tancy of thirty years. Let’s put it to you bluntly, what’s he uses to illustrate his point involves a comparison
pain and suffering worth? You’ve got to answer this between soldiers wounded in battle and civilians who
question. You’ve got to award for this as well as the had undergone surgery. Although the battle wounds
special damages and loss of wages. Let’s take Pat, my probably provided a greater physiological basis for
client, down to the waterfront. He sees Mike, an old pain than did the incisions required by surgery, only
friend. He goes up to him and says, “Mike, I’ve got a a little more than 25 percent of the soldiers required
job for you. It’s a perfect job. You’re not going to have relief for pain, whereas 87 percent of the civilians
to work any more for the rest of your life.... You don’t requested treatment for pain (Beecher, Relationship
have to work even one second. All you have to do is of Significance of Wound to Pain Experienced, 161
to trade me your good back for my bad one and I’ll J.A.M.A. 1609 [1956]). This study seems to indicate
give you $5.00 a day for the rest of your life. Do you that the cause of the injury creating the pain has
know what $5.00 a day for the rest of your life is? Why, some bearing on the individual’s perception of that
that’s $60,000.00! Of course, I realize that you’re not pain. Therefore, pain sustained as a result of some
going to be able to do any walking, or any swimming, noble endeavor (fighting for a cause, rescuing or
or driving an automobile, or be able to sit in a movie defending someone from harm) may be more easily
picture show; you’re going to have excruciating pain tolerated than pain stemming from some capricious,
and suffering with this job, 31,000,000 seconds a and inexplicable cause.
year, and once you take it on, you’ll never be able to The usual argument given to justify compensa-
relieve yourself of this, but you get $60,000.00!” Do tion for pain is that compensation brings solace to
you think Mike would take on that job for $60,000.00? one who has suffered. Peck argues, however, that
(The Use of Demonstrative Evidence in Achieving“ this consolation may actually provide reinforcement
for pain behavior and may serve to increase the attorneys use economists as experts to testify to a
pain of those who are to be consoled. Knowing they diminution of the plaintiff’s earning capacity. Loss of
have to justify their pain may make it easier for it to future earnings is, of course, applicable only when
manifest in a greater way and for a longer time. the plaintiff can show that the injuries are permanent.
Equitable compensation of victims remains an
illusory albeit noble goal of tort law. The struggle
continues in the allocation of damages to balance the
needs of plaintiffs, defendants, and the rest of society.
Shortened Life Expectancy
Although damages for loss of prospective earnings
Impaired Earning Capacity have been allowed, damages for the shortening of
The last item addressed in Anderson is that of the plaintiff’s life expectancy traditionally have been
impaired earning capacity. The court concluded that denied. Under the common law, damages for loss
the plaintiff’s injuries would prevent her from earning of life were precluded unless provided for by stat-
a living for the rest of her life and that, therefore, the ute. The courts have reasoned that the same rule
jury’s award of $330,000 for impaired earning capacity must be applicable to damages for a shortened
was appropriate. life. Furthermore, there has been a desire to avoid
Two types of recovery fall under the category of an issue so filled with incalculable variables as well
impaired earnings: recovery for past earnings and as a fear that such compensation would result in a
recovery for prospective future losses. In dealing duplication of damages. The majority hold that the
with past earnings, recovery is relatively simple reasonable expected life span of the plaintiff should
to calculate if the plaintiff was employed at fixed be used, not an overall life span for anyone. A few
wages. If they were unemployed or if the wages courts have, however, considered shortening of life
cannot be computed exactly, the plaintiff will have to expectancy as a distinct compensable harm.
use circumstantial evidence to show impairment of In one case, for example, a 10-month-old boy
earning capacity. developed a severe case of meningitis after being
Future loss of earning capacity is more diffi- negligently examined and treated at a military hos-
cult to compute. Jurors must first determine how pital. He subsequently became profoundly mentally
long a plaintiff might be expected to live. Mortality impaired and suffered severe physical disabilities.
tables published by insurance actuaries are used The court concluded that damages for shortened life
in this process. Jurors are also allowed to take into expectancy were appropriate and awarded $900,000
consideration the plaintiff’s personal habits, prior for the child’s reduced life expectancy as a separate
health, and individual characteristics in determining element of damages (McNeill v. United States, 519 F.
the plaintiff’s projected life span. Some creative Supp. 283 [D.S.C. 1981]).

A 29-year-old veteran is rendered paraplegic as a result of a negligently performed lung operation. Before
his operation he had been pronounced completely cured of tuberculosis, for which he had previously
been classified as 100 percent disabled. As a result of his injuries the man suffers frequent leg spasms,
burning and swelling in his legs and feet, involuntary bowel movements, and occasional urinary accidents
due to blockage in his catheter. His future medical treatment will include intensive rehabilitation, possible
reconstructive procedures, and ongoing evaluations by neurologists, psychiatrists, urologists, and plastic
surgeons. He runs the risk of kidney and bladder infections. He has become depressed, has lost his ability
to procreate, his sleep is interrupted every night as he changes his position to prevent bed sores, and he
has no hope of recovering the use of his legs. He has endured numerous operations stemming from his
paraplegia and will probably have to have several more.
Prior to his lung operation he lived a normal social life, participated in athletics, had received a bachelor’s
degree in aeronautical engineering after receiving an honorable discharge from the Army, and was working
as an associate engineer with a salary of $810 per week. With rehabilitation he could secure work in a
related engineering field, and with intensive medical care he had a projected life expectancy of forty years.
Had he not been injured he probably could have worked for thirty years. His medical expenses have been
paid for by the government, and he is receiving monthly VA disability payments.
What kinds of damages is he entitled to? How would you go about proving his damages?
Collateral-Source Rule Today, however, legal sentiment no longer

favors double recovery for the same injury. At
A plaintiff is often reimbursed for their out-of-pocket least 38 states have passed statutes forbidding or
expenses, including lost wages and payments for limiting duplication in awards from multiple sources
medical care, by their insurance company. Never- (Schap and Freely, Much More on the Collateral
theless, under the collateral-source rule they are Source Rule, Working Papers 0605. College of the
entitled to recover these damages again from the Holy Cross, Dept. of Economic [June 2006]). The
defendant. Therefore, under the rule, a plaintiff can reasoning is that plaintiffs should be allowed to
recover for lost wages even if they have been reim- recover only an amount that provides compensation
bursed through sick pay provided by their employer for actual injuries. The ability to admit evidence of
or by disability benefits through workers’ compen- supplemental benefits at trial ensures that liability
sation. Social Security disability benefits, welfare is divided among all tortfeasors in accordance with
payments, vacation pay, sick pay, and Medicare their respective degrees of culpability.
payments also do not count against a plaintiff’s In many cases the company making the plaintiff’s
recovery under this rule. Even if a plaintiff receives payment has a right of reimbursement out of any
free services from friends or family members, she judgment the plaintiff receives, known as the right
may recover the reasonable value of those services. of subrogation. A medical insurance plan typically
The rule precludes the admission of evidence requires that the plaintiff reimburse the company out
to the jury regarding payment of benefits to the of any judgment they receive, thereby preventing
injured party from a source other than the tortfeasor. double recovery. Most courts have held that evi-
In many cases the benefits are one for which the dence of collateral benefits is inadmissible as it may
plaintiff has directly or indirectly paid. If a plaintiff sway the jury’s decision. (To read about the changes
has paid premiums on an insurance policy or earned to the collateral-source rule proposed by tort reform
vacation or sick pay denying them double recovery advocates, see Chapter 16.)
would deprive them of the benefits of their invest-
ment and/or time. Furthermore, allowing the defen-
dant to benefit from the plaintiff’s investment would Expenses of Litigation
be unfair. The rationale for this rule dates back to
1854 and is intended to promote justice and pre- Although in England the winning party is entitled
vent the tortfeasor from benefiting or mitigating to recover their expenses of litigation, including
damages in the amount of payments or compensa- attorney’s fees, such is not the case in the United
tion that the injured party received from a collateral States. Most personal injury cases are handled on a
source. The public policy underlying this rule is that contingency-fee basis, in which the attorney agrees
the tortfeasor is responsible to compensate the to provide services for a fee based on a percentage
victim for the total harm caused by their conduct. of the client’s recovery. If there is no recovery, the
Additionally, if plaintiff’s recovery were offset by attorney receives nothing. Typically, the percent-
collateral benefits, the deterrent effect of tort law age of the fee depends on whether the case is
would be diminished. Under this rule, the plaintiff is settled or litigated. A common contingency-fee
assured full compensation for all medical, physical, arrangement provides for payment of 33 1/3 percent
and emotional injuries. of the settlement and 40 percent of a final judgment.
Some have suggested that, as a practical matter, Jane and Les purchased as a puppy for $300 when
punitive damages and awards for pain and suffering they lost both of their kids due to a tragic accident.
in effect allow a plaintiff to pay attorney’s fees and The value of Cutie was $300. In such cases the court
still retain compensation for their own losses. considers the original cost of the property, the use
The contingency-fee arrangement has been the made of the property, and its condition at the time
subject of frequent criticism. Some maintain that it of the tort. The mental distress that the plaintiff
creates a conflict of interest between the attorney suffers as a result of being deprived of the property
and the client in reference to settlement offers. In is, however, not usually compensable. Several courts
some cases, attorneys receive much more than would have held that the “actual value to owner” standard
be considered a reasonable fee for the efforts they applies when the pet has no fair market value.
expended. However, such a fee arrangement allows
those persons who would ordinarily be financially
incapable of pursuing their claims to do so. Also,
remember that attorneys do not win every case;
Damages in Product
therefore, cases in which they receive nothing may Liability Cases
balance those for which they are overcompensated.
Damages in the context of product liability cases
require special consideration and are treated
separately in Chapter 12.
Damages for Physical
Harm to Property
Punitive Damages
Damages for physical harm to property are tied to
the value of the property. If the property is com- Punitive damages, which are sometimes referred to
pletely destroyed, damages are measured according as exemplary damages, are designed to punish the
to the value of the property at the time and place tortfeasor for egregious misconduct and to deter oth-
the tort occurred. If the property is damaged but not ers from engaging in similar behavior. In negligence
destroyed, the damages are measured by the differ- cases they can be awarded only when the defendant’s
ence in value before and after the tort, although the conduct is willful, egregious, or almost criminal. Some
amount cannot exceed the replacement cost. If the jurisdictions require that the jury find defendant’s
plaintiff is merely deprived of use of the property, conduct was “reckless,” “willful or wanton,” or “with
damages consist of the value of the use of which the an evil mind.” Punitive damages are also permitted
plaintiff was deprived. when the defendant commits an intentional tort, such
When we refer to value of property, we are as assault or intentional infliction of emotional harm.
alluding to its fair market value, which is the amount Punitive damages are considered a windfall to the
that the property could have been sold for on the plaintiff, and a jury is not mandated to award them.
open market. The assumption is that fair market These damages are often appealed and successfully
value involves a voluntary sale by a leisurely seller remitted by the judge if found grossly excessive.
to a willing buyer. Note that market value is usually The judge also has the ability to increase a jury award
determined on the basis of the market at the place called additur if they are not adequate.
and time that the wrong occurred. Furthermore, Punitive damages have been criticized as consti-
market value constitutes the highest price one seek- tuting undue compensation to the plaintiff because
ing to sell the property could have realized and not they are not related to the plaintiff’s injury. Some
the lowest price at which it could have been sold. maintain that punitive damages are in essence
Market value does not always provide adequate criminal fines that should be paid to the state and
compensation, particularly in cases in which the not to the plaintiff. The counterargument is that
property has personal value to the plaintiff and no such damages act as a deterrent to those with evil
one else. Jane and Les, an older couple, lost their motivations. They also compensate plaintiffs for the
12-year-old dachshund, Cutie, when she was hit by a expenses of litigation, such as attorney’s fees, which
car. The negligent driver paid $300 for Cutie, whom they would normally have to bear themselves.
Punitive damages are more and more commonly 1. inflames the plaintiff’s desire for wealth.
being awarded in product liability cases. A defen-
2. adds a grossly intangible element to a
dant who knows of a defect and makes the product
negligence case grievously interfering with
anyway is liable for punitive damages. As explained
rational settlement negotiations.
by the Grimshaw court (in the Ford Pinto case
discussed later): 3. leads to lengthy and rancorous discovery
process and disputes.
Punitive damages thus remain as the most
effective remedy for consumer protection 4. places before the jury inflammatory
against defectively designed mass-produced evidence affecting their dispassionate
articles. They provide a motive for private judgment as to negligence (often, this is
individuals to enforce rules of law and enable its principal purpose) and compensatory
them to recoup the expenses of doing so, damages.
which can be considerable and not otherwise 5. moreover, … if the plaintiff can inject the
recoverable. issue of punitive damages in a case, they
A problem in this area that has concerned some can show the wealth of the defendant.
commentators and judges is that a defendant could This results in the trial of a negligence case
be bankrupted by significant punitive damages for becoming a field day with the issue of the
some plaintiffs before other plaintiffs recovered defendant’s wealth.
even compensatory damages. Hundreds of potential 6. p
laces upon the defendants the risk of vast,
victims might exist to whom the defendant might be unforeseeable damages for which usually
liable for millions of dollars in punitive damages. As no insurance protection is available (thus
a result, the defendant could become bankrupt and thwarting the policy of the law of spreading
future plaintiffs could be precluded from recovering the risk and the cost thereof).
even compensatory damages.
One question that arises in the area of punitive 7. p
laces a social policy decision in the hands
damages is whether employers, who are generally of a jury without giving them access to the
liable for the torts of their employees, should be huge and broad array of facts necessary to
made to pay punitive damages. The courts are split in reach an intelligent and useful decision.
this area, but many follow the Restatement (Second) 8. o
utrageously gives a windfall to a few
of Torts § 909, which requires the payment of plaintiffs who are fortunate enough to be
punitive damages only in cases where the employer injured by a millionaire (or a billionaire
had personal culpability or where the employee was corporation).
working in a managerial capacity.
Punitive damages have been the target of 9. imposes punishment for conduct (rather
extensive criticism, and tort reform advocates have than reimbursement for loss), a decision
focused their energies on remedying what they per- usually, and better, left to the criminal law
ceive as the excessiveness of many such awards. arena and the decision for the legislative,
(For a more detailed consideration of the tort reform judicial, or administrative representatives of
movement in reference to punitive damages, see the the people, not a small group of randomly
discussion in Chapter 16.) A comprehensive list of selected citizens.
the pitfalls of punitive damages is outlined below. 10. jury punitive damage awards of an unpredict-
The permissibility of punitive damages in able nature and appalling inconsistency con-
negligence cases: tinue to proliferate. Neither the Legislature
In the News
To read decisions of the United States Supreme Court regarding punitive damages awarded in a tobacco
case, enter “Punitive Damages in Tobacco cases” as your search term.
nor the appellate courts have been able to 16. t he “punishment” of punitive damages is
formulate coherent, reasonable guidelines assessed without the constitutional safe-
and limitations for the remedy. Perhaps the guards of criminal punishment. The punish-
quest is utopian and unrealizable. In prac- ment is imposed by only a preponderance
tice, it lacks any semblance of consistency of the evidence. Although the remedy is
between defendants, or even the same quasi-criminal, the defendant does not have
defendant, in cases tried by different juries. the protections of a criminal defendant, such
as freedom from self-incrimination, prohibi-
Because the Legislature has not prescribed guide-
tion of excessive fines, etc.
lines for punitive damages, they may be awarded
by juries at whim. Those who favor abolishing 17. t he doctrine developed in the common law
the doctrine of punitive damages argue that the to provide full compensation to the plaintiff.
lack of clear standards governing the amount of But now that the scope of damages has
punitive awards frees the jury to act irrationally, increased markedly in negligence cases to
out of passion and prejudice. include compensation for various intangible
injuries (including negligent infliction of emo-
11. t he extreme unpredictability of punitive
tional distress without proof of physical injury),
damages and the occasional crushing
the extra remedy is no longer necessary.
amount set by a vindictive jury approaches
a due process violation because, in a prac- 18. b
ecause compensatory damages include
tical sense, the defendant lacks notice [that] recovery for such intangibles as shock, loss
their conduct may result in loss of their of comfort and society, loss of enjoyment
entire assets. of life, etc., they probably often contain an
element of retribution.
12. t o the extent that the defendant has
been, or will be, punished for their 19. a
closely related argument is that civil juries
conduct by the criminal process, the are inexperienced and ill-equipped to give
imposition of punitive damages out punishment that would be in the best
constitutes double punishment. interests of society.
13. if the punitive damage issue is injected into The most frequently stated benefits of permitting
accident cases, the jury must be informed as punitive damage awards are:
to whether the compensatory award will come
1. t o provide a plaintiff who has suffered only
out of the defendant’s pocket or be paid by
nominal damages with an incentive to litigate.
an insurance carrier, for otherwise damages
cannot be sensibly assessed. This has the evil 2. t o punish the defendant for the
of injecting the issue of insurance coverage in transgression.
the case in violation of statutory policy. 3. t o deter the defendant and others from
14. p
unitive damages awarded as a result of a committing similar acts in the future.
fortuitous or accidental result rather than an It is obvious that the first rationale does
intended result will have no deterrent effect, not apply to negligence cases, and the second
for the negligent actor just assumes they will and third should not apply to ordinary negli-
not occur. gence cases, but only those with an element of
15. b
ecause insurance carriers do not have to outrageous conduct.
pay for injuries resulting from conduct that Moreover, the second rationale (punishment)
merits punitive damages, plaintiffs will only infringes on the sphere of the criminal law and
ask for punitive damages in negligence the third (deterrence) is wholly unsupported by
cases where defendant is uninsured, or any objective or scientific proof that it is effective
the defendant is wealthy. This will reduce (Woolstrum v. Mailloux, 141 Cal. App. 3d Supp. 1
the deterrent effect of permitting punitive [1983] [citations omitted]).
damages in negligence cases.
Ford Pinto Case punctured tank and entered the passenger compart-
ment through gaps resulting from the separation of
In the infamous Ford Pinto case, defendant Ford
the rear wheel well sections from the floor pan. By
Motor Company argued that it should not be lia-
the time the Pinto came to rest after the collision,
ble for punitive damages because no evidence of
both occupants had sustained serious burns. When
corporate ratification of the alleged misconduct was
they emerged from the vehicle, their clothing was
presented (Grimshaw v. Ford Motor Co., 119 Cal.
almost completely burned off. Mrs. Gray died a few
App. 3d 757, 174 Cal. Rptr. 348 [1981]). The facts are
days later of congestive heart failure as a result of
summarized by the court:
the burns. Grimshaw managed to survive but only
through heroic medical measures. He has undergone
The Accident numerous and extensive surgeries and skin grafts
In November 1971, the Grays purchased a new 1972 and must undergo additional surgeries over the next
Pinto hatchback manufactured by Ford in October 10 years. He lost portions of several fingers on his
1971. The Grays had trouble with the car from the left hand and portions of his left ear, while his face
outset. During the first few months of ownership, required many skin grafts from various portions of
they had to return the car to the dealer for repairs his body. Because Ford does not contest the amount
a number of times. Their car problems included of compensatory damages awarded to Grimshaw
excessive gas and oil consumption, down shifting of and the Grays, no purpose would be served by fur-
the automatic transmission, lack of power, and occa- ther description of the injuries suffered by Grimshaw
sional stalling. It was later learned that the stalling or the damages sustained by the Grays.
and excessive fuel consumption were caused by a
heavy carburetor float.
On May 28, 1972, Mrs. Gray, accompanied by Design of the Pinto Fuel System
13-year-old Richard Grimshaw, set out in the Pinto In 1968, Ford began designing a new subcompact
from Anaheim for Barstow to meet Mr. Gray. The automobile that ultimately became the Pinto.
Pinto was then six months old and had been driven Mr. Iacocca, then a Ford vice president, conceived the
approximately 3,000 miles. Mrs. Gray stopped in San project and was its moving force. Ford’s objective was
Bernardino for gasoline, got back onto the freeway to build a car at or below 2,000 pounds to sell for no
(Interstate 15) and proceeded toward her destination more than $2,000.
at 60–65 miles per hour. As she approached the Ordinarily, marketing surveys and preliminary
Route 30 off-ramp where traffic was congested, she engineering studies precede the styling of a new
moved from the outer fast lane to the middle lane of automobile line. Pinto, however, was a rush project,
the freeway. Shortly after this lane change, the Pinto so that styling preceded engineering and dictated
suddenly stalled and coasted to a halt in the middle engineering design to a greater degree than usual.
lane. It was later established that the carburetor float Among the engineering decisions dictated by styl-
had become so saturated with gasoline that it sud- ing was the placement of the fuel tank. It was then
denly sank, opening the float chamber and causing the preferred practice in Europe and Japan to
the engine to flood and stall. A car traveling imme- locate the gas tank over the rear axle in subcom-
diately behind the Pinto was able to swerve and pacts because a small vehicle has less “crush space”
pass it, but the driver of a 1962 Ford Galaxie was between the rear axle and the bumper than larger
unable to avoid colliding with the Pinto. The Galaxie cars. The Pinto’s styling, however, required the tank
had been traveling from 50 to 55 miles per hour, but to be placed behind the rear axle leaving only 9 or
before the impact had been braked to a speed of 10 inches of “crush space,” far less than in any other
from 28 to 37 miles per hour. American automobile or Ford overseas subcom-
At the moment of impact, the Pinto caught fire pact. In addition, the Pinto was designed so that its
and its interior was engulfed in flames. According bumper was little more than a chrome strip, less sub-
to plaintiffs’ expert, the impact of the Galaxie had stantial than the bumper of any other American car
driven the Pinto’s gas tank forward and caused it to produced then or later. The Pinto’s rear structure also
be punctured by the flange or one of the bolts on lacked reinforcing members known as “hat sections”
the differential housing so that fuel sprayed from the (two longitudinal side members) and horizontal
cross-members running between them such as were prototypes, proved safe at speeds at which the
found in cars of larger unitized construction and in Pinto failed. Where rubber bladders had been
all automobiles produced by Ford’s overseas oper- installed in the tank, crash tests into fixed barri-
ations. The absence of the reinforcing members ers at 21 miles per hour withstood leakage from
rendered the Pinto less crush resistant than other punctures in the gas tank. Vehicles with fuel tanks
vehicles. Finally, the differential housing selected installed above rather than behind the rear axle
for the Pinto had an exposed flange and a line of passed the fuel system integrity test at a 31-mile-
exposed bolt heads. These protrusions were suffi- per-hour fixed barrier. A Pinto with two longitudi-
cient to puncture a gas tank driven forward against nal hat sections added to firm up the rear structure
the differential upon rear impact. passed a 20-mile-per-hour rear impact fixed barrier
test with no fuel leakage.
Crash Tests
The Cost to Remedy Design
During the development of the Pinto, prototypes
were built and tested. Some were “mechanical Deficiencies
prototypes” that duplicated mechanical features When a prototype failed the fuel system integrity
of the design but not its appearance while others, test, the standard of care for engineers in the indus-
referred to as “engineering prototypes,” were true try was to redesign and retest it. The vulnerability
duplicates of the design car. These prototypes as of the production Pinto’s fuel tank at speeds of
well as two production Pintos were crash tested by 20- and 30-mile-per-hour fixed barrier tests could
Ford to determine, among other things, the integrity have been remedied by inexpensive “fixes,” but
of the fuel system in rear-end accidents. Ford also Ford produced and sold the Pinto to the public
conducted the tests to see if the Pinto as designed without doing anything to remedy the defects.
would meet a proposed federal regulation requiring Design changes that would have enhanced the
all automobiles manufactured in 1972 to be able to integrity of the fuel tank system at relatively little
withstand a 20-mile-per-hour fixed barrier impact cost per car included the following: longitudinal
without significant fuel spillage and all automobiles side members and cross members at $2.40 and
manufactured after January 1, 1973, to withstand $1.80, respectively; a single shock absorbent “flak
a 30-mile-per-hour fixed barrier impact without suit” to protect the tank at $4; a tank within a tank
significant fuel spillage. and placement of the tank over the axle at $5.08 to
The crash tests revealed that the Pinto’s fuel $5.79; a nylon bladder within the tank at $5.25 to
system as designed could not meet the 20-mile- $8; placement of the tank over the axle surrounded
per-hour proposed standard. Mechanical prototypes with a protective barrier at a cost of $9.95 per car;
struck from the rear with a moving barrier at substitution of a rear axle with a smooth differential
21-miles-per-hour caused the fuel tank to be driven housing at a cost of $2.10; imposition of a protec-
forward and to be punctured, causing fuel leakage in tive shield between the differential housing and
excess of the standard prescribed by the proposed the tank at $2.35; improvement and reinforcement
regulation. A production Pinto crash tested at 21 of the bumper at $2.60; addition of eight inches
miles per hour into a fixed barrier caused the fuel of crush space at a cost of $6.40. Equipping the
neck to be torn from the gas tank and the tank to car with a reinforced rear structure, smooth axle,
be punctured by a bolt head on the differential improved bumper and additional crush space at
housing. In at least one test, spilled fuel entered the a total cost of $15.30 would have made the fuel
driver’s compartment through gaps resulting from tank safe in a 34- to 38-mile-per-hour rear end col-
the separation of the seams joining the rear wheel lision by a vehicle the size of the Ford Galaxie. If, in
wells to the floor pan. The seam separation was addition to the foregoing, a bladder or tank within
occasioned by the lack of reinforcement in the rear a tank were used or if the tank were protected
structure and insufficient welds of the wheel wells to with a shield, it would have been safe in a 40- to
the floor pan. 45-mile-per-hour rear impact. If the tank had been
Tests conducted by Ford on other vehicles, located over the rear axle, it would have been safe
including modified or reinforced mechanical Pinto in a rear impact at 50 miles per hour or more.
Management’s Decision to Go anticipated federal standards. Also in evidence was

a September 23, 1970, report (Exhibit 124) by Ford’s
Forward with Knowledge of “Chassis Design Office” concerning a program “to
Defects establish a corporate (Ford) position and reply to the
The idea for the Pinto, as has been noted, was con- government” on the proposed federal fuel system
ceived by Mr. Iacocca, then executive vice president integrity standard, which included zero fuel spillage
of Ford. The feasibility study was conducted under the at 20-mile-per-hour fixed barrier crash by January 1,
supervision of Mr. Robert Alexander, vice president of 1972, and 30 miles per hour by January 1, 1973.
car engineering. Ford’s Product Planning Committee, The report states in part: “The 20 and 30 mph rear
whose members included Mr. Iacocca, Mr. Robert fixed barrier crashes will probably require repackag-
Alexander, and Mr. Harold MacDonald, Ford’s group ing the fuel tanks in a protected area such as above
vice president of car engineering, approved the Pinto’s the rear axle. This is based on moving barrier crash
concept and made the decision to go forward with the tests of a Chevelle and a Ford at 30 mph and other
project. During the course of the project, regular prod- Ford products at 20 mph. Currently there are no plans
uct review meetings were held which were chaired by for forward models to repackage the fuel tanks. Tests
Mr. MacDonald and attended by Mr. Alexander. As the must be conducted to prove that repackaged tanks
project approached actual production, the engineers will live without significantly strengthening rear struc-
responsible for the components of the project “signed ture for added protection.” The report also notes
off” to their immediate supervisors who in turn “signed that the Pinto was the “(s)mallest car line with most
off” to their superiors and so on up the chain of com- difficulty in achieving compliance.” It is reasonable to
mand until the entire project was approved for public infer that the report was prepared for and known to
release by vice presidents Alexander and MacDonald Ford officials in policy-making positions.
and ultimately by Mr. Iacocca. The Pinto crash tests The fact that two of the crash tests were run at the
results had been forwarded up the chain of command request of the Ford Chassis and Vehicle Engineering
to the ultimate decision-makers and were known Department for the specific purpose of demonstrating
to the Ford officials who decided to go forward with the advisability of moving the fuel tank over the axle
production. as a possible “fix” further corroborated Mr. Copp’s
Harley Copp, a former Ford engineer and execu- testimony that management knew the results of the
tive in charge of the crash testing program, testified crash tests. Mr. Kennedy, who succeeded Mr. Copp as
that the highest level of Ford’s management made the engineer in charge of Ford’s crash testing program,
the decision to go forward with the production of admitted that the test results had been forwarded to
the Pinto, knowing that the gas tank was vulnerable the chain of command to his superiors.
to puncture and rupture at low rear impact speeds, Finally, Mr. Copp testified to conversations in late
creating a significant risk of death or injury from fire 1968 or early 1969 with the chief assistant research
and knowing that “fixes” were feasible at nominal engineer in charge of cost-weight evaluation of the
cost. He testified that management’s decision was Pinto, and to a later conversation with the chief chassis
based on the cost savings which would inure from engineer who was then in charge of crash testing the
omitting or delaying the “fixes.” early prototype. In these conversations, both men
Mr. Copp’s testimony concerning management’s expressed concern about the integrity of the Pinto’s
awareness of the crash tests results and the vulnerabil- fuel system and complained about management’s
ity of the Pinto fuel system was corroborated by other unwillingness to deviate from the design if the change
evidence. At an April 1971 product review meeting would cost money.
chaired by Mr. MacDonald, those present received The appellate court concluded that substantial
and discussed a report (Exhibit 125) prepared by Ford evidence was presented from which the jury could
engineers pertaining to the financial impact of a pro- reasonably have inferred that Ford’s management
posed federal standard on fuel system integrity and went ahead with the production of the Pinto with
the cost savings which would accrue from deferring full knowledge of the design defect. The defect
even minimal “fixes” [footnote omitted]. The report rendered the fuel tank extremely vulnerable on rear
refers to crash tests of the integrity of the fuel system impact at low speeds and endangered the safety and
of Ford vehicles and design changes needed to meet lives of its occupants. The court categorized Ford’s
executive decision-making process as corporate In assessing the propriety of a punitive damage

malice and the jury awarded $125 million in punitive award, as in assessing the propriety of any other
damages, which was later reduced by the trial judge judicial ruling based upon factual determinations,
to $3.5 million. the evidence must be viewed in the light most favor-
One of the issues raised in this case was the able to the judgment…. Viewing the record thusly in
propriety of the punitive-damage award. Ford the instant case, the conduct of Ford’s management
contended that the $3.5 million award exceeded, was reprehensible in the extreme. It exhibited a con-
many times over, the highest award ever upheld in scious and callous disregard of public safety in order
California as well as the maximum civil penalties that to maximize corporate profits. Ford’s self-evaluation of
could be enforced under federal and state statutes its conduct is based on a review of the evidence most
against a manufacturer. favorable to it instead of on the basis of the evidence
As can be seen, the court was unpersuaded by most favorable to the judgment. Unlike malicious
this argument: conduct directed toward a single specific individual,
Ford’s tortious conduct endangered the lives of
In determining whether an award of punitive
thousands of Pinto purchasers. Weighed against the
damages is excessive, comparison of the amount
factor of reprehensibility, the punitive damage award
awarded with other awards in other cases is not
as reduced by the trial judge was not excessive.
a valid consideration…. Nor does “[t]he fact that
Nor was the reduced award excessive taking
an award may set a precedent by its size” in and
into account defendant’s wealth and the size of the
of itself render it suspect; whether the award
compensatory award. Ford’s net worth was 7.7 billion
was excessive must be assessed by examining
dollars and its income after taxes for 1976 was over
the circumstances of the particular case…. In
983 million dollars. The punitive award was approx-
deciding whether an award is excessive as a
imately .005% of Ford’s net worth and approxi-
matter of law or was so grossly disproportionate
mately .03% of its 1976 net income. The ratio of the
as to raise the presumption that it was the prod-
punitive damages to compensatory damages was
uct of passion or prejudice, the following factors
approximately 1.4 to one. Significantly, Ford does
should be weighed: The degree of reprehensi-
not quarrel with the amount of the compensatory
bility of defendant’s conduct, the wealth of the
award to Grimshaw.
defendant, the amount of compensatory dam-
Nor was the size of the award excessive in light
ages, and an amount which would serve as a
of its deterrent purpose. An award which is so small
deterrent effect on like conduct by defendant
that it can be simply written off as a part of the cost
and others who may be so inclined…. Applying
of doing business would have no deterrent effect.
the foregoing criteria to the instant case, the
An award which affects the company’s pricing of its
punitive damage award as reduced by the trial
product and thereby affects its competitive advantage
court was well within reason.1
would serve as a deterrent. The award in question
was far from excessive as a deterrent against future
1. A quantitative formula whereby the amount of wrongful conduct by Ford and others.
punitive damages can be determined in a given case with Ford complains that the punitive award is far
mathematical certainty is manifestly impossible as well
greater than the maximum penalty that may be
as undesirable…. The authors advocate abandonment of
the rule that a reasonable relationship must exist between imposed under California or federal law prohibiting
punitive damages and actual damages. They suggest the sale of defective automobiles or other products.
that courts balance society’s interest against defendant’s For example, Ford notes that California statutes pro-
interest by focusing on the following factors: Severity of
vide a maximum fine of only $50 for the first offense
threatened harm; degree of reprehensibility of defendant’s
conduct, profitability of the conduct, wealth of defendant, and $100 for a second offense for a dealer who
amount of compensatory damages (whether it was high sells an automobile that fails to conform to federal
in relation to injury), cost of litigation, potential criminal safety laws or is not equipped with required lights or
sanctions, and other civil actions against defendant based brakes …; that a manufacturer who sells brake fluid
on same conduct…. In the present case, the amount of
the award as reduced by the judge was reasonable under
in this state failing to meet statutory standards is sub-
the suggested factors, including the factor of any other ject to a maximum of only $50 …; and that the maxi-
potential liability—civil or criminal. ??? mum penalty that may be imposed under federal law
for violation of automobile safety standards if $1,000 dimension to the punitive damages equation and
per vehicle up to a maximum of $800,000 for any magnify the fundamental due process concerns of
related series of offenses…. It is precisely because the Court’s pertinent cases—arbitrariness, uncer-
monetary penalties under government regulations tainty, and lack of notice. Finally, the Court finds no
prescribing business standards or the criminal law are authority to support using punitive damages awards
so inadequate and ineffective as deterrents against to punish a defendant for harming others. The Court
a manufacturer and distributor of mass-produced believed that the Oregon Supreme Court applied
defective products that punitive damages must be the wrong constitutional standard when consider-
of sufficient amount to discourage such practices. ing Philip Morris’ appeal and remanded the case
Instead of showing that the punitive damage award so that the Oregon Supreme Court can apply the
was excessive, the comparison between the award standard they set forth. Because the application
and the maximum penalties under state and fed- of this standard may lead to the need for a new
eral statutes and regulations governing automotive trial, or a change in the level of the punitive dam-
safety demonstrates the propriety of the amount of ages award, the Court shall not consider whether the
punitive damages awarded. award is constitutionally “grossly excessive.” They
The United States Supreme Court found that the vacated the Oregon Supreme Court’s judgment
Due Process Clause forbids a State to use a puni- and remanded the case for further proceedings not
tive damages award to punish a defendant for injury inconsistent with this opinion.
inflicted on strangers to the litigation. Permitting
such punishment would add a near standardless
Case
Philip Morris USA v. Williams
127 S.Ct. 1057 (2007)
Synopsis
Background: Heavy cigarette smoker’s widow 126, and after allowing review the Supreme Court of
brought state lawsuit against cigarette manufacturer Oregon, W. Michael Gillette, J., 340 Or. 35, 127 P.3d
for negligence and deceit and seeking compensatory 1165, affirmed. Certiorari was granted in part.
and punitive damages for smoking-related lung cancer
Holdings: The Supreme Court, Justice Breyer, held that:
death of her husband. After jury found in widow’s favor,
punitive damages award based in part on jury’s desire
the Circuit Court, Multnomah County, Anna J. Brown,
to punish defendant for harming nonparties amounted
J., reduced punitive damages award from $79.5 million
to a taking of property from defendant without due
to $32 million, and award of noneconomic damages
process, and because Oregon Supreme Court’s
from $800,000 to $500,000. Widow appealed, and
application of the correct legal standard might lead to
manufacturer cross-appealed. The Court of Appeals
new trial or change in level of punitive damages award,
of Oregon reinstated jury’s verdict and affirmed on
United States Supreme Court would not consider ques-
cross-appeal, 182 Or.App. 44, 48 P.3d 824, and
tion of whether the existing award was constitutionally
adhered to its ruling on reconsideration, 183 Or.App.
“grossly excessive.”
192, 51 P.3d 670, but the United States Supreme Court
granted certiorari, vacated Court of Appeals decision, Vacated and remanded.
and remanded for reconsideration in light of intervening In this state negligence and deceit lawsuit, a jury found
opinion, 540 U.S. 801, 124 S.Ct. 56, 157 L.Ed.2d 12. On that Jesse Williams’ death was caused by smoking and
remand, the Court of Appeals reversed and remanded that petitioner Philip Morris, which manufactured the
and affirmed on cross-appeal, 193 Or.App. 527, 92 P.3d cigarettes he favored, knowingly and falsely led him
(continued)
Case | Philip Morris USA v. Williams (continued)

to believe that smoking was safe. In respect to deceit, injury has no opportunity to defend against the
it awarded $821,000 in compensatory damages and charge. See Lindsey v. Normet, 405 U.S. 56,
$79.5 million in punitive damages to respondent, the 66, 92 S.Ct. 862, 31 L.Ed.2d 36. For another,
personal representative of Williams’ estate. The trial permitting such punishment would add a near
court reduced the latter award, but it was restored by standardless dimension to the punitive dam-
the Oregon Court of Appeals. The State Supreme Court ages equation and magnify the fundamental
rejected Philip Morris’ arguments that the trial court due process concerns of this Court’s pertinent
should have instructed the jury that it could not punish cases—arbitrariness, uncertainty, and lack of
Philip Morris for injury to persons not before the court, notice. Finally, the Court finds no authority to
and that the roughly 100–to–1 ratio the $79.5 million support using punitive damages awards to
award bore to the compensatory damages amount punish a defendant for harming others. BMW,
indicated a “grossly excessive” punitive award. supra, at 568, n. 11, 116 S.Ct. 1589, distin-
guished. Respondent argues that showing
Held: harm to others is relevant to a different part of
1. A punitive damages award based in part on a jury’s the punitive damage’s constitutional equation,
desire to punish a defendant for harming nonparties namely, reprehensibility. While evidence of
amounts to a taking of property from the defendant actual harm to nonparties can help to show
without due process. Pp. 1060–1065. that the conduct that harmed the plaintiff also
(a) While “[p]unitive damages may properly be posed a substantial risk to the general public,
imposed to further a State’s legitimate interests and so was particularly reprehensible, a jury
in punishing unlawful conduct and deterring may not go further and use a punitive dam-
its repetition,” BMW of North America, Inc. ages verdict to punish a defendant directly for
v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, harms to those nonparties. Given the risks of
134 L.Ed.2d 809, unless a State insists upon unfairness, it is constitutionally important for a
proper standards to cabin the jury’s discre- court to provide assurance that a jury is ask-
tionary authority, its punitive damages system ing the right question; and given the risks of
may deprive a defendant of “fair notice ... of arbitrariness, inadequate notice, and imposing
the severity of the penalty that a State may one State’s policies on other States, it is par-
impose,” id., at 574, 116 S.Ct. 1589; may ticularly important that States avoid procedure
threaten “arbitrary punishments,” State Farm that unnecessarily deprives juries of proper
Mut. Automobile Ins. Co. v. Campbell, 538 legal guidance. Pp. 1062–1064.
U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d (c) The Oregon Supreme Court’s opinion focused
585; and, where the amounts are sufficiently on more than reprehensibility. In rejecting
large, may impose one State’s (or one jury’s) Philip Morris’ claim that the Constitution
“policy choice” upon “neighboring States” with prohibits using punitive damages to punish
different public policies, a defendant for harm to nonparties, it made
BMW, supra, at 571–572, 116 S.Ct. 1589. Thus, the three statements. The first—that this Court
Constitution imposes limits on both the procedures for held in State Farm only that a jury could
awarding punitive damages and amounts forbidden as not base an award on dissimilar acts of a
“grossly excessive.” See Honda Motor Co. v. Oberg, 512 defendant—was correct, but this Court now
U.S. 415, 432, 114 S.Ct. 2331, 129 L.Ed.2d 336. The explicitly holds that a jury may not punish for
Constitution’s procedural limitations are considered here. harm to others. This Court disagrees with the
Pp. 1062–1063. second statement—that if a jury cannot punish
(b) The Due Process Clause forbids a State to for the conduct, there is no reason to consider
use a punitive damages award to punish a it—since the Due Process Clause prohibits
defendant for injury inflicted on strangers a State’s inflicting punishwment for harm to
to the litigation. For one thing, a defendant nonparties but permits a jury to consider such
threatened with punishment for *347 such harm in determining reprehensibility. The third
(continued)
statement—that it is unclear how a jury could was negligent (as was Williams) and that Philip Morris
consider harm to nonparties and then withhold had engaged in deceit. In respect to deceit, the claim at
that consideration from the punishment cal- issue here, it awarded compensatory damages of about
culus—raises the practical problem of how to $821,000 (about $21,000 economic and $800,000 non-
know whether a jury punished the defendant economic) along with $79.5 million in punitive damages.
for causing injury to others rather than just The trial judge subsequently found the $79.5 million
took such injury into account under the rubric punitive damages award “excessive,” see, e.g., BMW
of reprehensibility. The answer is that state of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct.
courts cannot authorize procedures that create 1589, 134 L.Ed.2d 809 (1996), and reduced it to $32
an unreasonable and unnecessary risk of any million. Both sides appealed. The Oregon Court of
such confusion occurring. Although States Appeals rejected Philip Morris’ arguments and restored
have some flexibility in determining what kind the $79.5 million jury award. Subsequently, Philip
of procedures to implement to protect against Morris sought review in the Oregon Supreme Court
that risk, federal constitutional law obligates (which denied review) and then here. We remanded the
them to provide some form of protection case in light of State Farm Mut. Automobile Ins. Co. v.
where the risk of misunderstanding is a Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d
significant one. Pp. 1064–1065. 585 (2003). 540 U.S. 801, 124 S.Ct. 56, 157 L.Ed.2d
2. Because the Oregon Supreme Court’s application 12 (2003). The Oregon Court of Appeals adhered to its
of the correct standard may lead to a new trial, or a original views. And Philip Morris sought, and this time
change in the level of the punitive damages award, obtained, review in the Oregon Supreme Court.
this Court will not consider the question whether Philip Morris then made two arguments relevant
the award is constitutionally “grossly excessive.” here. First, it said that the trial court should have
P. 1065. accepted, but did not accept, a proposed “puni-
340 Or. 35, 127 P.3d 1165, vacated and remanded. tive damages” instruction that specified the jury could
BREYER, J., delivered the opinion of the Court. not seek to punish Philip Morris for injury to other per-
sons not before the court. In particular, Philip Morris
Opinion pointed out that the plaintiff’s attorney had told the jury
Justice BREYER delivered the opinion of the Court. to “think about how many other Jesse Williams in the
The question we address today concerns a large last 40 years in the State of Oregon there have been.
state-court punitive damages award. We are asked ... In Oregon, how many people do we see outside,
whether the Constitution’s Due Process Clause per- driving home ... smoking cigarettes? ... [C]igarettes
mits a jury to base that award in part upon its desire ... are going to kill ten [of every hundred]. [And] the
to punish the defendant for harming persons who are market share of Marlboros [i.e., Philip Morris] is one-
not before the court (e.g., victims whom the parties third [i.e., one of every three killed].” App. 197a, 199a.
do not represent). We hold that such an award would In light of this argument, Philip Morris asked the trial
amount to a taking of “property” from the defendant court to tell the jury that “you may consider the extent
without due process. of harm suffered by others in determining what [the]
I reasonable relationship is” between *351 any punitive
This lawsuit arises out of the death of Jesse Williams, award and “the harm caused to Jesse Williams” by
a heavy cigarette smoker. Respondent, Williams’ widow, Philip Morris’ misconduct, “[but] you are not to punish
represents his estate in this state lawsuit for negligence the defendant for the impact of its alleged misconduct
and deceit against Philip Morris, the manufacturer of on other persons, who may bring lawsuits of their own
Marlboro, the brand that Williams favored. A jury found in which other juries can resolve their claims ....” Id., at
that **1061 Williams’ death was caused by smoking; 280a. The judge rejected this proposal and instead told
that Williams smoked in significant part because the jury that “[p]unitive damages are awarded against a
he thought it was safe to do so; *350 and that Philip defendant to punish misconduct and to deter miscon-
Morris knowingly and falsely led him to believe that duct,” and “are not intended to compensate the plaintiff
this was so. The jury ultimately found that Philip Morris or anyone else for damages caused by the defendant’s
(continued)

conduct.” Id., at 283a. In Philip Morris’ view, the result II
was a significant likelihood that a portion of the $79.5 This Court has long made clear that “[p]unitive dam-
million award represented punishment for its having ages may properly be imposed to further a State’s
harmed others, a punishment that the Due Process legitimate interests in punishing unlawful conduct and
Clause would here forbid. deterring its repetition.” BMW, supra, at 568, 116 S.Ct.
Second, Philip Morris pointed to the roughly 100–to–1 1589. See also Gertz v. Robert Welch, Inc., 418 U.S. 323,
ratio the $79.5 million punitive damages award bears to 350, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974); Newport v.
$821,000 in compensatory damages. Philip Morris noted Fact Concerts, Inc., 453 U.S. 247, 266–267, 101 S.Ct.
that this Court in BMW emphasized the constitutional 2748, 69 L.Ed.2d 616 (1981); Pacific Mut. Life Ins. Co.
need for punitive damages awards to reflect (1) the “repre- v. Haslip, 499 U.S. 1, 22, 111 S.Ct. 1032, 113 L.Ed.2d 1
hensibility” of the defendant’s conduct, (2) a “reasonable (1991). At the same time, we have emphasized the
relationship” to the harm the plaintiff (or related victim) need to avoid an arbitrary determination of an award’s
suffered, and (3) the presence (or absence) of “sanc- amount. Unless a State insists upon proper standards
tions,” e.g., criminal penalties, that state law provided for that will cabin the jury’s discretionary authority, its puni-
comparable conduct, 517 U.S., at 575–585, 116 S.Ct. tive damages system may deprive a defendant of “fair
1589. And in State Farm, this Court said that the long- notice ... of the severity of the penalty that a State may
standing historical practice of setting punitive damages at impose,” BMW, supra, at 574, 116 S.Ct. 1589; it may
two, three, or four times **1062 the size of compensatory threaten “arbitrary punishments,” i.e., punishments
damages, while “not binding,” is “instructive,” and that “[s] that reflect not an “application of law” but “a
ingle-digit multipliers are more likely to comport with due decisionmaker’s caprice,” State Farm, supra, at 416,
process.” 538 U.S., at 425, 123 S.Ct. 1513. Philip Morris 418, 123 S.Ct. 1513 (internal quotation marks omitted);
claimed that, in light of this case law, the punitive award and, where the amounts are sufficiently large, it may
was “grossly excessive.” See TXO Production Corp. v. impose one State’s (or one jury’s) “policy choice,” say,
Alliance Resources Corp., 509 U.S. 443, 458, 113 S.Ct. as to the conditions under which (or even whether)
2711, 125 L.Ed.2d 366 (1993) (plurality opinion); BMW, certain products can be sold, upon “neighboring
supra, at 574–575, 116 S.Ct. 1589; State Farm, supra, at States” with different public policies, BMW, supra, at
416–417, 123 S.Ct. 1513. 571–572, 116 S.Ct. 1589.
The Oregon Supreme Court rejected these and other For these and similar reasons, this Court has
Philip Morris arguments. In particular, it rejected Philip found that the Constitution imposes certain limits, in
Morris’ claim that the Constitution prohibits a state respect both to procedures for awarding punitive dam-
jury “from using punitive damages to punish a defen- ages and to amounts forbidden as “grossly excessive.”
dant for harm to nonparties.” 340 Or. 35, 51–52, 127 See Honda Motor Co. v. Oberg, 512 U.S. 415, 432, 114
P.3d 1165, 1175 (2006). And in light of Philip Morris’ S.Ct. 2331, 129 L.Ed.2d 336 (1994) (requiring judicial
reprehensible conduct, it found that the $79.5 million review of the size of punitive awards); Cooper Industries,
award was not “grossly excessive.” Id., at 63–64, 127 Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424,
P.3d, at 1181–1182. 443, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001) (review
Philip Morris then sought certiorari. It asked us to must be de novo); BMW, supra, at 574–585, 116 S.Ct.
consider, among other things, (1) its claim that Oregon 1589 (excessiveness decision depends upon the rep-
had unconstitutionally permitted it to be punished for rehensibility of the defendant’s conduct, whether the
harming nonparty victims; and (2) whether Oregon had award bears a reasonable relationship to the actual and
in effect disregarded “the constitutional requirement potential harm caused by the defendant to the plaintiff,
that punitive damages be reasonably related to the and the difference between the award and sanctions
plaintiff’s harm.” Pet. for Cert. (I). We granted certiorari “authorized or imposed in comparable cases”); State
limited to these two questions. Farm, supra, at 425, 123 S.Ct. 1513 (excessive-
For reasons we shall set forth, we consider only ness more likely where ratio exceeds single digits).
the first of these questions. We vacate the Oregon Because we shall not decide whether the award here
Supreme Court’s judgment, and we remand the case at issue is “grossly excessive,” we need now only
for further proceedings. consider the Constitution’s procedural limitations.
(continued)
III that likely included harm to others in the equation. 517

In our view, the Constitution’s Due Process Clause for- U.S., at 568, n. 11, 116 S.Ct. 1589. But context makes
bids a State to use a punitive damages award to punish clear that the term “error-free” in the BMW footnote
a defendant for injury that it inflicts upon nonparties or referred to errors relevant to the case at hand. Although
those whom they directly represent, i.e., injury that it elsewhere in BMW we noted that there was no sug-
inflicts upon those who are, essentially, strangers to the gestion that the plaintiff “or any other BMW purchaser
litigation. For one thing, the Due Process Clause pro- was threatened with any additional potential harm” by
hibits a State from punishing an individual without first the defendant’s conduct, we did not purport to decide
providing that individual with “an opportunity to pres- the question of harm to others. Id., at 582, 116 S.Ct.
ent every available defense.” Lindsey v. Normet, 405 1589. Rather, the opinion appears to have left the
U.S. 56, 66, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972) (internal question open.
quotation marks omitted). Yet a defendant threatened Respondent argues that she is free to show harm
with punishment for injuring a nonparty victim has no to other victims because it is relevant to a different
opportunity to defend against the charge, by showing, part of the punitive damage’s constitutional equation,
for example in a case such as this, that the other victim namely, reprehensibility. That is to say, harm to oth-
was not entitled to damages because he or she knew ers shows more reprehensible conduct. Philip Morris,
that smoking was dangerous or did not rely upon the in turn, does not deny that a plaintiff may show harm
defendant’s statements to the contrary. to others in order to demonstrate reprehensibility. Nor
For another, to permit punishment for injuring a non- do we. Evidence of actual harm to nonparties can help
party victim would add a near standardless dimension to show that the conduct that harmed the plaintiff also
to the punitive damage’s equation. How many such posed a substantial risk of harm to the general public,
victims are there? How seriously were they injured? and so was particularly reprehensible—although coun-
Under what circumstances did injury occur? The trial sel may argue in a particular case that conduct result-
will not likely answer such questions as to nonparty ing in no harm to others nonetheless posed a grave
victims. The jury will be left to speculate. And the fun- risk to the public, or the converse. Yet for the reasons
damental due process concerns to which our puni- given above, a jury may not go further than this and
tive damages cases refer—risks of arbitrariness, use a punitive damages verdict to punish a defendant
uncertainty, and lack of notice—will be magnified. State directly on account of harms it is alleged to have visited
Farm, 538 U.S., at 416, 418, 123 S.Ct. 1513; BMW, 517 on nonparties.
U.S., at 574, 116 S.Ct. 1589. Given the risks of unfairness that we have men-
Finally, we can find no authority supporting the use tioned, it is constitutionally important for a court to
of punitive damages awards for the purpose of punish- provide assurance that the jury will ask the right ques-
ing a defendant for harming others. We have said that it tion, not the wrong one. And given the risks of arbi-
may be appropriate to consider the reasonableness of trariness, the concern for adequate notice, and the risk
a punitive damages award in light of the potential harm that punitive damages awards can, in practice, impose
the defendant’s conduct could have caused. But we one State’s (or one jury’s) policies (e.g., banning cig-
have made clear that the potential harm at issue was arettes) upon other States—all of which accompany
harm potentially caused the plaintiff. See State Farm, awards that, today, may be many times the size of such
supra, at 424, 123 S.Ct. 1513 (“[W]e have been reluc- awards in the 18th and 19th centuries, see id., at 594–
tant to identify concrete constitutional limits on the ratio 595, 116 S.Ct. 1589 (BREYER, J., concurring)—it is
between harm, or potential harm, to the plaintiff and particularly important that States avoid procedure that
the punitive damages award” (emphasis added)). See unnecessarily deprives juries of proper legal guidance.
also TXO, 509 U.S., at 460–462, 113 S.Ct. 2711 (plural- We therefore conclude that the Due Process Clause
ity opinion) (using same kind of comparison as basis for requires States to provide assurance that juries are not
finding a punitive award not unconstitutionally exces- asking the wrong question, i.e., seeking, not simply to
sive). We did use the term “error-free” (in BMW) to determine reprehensibility, but also to punish for harm
describe a lower court punitive damages calculation caused strangers.
(continued)
IV statement. We have explained why we believe the Due

Respondent suggests as well that the Oregon Supreme Process Clause prohibits a State’s inflicting punish-
Court, in essence, agreed with us, that it did not autho- ment for harm caused strangers to the litigation. At the
rize punitive damages awards based upon punishment same time, we recognize that conduct that risks harm
for harm caused to nonparties. We concede that one to many is likely more reprehensible than conduct that
might read some portions of the Oregon Supreme risks harm to only a few. And a jury consequently may
Court’s opinion as focusing only upon reprehensibility. take this fact into account in determining reprehensibil-
See, e.g., 340 Ore., at 51, 127 P.3d, at 1175 (“[T]he jury ity. Cf., e.g., Witte v. United States, 515 U.S. 389, 400,
could consider whether Williams and his misfortune 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995) (recidivism
were merely exemplars of the harm that Philip Morris statutes taking into account a criminal defendant’s
was prepared to inflict on the smoking public at large”). other misconduct do not impose an “ ‘additional pen-
But the Oregon court’s opinion elsewhere makes clear alty for the earlier crimes,’ but instead ... ‘a stiffened
that that court held more than these few phrases might penalty for the latest crime, which is considered to
suggest. be an aggravated offense because a repetitive one’ ”
The instruction that Philip Morris said the trial court (quoting Gryger v. Burke, 334 U.S. 728, 732, 68 S.Ct.
should have given distinguishes between using harm 1256, 92 L.Ed. 1683 (1948))).
to others as part of the “reasonable relationship” The Oregon court’s third statement raises a practi-
equation (which it would allow) and using it directly cal problem. How can we know whether a jury, in tak-
as a basis for punishment. The instruction asked the ing account of harm caused others under the rubric
trial court to tell the jury that “you may consider the of reprehensibility, also seeks to punish the defen-
extent of harm suffered by others in determining what dant for having caused injury to others? Our answer
[the] reasonable relationship is” between Philip Morris’ is that state courts cannot authorize procedures that
punishable misconduct and harm caused to Jesse create an unreasonable and unnecessary risk of any
Williams, “[but] you are not to punish the defendant such confusion occurring. In particular, we believe
for the impact of its alleged misconduct on other per- that where the risk of that misunderstanding is a sig-
sons, who may bring lawsuits of their own in which nificant one—because, for instance, of the sort of
other juries can resolve their claims ....” App. 280a evidence that was introduced at trial or the kinds of
(emphasis added). And as the Oregon Supreme Court argument the plaintiff made to the jury—a court, upon
explicitly recognized, Philip Morris argued that the request, must protect against that risk. Although the
Constitution “prohibits the state, acting through a civil States have some flexibility to determine what kind of
jury, from using punitive damages to punish a defen- procedures they will implement, federal constitutional
dant for harm to nonparties.” 340 Ore., at 51–52, 127 law obligates them to provide some form of protection
P.3d, at 1175. in appropriate cases.
The court rejected that claim. In doing so, it pointed V
out (1) that this Court in State Farm had held only that As the preceding discussion makes clear, we believe
a jury could not base its award upon “dissimilar” acts that the Oregon Supreme Court applied the wrong con-
of a defendant. 340 Ore., at 52–53, 127 P.3d, at 1175– stitutional standard when considering Philip Morris’
1176. It added (2) that “[i]f a jury cannot punish for the appeal. We remand this case so that the Oregon Supreme
conduct, then it is difficult to see why it may consider Court can apply *358 the standard we have set forth.
it at all.” Id., at 52, n. 3, 127 P.3d, at 1175, n. 3. And Because the application of this standard may lead to the
it stated (3) that “[i]t is unclear to us how a jury could need for a new trial, or a change in the level of the puni-
‘consider’ harm to others yet withhold that consider- tive damages award, we shall not consider whether the
ation from the punishment calculus.” Ibid. award is constitutionally “grossly excessive.” We vacate
The Oregon court’s first statement is correct. We did the Oregon Supreme Court’s judgment and remand
not previously hold explicitly that a jury may not punish the case for furtherproceedings not inconsistent with
for the *357 harm caused others. But we do so hold this opinion.
now. We do not agree with the Oregon court’s second It is so ordered.

1. What did the defendant mean when they argued that the trial court should have accepted, but did not
accept, a proposed “punitive damages” instruction that specified the jury could not seek to punish Philip
Morris for injury to other persons not before the court?
2. What does the excessiveness decision depend upon according to the Supreme Court?
3. Does the Court view the Constitution’s Due Process Clause as forbidding a State to use a punitive dam-
ages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly
represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation?
4. Why did the Court remand the case back to the Oregon Supreme Court?
Recovery for Loss of are subjective and hard to quantify just like other
non-economic damages.
Consortium Because both spouses can recover, this leads
to the possibility of double recovery. If the spouses
Under the common law, a husband and wife were
were to sue in two separate actions, one spouse
considered one. Therefore, if the wife were injured
might recover for medical expenses in one action,
the husband could recover for loss of consortium,
and the other spouse might later recover for the
which encompasses recovery for lost services, such
same expenses by arguing that they were the one
as companionship, sex, earnings outside the home,
who in fact paid the expenses. To preclude dou-
and so on. But because the wife had no right to ser-
ble recovery, many states require that such actions
vices from her husband, she could recover nothing if
be brought together.
he were injured. Evolution of the common law and
In most jurisdictions, parents can recover for
equal-protection attacks on statutes have resulted
medical expenses incurred as a result of injury to a
in either spouse being entitled to recover for loss of
child. They are also entitled to recovery for the lost
services.
services and earnings of a minor child, as well as the
Loss of consortium would fall into the general
loss of comfort and affection from the minor. In cases
category of damages. It is a non-economic loss just
in which the child has died, more and more courts
like pain and suffering, emotional distress, damage
are allowing recovery for loss of the child’s compan-
to reputation, shock, embarrassment, humiliation,
ionship. The parent would have to show that the
etc. The idea is that the surviving spouse need to be
parent and child relationship has been permanently
compensated for the loss of these things, however,
altered by the injury.
money is a paltry substitute and hard to quantify.
Typically, children have not been allowed to
A loss of consortium claim is also a derivative
recover for loss of companionship of a parent who
claim in that it is derived from the spouse’s under-
has been injured. More recently, however, a few
lying claim. If a husband, for example, is injured in
courts have allowed such recovery when the child
a motor vehicle accident and successfully sues the
is a minor and is dependent on the parent for its
negligent driver, his spouse can then sue for loss
nurturing and development. Again, the child
of their husband’s consortium. Loss of consortium
would have to show an irrevocable damage to the
does not include personal services like taking care
child and parent relationship caused by the injury.
of the injured spouse, loss of financial support by
Courts have been reluctant to get involved in this
the injured spouse, or loss of earnings given up in
area because of the difficulty in quantifying the
order to take care of the injured spouse. Loss of
damages. Furthermore, the potential for duplicative
consortium is vague but usually includes the loss of
claims exists when the injured parent has several
love, affection, companionship, sexual relations, or
minor children.
comfort. It is evident that those are all things that

1. A monkey escapes from the defendant’s enclosed rescue center through an opening in the fence and
attacks the plaintiff who was jogging on a nearby road, causing facial and bodily injuries. One of the
defendants’ primates had escaped five years ago, but none had done so through this part of the fence or
since then. How the fence was damaged cannot be proven by either party. Ranchers and rescue opera-
tors are required by law to fence their land and to exercise ordinary care to keep their animals inside. The
defendants are found negligent despite their claims of diligence in repairing the fence. Are punitive dam-
ages justified in this case? What about the fact that the animals were primates and not cows? Should
that impose a different standard of care?
2. A workman, employed by a contractor hired by Standard Oil to repair a road on its refinery property, is
injured by the leaking of a sulfuric acid which exploded from the shallowly buried underground Standard
Oil pipeline. The facts are summarized by the appellate court according to the plaintiff’s testimony and
then according to the defendant’s testimony.
The plaintiff’s testimony showed

a. 50 leaks had been reported in the pipeline throughout its life.
b. the line was 20 years old and its remaining life expectancy at the time of the accident could have been
measured in months.
c. the defendant knew the roadwork would be in the vicinity of the line.
d. a Standard Oil inspector had recommended replacement of the line within six months prior to the
accident.
e. that the company, because of the daily use of the pipe and the loss of profit if the line shut down,
decided to “run it to failure.”
f. that the defendant did not post a warning at the work site or place any type of guard there.
g. the sulfuric acid at the refinery had caused 20 to 25 injuries to date.
The defendant, on the other hand, showed

a. that the previous leaks had occurred over a 20-year period and over a line four miles long.
b. that all leaks had been promptly repaired on the day of occurrence.
c. that all of the leaks except one or possibly two had occurred at valves or at defective welds, rather
than because of pipe erosion, as in the present case.
d. that the line had a remaining life of four or five years and substantial loss would result from its being
shut down for more than repair time.
e. that no leak had ever occurred near the section of the pipe where the plaintiff was injured.
f. that in a faraway area where the company had decided to “run to failure” rather than replace (after
several ruptures), the company had placed a heavy redwood covering around the pipe.
g. that the defendant company had inspected the whole line with special equipment two years before the
accident and found no need of repair.
h. that in the area where the inspection showed a need for replacement, the company had been quite
willing to shut down the line for several days.
i. that of the 32 sulfuric acid injuries in the plant in the preceding 10 years, only one or possibly two
occurred because of leaks in the pipeline. Colson v. Standard Oil, 60 Cal. App. 3d 913 (1976).
After reviewing these facts, do you think punitive damages are justified?
Assessment of Damages 15. To what extent will the plaintiff be prevented

from pursuing interests or opportunities
From a practical perspective, the evaluation of they had but had not yet pursued?
damages is a critical aspect of a plaintiff’s case and
16. What is the nature and extent of
of a defendant’s response to a claim. What follows
rehabilitation the plaintiff has required?
is a list of the types of questions plaintiffs’ attorneys
frequently ask when considering the value of a 17. What medical supplies and equipment,
case: drugs, and nursing services has the plaintiff
required?
Medical Expenses
18. In what ways have the plaintiff’s injuries created
1. What type of treatment was received?
a substantial impact on the plaintiff’s family?
2. For how long was the treatment received?
19. Is there a loss of consortium claim?
3. Was the treatment recognized in the
20. Will the plaintiff be a credible witness?
medical community?
21. Has the plaintiff had prior claims? If so, what
4. Was the treatment necessary for the
were they for?
specified injuries?
Lost Wages
5. What were the charges for the treatment?
1. How much money would the plaintiff have
6. Who performed the treatment (e.g., a
earned but for being injured?
medical doctor, osteopath, chiropractor,
physician’s assistant, physical therapist, 2. How much work has the plaintiff lost as a
etc.)? result of being injured, including vacation
and sick time that was taken while
7. Was the treatment excessive considering the
recovering from the injuries?
nature of the injuries?
3. Is the number of lost work hours reasonable
8. Was the plaintiff hospitalized? If so, for how
in light of the nature and extent of the
long?
injuries sustained?
9. Did the plaintiff have to be removed
4. Has the plaintiff lost potential pay increases
from the scene of the accident by an
(e.g., promotions or bonuses) as a result of
ambulance?
lost work?
10. Was the plaintiff treated in the emergency
Property Damage
room?
1. What is the cost of repairing damaged
11. What percentage of medical expenses
property?
was devoted to diagnostics and what
percentage to treatment? 2. If a vehicle had to be rented while the
plaintiff’s vehicle was being repaired, what
12. Did the plaintiff suffer any permanent
is the cost of that rental?
injuries, such as scarring, a limp, loss or
impairment of a limb or organ? How serious 3. What personal items were lost or destroyed
are these injuries? as a result of the defendant’s actions and
what is the cost of replacing those items
13. To what extent will these permanent inju-
based on their fair market value?
ries impair the plaintiff’s ability to work, to
exercise, to enjoy hobbies, and to otherwise 4. What is the fair market value of any items
enjoy life? that cannot be replaced (i.e., heirlooms,
paintings, historical building, etc.)?
14. Did the plaintiff suffer any loss of mental
function or emotional trauma, and to what 5. How much did the plaintiff expend in sales
extent has this compromised their life? taxes in replacing or repairing property?
Pain and Suffering f. checking with the state Bar where

the opposing counsel is licensed to
1. What is the nature and extent of injuries?
see if there are any past or existing
2. To what extent is the plaintiff incapacitated reprimands against them.
by permanent injuries or disfigurement? To evaluate future medical expenses, attorneys
3. To what extent are the plaintiff’s daily activ- usually consult with medical doctors to help assess
ities curtailed or made more difficult as a what kinds of medical treatment and rehabilitation
result of being injured? will be required in the future and to what extent that
treatment will temporarily incapacitate the plaintiff.
4. What kinds of recoveries have been If, for example, the doctor projects that in 20 years
awarded in cases involving injuries of com- the plaintiff will need another hip replacement, the
parable nature and degree? attorney needs to know how much time the plain-
5. To answer the last question, attorneys con- tiff will spend in the hospital and undergoing reha-
sider their own experience as well as the bilitation before being restored to relatively normal
experiences of other litigators, which they functioning. To assess future lost wages, attorneys
can do by accessing the following: rely on the expertise of economists and vocational
rehabilitation counselors, who help predict what the
a. trial reporters (or jury reporters), which
plaintiff will be able to do, whether special schooling
are issued weekly or biweekly and list
will be required, and how much that schooling will
the verdicts received in jury trials, arbi-
cost. Less tangible factors that attorneys consider in
trations, mediations, non-jury trials, and
evaluating cases are the experience and reputation
other dispute resolution mechanisms,
of opposing counsel and the adjustor, as well as the
such as summary trials.
policies and reputation of the insurance company
b. compendiums, which are compilations against which they have a claim.
of all dispute resolution mechanisms
involving specific injuries for a des-
ignated period of time. Compilation
can also be requested for verdicts and
Wrongful-Death and
settlements for particular doctors, attor- Survival Actions
neys, firms, or judges.
Under the common law, when a plaintiff died as a
c. personal injury valuation programs,
consequence of injuries inflicted on them by the
which are software programs that allow
defendant, their tort action died along with them.
attorneys to input the data from their
At that point, their spouse and children also lost
cases and help them compute the value
any right to recovery. The reasoning behind this rule
of their case.
was that it was immoral to put a monetary value on
d. journals published by the American Trial a human life. Unfortunately, this rule increased the
Lawyers Association, state trial lawyers’ likelihood that defendants would kill their plaintiffs,
associations, and defense organizations as it was cheaper for the defendant if the plaintiff
that list the verdicts for cases that went died.
to trial or were settled. Attorneys can Lord Campbell’s Act, passed in England in 1846
also place personal ads soliciting infor- and after which most modern statutes are patterned,
mation from other attorneys who have allowed recovery to families of individuals killed by
tried or settled cases involving injuries tortious conduct. In accord with this act all states
similar to those implicated in the case have passed statutes allowing some kind of survival
the attorney is litigating. action so that the injured party’s claim survives their
e. websites on the Internet that provide death (see Exhibit 7–3). In most states the cause of
access to forums, discussion groups, death is irrelevant, but in a few states if the death
bulletin boards, and research tools, all of resulted from the defendant’s tort, a wrongful-death
which can be used in evaluating cases. action and not a survival claim must be filed. All
Exhibit 7–3 Comparison of Survival Statutes Local Links

and Wrongful-Death Statutes
In your state what damages can be recovered
Survival Statutes Wrongful-Death Statutes in a wrongful death action?
• Injured party’s claim • Third parties can recover

survives their death. for losses they sustain as a
result of victim’s death.
caused by the decedent’s death. Typically, the loss
• Damages awarded to • Proceeds go to spouses,
deceased’s estate. parents, or children of is measured in terms of the monetary contributions
deceased. that the decedent would have made during their
lifetime to their beneficiary. In more recent years a
pecuniary value has been attached to the compan-
survival statutes provide that a cause of action for ionship, sexual relationship, and moral guidance pro-
injury to tangible property survives the death of the vided by the decedent. Furthermore, several states
plaintiff. The majority of courts allow personal injury allow recovery for grief and other mental suffering of
actions to survive as well. A few states permit claims the survivors. Some of those states have imposed a
pertaining to intangible interests, such as infliction of cap on those damages, however, to protect against
emotional distress and defamation, to survive. Most runaway awards.
allow a tort action to be maintained or even initiated Recovery in this area becomes particularly
after the defendant’s death as well. Similarly, statutes problematic when parents bring a wrongful-death
allowing wrongful-death actions have also been action for a child’s death. Most wrongful-death stat-
passed, so that third persons, usually the decedent’s utes require that the child be born alive in order
spouse and children, can recover for losses they sus- to recover damages for the child’s wrongful death.
tained as a result of the decedent’s death. The issue of whether or not a wrongful-death action
Wrongful death is strictly governed by state law for a fetus is a viable claim has been the subject of
and statute. Before a state enacted a wrongful death considerable litigation. Technology has extended
statute, any claim died with the deceased. The issue the debate to include the question of whether a
of wrongful death is also unique in the field of tort claim for wrongful death for a fetus is appropriate
law because it centers around the interpretation of and/or against public policy. Determining damages
statutes. Litigants in this area are forced to engage for the wrongful death of child is complicated since
in statutory construction and determination of leg- the expense of raising a child usually far surpasses
islative intent based on their resident state. This is any earnings the child can be expected to bring
often onerous because most of the statutes were home. Many courts allow recovery of a substan-
written more than 100 years ago. tial reward for loss of companionship of the child.
Other courts have allowed consideration of what
Types of Recovery Allowed the decedent child might have brought to their
parents in terms of support in their old age. In one
When a survival action is filed separately from a
case, for example, $100,000 was allowed for loss
wrongful-death action, the possibility of double
of a very intelligent seven-year-old who exhibited
recovery exists. To prevent this from happening,
talent as a cartoonist (Haumerson v. Ford Motor
many states limit survivor actions to those losses
Co., 257 N.W.2d 7 [Iowa 1977]).
occurring prior to the decedent’s death. Damages
are restricted, therefore, to the decedent’s medical
expenses, lost earnings prior to death, and pain
and suffering. Consequently, in such states, if the Local Links
death is instantaneous no survival action exists at all In your state can survivors recover for their
because no damages occurred prior to death (see grief and suffering? Also, can survivors
Restatement [Second]) of Torts § 926, cmt. a). recover for the loss of companionship,
Under Lord Campbell’s Act and the wrongful- sexual relationship, and guidance provided
death legislation patterned after that act, damages by the decedent? Is there a cap on those?
were to be limited to pecuniary or economic losses
Local Links Local Links

In your state can parents recover for the loss Do the courts in your state allow evidence of
of companionship of a child? remarriage during voir dire?
Disclosure of Remarriage disagreement exists as to which defenses should

be allowed in a wrongful-death action. Most states
Another issue that arises in wrongful-death and
resolve this by allowing the defendant to assert any
survival actions is whether a surviving spouse who
defenses they would have been able to use against
remarries is entitled to keep this information from the
the decedent if the decedent were still alive. In such
jury. The concern is that a jury in particular may be
cases, for example, the defendant may argue that
biased and inclined to give a lower verdict if it learns
the decedent was contributorily negligent or that
of the remarriage. Of course, defendants are eager
they assumed the risk.
to disclose this information during voir dire and
Statutes of limitations are another concern in
argue that they need to do so in case prospective
wrongful-death and survival actions. Suppose, for
jurors are acquainted with the new spouse. Most
example, the decedent failed to file an action until
courts, however, refuse to allow evidence of remar-
after the statute of limitations had run. Would a
riage even if used for this limited purpose.
wrongful-death or survival action be barred? Some
courts have held that the statute of limitation period
Who Recovers? begins at the death of the party who was injured
Survival actions are usually brought by the executor unless applying the statute would eliminate the
or administrator of an estate. Recovery becomes an entire cause of action because it was not reason-
asset of that estate and may be reached by creditors. ably discoverable beforehand. Most courts have
It is often distributed in accordance with state tes- answered no and indicate that the death action
tacy and intestacy laws. Some argue that survival begins to run from the date of death.
actions may result in a windfall to distant relatives Remember that survival actions and wrongful-
who had little or no contact with the decedent. In death actions are statutory creatures and are
contrast, relatives who were not named beneficiaries therefore subject to statutory construction and
in a wrongful-death action may be able to recover interpretation. Be sure to examine the statutes in
in a survival action. Recovery for pain and suffering your state dealing with these types of claims.
in survival actions is allowed only if the decedent
was conscious of their pain. Courtroom battles
often revolve, therefore, around the issue of the
decedent’s consciousness, particularly if he survived
Discounting Future
only a few seconds or minutes after being injured Damages
(such as in a mid-air collision of an aircraft).
A plaintiff, in a sense, receives a windfall by collecting
in the present for future losses. The rationale is that
Defenses a lump sum paid now for future loss is worth more
Although any defenses that could have been to the recipient than future payments because a
raised against the decedent are still available to lump sum has the potential of creating more money
the defendant in a survival action, considerable through investment. In practical terms, having
In the News
To see the complaint filed by Brynn Hartman’s brother against a pharmaceutical company in the murder
suicide of his sister and her husband, Phil Hartman, enter “Phil Hartman wrongful death case” as your
search term.
$10,000 in the bank now, invested at a modest rate value does not fully compensate the victim, as the
of return, is more advantageous than having $10,000 upward movement of prices can generally be antici-
ten years from now. To illustrate, the present value pated. In one case, for example, the court concluded
(defined as the current value of money that is to be that inflation and present value canceled each other
paid in the future) of $1.00 payable at 5 percent out (Pierce v. New York Central Rail Co., 304 F. Supp.
compound interest in one year is $0.95, whereas the 44 [W.D. Mich. 1969]). The court noted that a dollar
present value of $1.00 in 10 years is $0.61, and the invested that would earn 5 percent per year now
present value of $1.00 payable in 20 years is $0.38. would increase in value to $2.30 after 26 years. How-
Recognition of the earning power of money has ever, if the purchasing power of that same dollar was
resulted in many courts requiring juries to reduce, reduced 5 percent per year, then in 26 years it would
or discount, awards to the present value of lost take $2.30 to purchase what it presently cost a dollar
future earnings. Discounting an award prevents the to buy. Other courts have rejected this argument as
plaintiff from realizing an unwarranted windfall and being too speculative.
reduces losses to the defendant.
Life expectancy tables, annuity tables, and work
expectancy tables are used for determining earning Structured Settlements
expectancy. The present value of anticipated earn-
ings can be computed by calculating a dollar at the Traditionally, under the common law, past and
current rate of interest and multiplying that by the future damages were paid in a single lump sum.
average monthly earnings for the designated period More recently, large future damages have been
of time. The present value, for example, of 25 annual paid using a periodic-payment settlement, often
payments of $10,000 per year ($250,000 total) referred to as a structured settlement. Three rea-
would be $127,833 if an interest rate of 6 percent is sons are generally given for the use of a structured
assumed. As you can see, the defendant receives a settlement. First, the plaintiff does not have the
type of “interest” on the advance payment when the responsibility of making arrangements to invest
plaintiff is awarded the present value of the losses the money if he receives periodic payments over
(Restatement [Second] of Torts § 913A). See “Practice a long period of time. Money will be available to
Pointers” at the end of this chapter for more details cover basic human needs. Second, a large amount
on the calculation of present values. of the money will be prudently invested and will
Some attorneys have argued that inflation not be squandered through ignorance, bad advice,
offsets the discounting of present-value awards. The or frivolity. Third, the income tax that the plaintiff
argument is that claiming future damage for present has to pay is usually minimized using a structured

After buying a used vehicle that proved to be defective, Garcia returned the vehicle to the seller and refused
to make further payments. After several unsuccessful attempts by a collection agency to collect payments,
sheriff’s deputies are sent to execute a writ of attachment on Garcia’s mobile home. When they arrive,
Garcia kills one of the deputies and then engages in a shootout with the other deputy, resulting in the death
of both Garcia and the deputy. A wrongful-death action is filed by Garcia’s surviving spouse, alleging that the
wrongful acts of the collection agency drove Garcia insane, and that while insane he engaged in a gunfight
with the deputies, which was tantamount to suicide. Garcia and his spouse had been legally separated for
six months.
Consult the wrongful-death and survival statutes in your states to determine who could bring this claim.
Could both of the deceased persons survivors bring a suit? Could the surviving spouses bring a claim?
Against whom? What kinds of damages could be claimed? What would be the statute of limitations for this
claim?
settlement. Although tax need not be paid on a Settlements,” Trial 42 [Sept. 1989].) Structured settle-
lump-sum amount, it does have to be paid on any ments are required by statute under certain circum-
income resulting from an investment of a lump-sum stances in some states and are generally supported
damage award. by the defense bar.
The downside of these settlements from the
plaintiff’s perspective is the inability to freely spend
the monies; the uncertainty of the real present cash Mitigation of Damages
value of the settlement (because the negotiated figure
is in the hands of the defendant); the fixed nature of The duty to mitigate damages required under con-
the payments, which cannot be modified over time; tract law is also required under tort law. Under this
the possibility that the death of the recipient may rule, also referred to as the avoidable-consequences
terminate some payments; and the possibility of rule, a plaintiff cannot recover for any damages they
insolvency of the company responsible for the could reasonably have avoided. Recovery will not
payments. be allowed, for example, for the additional medical
The structured settlement is widely used in expenses necessary to treat an infection incurred by
product liability cases (such as in the cases involving the plaintiff’s failure to seek prompt medical care for
thalidomide, the drug that was shown to cause severe a wound caused by the defendant’s negligence. If
birth defects) and can bridge the gap between a the injured plaintiff failed to do any of the required
plaintiff’s final settlement demand and a defendant’s physical therapy, it may affect their recovery. The
final offer. To illustrate the incentive for defendants to burden would be on the defendant, however, to
enter into such agreements, benefits worth $3 million prove that the plaintiff could have avoided the harm.
over time could actually cost a defendant $2 million if Although this rule is usually applied to the
made through a structured settlement. These settle- plaintiff’s conduct after the accident, in some states
ments can also reduce defense costs by avoiding trial it has been used to argue that the plaintiff should
and appeal and can provide defense counsel more have taken certain safety precautions before the
flexibility in the negotiating process. Agreements accident. In states mandating the wearing of seat
may provide for an up-front fixed payment, including belts or motorcycle helmets, the argument has been
an amount covering attorney’s fees, and then guar- made that the plaintiff suffered injuries that they
anteeing specified payments over time. Payments would not have sustained had they taken the pre-
for medical, hospital, nursing, therapy, prescription cautions required by statute. The defendant’s argu-
drugs, medical equipment, and supply needs can ment in such cases is that passage of such statutes
also be added. Structured settlements are limited represents legislative recognition of the capacity
only by the imagination and ingenuity of the parties to avoid injuries by the wearing of seat belts or
and the rules and regulations imposed by the Internal motorcycle helmets. In other states, failure to take
Revenue Service. such safety precautions is considered contributory
We will not explore any of the intricacies involved negligence.
in structuring such a settlement. Suffice it to say that
federal tax law is crucial in shaping the form of a
settlement. Some attorneys, however, feel that the Mental Suffering
advantages of structured settlements are illusory
and that such arrangements better serve the inter- A plaintiff need not show that they suffered some
ests of the insurance company than they do that of kind of physical harm to recover for mental suffer-
the plaintiff. (See A. Fuchsberg, “Pitfalls in Structured ing. Where there is physical injury, damages from
In the News
For information about structured settlements and their value, go to the web page for the National
Structured Settlements Trade Association at www.nssta.com or also try www.annuity.org
/structured-settlements/how-they-work/.
mental suffering are often called parasitic damages Attempts to Circumvent the
because they attach to the physical injury. If they can
be proven to be a consequence of the negligent
Physical-Harm Requirement
conduct of the defendant, that is usually sufficient. If the defendant’s conduct was intentional or willful,
Negligent infliction of emotional distress is a com- the courts have been much more willing to allow
mon parasitic damage. recovery for pure emotional distress. If the plaintiff
When the plaintiff sustains no physical injury, the suffers emotional distress that subsequently man-
courts are reluctant to permit recovery for emotional ifests in the form of physical consequences, the
suffering because of a fear that the suffering may be vast majority of courts also allow recovery even if
feigned. Suppose a woman eats some soy yogurt the manifestation of physical consequences is not
that was on a recall list for possibly containing ani- immediate.
mal parts. She is not injured or made sick in any way Some states have abandoned the rule altogether
physically, but she is frightened at the prospect of when the facts are such that one could readily believe
possibly having eaten an animal product since she there could have been actual mental distress. In one
has been a strict vegan for fifteen years. She is slightly case a plaintiff who was a salesperson at a Macy’s
nauseated and unable to sleep for several weeks. department store pricked her finger on a hypoder-
The vast majority of courts will deny her recovery if mic needle that was left in a pocket of a jacket that
she is unable to point to any non-transitory (ongo- a customer returned. The plaintiff sued the store for
ing) physical symptoms of her emotional distress. negligence and parasitic damages of infliction of
The theory is that the lack of objective physical emotional distress for her fear of contracting HIV or
symptoms greatly increases the risk of fraudulent another seriously lethal disease. The court found her
claims and therefore recovery is denied. If she were claims unsubstantiated to show enough emotional
physically allergic to an animal product and hence distress to recover damages. There were a couple of
became violently ill, then recovery would most likely arguments in the case.
be allowed (Restatement [Second] of Torts § 436A, First, Macy’s contends that in order to qualify as
cmts. b and c, illus. 1.). a “physical injury” and avoid the more likely than
Many courts have allowed an exception to not requirement of previous cases, the injury must
this general rule in cases involving the negligent be more than a mere needle stick. In a fear of AIDS/
mishandling of corpses (such as the misplacement HIV case, plaintiff must either test positive for HIV or
or dismemberment of a corpse, or accidental crema- exhibit symptoms of the actual onset of the disease.
tion) or in cases involving the negligent transmission Macy’s contends that other cases recognized this
of an erroneous message regarding the death of when they applied a higher standard where a boy
a family member. Such cases are thought by their was scraped by a hypodermic needle and where sur-
very nature to cause actual suffering and therefore gery was performed on a plaintiff. These two courts
minimize the risk of fake claims. impliedly found that neither physical invasion consti-
A small minority of courts follow the impact tuted the kind of physical injury necessary to bypass
rule, predicating recovery for mental suffering on the strict emotional distress requirements.
the plaintiff experiencing some type of physical Second, Macy’s had the burden of proof, which
“impact.” An impact could be an electric shock, a it satisfied by presenting evidence that plaintiff never
slight jarring, inhalation of smoke, dust in the eye, tested positive for HIV, had no contact with hepa-
or any contact even of a trivial nature. Impact was titis A or C, and was not infected with hepatitis B,
achieved in a particularly novel way in one case and that the chance of contracting HIV from a nee-
in which a circus horse defecated in the plaintiff’s dle stick, assuming a contaminated needle, was 1 in
lap (Christy Bros. Circus v. Turnage, 144 S.E. 680 approximately 200,000. Plaintiff disputed none of
[1928]). The vast majority of courts have abandoned Macy’s evidence and presented no evidence of other
the impact rule in favor of requiring the plaintiff to physical harm caused by the needle stick. Based
exhibit some physical manifestation if they are to upon the evidence presented, plaintiff could meet
recover for mental disturbances. neither the stringent “more likely than not” test, nor
the requirement of a physical injury for purposes to extend liability to plaintiffs who have experienced
of parasitic recovery of emotional distress damages. only temporary states of fright, disappointment,
Only by applying the wrong legal standard could the regret, nausea, grief, or humiliation.
court have denied Macy’s motion to bar recovery.
The court directed the County Superior Court
to vacate its previous order denying summary Application
adjudication and to enter a new order granting
Macy’s motion to bar recovery for emotional distress. Although neither Teddy nor Mr. Goodright would
Some courts presented with the physical-harm be entitled to recover for punitive damages, as
problem in the context of a plaintiff who has seen the Baxters’ negligence did not rise to the level
injury occur to others have taken the Palsgraf “zone of recklessness, they would both be entitled to
of danger” approach. They have held that a plaintiff compensatory damages if the Baxters were found
who is not within the “zone of danger” and who is liable. Both could certainly recover for their medical
therefore not endangered by the defendant’s con- expenses and for their pain and suffering, both past
duct is owed no duty. Such a plaintiff cannot recover and future. Proof of their past medical expenses
for emotional distress as a result of another’s injury would probably be relatively straightforward, but
even if this distress leads to physical harm. future medical expenses might be more diffi-
A growing number of states have, however, cult to quantify. Teddy, for example, might require
begun to abandon the physical-harm requirement ongoing psychiatric care as a result of his phobic
if the plaintiff was near the scene of the accident, disorder. Because estimating the length and cost
personally observed it, and was closely related to of such treatment would be difficult, a concrete
the victim. In one such case a young girl and her dollar figure would also be difficult to calculate. If
brother were passengers in an automobile that was Mr. Goodright might have to endure future opera-
involved in a traffic accident (Shipley v. Williams, 14 tions, the expenses of those operations, along with
Misc.3d 682 [N.Y. 2006]). The sister sought damages all other future medical expenses, would have to
for emotional distress because she had observed be estimated. Remember, too, that Mr. Goodright’s
her brother’s death. The court, in allowing the sister spouse and Teddy’s parents could also file claims for
to recover, noted that the sister was in the zone of loss of consortium.
danger along with her brother at the time of impact. The pain and suffering endured by this duo,
Although modern courts have relaxed restric- though less tangible than their physical injuries,
tions around physical harm requirements, most have would be a crucial element in their recoveries.
restricted liability to experiences of serious and Teddy’s attorney would want to point to the physical
severe emotional harm, such as neuroses, psychoses, trauma that Teddy experienced as well as the ongo-
chronic depression, phobia, or shock, that is sup- ing psychological pain he could be expected to
ported by medical professionals, and have refused suffer for the remainder of his life in relationship to

1. A mother watches from the front porch of her home as her son is struck by a negligent motorist. Does she
have grounds for a claim of negligent infliction of emotional distress? What if the son later dies?
2. After being told that her child has been involved in an accident, a mother arrives moments later at the
scene and sees a child’s body in the street, but it is not her child. Does she have grounds for a claim of
negligent infliction of emotional distress?
3. A doctor incorrectly advises a patient that she has tested positive for AIDS when in fact her test results
are negative. Does she have a claim against the doctor for negligent infliction of emotional distress?
his fear of dogs. His attorney would want to paint between counsel in reference to the relative values
a vivid picture of the limitations stemming from this of a concert pianist’s career and a piano teacher’s
emotional trauma. If Teddy were unable to secure a career. Both counsels would have to dig out as many
job as a paper carrier as a result of his phobia, or facts as possible to substantiate their positions. This
if he became so chronically anxious that his social is what makes litigation so challenging! Any other
life were disrupted, his attorney would point to this limitations that Mr. Goodright suffered as a result of
as evidence of the long-term effects of Gertrude’s his disabled hand would also have to be quantified.
attack. Mr. Goodright’s attorney, in contrast, would Specific, concrete evidence illustrating such disability
focus more on the life-changing consequences of would be necessary.
Gertrude’s actions in bringing Mr. Goodright’s con- The Baxters might argue that the plaintiffs in
cert pianist career to an abrupt end. Again, the this case failed to mitigate their damages if, for
challenge in this case would be in converting the example, they failed to seek immediate medical
intangible but real suffering of a human being into treatment. They would also want to minimize the
a dollar figure. Both parties would also be able to pain and suffering experienced by the plaintiffs
recover for any permanent disfigurement, such as and would want to do everything in their power
scarring, that they sustained. to present evidence that the plaintiffs had mag-
At a more tangible level, Mr. Goodright’s nified their damages. They would argue that any
attorney would have to project Mr. Goodright’s recoveries by the plaintiffs should be discounted
loss of income resulting from the termination of to present values and would likely push for some
his career. Obviously, one could anticipate conflict form of structured settlement.
Summary
Damages can be divided into three categories: com- to sell the property could have realized and not the
pensatory, punitive, and nominal. Compensatory lowest price at which a sale could have been made.
damages are further divided into two categories: Punitive damages are reserved for defen-
general and special. dants who have acted in a particularly egregious or
The difficulty in awarding damages for pain reckless manner and without regard to others’ safety.
and suffering is in the assignment of a numerical These damages have been criticized as constituting
value. Some attorneys, in an effort to quantify suf- undue compensation to the plaintiff and as having
fering, have used a per diem technique. Attempts the potential of bankrupting defendants, especially
to compensate plaintiffs for pain and suffering have in product liability cases. They are not designed
been subject to criticism. to compensate the plaintiff, but to stop the defen-
Plaintiffs may be compensated for loss of future dant or others from engaging in the same type of
earning capacity. In calculating these damages jurors behavior.
are expected to project the anticipated life span of Spouses can recover for loss of consortium,
the plaintiff. Generally, plaintiffs are not directly com- which is considered a derivative claim. Parents are
pensated for their shortened life expectancy. Under also entitled to recover for the lost services and
the collateral-source rule, plaintiffs are entitled to earnings of their minor children, and some courts
recover for damages for which they have been reim- allow damages for the loss of affection and comfort
bursed by a collateral source, such as an insurance from their child. Some courts have allowed minor
company. Plaintiffs are not entitled to compensa- children to recover for loss of consortium when a
tion for the expenses of litigation, although some parent on whom they were dependent dies or is seri-
have suggested that, as a practical matter, punitive ously injured.
damages and awards for pain and suffering in effect Survival statutes allow an injured party’s claim
provide for such compensation. to be sustained after their death. Wrongful-death
Damages for physical harm to property are tied statutes allow third persons, usually a decedent’s
to the fair market value of the property. Fair market spouse and children, to recover for losses they sus-
value is considered the highest price one seeking tained as a result of the decedent’s death. Survival
actions are typically brought by the executor or of making arrangements to invest the money and
administrator of an estate and recovery becomes an minimizes the amount of income tax required on a
asset of the estate, which may be reached by cred- lump-sum payment.
itors. Although at one time wrongful-death actions Under the avoidable-consequences rule, a
were limited to economic losses caused by the dece- plaintiff has a duty to mitigate their damages by
dent’s death, in more recent times they have been avoiding any harm that reasonably could have been
extended to the loss of companionship of the dece- avoided. This rule has been used as a defense in
dent. Most states have ruled that wrongful-death seat belt and motorcycle helmet cases.
and survival actions begin to run from the date of the A plaintiff in a negligence claim must typically
decedent’s death. Both survival and wrongful-death show that they suffered some kind of physical harm
actions are subject to statutory interpretation. or, in a few states, some kind of actual impact. Some
To prevent plaintiffs who recover for future courts have abandoned this rule in circumstances
losses from receiving a windfall, many courts require where one could readily believe the plaintiff actually
juries to discount awards to a present value. Some suffered mental distress. Some courts have denied
have argued that the discounting of awards is unfair compensation for emotional distress to any plaintiff
to plaintiffs because inflation offsets the discounting not within the zone of danger, whereas others have
of present-value awards. Large future damages are allowed recovery when the plaintiff was near the
frequently paid using a periodic-payment settlement scene of the accident, personally observed it, and
called a structured settlement. Arguably, this type of was closely related to the victim.
settlement relieves the plaintiff of the responsibility
Key Terms
additur fair market value
When the trial court increases a jury award or Amount property could be sold for on the open
orders a new trial because the jury’s award of market
damages is inadequate general damages
avoidable-consequences rule Damages that generally result from conduct
Obligation of a plaintiff to minimize (mitigate) engaged in by the defendant
their damages loss of consortium
collateral-source rule Loss of services, including companionship, sex,
The collateral-source rule precludes the admis- and earnings outside of the home
sion of evidence to the jury regarding payment nominal damages
of benefits such as Social Security, Medicare, Damages awarded when liability is shown but no
pension payments, and vacation and/or sick pay actual damages are proven
to the injured party from a source other than the parasitic damages
tortfeasor. The rule allows the plaintiff the ability Damages attached to physical injury (e.g., mental
to recover twice for certain damages. suffering)
compensatory damages present value
Damages designed to compensate the plaintiff; Value of money paid now to compensate for
consist of both general and special damages future earnings, based on the assumption that
derivative claim money received today is worth more than money
Claim derived from an underlying claim (e.g., received in the future because of its investment
loss of consortium) potential
discounting an award punitive damages
Reducing an award to its present value Damages designed to punish the defendant
exemplary damages (also known as exemplary damages) and to deter
Damages designed to punish the defendant others from engaging in reckless or egregious
and to deter similarly situated wrongdoers (also misconduct
known as punitive damages)
remitted survival action

When the trial court lowers the jury’s award of Action that remains available after the decedent’s
damages or orders a new trial because the death
damages awarded were excessive wrongful-death action
special damages Action brought by third parties to recover for
Damages that are unique to the plaintiff losses they suffered as a result of the decedent’s
structured settlement death
Agreement to pay damages in installments
rather than a lump sum
subrogation
Right of a company making payment on plaintiff’s
behalf to be reimbursed out of judgment plaintiff
receives (insurance company)
Review Questions
1. What is the difference between general and 11. How is the fair market value of property
special damages? determined?
2. When is it appropriate to award nominal 12. What do courts do when plaintiffs cannot be
damages, and when is it appropriate to fairly compensated based on a fair market
award punitive damages? value because of personal value the property
has to the plaintiff?
3. What is the problem with awarding damages
for pain and suffering? 13. What is the purpose in awarding punitive
a. How do day-in-the-life videos assist damages?
jurors? a. What must plaintiff prove to justify punitive
b. How does the per diem technique assist damages?
attorneys in making their arguments b. Explain how damages can be remitted?
regarding awards for pain and suffering? c. Why did the Grimshaw court believe that
the punitive-damages award was not
4. List three possible categories of compensatory excessive?
damages for a plaintiff.
14. Describe three pitfalls of punitive damages.
5. What criticisms have been raised against the
awarding of damages for pain and suffering? 15. What does recovery for loss of consortium
include?
6. What is the problem with proving loss of future
earnings? a. Why is it considered a derivative claim?
b. How can double recovery for spouses arise,
7. Why are courts reluctant to allow recovery for and how is it prevented?
shortened life expectancy? c. Can parents recover for loss of consortium
in reference to a child?
8. What is the collateral-source rule? d. Can children recover for loss of companion-
a. What evidence is precluded under this rule? ship of a parent?
b. What is subrogation?
16. What sources can an attorney consult when
9. Why are most personal injury cases handled on evaluating the value of a case?
a contingency-fee basis?
17. What is the difference between a wrongful-
10. Why are contingency fees criticized? death and a survival action?
a. What can be recovered in a survival action? 21. What is the avoidable-consequences (or “duty
In a wrongful-death action? to mitigate”) rule?
b. What defenses can be raised in each?
c. Can the remarriage of a spouse be brought 22. Why are courts reluctant to award damages
up during a case or during voir dire in a when a plaintiff has suffered emotional injuries
wrongful-death action? but not physical injuries?
d. How are survival actions and wrongful-death a. Why are damages from mental suffering
actions unique in tort law? considered parasitic?
b. In what situations are courts more likely to
18. Why might it be to a defendant’s advantage to bypass the physical harm requirement?
discount an award of future damages? c. What is the “impact” rule?
19. What information is needed to calculate the d. Why have some courts abandoned the
present value of a future award? physical-harm requirement?
e. How do courts deal with plaintiffs who
20. Name two reasons for the use of a structured witness injury to others?
settlement.
Practice Exam
you score lower than 80%, you should re-read the materials.
True-False 10. Losses for impaired earning capacity include

recovery for both past earnings and future
1. General damages are unique to the plaintiff. losses.
2. Punitive damages are designed to make a 11. A plaintiff’s impairment need not be permanent
plaintiff whole. in order for them to recover for future losses.
3. Nominal damages cannot be awarded in inten- 12. In determining future losses jurors must deter-
tional tort and strict liability cases but can be mine how long a plaintiff is expected to live.
awarded in negligence cases.
13. Losses for shortened life expectancy were
4. Nominal damages put the plaintiff back to the denied under the common law and by most
position they were before the injury. courts today.
5. Day-in-the-life videos are generally inadmis- 14. If a plaintiff receives free services from friends
sible because they unfairly appeal to jurors’ or family members, they can recover the rea-
sympathies. sonable value of those services.
6. The per diem technique for valuing suffering 15. In most courts evidence of collateral benefits is
uses a daily flat rate across the board. inadmissible.
7. Some argue that compensation of those suf- 16. In the United States the winning party is
fering pain serves to reinforce and therefore entitled to recover for their expenses of
increase their pain. litigation, including attorney’s fees.
8. Mortality tables may be used to help deter- 17. Arguably punitive damages and awards for
mine future earnings losses. pain and suffering allow plaintiffs to pay
attorney’s fees and still be compensated for
9. Studies show that compensation of pain and
their losses.
suffering is not necessarily equitable.
18. If the market value of property does not pro- and are not allowed if a decedent’s death is
vide adequate compensation because property instantaneous.
has personal value to the plaintiff, the courts
will look at the original cost of the property 33. The problem with wrongful-death actions
and the condition of the property. involving the death of a child is that the cost
of raising a child usually far surpasses any
19. Fair market value is determined by the lowest earnings the child might be expected to bring
price a property can be sold. home.
20. Punitive damages are criticized because they 34. Knowledge of the remarriage of a surviving
can bankrupt defendants. spouse is information jurors are usually given,
at least during voir dire to ensure that no juror
21. Punitive damages can be for intentional and knows the new spouse.
unintentional torts.
35. Survival actions are usually brought by the
22. Employers cannot be held liable for punitive executor of the decedent’s estate.
damages resulting from torts committed by
their employees. 36. Defendants in wrongful-death actions are not
allowed to raise the defenses they could have
23. The Grimshaw court concluded that high raised against the decedent.
punitive-damage awards were not necessary
because governmental sanctions are effective 37. Inflation has no effect on the discounting of
deterrents to manufacturers who make defec- present-value awards.
tive products.
38. Discounting an award reduces losses to the
24. Loss of consortium was available only to the plaintiff.
husband under the common law.
39. Structured settlements minimize the income
25. Loss of consortium is available to spouses but tax a plaintiff has to pay.
not to parents or children.
40. Structured settlements are favored by the
26. Many states require that spouses sue only once defense.
for injuries resulting from a single accident or
event. 41. Structured settlements are severely restricted
in how they can be structured.
27. In most jurisdictions loss of companionship can
be recovered in reference to a minor child, but 42. A plaintiff who fails to wear a seat belt may
lost services and earnings cannot. be seen as having failed to mitigate their
damages.
28. Some courts allow recovery when the child is
a minor who is still dependent on the parent. 43. When a plaintiff suffers no physical injury,
courts are reluctant to award damages for
29. In assessing the expected recovery in a case, emotional suffering because of a fear of
attorneys may consult trial reporters and pro- fraudulent claims.
fessional journals.
44. Courts will award damages for emotional
30. Under the common law a plaintiff’s complaint suffering even if there is no physical suffering
survived their death. when there is a negligent mishandling of
a corpse or transmission of an erroneous
31. Double recovery may be possible even if a message about the death of a family member.
case is filed under both a wrongful-death and
survival statute. 45. A majority of courts follow the impact rule for
recovery.
32. In some states, survival actions are limited to
losses occurring prior to a decedent’s death
46. Courts are sometimes willing to abandon the 48. When confronted with a plaintiff who has seen
physical-harm requirement when the facts are injury occur to others, courts have rejected the
such that one could readily believe that the use of the Palsgraf “zone of danger” test.
plaintiff suffered mental distress.
49. In cases in which there is no physical harm,
47. A growing number of courts have allowed most courts restrict liability to serious
recovery for pure emotional distress if the emotional suffering.
plaintiff was near the scene of the accident,
observed it, and was related to the victim.
Matching
GROUP 1
________ 1. Punish tortfeasors a. compensatory damages
________ 2. No actual damages b. general damages
________ 3. Pain and suffering c. special damages
________ 4. Restore plaintiff d. punitive damages
________ 5. Medical expenses; lost wages e. nominal damages
GROUP 2
________ 1. Allows plaintiff possible double recovery for a. contingency fees

certain damages
________ 2. Insurance company’s right of reimbursement b. collateral-source rule
________ 3. Create potential conflict of interest between attorneys c. fair market value
and clients
________ 4. Voluntary sale by leisurely seller and willing buyer d. loss of consortium
________ 5. Compensation for lost services e. subrogation
GROUP 3
________ 1. Difference between value of property before and after a. plaintiff is deprived of
tort occurred use of property
________ 2. Value of property at time and place tort occurred b. property destroyed
________ 3. Value of use of property c. property damaged

GROUP 4
________ 1. Brought by survivors of decedent a. present value
________ 2. Brought by decedent’s estate b. structured settlement
________ 3. Initiated by defendant to reduce payment c. survival action
________ 4. Duty of plaintiff d. wrongful-death action
________ 5. Eliminate plaintiff ’s need to invest e. mitigate damages
Fill-in-the-Blank
1. ____________ ____________ ____________ 9. ____________ ____________ programs are
damages must be specially pleaded in a software programs that help attorneys evaluate
complaint. the value of their case, whereas ____________
are compilations of verdicts and settlements
2. ____________ damages are reserved for those pertaining to specific injuries, doctors,
defendants who act recklessly or with an “evil attorneys, and so forth.
mind.”
10. In assessing future lost wages, attorneys
3. The ____________ technique assigns a consult with____________ ____________
numerical value to suffering on a daily or hourly ____________ counselors who help predict
basis. what the plaintiff will be able to do and how
4. Under the ____________ ____________ rule a much schooling will be required.
plaintiff can recover for medical expenses from 11. ____________ ____________ statutes allow
the defendant even if they have been reim- spouses and children to recover for losses they
bursed for those expenses by their insurance sustained as a result of the decedent’s death.
carrier.
12. A(n) ____________ ____________ results in
5. ____________ ____________ arrangements are periodic payments to the plaintiff instead of a
the most commonly used fee arrangements in lump-sum.
personal injury cases.
13. The duty to mitigate damages is also known
6. ____________ ____________ value refers to the as the ____________ ____________rule.
amount property can be sold for on the open
market. 14. In cases involving physical injury, mental
suffering is considered ____________ because
7. If a plaintiff can raise the issue of ____________ it attaches to the physical injury.
damages, they can show the wealth of the
defendant.
8. Loss of consortium is considered a(n)

____________ claim because it is based on
another person’s underlying claim.
Multiple-Choice
1. Punitive damages 6. In some states plaintiffs who file a wrong-
a. cannot be awarded for intentional torts. ful-death action can recover for
b. cannot be used to compensate plaintiffs for a. loss of companionship and sexual
the expenses of litigation. relationship.
c. are considered a windfall to plaintiffs. b. monetary contributions the decedent would
d. all of the above. have made during their lifetime to the plain-
tiff beneficiary.
2. Some people believe punitive damages c. loss of moral guidance.
a. punish defendants without the benefit of d. all of the above.
the constitutional safeguards available
under the criminal law. 7. Survival actions
b. place a social-policy decision in the hands a. result in recovery that cannot be reached by
of those who lack the necessary information creditors.
to make an informed decision. b. can result in a windfall to distant relatives.
c. deter future tortfeasors from engaging in con- c. are barred if the decedent failed to file an
duct that is potentially dangerous to others. action until after the statute of limitations
d. all of the above. had run.
3. The Grimshaw court
a. concluded that the management team was 8. Discounting of awards
unaware of the defect when it gave permis- a. prevents the plaintiff from receiving a
sion to manufacture the Pinto. windfall.
b. considered the reprehensibility of the b. requires use of annuity and life expectancy
defendant’s conduct and the deterrent tables.
effect of the award in deciding whether the c. involves calculations involving the present
punitive damage award was excessive. value of a dollar.
c. concluded that the punitive damages d. all of the above.
represented a disproportionate share of
Ford’s income. 9. Structured settlements
d. all of the above. a. prevent the plaintiff from freely spending
their money.
4. In assessing the value of a case, an attorney b. can have payments that are modified over
a. may consult trial reporters and professional time.
journals. c. require the plaintiff to be involved in the
b. generally, ignores the reputation of investment process.
opposing counsel and the adjustor. d. all of the above.
c. must set aside any conceptions they have
about the policies and reputation of the 10. Some courts have abandoned the
insurance company. physical-harm requirement
d. all of the above. a. because they believe it mechanically
excludes cases that are probably valid.
5. Survival statutes allow b. because it encourages plaintiffs to engage
a. third parties to recover for losses they in exaggerated pleading and distorted
sustained as a result of the decedent’s death. testimony.
b. claims pertaining to intangible interests to c. in the cases of intentional torts.
survive the decedent’s death. d. all of the above.
c. claims pertaining to damage to tangible
property to survive the decedent’s death.
Practice Pointers
As a paralegal you may be called on to provide the evidence necessary to prove or disprove a claim for dam-
ages (see Exhibit 7–4). Here we will consider the practical implications of proving past and future medical
expenses, loss of earning capacity, and pain and suffering.
Past Medical Expenses
In terms of proving past medical expenses, the plaintiff has the burden of proving the amount of the expenses
and that the expenses were necessary and reasonable. The best way to prove past expenses is, of course,
through the use of bills that reflect the charges made. Alternatively, the plaintiff can testify to the amount of
the bill or have a doctor or the person who prepared the bill testify as to the amount of the charge made. It is
important to keep a running account of all bills. These bills should be tabulated on a monthly basis and may be
submitted to the insurance company and to defense counsel on an ongoing basis. Some plaintiffs’ counsel feel
that the continual amassing of medical expenses into an ever-burgeoning file has a psychological impact on
the defendant. Defense counsel, for obvious reasons, deny this.
In most jurisdictions proof of medical bills plus proof of payment raises the presumption that the bill was
necessary and reasonable. In some states, however, testimony from a doctor, pharmacist, or other expert is
required. The reasonableness and necessity of treatment become particularly problematic when dealing with
preexisting conditions. If the plaintiff was not suffering from the preexisting condition at the time of the injury,
the expenses will probably be recoverable. If, however, the plaintiff was under treatment for that condition at
the time of the injury, she will have difficulty proving which expenses were necessitated by the aggravation
caused by the defendant’s negligence and which expenses stemmed from the preexisting condition. The plain-
tiff may therefore be unable to recover any of the medical expenses.
Future Medical Expenses
Future medical expenses are much less subject to quantification. No doctor can state with absolute certainty
how long future treatment will be needed nor what exact amount of future medical expenses will be incurred.
Courts are aware of this ambiguity and do not require the same degree of mathematical proof that they do for
past expenses. In some jurisdictions future medical expenses are left for the jury to determine based on the
amount of past medical expenses, the nature of the plaintiff’s injuries, and the condition of the plaintiff at the
time of trial. Other jurisdictions require medical testimony regarding a dollar amount and do not allow a jury to
award more than the amount supported by testimony.
As was noted in the text of this chapter, future awards are often discounted to present value. Discounting
is based on the idea that a dollar today is worth more than a dollar ten years from now because of the invest-
ment potential of that dollar. Present-value tables, an example of which is shown in this section, allow one to
calculate the present value of future awards.
Exhibit 7–4 Proving Damages
Types of Damages Evidence Used to Prove
Past medical expenses • Bills from doctors, hospitals, radiology, etc.

• Testimony from expert showing necessity of treatment
Future medical expenses • Expert testimony
• Award is discounted to present value
Loss of earning capacity • Plaintiff’s work record showing hours lost due to injuries
• Wage stubs, W-4 forms, or IRS records (showing value of lost earnings)
• Evidence of lost profits and loss of fringe benefits
• Extent of plaintiff’s education and training (showing earning potential)
Pain and suffering • Plaintiff’s testimony
• Testimony of those who have observed plaintiff’s suffering; day-in-the-life video
Paid at End
of Year 8% 9% 10% 11% 12%
1 0.92593 0.91743 0.90909 0.90090 0.89286

2 0.85734 0.84168 0.82645 0.81162 0.79719
3 0.79383 0.77219 0.75132 0.73119 0.71178
4 0.73503 0.70843 0.68302 0.65873 0.63552
5 0.68058 0.64993 0.62092 0.59345 0.56743
6 0.63027 0.59627 0.56448 0.53464 0.50663
7 0.58349 0.54704 0.51316 0.48166 0.45235
8 0.54027 0.50187 0.46651 0.43393 0.40388
9 0.50025 0.46043 0.42410 0.39093 0.36061
10 0.46319 0.42241 0.38555 0.35219 0.32197
15 0.31524 0.27454 0.23939 0.20901 0.18270
20 0.21455 0.17843 0.14865 0.12404 0.10367
25 0.14602 0.11597 0.09230 0.07361 0.05882
30 0.09938 0.07537 0.05731 0.04368 0.03338
35 0.06764 0.04899 0.03559 0.02592 0.01894
40 0.04603 0.03184 0.02210 0.01539 0.01075
Let us use a hypothetical scenario to illustrate the use of these tables. Suppose $1,000 is to be awarded
to the plaintiff in year 1, $2,000 in year 2, and $3,000 in year 3. Using an interest rate of 10 percent, what would
be the present value of that award? Locate 10 percent on the table. Notice that next to year 1 in the third
column is the number 0.90909, which indicates that the value of a dollar received a year from now, is worth
$.90909 now. Therefore, $1,000 a year from now would be worth $909.09 today. By the same token $2,000 in
year 2 would be worth $2,000 3 0.82645 or $1,652.90; $3,000 in year 3 would be worth $3,000 3 0.75132 or
$2,253.96. Therefore, the total present value would be $4,815.95.
Loss of Earning Capacity
To prove loss of earning capacity, you must first prove that the injuries creating the plaintiff’s physical disability
impaired their ability to work and earn money. Second, you must prove the value of that incapacity. To prove
the latter, you must obtain copies of the plaintiff’s wage stubs, W-4 forms, and/or IRS records (not admissible in
some states). The defense will want to show that the plaintiff’s work record was sporadic, that the earnings for
the years at issue were unusually high, or that for some reason the plaintiff would not have been able to earn
comparable wages in the years ahead for reasons other than the disability sustained.
Proof of earning capacity becomes more problematic if the plaintiff was temporarily disabled prior to the
injuries or was for some reason not able to work before sustaining the injuries. In such cases the jury will be left
to determine the value of the lost earning capacity based on their own common sense and sense of fair play.
Proof of lost earning capacity can also be difficult when the plaintiff was self-employed. In such cases a
difference in profits prior to and after the plaintiff’s injuries is not considered a measure of damages because
factors other than the plaintiff’s incapacity, such as changes in the market, could account for the decrease in
profits. The plaintiff is obligated to prove that it was inability to work rather than other economic factors that
caused the loss of business income.
Other types of evidence you might want to consider using to show a plaintiff’s earning potential would
be evidence of education and on-the-job training, as well as evidence of fringe benefits, such as bonuses,
insurance programs, tips, and pensions. Prospective earnings from reasonably anticipated promotions or
advancements may also be submitted, as well as evidence that the plaintiff was studying or in other ways tak-
ing steps to advance into better paying work.
Evidence of income that the plaintiff receives that is unrelated to work is inadmissible. The fact that the
plaintiff receives Social Security benefits, workers’ compensation benefits, welfare benefits, dividends from stocks,
or monies from other investments is irrelevant and therefore inadmissible unless used to impeach the plaintiff.
Pain and Suffering
Damages for pain and suffering are by their very nature not amenable to quantification. Therefore, all a plaintiff
can do is prove that the physical pain and mental anguish were in fact experienced. The most direct evidence
of pain and suffering is testimony by the plaintiff as to objective symptoms, such as the actual injuries received,
and subjective symptoms, such as chronic headaches. Mental anguish may take the form of fear, worry, depres-
sion, or anxiety.
Elicit detailed descriptions from the plaintiff, complete with specific incidents that illustrate the nature and
depth of the pain and anguish and the limitations such suffering imposed on their lifestyle. In major personal
injury lawsuits, plaintiffs’ attorneys frequently use “day-in-the-life” videotapes to illustrate graphically to the
jury the full extent of the plaintiff’s injuries. Such videos chronicle in a simple but poignant way the everyday
suffering of the plaintiff and those who care for them. If your firm is without such resources, the attorney must
create vivid word pictures in the jurors’ minds through the process of direct examination. In preparing the plain-
tiff for such testimony you must draw their attention to all those events in the course of a day that are rendered
more difficult as a result of the injuries.
Doctors as well as others who are familiar with the plaintiff can testify regarding their observations that are
indicative of pain and suffering. In working with these potential witnesses, it is important to strive for detailed
information that can be used to create a visual picture for the jury. Generalizations and vague statements are
not helpful and will not create the kind of jury empathy plaintiff’s counsel desires.
The defendant will want to rebut the plaintiff’s claim of physical and mental anguish by presenting evi-
dence that the plaintiff is pain-free and relatively happy or, alternatively, that the plaintiff’s suffering is caused by
factors other than the injuries. The courts are reluctant, however, to admit evidence of collateral events causing
the plaintiff’s suffering because such evidence may be highly prejudicial to the plaintiff. Therefore, a defendant
who wants to introduce such evidence must show that the connection between the collateral event and the
plaintiff’s suffering is not purely conjectural.
Tort Teasers
1. Suppose your firm represents Mr. Goodright and you have been asked to interview him to ascertain the
full extent of his damages. Write down a list of the questions that you would want to ask him in reference
to his medical expenses, lost income, lost future income, and pain and suffering.
2. If your firm were representing Teddy, what information would you want to elicit from the medical doctors
and psychologists who treated Teddy?
3. A customer in an office store sat down in a model chair and it broke leading her to fall on her tailbone
onto the concrete floor. She suffered extreme pain in her tailbone and back and proceeded to get
treated, the issue was that she had been in three previous car accidents and had pre-existing symptoms
and pain. The court looked at what was required to prove for current damages and how pre-existing
conditions applied. Harris v. ShopKo Stores, Inc. 308 P.3d 449 (Utah 2013).
a. What types of damages would you attempt to recover in this case?
b. How would you go about determining a monetary value for each of her ailments?
c. What arguments do you anticipate the defense will make in reference to the payment of damages?
4. A grandfather who lost his daughter and two grandchildren in an automobile accident brings a wrongful
death action on behalf of his two grandchildren against the driver of the truck that struck them as well as
the driver’s employer. Burley v. Douglas, 26 So. 3d 1013 (Miss. 2009).
a. What problems would you anticipate with the grandfather filing a wrongful-death action in this case?
b. What damages would you attempt to recover under the survival statute?
c. Did the grandfather have sufficient standing to sue?
5. An internationally known singer and recording artist, Connie Francis, is sexually assaulted in her motel
room. After the assault she suffers from depression, social and sexual withdrawal, and traumatic phobia.
Psychiatrists testify that she will probably have difficulty resuming her professional career for at least the
next ten years, and she testifies she is unable to perform because of her shame and humiliation. She sues
the motel owner for pain and suffering, mental anguish, humiliation, and loss of earnings; her husband
sues for loss of consortium. How would you go about determining the amount of their damages? Garzilli
v. Howard Johnson’s Motor Lodges, 419 F. Supp. 1210 (E.D.N.Y. 1976).
6. A driver with a blood alcohol level of approximately 0.22% rear ends the plaintiff’s vehicle so hard it
sends it onto adjoining train tracks where the plaintiff barely escapes before an oncoming train obliter-
ates the vehicle. The plaintiff sustains injuries from the impact and is suing for compensatory and punitive
damages. McMahon v. Chryssikos, 218 N.J. Super 571 (N.J. 1986).
a. Should compensatory and punitive damages be allowed?
b. Is intoxication alone enough to warrant punitive damages?
7. Former church member filed lawsuit against church after several church members physically restrained
her in an effort to exorcise demons from her body. What types of damages would you seek for Plaintiff?
What arguments would you expect from the defense? Pleasant Glade Assembly of God v. Schubert, 264
S.W.3d 1 (Tex. 2008).
Internet Inquiries
The evaluation of a case requires an objective assessment of the projected value of that case if brought
before a jury. In conducting this assessment, attorneys often find it helpful to know what juries in that
jurisdiction have awarded plaintiffs in similar cases. All states have some kind of trial reporting system
that catalogs cases according to types of cases, attorneys, judges, and other criteria. Such trial reporters
allow attorneys to project the probable range of verdicts they can expect if they take their case to trial.
Some trial reporters also report on settled cases as well as those that actually go to trial. Because the
settlement value of a case can vary widely from one jurisdiction to another, attorneys generally focus on
the trials reported in their own states, but if they are facing litigation that is novel in their area, they may
need to look at reported cases in other states.
The following are online sources of jury verdicts and settlements:
• Morelaw.com (www.morelaw.com) provides nationwide jury verdict and settlement reports and head-
lines of important cases that have been litigated or settled.
• National Association of State Jury Verdict Publishers (www.juryverdicts.com) offers off-line jury-verdict
summaries for each state prepared from information provided directly by the attorneys trying the cases.
• For assistance in doing jury verdict research, consult the following online articles:
• “Putting a Price on It: Researching Jury Verdicts and Settlements” by J. Bissett and M. Heinen at www
.llrx.com by entering “Putting a Price on it” as your search term.
• “Jury Verdict Research Using the Internet” by R. Ambrogi at by entering “jury verdict research as your
Google search term (although this is a 1997 article, it is still considered one of the best overviews of
researching jury verdicts and settlements online).
• The Jury Verdict Review and Analysis (www.jvra.com/verdict_trak/) a database of over 100,000
professional case evaluations.
Read these articles and summarize the resources you find available in your state to locate jury verdicts
and settlements.
Your firm has been contacted by parents whose only daughter was allegedly murdered. The murder trial
of the accused resulted in a hung jury. Frustrated by the results of the criminal trial, the parents have come
to your firm seeking to file a wrongful-death action against the alleged murderer, who is an influential and
wealthy businessman. Two years and two days have elapsed since the daughter’s body was found.
1. Find the wrongful-death statute in your state. (You can go to www.law.cornell.edu to find the statutes in
your state.) What does it provide?
2. Can the parents of an adult child bring a wrongful-death action in your state?
3. What is the statute of limitations for wrongful-death actions in your state?
4. What kinds of damages can the parents recover?

Chapter 8
Negligence: Defenses
Chapter Topics
Contributory Negligence Immunities
Comparative Negligence Statutes of Limitations and Statutes of Repose
Assumption of Risk Application
Chapter Objectives
• Identify the elements of contributory negligence, • Differentiate between contributory negligence
comparative negligence, and assumption of risk. and assumption of risk.
• Recognize the exceptions to the contributory- • Identify situations in which immunity can be
negligence rule. raised as a defense.
• Recognize the problems that arise in the adminis- • Recognize the purpose behind the problems
tration of a comparative-negligence system. inherent in a statute-of-limitations defense.
I f Teddy and Mr. Goodright are able to prove their claims of negligence against the Baxters, the Baxters will
certainly want to raise some form of defense (see Exhibit 8–1). The three defenses they can consider are
contributory negligence, comparative negligence, and assumption of risk. If Teddy and Mr. Goodright were
contributorily negligent—if they contributed in some way to their own injuries—they would be totally barred
from recovery. If the state in which the suit is filed has adopted a system of comparative negligence rather than
contributory negligence, their recovery will be reduced in direct proportion to their own degree of negligence.
For example, suppose Teddy suffered damages of $10,000 and was shown to be 20 percent negligent. His
recovery would be reduced to $8,000, i.e., $10,000 – $2,000 (20 percent of $10,000). Under the doctrine of
assumption of risk, if it can be shown that Teddy and Mr. Goodright voluntarily consented to take the chance
that harm would occur, they might be precluded from recovery, or, have their recovery reduced.
Before diving into this chapter, be aware of two things. First, the area of negligence defenses is largely
controlled by statute. Therefore, this chapter is merely a general description of the subject and an overview
of approaches followed across the United States; to be knowledgeable about defenses as they are applied in
your jurisdiction, you must be familiar with the relevant statutes and case law in your state.
Local Links several events contribute to the plaintiff’s injuries,

each of them will be considered a distinct and
Does your state use a contributory-negligence separate proximate cause. A more practical expla-
or comparative-negligence system? If it is nation of the judicial creation of contributory neg-
a comparative-negligence state, is it pure ligence lies in judges’ historical distrust of juries
comparative or the 50-percent approach? and their fear that, given free reign, juries would
hamper the growth of industry by awarding huge
awards to injured plaintiffs and put companies out
Contributory Negligence of business.
The defense of contributory negligence in essence

Exceptions to Contributory-
shifts the loss from the defendant to the plaintiff
by completely barring the negligent plaintiff from Negligence Rule
recovery. The plaintiff is barred even though the The results rendered by the rule of contributory
defendant was negligent and, in most cases, was negligence are often harsh and unjust. Worthy
more negligent than the plaintiff. plaintiffs are often denied recovery and blameworthy
The rationale for this judge-created rule stems defendants go unpunished. As a result, the courts
from the notion that negligent plaintiffs should be have developed various escape mechanisms by which
punished for failing to protect their own safety and plaintiffs can avoid this rule. One way, which has been
for failing to be a responsible and prudent person. adopted in every jurisdiction that adheres to the
The idea is that individuals should not take any contributory-negligence system, is the requirement
unreasonable risks that would put their safety in that contributory negligence be proved and specifically
jeopardy. Not looking while crossing a street and pleaded by the defendant. Additionally, in most
being hit by a car, could make that plaintiff con- jurisdictions the question of contributory negligence
tributorily negligent and even bar recovery. If they is left to the jury. Arguably, juries have an opportunity
would have taken proper precautions and looked to apply a comparative-negligence standard in those
both ways, they would have avoided the accident. cases in which application of a contributory-negligence
The standard of care for contributory negligence standard would lead to unfair results.
is the reasonable person standard. What would Most states require that the plaintiff’s negligence
a reasonable person have done in a similar situa- meet the standards of the but-for or substantial-factor
tion? Additionally, some courts have argued that test of actual causation in order to be barred from
the plaintiff’s negligence becomes the proximate recovering. A few courts, however, bar the plaintiff’s
cause of their injuries, thus removing the defendant recovery if their negligence contributed in any way
as the proximate cause. So, in these jurisdictions, to the result, no matter how minimal that contribu-
the plaintiff must have some type of negligent act tion might have been.
or omission, and it must be the proximate cause of In most cases, the same rules that apply in deter-
their injuries. This argument does not hold water, mining proximate cause in terms of the defendant’s
however, in light of the principles of proximate conduct also apply to the plaintiff. In one instance,
cause discussed in Chapter 6. Remember that if however, proximate cause is construed more narrowly
Exhibit 8–1 Defenses to Negligence
Contributory Negligence Plaintiff barred from recovery if they are at all responsible.
Comparative Negligence Plaintiff’s recovery reduced depending on their degree of responsibility.
Assumption of Risk Plaintiff either barred from recovery or recovery is reduced.
Immunity Plaintiff barred from recovery.
Statute of Limitations and Statute of Plaintiff barred from recovery.

Repose
CHAPTER 8 Negligence: Defenses | 219
in the case of contributory negligence than it is in the case of Davies v. Mann, 152 Eng. Rep. 588 (1842),
case of the defendant’s negligence. If the harm that is in which the plaintiff had chained up his donkey and
likely to occur as a result of the plaintiff’s negligence left it blocking the roadway; the defendant ran his
occurs in some unforeseen manner, the plaintiff’s con- wagon into the animal. Because the defendant could
duct is usually held not to be the proximate cause of have taken measures to avoid the collision, and the
the harm. Suppose a pedestrian crosses a street with- plaintiff was at a loss to do anything at the time of
out looking and is injured, not by an oncoming vehi- the accident, the defendant was held liable.
cle, but by an explosion that occurs when a truck hits The courts have struggled with the variations to
a gas line on the street. In such a case the plaintiff’s this last-clear-chance doctrine (see Exhibit 8–2). In all
negligence would not be considered the proximate the variations, the courts are unanimous in holding
cause of the injuries because the injury came about the defendant liable if the plaintiff is unable to avoid
as a result of an unforeseen risk (an explosion) and the predicament and if the defendant is aware of but
not the foreseeable risk of being run over. Because negligently fails to prevent the harm. Less consensus
the harm that occurred came about in a different way exists, however, if the plaintiff is helpless and the
than the harm that was threatened, the plaintiff would defendant negligently fails to discover the plaintiff’s
not be barred from recovery (Restatement [Second] of situation because the defendant is inattentive. Sup-
Torts § 468). pose the plaintiff negligently turns their vehicle in front
of the defendant, and the defendant, who could have
Last-Clear-Chance Doctrine avoided the accident had they been paying attention
The most significant way in which the contribu- instead of talking with their passenger, is unable to
tory negligence defense has been limited has been avoid the plaintiff by the time they see them. Most,
through the use of the last-clear-chance doctrine. but not all, courts would apply the last-clear-chance
Under this doctrine, if the defendant has an opportu- doctrine, thereby holding the defendant liable.
nity that is unavailable to the plaintiff to prevent the Suppose the plaintiff is inattentive rather than
harm that occurs and does not take advantage of it, helpless and negligently fails to extricate them-
the defendant will remain liable despite the plaintiff’s self from the danger. If the defendant discovers
contributory negligence. In essence the defendant’s the plaintiff’s predicament but negligently fails to
failure to take advantage of an opportunity to pre- respond to it, most courts will adhere to the last-
vent the harm negates, or wipes out, the plaintiff’s clear-chance doctrine and hold the defendant liable.
contributory negligence. Although the courts have A train engineer, for example, may be liable if they
used various explanations to rationalize this doctrine, fail to blow the train’s whistle a second time or slow
it most likely stems from an attempt to mitigate the the train down once they become aware that a per-
harshness of the contributory-negligence defense. son standing on the track has not heard or has dis-
The last-clear-chance doctrine, which is essen- regarded the first blow of the whistle (Restatement
tially a defense of the plaintiff, was first utilized in the [Second] of Torts § 480, cmt. b).
Exhibit 8–2 Last-Clear-Chance Doctrine Variations
Plaintiff Is Helpless and: 1. Defendant discovers danger but Plaintiff can recover in all courts.
negligently fails to avoid it.
2. Defendant fails to discover danger Plaintiff can recover in most courts.
because they are inattentive.
Plaintiff Is Inattentive but Not 1. Defendant discovers danger but Plaintiff can recover in most courts.
Helpless and: negligently fails to avoid it.
2. Defendant fails to discover danger Plaintiff cannot recover.
because they are inattentive.
Defendant Is Unable to Avoid (even though they are aware of Plaintiff cannot recover in most courts.
Harming Plaintiff danger) because of defendant’s
earlier negligence (“first-clear-chance
doctrine”).
WHEN LAST-CLEAR-CHANCE DOCTRINE IS plaintiff was negligent in failing to duck. Similarly,

NOT APPLICABLE: If both the defendant and the contributory negligence is not allowed as a defense
plaintiff are inattentive so that neither discovers the if the defendant’s conduct was “willful and wanton”
danger, the last-clear-chance doctrine is not appli- or “reckless” unless the plaintiff’s conduct was also
cable. A plaintiff cannot demand a greater standard willful and wanton or reckless. The rationale for
of care for their own protection than is required of these rules is that defendants who intentionally or
themselves. Also, if the defendant discovers the recklessly harm others should not be able to escape
plaintiff’s peril but cannot avoid it because of the liability simply because those whom they harmed
defendant’s earlier negligence, the majority of courts are negligent.
will not allow the last-clear-chance doctrine to be A defendant who is negligent per se might not
applied. Suppose the defendant is driving a car with be able to raise the defense of contributory negli-
defective brakes, and as a result, although they see gence. If the statute upon which the defendant’s
the plaintiff turning in front of them, they cannot negligence is based was enacted for the sole pur-
stop in time. Should the last-clear-chance doctrine pose of protecting a class of persons of which the
be applied? Most courts have refused to apply the plaintiff was a member, and if the statute’s intent was
doctrine in this so-called first-clear-chance case. The to place sole responsibility upon the defendant, con-
general rule is that the last-clear-chance doctrine is tributory negligence is not a viable defense. Such a
inapplicable when the defendant’s original act of statute is one prohibiting the sale of liquor to minors.
negligence precludes them from avoiding the acci- Finally, some kinds of contributory negligence are
dent after they discover the plaintiff’s peril (Restate- not considered defenses in strict liability actions. A
ment [Second] of Torts § 479, illus. 3). consumer, for example, who fails to inspect a defective
In other words, if because of their prior negli- product before using it and is injured as a result, will not
gence (such as driving with defective brakes) the be prevented from recovering damages even though
defendant does not have an opportunity to avoid they were contributorily negligent. (See Chapter 12,
the accident, the plaintiff cannot allege that the “Product Liability,” for further discussion of this
defendant had the last clear chance to avert that topic.) Some statutes explicitly abolish the defense of
accident. That opportunity was not in fact available contributory negligence, and others do so implicitly by
to the defendant. imposing a strict liability standard.
When Contributory Negligence Is

Not a Defense Comparative Negligence
Contributory negligence is not a defense to an Comparative negligence was created as an alternative
intentional tort (see Exhibit 8–3). A defendant in a to the all-or-nothing approach of the contributory-
battery case cannot, for example, argue that the negligence system (see Exhibit 8–4). In one of the more
Exhibit 8–3 Exceptions to Contributory-Negligence Rule
• Plaintiff’s negligence does not meet standards of but-for or substantial-factor tests.

• Harm likely to occur as a result of plaintiff’s negligence occurs in unforeseen manner.
• Last-clear-chance doctrine—defendant did not take advantage of opportunity to avoid accident and
plaintiff had no such opportunity. (Not applicable if neither plaintiff nor defendant discovers danger
due to inattentiveness or if defendant’s original act of negligence made it impossible for them to
avoid accident.)
• Defendant committed an intentional tort.
• Defendant was “willful and wanton” or “reckless.”
• Defendant was negligent per se (if statute’s intent was to place sole responsibility on defendant and
was enacted to protect class of people to which plaintiff belongs).

Assume that contributory negligence is the rule in each of the following questions.
1. Jeff is speeding down the highway when Josie, who is eating and talking on her phone at the time,
crosses slightly over the center line, scraping the side of Jeff’s car. As a result, Jeff loses control of his car
and careens into a ditch. Expert testimony shows that Jeff’s excessive speed did not contribute to the
collision but did contribute to his losing control of his car. Can Jeff recover for the damage to his vehicle
and for his personal injuries? Does the last-chance-doctrine apply here?
2. Because of her reckless driving, Geraldine gets involved in a collision and her car is thrown to the oppo-
site side of the road. Corinne, who is approaching the scene in her vehicle, sees Geraldine’s car and
unreasonably believes she can get around it. She is wrong and ends up overturning Geraldine’s car,
causing Geraldine to fracture her back. Is Corinne liable to Geraldine for the fractured back?
a. Would your answer change if Corinne had tried to stop, but in her confusion hit the accelerator rather
than the brake?
b. Would your answer change if Corinne had tried to stop but could not do so because her brakes were
not operating properly?
c. Would your answer change if Corinne had stopped and was injured by wreckage in the road from
Geraldine’s car?
3. Margaret’s car becomes disabled. She pulls over to the side of the road but negligently fails to put her
hazard lights on so that other drivers can see her vehicle. The headlights on Christy’s vehicle are not
working, but she decides to drive home anyway. Because of her lack of headlights, she is unable to see
Margaret’s car in time and runs into the vehicle. Can Margaret recover for the damage to her vehicle?
What about Christy?
famous cases in which a court adopted the doctrine of doctrine is inequitable in its operation because
comparative negligence (Li v. Yellow Cab Co., 532 P.2d it fails to distribute responsibility in proportion
1226 [Cal. 1975]), the court explained why it felt that to fault.1 Against this have been raised several
use of the contributory-negligence rule undermined arguments in justification, but none have
confidence in the jury system: proved even remotely adequate to the task.
The basic objection to the doctrine—grounded
It is unnecessary for us to catalogue the
in the primal concept that in a system in which
enormous amount of critical commentary that
liability is based on fault, the extent of fault
has been directed over the years against the
should govern the extent of liability—remains
“all-or-nothing” approach of the doctrine of
irresistible to reason and all intelligent notions
contributory negligence. The essence of that
of fairness.
criticism has been constant and clear: the
1. Dean Prosser states the kernel of critical comment in these terms: “If [the rule] places upon one party the entire burden
of a loss for which two are, by hypothesis, responsible.” [cite omitted] Harper and James express the same basic idea: “[T]
here is no justification—in either policy or doctrine—for the rule of contributory negligence, except for the feeling that
if one man is to be held liable because of his fault, then the fault of him who seeks to enforce that liability should also be
considered. But this notion does not require the all-or-nothing rule, which would exonerate a very negligent defendant for
even the slight fault of his victim. The logical corollary of the fault principle would be a rule of comparative or proportional
negligence, not the present rule.” [cite omitted] … “[P]ractical experience with the application by juries of the doctrine of
contributory negligence has added its weight to analyses of its inherent shortcomings: “Every trial lawyer is well aware that
juries often do in fact allow recovery in cases of contributory negligence, and that the compromise in the jury room does
result in some diminution of the damages because of the plaintiff’s fault. But the process is at best a haphazard and most
unsatisfactory one.” [cite omitted] It is manifest that this state of affairs, viewed from the standpoint of the health and vitality
of the legal process, can only detract from public confidence in the ability of law and legal institutions to assign liability on a
just and consistent basis.
Exhibit 8–4 Comparative Negligence
Types of Comparative Negligence Problems Related to Comparative Negligence
• Pure • How is fault assigned, especially where there are multiple defendants?
• 50% Approach • Is the last-clear-chance doctrine applicable?
1. Not as great as • Should a negligent plaintiff’s recovery be reduced if the defendant was
2. Not greater than negligent per se?
For a more in-depth discussion of the reasons sup- Contained within the original opinion was a listing of
porting the adoption of comparative negligence, read some of the controversial jury instructions given in the
Children’s Wish Foundation Intern., Inc. v. Mayer Hoff- case.
man McCann, P.C. 331 S.W.3d 648 (Missouri 2011).
In the News
To read about the development of comparative negligence, go to Google and enter “history of compara-
tive negligence” as your search term.
Children’s Wish Foundation Intern., Inc. v. Mayer Hoffman McCann,
Case P.C.
331 S.W.3d 648 (Missouri 2011)
TEITELMAN, Justice
Children’s Wish Foundation, International, Inc. (CWF) was to accept “gifts in kind.” A gift in kind is a donation
filed a professional negligence action against Mayer of property to a charity. CWF procured the gifts in kind
Hoffman McCann, P.C. (Mayer Hoffman) and CBIZ by paying an administrative fee to two companies that
Accounting, Tax & Advisory of Kansas City, Inc. (CBIZ) would ship the gifts in kind to CWF. CWF then distrib-
relating to Mayer Hoffman’s audit of CWF’s financial uted the gifts in kind to hospitals and Ronald McDonald
statements and CBIZ’s preparation of CWF’s tax houses. The inventory of gifts in kind was handled and
returns. The jury returned verdicts in favor of Mayer documented by CWF employees on a spreadsheet.
Hoffman and CBIZ. CWF retained Mayer Hoffman to audit CWF’s finan-
In its sole point on appeal, CWF contends the cial statements and to express an opinion regarding the
trial court erred in submitting a contributory negli- accuracy of the financial statements, including records
gence instruction. The central premise of the com- pertaining to the gifts in kind. The audit engagement
parative fault rule is that the law should allocate fault letter required CWF to provide complete, accurate
according to the parties’ conduct. This premise holds financial records and information to Mayer Hoffman.
true in professional negligence cases independent CWF provided Mayer Hoffman with the spreadsheet
of the nature of the plaintiff’s injury. Therefore, the reflecting the inventory of gifts in kind.
trial court erred in submitting a contributory negli- Mayer Hoffman discovered that in the year preced-
gence instruction. The judgment is reversed, and the ing the audit, CWF experienced a tenfold increase in
case is remanded. gifts in kind. Mayer Hoffman further discovered that
FACTS many of the gifts received by CWF already had been
CWF is a charitable organization that provides gifts to distributed. Mayer Hoffman consulted outside sources
terminally ill children. One of the fundraising methods to determine the fair market value of the gifts in kind
(continued)
Case | Children’s Wish Foundation Intern., Inc. v. Mayer Hoffman McCann, P.C. (continued)
and concluded that the fair market value stated by In October 2000, the Pennsylvania court filed an
CWF was materially accurate. Mayer Hoffman issued order to show cause against CWF. The order to show
an audit report concluding that CWF’s financial state- cause related, in part, to the overstated value of the
ments fairly represented CWF’s financial position gift in kind contributions shown on CWF’s 1999 tax
in accordance with generally accepted accounting return. After Pennsylvania opened its investigation,
principles. Mayer Hoffman forwarded the financial CWF conducted an internal investigation and dis-
statements to CBIZ, which prepared CWF’s 1999 tax covered the erroneous records. CWF then filed the
return. instant professional negligence action against Mayer
CWF’s financial statements were not accurate. The Hoffman and CBIZ.
records showed that CWF had received 17 pallets of At trial, Mayer Hoffman and CBIZ defended by
a particular book when, in fact, it had received only asserting that CWF failed to provide accurate records
seven pallets of books. The problem arose because the in support of the audit. Mayer Hoffman and CBIZ
quantity of each gift in kind contributed by CWF was offered a contributory negligence instruction, which
calculated by subtracting the number of pallets of the was submitted to the jury over CWF’s objection. The
item remaining in CWF’s inventory from the beginning jury returned verdicts in favor of Mayer Hoffman and
number of pallets shown on the spreadsheet. Mayer CBIZ.
Hoffman assumed the beginning number of each gift in In its sole point on appeal, CWF asserts that
kind shown on the spreadsheet was the quantity of the the trial court erred by submitting a contributory
item received by CWF. In fact, the beginning number negligence instruction.
of each gift in kind shown on the spreadsheet was the More specifically, CWF argues that contributory
quantity of the item ordered. Compounding the prob- negligence should not apply in a negligence action
lem was the fact that CWF sometimes received fewer that involves only economic damages and no personal
pallets of an item than it had ordered and did not have injury.
a process in place to record these discrepancies. The STANDARD OF REVIEW
mistaken use of the quantity of each gift in kind ordered “This [C]ourt reviews de novo, as a question of law,
versus received as the “starting point” for calculating whether a jury was properly instructed.” Harvey v.
the quantity of each gift in kind contributed resulted in Washington, 95 S.W.3d 93, 97 (Mo. banc 2003). “A
an overstatement of the value of gift in kind contribu- faulty instruction is grounds for reversal if the defendant
tions on CWF’s financial statements by approximately has been prejudiced.” State v. Carson, 941 S.W.2d 518,
$1.31 million. 523 (Mo. banc 1997) (citing State v. Betts, 646 S.W.2d
Although Mayer Hoffman was provided with the 94, 99 (Mo. banc 1983)).
inventory spreadsheet, there was testimony at trial ANALYSIS
about waybills, which would accompany shipments of The disputed instruction in this case is Instruction No.
gifts in kind. CWF did not supply the waybills to Mayer 11, which instructed the jury as follows:
Hoffman. The waybills were a record of what the ship- You must find plaintiff contributorily negligent if you
per showed had been shipped. A CWF employee would believe:
“check in” an order and sign off on the waybills. The First, plaintiff erroneously stated to defendant Mayer
employee who checked in merchandise said she would Hoffman McCann, P.C. that its accounting records
note on the waybill if the inventory received differed reflected the gifts-in-kind plaintiff had received, or
from what the waybill indicated had been shipped. This plaintiff provided to defendants Mayer Hoffman
employee testified that she did “not believe any of the McCann, P.C. and CBIZ Accounting, Tax & Advisory of
counts came out wrong. Whatever they said was deliv- Kansas City, Inc. erroneous shipping records to Ronald
ered pallet wise was delivered.” Although the waybills McDonald House, and Second, plaintiff, in one or
were not provided to Mayer Hoffman, it is not clear more of the respects submitted in Paragraph First,
that the waybills would have revealed the discrepancy was thereby negligent, and Third, such negligence of
between the quantity of a gift in kind item ordered ver- plaintiff directly contributed to cause its injury. The term
sus the quantity shipped and received. “negligent” or “negligence” as used in this instruction
(continued)
means the failure to use that degree of care that an (“malpractice, negligence, error, and mistake all con-
ordinarily careful person would use under the same or note some type of fault, whether or not intentional”).
similar circumstances.1 The all-or-nothing allocation of fault under contrib-
CWF asserts that Instruction No. 11 was erroneous utory negligence ignored the fact that the parties
because Gustafson v. Benda, 661 S.W.2d 11 (Mo. to a negligence action generally are held to some
banc 1983), abrogated contributory negligence in standard of care and that, in some cases, the injury
favor of comparative fault. CWF argues that the at issue was caused by a breach of the standard
jury should have been instructed on comparative of care by both parties. Therefore, the contribu-
fault. Gustafson, however, involved a claim for personal tory negligence rule operated to “irrationally impose
injury, and subsequent cases have yielded conflicting total responsibility upon one party for the conse-
answers regarding the applicability of comparative quences of the conduct of both parties.” Earll v.
fault to negligence actions that do not involve per- Consolidated Aluminum Corp., 714 S.W.2d 932, 936
sonal injury. Consequently, this appeal presents the (Mo.App.1986).
unresolved issue of whether comparative fault applies To ameliorate the shortcomings of the contrib-
in a professional negligence action alleging only eco- utory negligence rule, Gustafson adopted a “com-
nomic damages. prehensive system” of comparative fault in which
I. Comparative fault applies to CWF’s the jury decides the *652 relative fault of the parties
professional negligence claim and assesses damages accordingly. Rodriguez v.
Prior to Gustafson, Missouri followed the contributory Suzuki Motor Corp., 936 S.W.2d 104, 107 (Mo. banc
negligence rule. Under the contributory negligence 1996). Gustafson held that “[i]nsofar as possible
rule, a plaintiff could not recover damages if the this and future cases shall apply the doctrine of
plaintiff’s own negligence directly contributed in any pure comparative fault in accordance with the
way to the injuries sustained. Gramex Corp. v. Green Uniform Comparative Fault Act §§ 1–6, 12 U.L.A.
Supply, Inc., 89 S.W.3d 432, 439 (Mo. banc 2002), Supp. 35–45 (1983).” 661 S.W.2d at 15. Although Gus-
citing Moore v. Kansas City & I. Rapid–Transit Ry., 126 tafson did not enact the Uniform Comparative Fault
Mo. 265, 29 S.W. 9, 12 (1894). Therefore, even if the Act (UCFA) as substantive law, Lippard v. Houdaille
defendant’s conduct was the primary cause of the Industries, 715 S.W.2d 491, 492–493 (Mo. banc
plaintiff’s injury, the defendant could escape all liabil- 1986), Gustafson and subsequent cases have estab-
ity under the contributory negligence rule. lished that the UCFA informs the application of
The contributory negligence rule proved unsat- comparative fault in Missouri.
isfactory as courts came to recognize that negli- The UCFA provides that “[i]n an action based on
gence actions are premised on the culpability of fault seeking to recover damages for injury or death
the parties. Id. In other words, negligence actions, to person or harm to property, any contributory fault
which are based on the breach of a legal duty of chargeable to the claimant diminishes proportion-
care, fundamentally are premised on the concept ately the amount awarded as compensatory damages
of fault. See, e.g., Bell v. Poplar Bluff Physicians for an injury attributable to the claimant’s contrib-
Group, Inc., 879 S.W.2d 618, 623 (Mo.App.1994) utory fault, but does not bar recovery.” UCFA Sec-
tion 1(a), 12 U.L.A. Master Ed. 125 (2008). The UCFA
further provides that comparative fault is not recom-
1. Instruction No. 11 noted as its source: “MAI No. mended to extend to:
32.07(B) (1996) modified; MAI 11.02 Blackstock v. [M]atters like economic loss resulting from a tort
Kohn, 994 S.W.2d 947, 952 n. 2 (Mo. banc 1999).” At such as negligent misrepresentation, or interference
the instruction conference and in the motion for new with contractual relations or egregious falsehood, or
trial, CWF objected to Instruction No. 11 on the grounds harm to reputation resulting from defamation. But
that a contributory negligence instruction was improper failure to include these harms specifically in the Act
in a negligence action involving only economic loss. is not intended to preclude application of the general
CWF preserved its objection to the contributory negli- principle to them if a Court determines that the com-
gence instruction. mon law of the state would make the application.
(continued)
UCFA Section 1 Cmt., 12 U.L.A. Master Ed. 125 (2008). economic loss caused by professional negligence.
This case involves a negligence action involving There is no compelling reason to limit the application
economic loss from professional malpractice. The of comparative fault based on the nature of the injury.
UCFA comment does not provide a rationale for limiting The defining feature of negligence actions is not the
comparative fault to cases involving personal injury and nature of the damages but the negligent breach of a
expressly leaves open the possibility that comparative legal duty of care that results in injury or loss to the
fault can apply to economic loss cases if consistent plaintiff. Negligence actions are fault-driven, whether
with state common law. If the comparative fault rule the plaintiff suffers a broken leg in a car accident or
set forth in the UCFA and adopted in Gustafson was the loss of money due to professional negligence.
theoretically incompatible with economic loss cases, There is nothing inherent in the nature of the type of
the UCFA would not have left open the possibility of injury that warrants the application of comparative
applying comparative fault in economic loss cases. A fault in the former case and contributory fault in
more plausible interpretation of the comment is that it the latter case. Consistency dictates that comparative
accounts for the fact that many states, including Mis- fault apply in both cases.
souri, traditionally have restricted the availability of tort Mayer Hoffman and CBIZ assert that because
damages in cases alleging only economic loss.2 The this case involves a contractual relationship, it is
UCFA addresses the application of comparative fault, inappropriate to apply comparative fault because the
not the kind of damage or injury that may be pleaded parties can allocate the risk of loss in the contract.
in a tort action. A recommendation to extend compara- This objection does not withstand scrutiny. First, the
tive fault to economic loss cases would have exceeded same objection could be made to the application
the intended scope of the UCFA by effectively recom- of contributory fault. It is not necessarily the case
mending that states not only adopt comparative fault that the application of contributory fault will be con-
but also enlarge the scope of damages recoverable sistent with any agreement the parties may have had
in a tort action. The adoption of comparative fault in with respect to the allocation of risks and duties.
economic loss cases is not necessarily inconsistent Only in a very one-sided contract would the parties
with the UCFA. agree the client is barred from all recovery due to the
The Missouri cases subsequent to Gustafson, slightest degree of negligence by the client.
although inconsistent in the application of Second, and more importantly, CWF’s cause of
comparative fault in economic loss cases, largely action is not premised on the contract. It is premised
h a v e c o n c l u d e d t h a t G u s t a f s o n ’s a b ro g a t i o n on the professional duty recognized by law that arises
of contributory negligence does not extend to from the relationship created by the accountant-client
economic loss negligence cases.3
Nonetheless, this Court has not directly addressed
the issue and now holds that the comparative fault 3. For instance, in Chicago Title Ins. Co. v. Mertens, 878
rule established in Gustafson applies to claims of S.W.2d 899, 902 (Mo.App.1994), the appeals court, rely-
ing on the UCFA and comments, held that the trial court
erred in submitting a comparative fault instruction on
2. The economic loss doctrine does not apply in a negligence counterclaim that alleged only economic
this case. Missouri recognizes tort liability in pro- loss. In Miller v. Ernst & Young, 892 S.W.2d 387, 388 n. 1
fessional negligence cases involving only economic (Mo.App.1995), the court, citing Mertens, concluded that
loss. See, e.g., Business Men’s Assurance Co. “in this case, involving only economic damages, con-
o f A m e r i c a v. G r a h a m , 8 9 1 S . W. 2 d 4 3 8 , 4 5 3 tributory negligence remains an absolute defense.” See
(Mo.App.1994) (tort recovery permitted when a also Murphy v. City of Springfield, 738 S.W.2d 521,
client “sues for breach of a duty recognized by law 529–530 (“we doubt that Missouri will apply compar-
as arising from the relationship or status the parties ative fault any broader than the [UCFA]”); Roskowske
have created by their agreement”); Miller v. Ernst & v. Iron Mountain Forge Corp., 897 S.W.2d 67, 73
Young, 892 S.W.2d 387 (Mo.App.1995) (accounting (Mo.App.1995) (“[c]omparative fault does not apply to a
malpractice). case involving purely economic loss”).
(continued)
relationship. See, e.g., Business Men’s Assurance the nature of the damages. Likewise, this Court
Co. of America v. Graham, 891 S.W.2d 438, 453 concludes that principles of comparative *654 fault
(Mo.App.1994) (tort recovery permitted when a client that to date have been applied in negligence actions
“sues for breach of a duty recognized by law as arising involving personal injury also should be applied in
from the relationship or status the parties have created professional negligence actions that allege economic
by their agreement”). Comparative fault should apply in loss. Consequently, the trial court erred in submit-
this professional negligence case for the same reasons ting contributory negligence in Instruction No. 11.
that it applies in a negligence action involving personal II. The instructional error was prejudicial
injury. To reverse on grounds of instructional error, the party
Finally, the prevailing view is that comparative neg- claiming the error must establish prejudice because
ligence applies in negligence actions involving only the instruction misdirected, misled or confused the
economic loss. Shields v. Cape Fox Corp., 42 P.3d jury. Sorrell v. Norfolk Southern Railway Co., 249
1083, 1090 (Alaska 2002).4 Although the cases from S.W.3d 207, 209 (Mo. banc 2008). Instructional error is
other jurisdictions do not necessarily involve identical presumed prejudicial when the verdict is in favor of the
factual scenarios, the fact remains that each holds party at whose instance the instruction is given. Karnes
that the state’s law of comparative fault generally v. Ray, 809 S.W.2d 738, 742 (Mo.App.1991). Here,
should apply to negligence actions irrespective of Mayer
Hoffman requested the contributory negligence
instruction, and the jury returned a defense ver-
4. See also Scioto Memorial Hospital Association v. dict. The presumption of prejudice is not rebutted.
Price Waterhouse, 74 Ohio St.3d 474, 659 N.E.2d Accordingly, CWF was prejudiced because Instruction
1268, 1272 (1996); Florenzano v. Olson, 387 N.W.2d No. 11 improperly permitted the jury to find that
168 (Minn.1986); Standard Chartered PLC v. Price any negligence on the part of CWF served as a bar to
Waterhouse, 190 Ariz. 6, 945 P.2d 317, 353 (Ariz. any recovery.
App.1996); Gilchrist Timber Co. v. ITT Rayonier, Inc., 696 CONCLUSION
So.2d 334, 336 (Fla.1997); ESCA Corp. v. KPMG Peat The judgment is reversed, and the case is remanded.
Marwick, 135 Wash.2d 820, 959 P.2d 651 (1998). All concur.

1. Why did the supreme court accept this case for review?
2. Why does the defendant argue that the jury instruction was erroneous?
3. Why does the defendant argue that comparative fault should have been given as an option as well as
contributory negligence?
4. Does the fact that this case involved malpractice and economic loss have a bearing on which negligence
defense to use?
5. What does this supreme court hold in terms of allowing comparative fault arguments for economic
losses?
6. What does the court say the plaintiff must prove to reverse a case on instructional error?
7. What does the court compare professional malpractice to in terms of negligence?
8. Does the court find an error in the appellate court’s jury instruction? What do they do with the case?
Under the comparative-negligence doctrine, the would not be barred under the “not greater than”
plaintiff’s recovery is reduced in direct proportion approach (because their negligence would not be
to their degree of negligent contribution to their greater than the defendant’s).
own injuries. Therefore, if a plaintiff is found to
be responsible for 20 percent of her injuries and Administrative Problems
suffers damages of $1,000,000, their recovery will
The administration of the comparative-fault system
be reduced by 20 percent of the $1,000,000, or
creates some practical problems. For example, how
$200,000. Today almost all states have adopted
should the percentage of fault be assigned to the
a comparative-negligence system by statute or
plaintiff and defendant? Should fault be based on
through a state court decision.
the extent that the party’s conduct contributed to
The states that have adopted comparative negli-
the resulting harm, as suggested by the Uniform
gence have, for the most part, adopted either a pure
Comparative Fault Act? Or should fault be based on
comparative-negligence standard or a 50 percent
the extent to which the plaintiff’s conduct deviated
approach. (See the listing of these states in part III
from a reasonable standard of care? Both methods
of the McIntyre opinion.) Under the pure system the
are used and can lead to different outcomes.
plaintiff can recover no matter how extensive their
What if some persons are not parties to an
negligence. For example, if the plaintiff is found to
action? Should fault be assigned to their actions?
be 80 percent negligent by the jury, under a pure
How is negligence assigned if there are more parties
comparative-negligence system they can still recover
than just the plaintiff and defendant? Under a pure
20 percent of their damages. Contrast this with the
comparative-negligence system the answer is sim-
50 percent approach, in which such a plaintiff would
ple: the negligence of all parties will be considered,
be precluded from recovering because they were more
and the plaintiff will be allowed to recover in direct
than 50 percent responsible for their own injuries.
proportion to the negligence of those parties.
Two subsystems of the 50 percent approach have
Suppose, for example, the jury determines the
been developed: the “not as great as” and the “not
damages to be $100,000 and allocates the fault as
greater than” (sometimes referred to as “49 percent
follows:
rule”) approaches. Although subtle in terms of lan-
guage, the differences in these two systems can have Plaintiff 25%
a profound impact on the plaintiff. Under the “not as Defendant 1 20%
great as” approach the plaintiff’s claim is barred as soon Defendant 2 30%
as their negligence is as great as the defendant’s Nonparty 25%
negligence; under the “not greater than” approach
the plaintiff is barred only when their negligence is The plaintiff would receive a judgment of $50,000,
greater than the defendant’s. The reason this subtle for which defendant 1 would be liable for $20,000
distinction can give rise to tremendous differences and defendant 2 would be liable for $30,000. (This
in outcome results from juries’ tendency to assign a allocation is based on the assumption that the
50:50 apportionment in terms of blame. In a 50:50 jury determined that the plaintiff’s fault should be
apportionment the plaintiff would be barred under applied to reduce the plaintiff’s damages.)
the “not as great as” approach (because their neg- A problem arises, however, in jurisdictions where
ligence would be as great as the defendant’s) but the plaintiff may recover only if their negligence is
less than that of the defendants. Should such a plain-
tiff be allowed to recover if their negligence is less
Local Links than that of all the defendants combined but greater
Does your state follow a pure comparative- than that of a particular defendant? Suppose, for
negligence approach or a 50 percent example, the plaintiff is responsible for 40 percent
approach? If your state follows a 50 percent of their injuries, defendant A is 30 percent respon-
approach, does it use a “not as great as” or sible, defendant B is 20 percent responsible, and
“not greater than” approach? defendant C is 10 percent responsible. Should the
plaintiff be able to recover when their negligence
Local Links the statute is designed to protect members of the

plaintiff’s class and to place all responsibility on
• If your state has a comparative-negligence the defendant. Some states, however, have denied
standard, how is the percentage of fault apportionment, arguing that it would defeat the
assigned to the plaintiff and defendant? purpose of the statute in question.
• How does your state deal with nonparties The Minnesota courts, for example, have grap-
in terms of fault and damages? pled with this issue. In one case the court refused
• In your state, can a plaintiff recover to apply comparative negligence when a minor
if their negligence is less than all of died after using glue given him by another minor,
the defendants combined but greater who had bought the glue from a retailer. The court
than one or more of the defendants reasoned that certain statutes, such as child labor
individually? statutes, statutes prohibiting the sale of dangerous
articles to minors, and statutes protecting intoxi-
cated persons, impose absolute liability because
the purpose of these statutes is to protect certain
exceeds that of each individual defendant, even classes of people from their inability to protect
though they are less negligent than all of the defen- themselves (Zerby v. Warren, 210 N.W.2d 58 [Minn.
dants combined? Most state statutes do not answer 1973]). Later, however, the court allowed compar-
this question. ative negligence when a minor was involved in a
single-car accident after being served liquor at
Other Issues Affecting a party hosted by the defendants. Although the
defendants had violated a statute prohibiting the
Comparative Negligence furnishing of liquor to minors, the court deferred to
Is the last-clear-chance doctrine applicable in a legislative intent to allow the defense of contributory
comparative-negligence system? Most states have negligence in certain actions involving violations
not recognized the last-clear-chance doctrine after of statutes regulating liquor, including the statute
adopting comparative negligence, and a few have prohibiting the furnishing of alcohol to persons
abolished the last-clear-chance doctrine altogether. under the age of 21 (VanWagner v. Mattison, 533
Some states, however, have retained the last- N.W.2d 75 [Minn. Ct. App. 1995]).
clear-chance doctrine as a distinct doctrine, either To see how one court addressed some of the
reasoning that last clear chance is not incompatible administrative concerns and legal questions with
with comparative negligence or not questioning the contributory and comparative negligence outlined in
compatibility. The Uniform Comparative Fault Act this section, read the excerpt from Kaatz v. State.
expressly rejects its use.
Comparative negligence is generally not
allowed in reference to intentional torts to reduce
the plaintiff’s damages; thus, a defendant who Local Links
commits an intentional tort may not use the argu- • If your state uses a comparative-negligence
ment that the plaintiff contributed to their own system, is the last-clear-chance doctrine
injuries. The defendant whose conduct is willful applicable?
and wanton or reckless, however, may still rely on • In your state, can a defendant who is
the defense of comparative negligence to reduce reckless or who acts in a willful and
the plaintiff’s recovery. wanton manner argue that the plaintiff’s
Most states adopting the comparative- recovery should be reduced because of
negligence approach have allowed for the reduction the plaintiff’s negligence?
of the negligent plaintiff’s recovery in cases in • In your state can a defendant who is neg-
which the defendant violated a safety statute and ligent per se try to reduce the plaintiff’s
was therefore negligent per se. Unlike contributory recovery?
negligence, the same stance is taken even when
Case
Kaatz v. State
540 P.2. 1037 (Alaska 1075)
CONNOR, Justice
Opinion temperature throughout the day had hovered in the mid

CONNOR, Justice. to low thirties.
The decedents, Ronald Lindley and Donald Kaatz, were On this particular evening Ronald Lindley did not
employed by the Burgess Construction Company in early wait for Dreka to finish preparing the barge for loading.
December 1970. At that time, the company was work- Instead, he and Kaatz set out together in the front-end
ing on a project in Wrangell, Alaska. The project required loader, headed north towards the gravel pit. When the
gravel, which the company customarily obtained from balloon-tired vehicle had traveled approximately half of
Reid’s gravel pit, located three miles south of Petersburg, the one-mile distance from the barge dock to the gravel
Alaska, just off the Mitkof Highway. pit, it began to descend a slight grade on the Mitkof
In order to transport the gravel from the Petersburg Highway. At the base of the grade, the road turned to
area to Wrangell, the following procedure was usu- the right. The vehicle did not reach that curve because,
ally utilized. Donald Kaatz, having taken up temporary as the loader descended the grade, it toppled off the
residence in the town of Petersburg, readied the gravel side of the northbound lane over an embankment.
at the pit for transportation to Wrangell. Periodically, the Lindley and Kaatz were both killed.
Burgess Construction Company would send a barge The widows of these men each brought wrongful
up the Wrangell Narrows to Petersburg. Before leaving death actions against the State of Alaska. They
Wrangell, the company would place a front-end loader alleged that the state was negligent in that it had failed
on the barge. Ronald Lindley, an experienced operator to adequately maintain the icy road, so that it would
of front-end loaders, would accompany the vessel to be safe for vehicular traffic. Judge Victor D. Carlson
the Petersburg barge dock, located approximately four tried the case and rendered a verdict for the defen-
miles south of town. dants. In doing so, he specifically concluded that ‘(t)
Kaatz would meet the barge at the dock and, he negligence of the State of Alaska (was) a cause
together with Mr. Lonnie Dreka, who supervised the of the death of Messrs. Lindley and Kaatz.’ However,
operation, he would help to prepare the barge to carry he also found that the icy and very slippery condition
the gravel back to Wrangell. When this was done, Kaatz of the Mitkof Highway on the evening of December
and Dreka would drive Kaatz’ pickup truck along the 9, 1970, ‘was known to Mr. Kaatz before he climbed
Mitkof Highway to the gravel pit, which was one mile into the cab of the loader and it became known to Mr.
north of the barge dock. Lindley would follow, driving Lindley immediately when the vehicle proceeded onto
the front-end loader. the highway.’ In addition, he found that it was ‘unrea-
When the men reached the gravel pit, Lindley would sonable for any person experienced with a front-end
use the loader to fill a truck with gravel. The vehicle was loader to operate such a vehicle on the highway’
then driven back to the barge dock, where the gravel under those conditions. He thus concluded that
was placed onto the vessel, along with the front-end the contributory negligence of the decedents was a
loader. Dreka and Lindley then would accompany the complete defense to their claims.
barge back to Wrangell and unload it. Kaatz would The appellants contend that Judge Carlson clearly
return to his chores in and around Petersburg. erred in finding that the decedents’ conduct constituted
On the evening of December 9, 1970, the barge contributory negligence. Alternatively, they urge us to
arrived at the Petersburg dock around 7:00 p.m. abandon the doctrine of contributory negligence and
Kaatz met the barge when it arrived. Lindley, Dreka, adopt a ‘pure’ comparative negligence formula instead.
and the front-end loader were on board. The weather The state, in its cross appeal, contends that the court
was overcast, with intermittent rain and drizzle. The erred in finding that it was negligent in its maintenance
(continued)
Case | Kaatz v. State (continued)

of the road and that such negligence caused the deaths failed to sand the Mitkof Highway before the accident
of Lindley and Kaatz. The state also argues that Judge occurred.
Carlson did nor err in finding that the decedents were In State v. Abbott, 498 P.2d 712 (Alaska 1972), we
negligent and urges us not to abandon the doctrine of held that the state has a duty to exercise reasonable
contributory negligence in favor of comparative negli- care to maintain Alaska’s highways in safe condi-
gence. The record presented in this case requires us to tion.3 That duty certainly extends to hazards created by
address each of the contentions that has been raised. ice and snow.
II. A breach of this duty of care occurs whenever lack
We shall begin our analysis by determining whether the of reasonable road maintenance exposes a person to
trial court erred in finding that negligence on the part of an unreasonable risk of harm.
both the state and the decedents caused the accident. In the present case, the evidence clearly supports a
At the outset it is useful to restate the standard for finding of negligence on the state’s part…
review of judge-tried cases in which all pertinent claims In City of Fairbanks v. Schaible, 375 P.2d 201, 204
of error are predicated on an assertion of insufficient (Alaska 1962), we stated:
evidence. In Alaska Foods Inc., v. American Manufac- ‘A mere possibility of causation is not enough. When
turer’s Mutual Insurance Co., 482 P.2d 842, 848 (Alaska the matter remains one of conjecture … the trial court
1971), we stated: must find against the party carrying the burden of
‘The rule is this: Under Civil Rule 52(a) we shall not proof…
set aside the finding of fact of a trial judge unless it is III.
clearly erroneous. A finding is clearly erroneous when, Since we find no clear error in the trial court’s ruling
although there may be evidence to support it, we are that Donald Kaatz was contributorily negligent on the
left with the definite and firm conviction on the entire night of the accident, we must next decide whether
record that a mistake has been committed. such negligence should continue to operate as a
This rule applies to any finding, regardless of the complete bar to recovery in cases such as this.
nature of the evidence upon which it is based. The only Initially we must consider a procedural objection
difference between our review of findings based on oral which the state raises, regarding our review of the
testimony, and those based on documentary evidence issue. The state points out that plaintiff Kaatz first
or undisputed facts, is that in the former case we must presented the issue of comparative negligence to
pay some deference to the trial judge’s assessment of the trial court on a motion to amend and supplement
the credibility of witnesses, whereas in the latter case, the court’s findings of fact and conclusions of law. It
we need not. It is because of the deference we pay to is urged that the issue was not presented below in a
the trial judge’s assessment of credibility of witnesses timely manner, and therefore is not properly before this
where there is oral testimony that we have character- court on appeal.
ized our scope of review in cases where there is no oral We have consistently held that an issue which was
testimony as being a ‘broader’ type of review. Even in not raised in the trial court will not be reached on
the latter situation, clear error must appear under the appeal. Likewise, in jury cases, one cannot await the
rule we apply. jury’s verdict before objecting to various aspects of the
The clearly erroneous standard, as we apply it, preceding trial. But, in this judge tried case, appellant
means something more than merely showing it is more called the matter to the attention of the trial court by
probable than not that the trial judge was mistaken. We motion, memorandum and oral argument, and the trial
must be convinced, in a definite and firm way, that a court expressly rejected appellant’s contention. Under
mistake has been committed. We must be well per- these circumstances the issue is properly before us
suaded by the party seeking to set aside the trial on appeal. We now turn to the question of whether the
judge’s findings before we will hold he was wrong. doctrine of contributory negligence should have contin-
With this standard in mind, we turn to the factual ued vitality in Alaska.
issues in this case. Contributory negligence is the failure of a plaintiff
The state, in its cross appeal, contends that its high- to use due care for his own safety. When contributory
way maintenance crew was not negligent in having negligence is a substantial factor in bringing about a
(continued)

plaintiff’s harm, it operates in law to prevent a recovery negligence is difficult for courts to administer, and
of damages by him, even though he was injured that settlement of negligence cases is encouraged by
through the negligence of the defendant. Restatement the contributory negligence rule. Contrary arguments
(Second) of Torts s 463 (1965). This has been the rule have also been presented.
followed in Alaska in the past. Saslow v. Rexford, 395 Although jurors’ verdicts are not precisely scien-
P.2d 36, 41 (Alaska 1964); Ogden v. State, 395 P.2d tific, an allocation of proportionate fault approaches
371, 372 (Alaska 1964); Bertram v. Harris, 423 P.2d 909, reality more closely than the total loss or victory rep-
914 (Alaska 1967). resented by the contributory negligence rule. As to the
… Contributory negligence is an ‘all-or-nothing’ deterrent effect of the contributory negligence rule,
doctrine. When it is operative it is a total bar to recov- Dean Prosser points out that the law must also aim
ery by an injured plaintiff. A comparative negligence to deter wrongful conduct by defendants and not only
rule, on the other hand, seeks to apportion damages, plaintiffs. Judicial administration of the rule has not
i.e., distribute responsibility, in proportion to the degree presented insuperable difficulties in those jurisdictions
of fault attributable to the parties who have negligently which have long employed it. Experience has not
caused an injury. borne out the argument that comparative negligence
It should be noted that comparative negligence sys- is difficult for courts and juries to apply.
tems have long been employed in other nations and in Similarly, careful studies tend to show that settlement
various jurisdictions in the United States. In one form of cases can be achieved as readily under the com-
or another it is the system employed for apportioning parative negligence system as under the contributory
damages in at least 27 states. In federal law compar- negligence rule. Studies have also shown that the
ative negligence has long been employed in admiralty effect of the comparative negligence rule on insurance
personal injury cases. Under federal statutes it has rates is minimal.
been applicable since 1908 to cases arising under the The central reason for adopting a comparative
Federal Employers Liability Act, 45 U.S.C. s 53, and negligence system lies in the inherent injustice of
since 1920 to cases arising under the Jones Act, 46 the contributory negligence rule. As the California
U.S.C. s 688, and under the Death on the High Seas Supreme Court recently observed concerning the
Act, 46 U.S.C. s 766. It has long been used in other contributory negligence doctrine:
nations of the civilized Western world. Moreover, in ‘It is unnecessary for us to catalogue the enormous
England, the source of Butterfield v. Forrester, supra, amount of critical comment that has been directed over
and its precedential descendants, Parliament abol- the years against the ‘all-or-nothing’ approach of the
ished the contributory negligence defense in 1945 and doctrine of contributory negligence. The essence of
replaced it with a pure comparative negligence rule for that criticism has been constant and clear: the doctrine
apportioning damages. is inequitable in its operation because it fails to dis-
The benefits to be derived from a comparative tribute responsibility in proportion to fault. Against this
negligence rule are several. It diminishes the need to have been raised several arguments in justification, but
employ rules which are designed to ameliorate the none have proved even remotely adequate to the task.
harshness of the contributory negligence rule. For The basic objection to the doctrine-grounded in the pri-
example, the ‘last clear chance’ doctrine becomes mal concept that in a system in which liability is based
largely superfluous in jurisdictions which employ the on fault, the extent of fault should govern the extent
comparative negligence rule. It is said that compar- of liability-remains irresistible to reason and all intelli-
ative negligence provides a better distribution of risk gent notions of fairness.’ Li v. Yellow Cab Company, 13
under a fault system of liability, for both plaintiffs and Cal.3d 804, 810, 119 Cal.Rptr. 858, 862, 532 P.2d 1226,
defendants benefit to the extent of their respective 1230-31, (1975) (footnotes omitted).
blameworthiness or lack thereof. And as Professor Prosser has stated:
The supporters of the contributory negligence ‘The hardship of the doctrine of contributory negli-
rule have argued that fault cannot be measured on gence upon the plaintiff is readily apparent. It places
a scientific basis, that contributory negligence is upon one party the entire burden of a loss for which
a deterrent to careless conduct, that comparative two are, by hypothesis, responsible. The negligence
(continued)

of the defendant has played no less a part in causing unfair results which can no longer be justified. We hold,
the damage; the plaintiff’s deviation from the commu- therefore, that the doctrine of contributory negligence
nity standard of conduct may even be relatively slight, shall no longer be applicable in Alaska, and in its
and the defendant’s more extreme; the injured man is in stead the principle of comparative negligence must be
all probability, for the very reason of his injury, the less applied.
able of the two to bear the financial burden of his loss; Systems of comparative negligence can take sev-
and the answer of the law to all this is that the defen- eral forms. Under a ‘pure’ form the plaintiff’s damages
dant goes scot free of all liability and the plaintiff bears are simply reduced in proportion to the amount of
it all.’ W. Prosser, Torts 433 (4th ed. 1971). negligence which is attributed to him. There are also
Of great significance to us is the recent adoption of several ‘modified’ forms of comparative negligence.
a comparative negligence rule by judicial decision in One of these is the divided damages rule in mari-
other jurisdictions. In many instances the rule has been time collision cases, which has now been abolished.
adopted through legislative action, but increasingly Another is the 50% system, applicable by statute in
it is perceived that a rule which is judicial in origin can many of the states. Under that system a negligent
be, and appropriately should be,25 altered by the insti- plaintiff may recover so long as the amount of his
tution which was its creator.26 Thus Florida in Hoffman fault does not exceed 50% of the total fault attrib-
v. Jones, 280 So.2d 431 (Fla.1973), and California utable to the parties. We are convinced that the pure
in Li v. Yellow Cab Co., 13 Cal.3d 804, 119 Cal.Rptr. system is the one which is the simplest to administer
858, 532 P.2d 1226 (1975), through the judicial pro- and which is best calculated to bring about substan-
cess have overturned the contributory negligence rule tial justice in negligence cases. It is the system most
and have replaced it with the comparative negligence favored by modern jurists and commentators. We will
principle. employ the pure system of comparative negligence
We are also particularly impressed with a recent hereafter in Alaska.
decision of the United States Supreme Court in the Our adoption of this new principle does not, of
field of admiralty. In United States v. Reliable Trans- course, end our judicial tasks in this area. Subsidiary
fer Co., 421 U.S. 397, 95 S.Ct. 1708, 44 L.Ed.2d 251 questions, and problems concerning the relationship
(1975), the Court discarded the historic rule of divided of the new rule to other doctrines of tort law must
damages in maritime collision cases and replaced it necessarily be adjudicated in the future. We must,
with a pure comparative negligence rule. Hereafter for the most part, await future cases for the further
liability for property damages in admiralty collision development of law in this field.
cases will be allocated in proportion to the fault of We are, however, prepared to deal with one facet of
each party. the comparative negligence rule at this time: the sta-
The Court’s reason for abandoning the divided tus of the doctrine of ‘last clear chance’. The rationale
damages rule is relevant to our consideration of the underlying this doctrine is that even though the plain-
contributory negligence rule: the divided damages tiff has been contributorily negligent he should still be
rule, like the contributory negligence rule, yields able to recover his entire damages if the defendant
palpably crude and inequitable results in cases where had the last opportunity to avoid the accident. The
the degree of fault is greatly disproportionate. Further- application of the doctrine is particularly apt in cases
more, the Court was persuaded by the rejection of the where the plaintiff is in a helpless predicament, owing
rule by every other maritime nation in the world. All to his own negligence, and the defendant, although
other maritime nations, including England where the perceiving plaintiff’s situation and realizing the plain-
rule emerged, employ a proportionate fault measure of tiff’s peril, fails negligently thereafter to avoid injuring
damages in marine collision cases. the plaintiff. Unfortunately, the search for limits to the
It appears to us that continued adherence to the doctrine and for the proper sphere of its application
contributory negligence rule, absent legislative change, has led to great confusion in the law of tort, much of
represents judicial inertia rather than a reasoned which can probably never be dispelled. But it is recog-
consideration of the intrinsic value of the rule. We are nized by nearly all who have reflected upon the sub-
persuaded that the contributory negligence rule yields ject that the last clear chance doctrine is, in the final
(continued)

analysis, merely a means of ameliorating the harsh- a ground for appeal, there shall be a retrial under the
ness of the contributory negligence rule. Without the principle of comparative negligence. Our holding today
contributory negligence rule there would be no need will be applicable to any trial which has commenced
for the palliative doctrine of last clear chance. To give but has not been submitted for decision by the trier
continued life to that principle would defeat the very of fact, and in which prior to submission to the trier of
purpose of the comparative negligence rule—the fact for decision there has been a request or an asser-
apportionment of damages according to the degree of tion that the rule of comparative negligence should be
mutual fault. There is, therefore, no longer any reason applied.
for resort to the doctrine of last clear chance in the We observe that in the present case defense
courts of Alaska. counsel offered no evidence with regard to the issue
Lastly, we must determine the extent to which the of damages. This may have occurred because of a
rule we have announced today shall have application belief by defense counsel that under the contributory
to cases other than those which are filed in the future. negligence doctrine plaintiffs’ claims should have
The rule will, of course, apply in the retrial of the case in been barred entirely. Since we have abandoned the
which we have reversed the judgment today. It will also contributory negligence doctrine today, we feel that
apply to any case in which the trial commences after it is appropriate to require a new trial on the issue of
the date of this opinion. In any case pending on direct damages.
appeal in which the application of the comparative neg- We remand this case to the superior court for further
ligence rule was requested or asserted in the trial court, proceedings consistent with this opinion.
and in which the request or assertion was preserved as Affirmed in part, reversed in part.

1. What problems with comparative negligence does the court address?
2. What did the defense bring as evidence for proof of damages?
3. How does the court treat the last-clear-chance doctrine?
4. Which form of comparative negligence does the supreme court adopt for Alaska? Why?
5. What does the court say about contributory negligence and the all or nothing doctrine?
Assumption of Risk Exhibit 8–5 Differences between Assumption

of Risk and Contributory Negligence
A plaintiff who volunteers to take the chance that
harm will occur is said to have assumed the risk. The Contributory Negligence Assumption of Risk
elements of assumption of risk are as follows (also Characterized as Characterized as
see Exhibit 8–5): “recklessness.” “adventurousness.”
• Plaintiff must have actual or constructive knowl- Plaintiff compared to Did plaintiff understand
reasonable person. (objective risk? (subjective
edge of the risk.
standard) standard)
• Plaintiff must appreciate the character of the risk. Not a defense to reckless Is a defense to reckless
• Plaintiff must voluntarily accept the risk based conduct. conduct.
on the time, knowledge, and experience to Not generally a defense in Is a defense in strict
make an intelligent choice. strict liability cases. liability cases.
The defendant must prove that the plaintiff had willful and wanton negligence. One area in which
actual or constructive knowledge of the actual risk the courts are unwilling to uphold a waiver, no mat-
prior to engaging in the injury-causing behavior. They ter how clear that waiver is, is in the field of medi-
must also show that the danger was obvious or appar- cal care. Agreements, for example, in which patients
ent, or that the conduct itself was inherently danger- waive potential malpractice claims in exchange for
ous. The plaintiff must appreciate the nature or the reduced fees are unenforceable.
character of any risk they are said to have assumed. If A release must be expressed in clear, unequiv-
a limitation on liability is buried in fine print where the ocal language. To see how the enforceability of
plaintiff is unlikely to see it, it will not be binding on releases is generally viewed, consider Cahill v. Ski
them. The plaintiff must also voluntarily accept the risk Liberty Operating Corp., 2006 (Pa. Com. Pl.), in
given the time, knowledge, and experience such that which the plaintiff signed a release prior to snow ski-
they can make an intelligent choice to engage in the ing at defendant’s resort:
risk or not. If there are no other reasonable alternatives
Notice of Risk
to avoid the injury or to exercise or protect a right or
privilege, the plaintiff cannot have voluntarily assumed I understand and accept the fact that snow-
the risk. A plaintiff that subjects themself to the injury sports (skiing …) in their various forms, including
despite reasonable alternatives has assumed the risk the use of lifts are dangerous with inherent and
of the injury. The idea is that a defendant should not other risks. These risks include but are not lim-
owe a legal duty to a plaintiff who voluntarily assumed ited to … ice and icy conditions … All of the inher-
the risk. The duty requirement for negligence would ent and other risks of snowsports present the risk
not be met. of permanent catastrophic injury or death.
The defendant’s failure to establish any one of Assumption of Risk
the three elements of the defense will not prevail on
the defense of assumption of risk. Under the com- Understand and agreeing that snowsports
mon law a plaintiff who was found to have assumed are hazardous, I voluntarily and expressly assume
the risk was completely barred from recovery. Most for myself the risk of injury while participating in
courts today have discontinued that practice but do these sports.
take into account the plaintiff’s assumption of risk Release from Liability
when determining how to apportion damages.
In consideration of the use of the ski area’s
facilities, I AGREE NOT TO SUE Ski Liberty Oper-
Expressed Assumption of Risk ating Corp., Whitetail Mountain Operating Corp.,
A plaintiff can either expressly or impliedly assume and/or Ski Roundtop Operating Corp., their own-
the risk. A plaintiff who signs a release in which they ers, agents and employees, if injured while using
agree to assume all risk of injury to themself and their the facilities, regardless of any negligence on the
property has expressly assumed the risk. Even an part of the Ski Area or its employees….
express agreement, however, may not be enforced
Acknowledgement
by the courts if the defendant has unusual bargain-
ing power, if they are the sole or unique provider of In consideration of being permitted to
a service, and if they use their power to compel the use the facilities at Liberty Mountain Resort,
plaintiff to waive liability. Whitetail Mountain Resort and Ski Roundtop, I
By the same token, agreements involving common expressly acknowledge:
carriers, public utilities, or other regulated industries
(1) I have read and understand the ‘Notice
are unlikely to be enforced. The courts usually feel that
of Risk,’ ‘Assumption of Risk,’ ‘Release
such entities are obligated to provide reasonable ser-
from Liability,’ ‘Be aware, Ski with Care,’ and
vice and will not allow them to escape their responsibil-
‘Your Responsibility Code.’ …
ity through the use of waivers.
Additionally, waivers of liability are valid only in (2) I voluntarily assume for myself all the risks
reference to the defendant’s negligence and not for involved in snow-sports. (emphasis in
their intentional tortious acts nor for their gross or original)
The Cahill court noted that releases such as the she was under no legal obligation to seek other
release signed by Cahill were in furtherance of the facilities (Rush v. Commercial Realty Co., 145 A.
public policy that there are inherent risks in the sport 476 [N.J. 1929]). If the plaintiff in this case had had
of downhill skiing and to the policy to enforce the a reasonable alternative, such as another intact out-
doctrine of assumption of risk against those who house on the same property, she might have been
knowingly engage in downhill skiing. The court held to have assumed the risk.
found that the releases executed by plaintiff were In sports and recreation, the inherent risks
ambiguous in both their language and intent. For a involved are known by the parties, who are free
release to be enforceable, the court said it must be to either engage in the activity or not. Those who
expressed in “unmistakable language,” and it must sponsor or organize such activities are obligated to
be plainly and precisely apparent that “the limitation use reasonable care to make conditions as safe as
of liability extends to negligence or other fault of they appear. In some jurisdictions, but as long as the
the party attempting to shed their ordinary respon- risks are fully understood or perfectly obvious, the
sibility.” Although the term “negligence” need not plaintiff will be deemed to have assumed the risk.
be used, words conveying a similar meaning must Furthermore, professional athletes are assumed to
appear. The court found the quoted release to be be more cognizant of the risks and more willing to
unenforceable because its “opaque terminology” accept them (because of the monies involved) than
did not reveal that plaintiff released defendant from amateurs. Therefore, when a professional jockey
liability for injury that might result from defendant’s was severely injured when his horse tripped over
failure to use due care. the heels of another horse, causing the jockey to
be thrown, the court concluded that the jockey had
Implied Assumption of Risk assumed the risk and did not allow him to recover
from the jockey of the other horse or the track owner.
A plaintiff is said to have impliedly assumed the risk
The court found that the jockey was aware of the
when their conduct shows that they were aware of
dangers of speeding horses changing position and
the risk in question and voluntarily agreed to bear
bumping each other during a race and of the track
that risk themself. Suppose a plaintiff watches as
conditions and the dangers associated with them,
their friend mounts the defendant’s horse and is
especially as he had participated in three prior races
subsequently bucked off. If the plaintiff then climbs
at the track on the day of the accident (Turcotte
aboard the same horse, they will have impliedly
v. Fell, 502 N.E.2d 964 [N.Y. 1986]). A court also
assumed the risk for any injuries they sustain.
applied the assumption of the risk doctrine and dis-
For this principle to be applicable the plaintiff
allowed an injured golfer to bring a negligence suit
must actually be aware of the particular risk in ques-
against the golf course after he was injured from a
tion. It is not enough that the plaintiff merely should
ball ricocheting off a wooden sign. The court stated
have known of the risk involved. The plaintiff must
that golf was an active sport, and that assumption of
also voluntarily consent to the risk. Consent is not
the risk would apply. They said that the golf course
voluntary if the plaintiff had no reasonable choice
owed a reasonable duty to provide a safe course for
but to confront a danger. If a defendant starts a
golfers, but that did not include preventing all errant
fire in a barn and the plaintiff runs into the barn to
balls (American Golf Corp. v. Superior Court, 79 Cal.
save their animals, that would not be assuming the
App. 4th 30 [California 2000]).
risk. No reasonably safe alternative existed in this
What if a plaintiff protests against being asked
situation.
to assume a risk but ultimately agrees to take that
The consent principle is colorfully illustrated in
risk? In most cases the courts will hold that they
a case in which the plaintiff, who was a tenant of the
waived their objection and assumed the risk. Even
defendant, fell through a hole in the outhouse floor
if the risk the plaintiff is exposed to is not created
when she submitted to a “call of nature.” The court
by the defendant, they are still considered to have
held that the plaintiff did not voluntarily assume
voluntarily accepted the risk. For example, a plaintiff
the risk, even though she was aware of the defec-
who is badly injured in an accident and who requests
tive floor, because she had no choice but to use the
that the defendant drive them to the hospital,
facilities at her disposal. The court concluded that
despite their knowledge that the defendant’s car has hazard, even though they exercise due care on the
bad brakes, assumes the risk of injury caused by the stairs. Such a plaintiff is said to assume the risk but
defective brakes. Although the risk involved is not not to be contributorily negligent if assumption of
due to the defendant’s wrongdoing, the plaintiff is risk is defined as adventurousness (Hunn v. Windsor
still deemed to have assumed the risk (Restatement Hotel Co., 193 S.E. 57 [W.Va. 1937]).
[Second] of Torts § 496E, illus. 1). If the plaintiff’s conduct constitutes both
assumption of risk and contributory negligence,
Comparison to Contributory the defendant can choose to assert either defense
or, in some jurisdictions, both. In deciding which of
Negligence the defenses to raise, the defendant should con-
Some states have in effect abolished the doctrine sider the standards used to assess the plaintiff’s
and consider assumption of risk to be a form of con- conduct. An objective standard is used to assess
tributory negligence. The justification behind this the reasonableness of the plaintiff’s conduct in
merger is that often a plaintiff who has assumed the the case of contributory negligence. A subjective
risk has also been contributorily negligent. A plaintiff standard is used in cases involving assumption
who voluntarily but unreasonably decides to take a of risk. It requires that the defendant prove that
risk can also be said to have behaved in a negligent the plaintiff actually understood the risk that they
manner. undertook and not merely that a reasonable per-
In some situations, however, a plaintiff is not son would have understood.
negligent simply because they have assumed the Contributory negligence cannot be raised as
risk. If the plaintiff’s decision to entertain a risk is rea- a defense if the defendant is reckless and cannot
sonable in light of the circumstances, they will not generally be used as a defense in strict liability
be considered negligent, particularly if few options cases. Conversely, assumption of risk can be used as
are available to them other than engaging in risky a defense of reckless conduct and in strict liability
behavior. Suppose a father uses a car with defective cases.
brakes because it is the only car available to him and
he must use it to get his seriously injured child to Comparative Negligence and
the hospital. He has assumed the risk even though
he has not acted negligently. In situations such as Assumption of Risk
this, the defense of assumption of risk can be raised Those states that have adopted comparative-
even though the defense of contributory negligence negligence statutes have removed assumption
cannot. of risk as a separate defense and have merged it,
in part at least, into the defense of comparative
Differences between Assumption negligence. Therefore, a plaintiff who unreasonably
places themself in danger is considered negligent
of Risk and Contributory and their recovery is reduced although not barred
Negligence completely. If their conduct in exposing themself to
Some states have extended assumption of risk the danger is reasonable, they are not considered
to any situation in which the plaintiff voluntarily negligent at all.
exposes themself to a known risk. The definition
of voluntary exposure goes beyond the concept of
consenting to a risk and further blurs the distinc- Local Links
tion between assumption of risk and contributory • Does your state still use the defense of
negligence (see Exhibit 8–5). To get around this assumption of risk?
ambiguity some courts have characterized contrib- • If your state has this defense, how does
utory negligence as “carelessness” and assumption it define assumption of risk?
of risk as “adventurousness.” A plaintiff who delib- • In your state, can a defendant raise the
erately walks down defective steps when others, defense of contributory negligence as well
only slightly more inconvenient, are available may as the defense of assumption of risk?
voluntarily assume the risk of confronting a known

Your client, a motorcyclist, was involved in a motor vehicle accident in which he was seriously injured. He
was not wearing a helmet at the time of the accident. The driver of the car was also injured and not wearing
their seatbelt.
1. Under the laws of your state, could the motorcyclist recover damages if he was found to be contributorily
negligent? What about the driver of the car?
2. Could he recover if a jury found him to be 50 percent responsible for his injuries?
3. Could your client recover if a jury found him to be 40 percent responsible and the other driver 70 percent
responsible for his injuries?
4. How would the jury be instructed if a nonparty was partially responsible for your client’s injuries?
5. Will the jury be instructed that your client’s contribution should be determined on the basis of how much
his conduct contributed to his injuries or on the basis of how much his conduct deviated from a reasonable
standard of care?
6. Could the defendant claim comparative negligence if his lack of care in driving was considered willful and
wanton? What about the automobile driver?
7. Could your client use the last-clear-chance doctrine?

1. Why are the waivers on the back of event or sports tickets generally not enforceable?
2. A tennis umpire is struck on the head by a ball during a match and died. A wrongful-death suit is filed
alleging that the rules required the umpire to stand in a position of danger and thereby increased their risk
of being injured. Did the umpire assume the risk?
3. A school crossing guard is struck and injured by an automobile while performing their job. Do you think
assumption of risk should be allowed as a defense by the employer (school) in this case? The injured
party must show that the employer was negligent, that the negligence caused the injury, and that the
injury was reasonably foreseeable.
Case
Pellham v. Let’s Go Tubing, Inc.
199 Wash.App. 399
Court of Appeals of Washington
FACTS Melanie Wells invited Brian Pellham and his domestic

Brian Pellham sues for injuries suffered while inner partner to join her and three others on a leisurely
tubing on the Yakima River. Because the trial court unguided excursion floating the Yakima River. Wells
dismissed Pellham’s suit on summary judgment, we arranged the expedition and reserved equipment and
write the facts in a light favorable to Pellham. transportation from Let’s Go Tubing, Inc.
(continued)
Case | Pellham v. Let’s Go Tubing, Inc. (continued)

On July 30, 2011, Brian Pellham met the Wells party the bus to push into the middle of the river, once he or
at the Let’s Go Tubing’s gathering site, where additional she embarks, because a fallen tree obstructed the
tubers waited. Before boarding a bus, each participant river immediately downriver but out of sight from the
signed a release of liability and assumption of risk form. launch site. We do not know the number of customers
Pellham felt rushed but read and signed the form. The the driver warned. Thomas did not warn Pellham of
form provided: the obstructing tree. Nor did anyone else. Someone,
I, the renter of this rental equipment, assume and possibly Thomas, warned everyone not to leave the
understand that river tubing can be HAZARDOUS, and river except at designated spots because private
that rocks, logs, bridges, plants, animals, other people, owners own most of the riverbank.
other watercraft, exposure to the elements, variations At the launch site, Let’s Go Tubing handed each
in water depth and speed of current, along with other person a Frisbee to use as a paddle. Brian Pellham
structures and equipment, and many other hazards or requested a lifejacket, but Steff Thomas ignored him.
obstacles exist in the river environment. In using the Fifteen inner tubers entered the river first. Pellham and
rental equipment or any facilities or vehicles related four others followed in a second group with their tubes
thereto such dangers are recognized and accepted tied together. They encountered a swift current. As
whether they are marked or unmarked. River tubing can soon as the flotilla of five rounded the first bend in the
be a strenuous and physically demanding activity. It river, they saw a fallen tree extending halfway across
requires walking, bending, lifting, paddling, swimming, the river. Many branches extended from the tree trunk.
and awareness of the outdoor environment. I realize Each paddled furiously with his Frisbee, but the fleet of
that slips, falls, flips, and other accidents do occur ,and five tubes struck the tree. Brian Pellham held the tree
serious injuries or death may result, and I assume full with his left hand and attempted to steer around the
responsibility for these risks ... “IN CONSIDERATION tree. The current grabbed the inner tubes and Pellham
FOR THIS RENTAL AND ANY USE OF THE FACILITIES, fell backward into the river. The fall broke Pellham’s
VEHICLES, OR ENVIRONMENT RELATED TO THE eardrum. The current forced Pellham under the tree
USE OF THIS EQUIPMENT, I HEREBY RELEASE HOLD and the water level. When Pellham resurfaced, his head
HARMLESS AND INDEMNIFY LET’S GO TUBING, INC. struck a large branch. He sustained whiplash. His chest
ITS SUBSIDIARIES AND ITS AGENTS FROM ANY AND also hit the branch.
ALL CLAIMS AND LIABILITIES ARISING OUT OF OR Brian Pellham swam to shore and ended his river
IN CONNECTION WITH THE USE OF THIS RENTAL excursion. Pellham told Steff Thomas of his dangerous
EQUIPMENT” encounter, and the driver admitted he knew about the
Clerk’s Papers (CP) at 46 (capitalization and quota- fallen tree, but laws prevented Let’s Go Tubing from
tion marks in original). On other occasions, such as a removing the obstacle.
rafting trip, Brian Pellham signed a waiver. In his busi- Brian Pellham later underwent a neck fusion surgery.
ness, he employs release forms. The accident also caused damage to a low back disk,
Let’s Go Tubing launches its customers from the and the damage creates pain radiating to his left foot.
Umtanum site unless the Yakima River level runs low.
PROCEDURE
With low water, the company buses customers to one
of two other Yakima River sites, Big Horn or Ringer Brian Pellham sued Let’s Go Tubing for negligent fail-
Loop. ure to warn and Consumer Protection Act, chapter
On July 30, 2011, Let’s Go Tubing’s shuttle bus, 19.86 RCW, violations. Let’s Go Tubing answered the
because of a low river level, transported Brian complaint and raised affirmative defenses, including
Pellham, his group members, and other customers release of liability and assumption of the risk. The com-
eight miles upstream to Ringer Loop. Ringer Loop pany filed a motion for summary judgment dismissal
maintains a public concrete boat ramp and pub- based on the release and on assumption of risk. In
lic restroom. The total number of customers on the response to the motion, Pellham argued that he did
excursion approached twenty. During transport, Steff not waive liability because Let’s Go Tubing committed
Thomas, the Let’s Go Tubing bus driver, told Melanie gross negligence. He also argued he did not expressly
Wells and a handful of others seated at the front of or impliedly assume the risk of floating into a hazard.
(continued)

Pellham agreed to dismissal of his consumer protection is entitled to a judgment as a matter of law.” CR 56(c).
claim. The trial court granted summary dismissal of all This court, like the trial court, construes all evidence
of Pellham’s claims. and reasonable inferences in the light most favorable
to Brian Pellham, as the nonmoving party. Barber v.
LAW AND ANALYSIS
Bankers Life & Casualty Co., 81 Wash.2d 140, 142, 500
On appeal, Brian Pellham contends the trial court erred P.2d 88 (1972); Wilson v. Steinbach, 98 Wash.2d 434,
in dismissing his claim because he presented sufficient 437, 656 P.2d 1030 (1982). A court may grant summary
evidence of gross negligence because Let’s Go Tubing judgment if the pleadings, affidavits, and depositions
chose the excursion location, knew the existence of a establish that there is no genuine issue as to any mate-
hazard, and failed to warn Pellham of the hazard. He rial fact and the moving party is entitled to judgment as
argues that the rental company’s gross negligence a matter of law. Lybbert v. Grant County, 141 Wash.2d
supersedes any release of liability and assumption of 29, 34, 1 P.3d 1124 (2000).
the risk contained in the form he signed. On appeal,
Defenses on Review
he does not argue liability against Let’s Go Tubing for
failing to provide a life vest. Let’s Go Tubing seeks affirmation of the summary
Let’s Go Tubing responds that summary judgment judgment dismissal of Brian Pellham’s claim based
was appropriate because Pellham failed to establish both on an absence of duty and Pellham’s assumption
a duty, the liability release disposes of the claim, and of risk. In turn, Pellham argues that, under RAP 2.5(a),
Pellham’s evidence does not create a genuine issue the rental company may not assert a lack of duty
as to any fact material to establishing gross negli- because Pellham did not raise this defense before the
gence. We affirm based on the inherent risks in river trial court.
tubing. Because of Pellham’s voluntary participa- We need not address Brian Pellham’s objection to
tion in the outdoor recreation activity, he assumed Let’s Go Tubing’s argument of lack of duty. We base
the risk of a fallen log and swift current. Conversely, our decision on inherent peril assumption of risk and
Pellham’s assumption of the risk created no duty in the rental company raised the defense of assumption
Let’s Go Tubing to warn or prevent injury to Pellham of risk below. Anyway, assumption of risk in this context
from trees in the river. Because we rely on the inher- is equivalent to a lack of duty. Assumption of the risk in
ent risks in river tubing, we do not address whether the sports participant context is in reality the principle
the written agreement signed by Pellham bars his suit. of no duty and hence no breach and no underlying
Because we hold that Brian Pellham assumed cause of action. Brown v. Stevens Pass, Inc., 97 Wash.
the risk and thereby rendered Let’s Go Tubing duty less, App. 519, 523, 984 P.2d 448 (1999); Codd v. Stevens
we do not address whether Pellham created an issue of Pass, Inc., 45 Wash.App. 393, 401-02, 725 P.2d 1008
fact with regard to gross negligence. We conclude that, (1986).
to avoid application of inherent peril assumption of risk,
Assumption of Risk
Pellham needed to show intentional or reckless
misconduct of the rental company, and Pellham does A negligence claim requires the plaintiff to estab-
not show or argue either. lish (1) the existence of a duty owed, (2) breach of
that duty, (3) a resulting injury, and (4) a proximate
Summary Judgment Principles
cause between the breach and the injury. Tincani v.
We commence with our obligatory recitation of summary Inland Empire Zoological Society, 124 Wash.2d 121,
judgment principles. This court reviews a summary 127-28, 875 P.2d 621 (1994). Thus, to prevail on his
judgment order de novo, engaging in the same inquiry as negligence claim, Brian Pellham must establish that
the trial court. Highline School District No. 401 v. Let’s Go Tubing owed him a duty of care. Folsom v.
Port of Seattle, 87 Wash.2d 6, 15, 548 P.2d 1085 Burger King, 135 Wash.2d 658, 671, 958 P.2d 301
(1976); Mahoney v. Shinpoch, 107 Wash.2d 679, 683, (1998). The tort concept of duty overlaps with the
732 P.2d 510 (1987). Summary judgment is proper if the contract and tort principles of assumption of risk.
records on file with the trial court show “there is no gen- As previously mentioned, sometimes assumption
uine issue as to any material fact” and “the moving party of risk relieves the defendant of a duty. Brown v.
(continued)

Stevens Pass, Inc., 97 Wash.App. at 523, 984 P.2d express assumption and implied primary assump-
448 (1999); Codd v. Stevens Pass, Inc., 45 Wash. tion, on the one hand, continue to operate as a com-
App. at 402, 725 P.2d 1008 (1986). plete bar to a plaintiff’s recovery. Kirk v. Washington
The threshold determination of whether a duty State University, 109 Wash.2d at 453-54, 746 P.2d
exists is a question of law. Tincani v. Inland Empire 285; Gleason v. Cohen, 192 Wash.App. at 794, 368
Zoological Society, 124 Wash.2d at 128, 875 P.2d P.3d 531. On the other hand, implied unreasonable
621; Coleman v. Hoffman, 115 Wash.App. 853, 858, and implied reasonable assumption meld into con-
64 P.3d 65 (2003). We hold that, because of Brian tributory negligence and merely reduce the plaintiff’s
Pellham’s assumption of the risk of fallen trees in the recoverable damages based on comparative fault pur-
water, Let’s Go Tubing, as a matter of law, had no duty suant to RCW 4.22.005 and .015. Scott v. Pacific West
to warn Pellham of the danger, or, at the least, the Mountain Resort, 119 Wash.2d at 497, 834 P.2d 6.
rental company possessed only a restricted duty to The last two types are merely alternative names
not intentionally injure Pellham or engage in reckless for contributory negligence. Gregoire v. City of Oak
misconduct. Harbor, 170 Wash.2d at 636, 244 P.3d 924 (2010). Our
We first briefly explore the variegated versions decision relies on implied primary assumption, but we
of assumption of risk in order to later analyze the will discuss other renderings of assumption of risk in
application of inherent peril assumption of risk. The order to sculpt our decision.
term “assumption of the risk” expresses several Express assumption of risk arises when a plaintiff
distinct common law theories, derived from differ- explicitly consents to relieve the defendant of a duty
ent sources, which apply when a plaintiff knowingly owed by the defendant to the plaintiff regarding spe-
exposes himself to particular risks. Allen v. Dover cific known risks. Gregoire v. City of Oak Harbor, 170
Co-Recreational Softball League, 148 N.H. 407, 807 Wash.2d at 636, 244 P.3d 924; Kirk v. Washington
A.2d 1274, 1281 (2002); Francis H. Bohlen, Volun- State University, 109 Wash.2d at 453, 746 P.2d 285.
tary Assumption of Risk (pt. 1), 20 HARV. L. REV. 14, Implied primary assumption of risk follows from
15-30 (1906); W. PAGE KEETON ET AL., PROSSER the plaintiff engaging in risky conduct, from which
AND KEETON ON THE LAW OF TORTS § 68 (5th the law implies consent. Kirk v. Washington State
ed. 1984). Stated differently, the general rubric University, 109 Wash.2d at 453, 746 P.2d 285; Erie v.
of assumption of risk does not signify a singular doc- White, 92 Wash.App. 297, 303, 966 P.2d 342 (1998).
trine but rather encompasses a cluster of discrete Implied unreasonable assumption of risk, by contrast,
concepts. Kirk v. Washington State University, 109 focuses not so much on the duty and negligence of
Wash.2d 448, 453, 746 P.2d 285 (1987). Washington the defendant as on the further issue of the objec-
law and most other states’ jurisprudence recognize tive unreasonableness of the plaintiff’s conduct in
four taxonomies of the assumption of risk doctrine: assuming the risk. Kirk v. Washington State University,
(1) express, (2) implied primary, (3) implied unrea- 109 Wash.2d at 454, 746 P.2d 285. Implied reason-
sonable, and (4) implied reasonable. Gregoire v. City able assumption of risk is roughly the counterpart to
of Oak Harbor, 170 Wash.2d 628, 636, 244 P.3d 924 implied unreasonable assumption of risk in that the
(2010); Gleason v. Cohen, 192 Wash.App. 788, 794, plaintiff assumed a risk but acted reasonably in doing
368 P.3d 531 (2016); 16 DAVID K. DEWOLF & KELLER so. Kirk v. Washington State University, 109 Wash.2d
W. ALLEN, WASHINGTON PRACTICE: TORT LAW at 454, 746 P.2d 285.
AND PRACTICE § 9:11, at 398-99 (4th ed. 2013). We confront difficulty in distinguishing among
Before the enactment of comparative negligence at least three of the four categories because of the
and comparative fault statutes, practitioners and nondescript identifiers and near homophonic labels of
courts encountered little reason to distinguish the some classifications.
four versions of assumption of risk, because at com- Therefore, we recommend that the Supreme Court
mon law all assumption of the risk completely barred rechristen the categories as express assumption,
recovery. Scott v. Pacific West Mountain Resort, 119 inherent peril assumption of risk, and increased danger
Wash.2d 484, 496, 834 P.2d 6 (1992). Today, assumption of risk. The gist of implied reasonable and
the first two categories of assumption of risk, implied unreasonable assumption of risk is that the
(continued)

defendant performed conduct that increased the risk of conditions. DeWick v. Village of Penn Yan, 713 N.Y.S.2d
an activity or situation beyond the risks inherent in at 594.
the activity or situation and the plaintiff reasonably Inherent peril assumption, as does express assump-
or unreasonably encountered this increased risk. The tion of risk, demands the presence of three elements.
traditional categories of implied unreasonable and The evidence must show (1) the plaintiff possessed
implied reasonable assumption of risk hold no mean- full subjective understanding, (2) of the presence
ingful distinction since both reduce rather than bar the and nature of the specific risk, and (3) voluntarily
plaintiff’s recovery, and so we urge combining the two chose to encounter the risk. Kirk v. Washington State
concepts into increased danger assumption of risk. University, 109 Wash.2d at 453, 746 P.2d 285 (1987).
We hereafter use these new terms. The participant must know that the risk is present, and
he or she must further understand its nature; his or her
Inherent Peril Assumption of Risk
choice to incur it must be free and voluntary. Brown
We now focus on inherent peril assumption of risk. v. Stevens Pass, Inc., 97 Wash.App. at 523, 984 P.2d
Inherent peril assumption bars a claim resulting 448. In the usual case, his or her knowledge and
from specific known and appreciated risks impliedly appreciation of the danger will be a question for the
assumed often in advance of any negligence of the jury; but where it is clear that any person in his or her
defendant… position must have understood the danger, the issue
The classic example of inherent peril assump- may be decided by the court. Brown v. Stevens Pass,
tion involves participation in sports when a participant Inc., 97 Wash.App. at 523, 984 P.2d 448; KEETON ET
knows that the risk of injury is a natural part of such AL., supra, § 68, at 489.
participation. Gleason v. Cohen, 192 Wash.App. at 798, The rule of both express and inherent peril assump-
368 P.3d 531. One who engages in sports assumes tion of risk requires a finding that the plaintiff had full
the risks which are inherent in the sport. Scott v. Pacific subjective understanding of the presence and nature of
West Mountain Resort, 119 Wash.2d at 498, 834 P.2d the specific risk. Kirk v. Washington State University,
6; Gleason v. Cohen, 192 Wash.App. at 798, 368 P.3d 109 Wash.2d at 453, 746 P.2d 285. Depending on
531. To the extent a risk inherent in the sport injures how specific the risk must be, this statement of the
a plaintiff, the defendant has no duty and there is no rule taken literally would abrogate the rule of inherent
negligence. Scott v. Pacific West Mountain Resort, 119 peril assumption because one rarely, if ever, anticipates
Wash.2d at 498, 834 P.2d 6; Gleason v. Cohen, 192 the full particulars of an accident producing injury. One
Wash.App. at 798, 368 P.3d 531. A defendant simply can never predict all of the variables that combine to
does not have a duty to protect a sports participant cause an accident and injury. Also, the doctrine might
from dangers that are an inherent and normal part of not apply in wrongful death cases, because the judge
a sport. Scott v. Pacific West Mountain Resort, 119 or jury will lack evidence of the subjective understand-
Wash.2d at 498, 834 P.2d 6; Gleason v. Cohen, 192 ing of the decedent. Washington courts’ applications of
Wash.App. at 798, 368 P.3d 531. the rule suggest, however, that the plaintiff need only
Inherent peril assumption extends to water sports. know the general nature of the risk...
One who engages in water sports assumes the reason- While participants in sports are generally held to
ably foreseeable risks inherent in the activity. DeWick have impliedly assumed the risks inherent in the sport,
v. Village of Penn Yan, 275 A.D.2d 1011, 713 N.Y.S.2d such assumption of risk does not preclude a recovery
592, 594 (2000). This assumption of risk includes for negligent acts that unduly enhance such risks. Scott
inner tubing on water and canoe rentals. Record v. Pacific West Mountain Resort, 119 Wash.2d at 501,
v. Reason, 73 Cal.App.4th 472, 86 Cal.Rptr.2d 547 834 P.2d 6; Gleason v. Cohen, 192 Wash.App. at 798,
(1999); Ferrari v. Bob’s Canoe Rental, Inc., 143 A.D.3d 368 P.3d 531. This principle leads us to a discussion of
937, 39 N.Y.S.3d 522 (2016). Bodies of water often increased danger assumption.
undergo change and changing conditions in the Courts have struggled to properly distinguish
water do not alter the assumption of risk. DeWick v. between inherent peril assumption of risk (implied
Village of Penn Yan, 713 N.Y.S.2d at 594. There is primary assumption of risk), which bars the plain-
no duty to warn of the presence of natural transitory tiff’s claim, and increased danger assumption of risk
(continued)

(implied unreasonable assumption of risk), which Co-Recreational Softball League, 807 A.2d at 1288.
simply reduces the plaintiff’s damages… Brian Pellham presents no evidence that renters of
Increased danger assumption of risk arises when watercrafts customarily warn of fallen natural objects in
the plaintiff knows of a risk already created by the the water.
negligence of the defendant yet chooses voluntarily The document signed by Brian Pellham contained
to encounter it. Scott v. Pacific West Mountain terms in addition to releasing Let’s Go Tubing from
Resort, 119 Wash.2d at 499, 834 P.2d 6 (1992); Gleason liability. In the instrument, Pellham also recognized
v. Cohen, 192 Wash.App. at 798, 368 P.3d 531. In such that the hazards of river tubing included the existence
a case, a plaintiff’s conduct is not truly consensual, of rocks, logs, plants, and variations in water depth
but is a form of contributory negligence, in which the and speed of current. Pellham agreed to assume
negligence consists of making the wrong choice full responsibility for all risks involved in river tubing
and voluntarily encountering a known unreason- including serious injuries and death resulting from
able risk. Gleason v. Cohen, 192 Wash.App. at 796, 368 the hazards. Although we do not base our holding on
P.3d 531… express assumption of risk, we note that the release’s
Brian Pellham alleges that Let’s Go Tubing was recitation of dangers warned Pellham of the inherent
negligent by reason of sending him and others on a perils attended to tubing and those dangers that led to
tube in fast moving water with a downed tree in the Pellham’s injuries.
middle of the water without warning to the tuber.
Gross Negligence
Let’s Go Tubing did not create the risk and could
not remove the risk. Although Pellham knew of Brian Pellham argues that the waiver form he signed
the risks of logs and current, Pellham did not know of does not bar a claim for gross negligence. The par-
the precise risk when he first encountered it. When he ties, in turn, devote much argument to the issue of
noticed the risk, he lacked time to avoid the hazard. whether Pellham creates a question of fact as to gross
Pellham did not voluntarily proceed after knowing negligence. Since we do not rely on express assump-
of the alleged negligence of Let’s Go Tubing. Any tion of risk, we need not directly address this argument.
alleged negligence of Let’s Go Tubing occurred before Instead, we must ask and answer whether a tuber
Pellham entered the river. Therefore, increased dan- may overcome the defense of inherent peril assump-
ger assumption of risk does not apply. tion of risk by showing gross negligence by the tube
Let’s Go Tubing performed no act that created the rental company.
swift current or felled the log into the water. The cases When inherent peril assumption of risk applies, the
that decline application of inherent peril assump- plaintiff’s consent negates any duty the defendant
tion involve a positive act of the defendant such as would have otherwise owed to the plaintiff. Scott v.
the implanting of a post or snow shack adjacent to Pacific West Mountain Resort, 119 Wash.2d at 498,
a ski run. Scott v. Pacific West Mountain Resort, 119 834 P.2d 6 (1992); Gleason v. Cohen, 192 Wash.App.
Wash.2d 484, 834 P.2d 6 (1992); Brown v. Stevens at 798, 368 P.3d 531 (2016). Based on this premise of
Pass, Inc., 97 Wash.App. at 521, 984 P.2d 448 (1999). inherent peril assumption, the defendant should avoid
One might argue that Let’s Go Tubing’s failure to liability for gross negligence. Gross negligence consti-
warn increased the risk attended to the fallen log in the tutes the failure to exercise slight care. Nist v. Tudor, 67
Yakima River. A defendant may be held liable when a Wash.2d 322, 331, 407 P.2d 798 (1965). The lack of
reasonable person would customarily instruct a plaintiff duty resulting from inherent peril assumption should
in respect to the dangers inherent in an activity. Allen extend to an absence of any obligation to exercise
v. Dover Co-Recreational Softball League, 807 A.2d slight care.
at 1288. Thus, a defendant may be held liable if the At the same time, gross negligence claims survive a
plaintiff alleges that a reasonable person would cus- release against liability. A sporting participant’s assump-
tomarily warn, advise, inform, and instruct regarding tion of inherent risks effectively acts as a release from
the risk of injury to participants and the manner in liability. Since gross negligence claims survive a release,
which such risks could be minimized and their failure gross negligence maybe should survive inherent
to do so caused the plaintiff’s injuries. Allen v. Dover peril assumption of risk.
(continued)

N o Wa s h i n g t o n c a s e d i re c t l y h o l d s t h a t a from egregious conduct. Behar v. Fox, 642 N.W.2d at
claim for gross negligence survives the plaintiff’s 428 (2001). We join the other jurisdictions in impos-
express assumption of risk… Other jurisdictions ing an intentional and reckless standard, rather than a
have held that express assumption of risk does not gross negligence standard, when the plaintiff assumes
bar a claim for gross negligence since public policy the risks of inherent perils in a sporting or outdoor
does not allow one to exonerate oneself from gross activity.
negligence. Coomer v. Kansas City Royals Baseball Gross negligence consists of the failure to exer-
Corp., 437 S.W.3d 184, 193 n.3 (Mo. 2014); Kerns v. cise slight care. Nist v. Tudor, 67 Wash.2d at 331, 407
Hoppe, 128 Nev. 910, 381 P.3d 630 (2012); Perez v. P.2d 798 (1965). Reckless misconduct denotes a more
McConkey, 872 S.W.2d 897, 904 (Tenn. 1994). serious level of misconduct than gross negligence. An
Since express assumption of risk and inherent actor’s conduct is in “reckless disregard” of the safety
peril assumption of risk both result in the bar of the of another if he or she intentionally does an act or fails
plaintiff’s claim and arise from the plaintiff’s volun- to do an act that it is his or her duty to the other to do,
tary assumption of risk, one might argue that a gross knowing or having reason to know of facts that would
negligence claim should survive assumption of risk by lead a reasonable person to realize that the actor’s
inherent peril if it survives express assumption conduct not only creates an unreasonable risk of
of risk. Nevertheless, the two varieties of assumption bodily harm to the other but also involves a high
of risk promote different interests and raise disparate degree of probability that substantial harm will result
concerns. A signed assumption of all risks could be to him or her. Adkisson v. City of Seattle, 42 Wash.2d
the result of unequal bargaining power and apply to 676, 685, 258 P.2d 461 (1953); Brown v. Department
activities that involve little, or no, risks. The bargaining of Social & Health Services, 190 Wash.App. 572, 590,
power with regard to inherent peril assumption is imma- 360 P.3d 875 (2015). Brian Pellham does not allege
terial. Assumption follows from hazards the plaintiff that Let’s Go Tubing engaged in reckless conduct. No
voluntarily assumes because of the thrill and enjoyment evidence supports a conclusion that the tube rental
of an activity. company bus driver purposely omitted a warning to
We find no foreign decisions in which the court holds Pellham with knowledge that Pellham would suffer
that a cause of action for gross negligence survives the substantial harm.
application of inherent peril assumption of risk in the
CONCLUSION
context of sports or outdoor recreation… A reckless-
ness standard encourages vigorous participation in We affirm the trial court’s summary judgment dismissal
recreational activities, while still providing protection of Brian Pellham’s suit against Let’s Go Tubing.
Immunities by adopting the principle that the U.S. government

could not be sued without its consent. The thought
Immunity is a complete defense to tort liability in behind this was that if the government had to pay
that it completely absolves the defendant of all lia- out damages, it would come from taxpayer money.
bility. It is granted to those entities that bear a par- To get around this principal, Congress passed pri-
ticular relationship to the plaintiff, such as a spouse vate bills authorizing particular plaintiffs to sue
or child, or who occupy a status, such as that of a on certain claims. Obviously, this process created
governmental or charitable entity (see Exhibit 8–6). considerable inconvenience for Congress. The fear
of being inundated by thousands of private bills
Governmental Immunity upon the return of servicemen after World War II
prompted Congress in 1946 to pass the Federal
Federal Government Tort Claims Act (FTCA).
Under the common law the immunity of the king In general, the FTCA provides that money dam-
was based on the precept that “the king can do no ages can be recovered against the United States “for
wrong.” American courts applied this adage early injury or loss of property or personal injury or death
Exhibit 8–6 Immunities function is involved, even if that discretion is abused

(28 U.S.C. § 2680[A]). Deciding what constitutes a
Governmental Parent-Child discretionary function has caused the courts
Immunities Immunity considerable grief. The U.S. Supreme Court has
• Federal government • Abolished in majority provided some guidance by indicating that discretion
immunity (limited by of states and limited in
is involved “where there is room for policy judgment
Federal Tort Claims Act) others today
• State government and decision” (Dalehite v. United States, 346 U.S. 15,
immunity 34–36 [1953]).
• Local government immunity Furthermore, discretionary functions occur at the
(for governmental but not planning stages. In Dalehite an explosion occurred
proprietary functions)
• Public official immunity
at a fertilizer exportation program run by the govern-
ment. The Court held that decisions about how fer-
tilizer was to be bagged and how the bags were to
Interspousal Immunity Charitable Immunity
be labeled and transported were made at the plan-
• Abolished by majority of • Abolished in some ning level. Therefore, those who did the planning
states today states and limited in could have been found liable for negligence, but the
others today
employees who carried out the plans could not.
State Government
caused by the negligent or wrongful act or omission Traditionally, state governments enjoyed sovereign
of any employee of the government while acting immunity as well, but today most of them have
within the scope of his office or employment, under abolished it to some extent, either by statute or
circumstances where the United States, if a private judicial decision. Many courts that have abolished
person, would be liable to the claimant” (28 U.S.C. governmental immunity have done so because of
§ 1346[B]). Thousands of claims are filed against the the availability of public liability insurance. Some
federal government each year, more than half of have viewed taking responsibility for the torts
which arise out of automobile accidents. of public employees as being part of the cost of
Several exceptions limit the scope of the FTCA. administering a government. Regardless of the
The United States is not liable, for example, for state’s stance toward immunity, judges and legisla-
intentional torts such as assault, battery, false impris- tors are almost never liable for their acts. Similarly,
onment, false arrest, abuse of process, or malicious the making of “basic policy decisions” rarely
prosecution except when they are committed by results in liability (Restatement [Second] of Torts §
federal law enforcement officials. Questions regard- 895B[3]).
ing interpretation often arise in determining what States usually replace complete sovereign
types of claims should and should not be permitted immunity with a statutory form of immunity, through
under the FTCA. In one case, a lawsuit alleging an some form of state tort claims act. Statutory limits
army recruiter sexually assaulted the plaintiff was dis- are often placed on damages, thereby limiting
missed because intentional torts are excluded under plaintiffs’ recovery. Many statutes require any per-
the FTCA (Olsen v. United States, 144 Fed. App. 727 son claiming to have been injured as a result of
[Oak. 2005]). tortious conduct by a public entity or employee to
One of the most troubling exclusions to the FTCA file a written notice of the claim within a designated
pertains to a federal agency’s or federal employee’s time period after the date of discovering the injury.
exercise or failure to exercise a discretionary Failure to comply with such notice requirements
function or duty. No liability exists when a discretionary may forever bar any claim.
In the News
For an overview of the Federal Tort Claims Act, including preconditions to suit, exceptions to the FTCA,
and limitations on damages, enter “Federal Tort Claims Act” as the search term.
Local Government to be sterilized. The order was given as a result of

Local governmental entities, such as police and a petition by the plaintiff’s mother. No notice was
fire departments, school systems, and public hos- given to the plaintiff, nor did any statutory authoriza-
pitals, have traditionally enjoyed at least partial tion exist for such a judicial order. Nevertheless, the
immunity. The key legal argument that arises in the court held that the judge did not act wholly beyond
context of local government is whether the func- his jurisdiction and he was therefore immune from
tion being performed is a governmental function suit (Stump v. Sparkman, 435 U.S. 349 [1978]).
or a proprietary function. A proprietary function In some states high-ranking administrative
is one that could be performed by a private entity officials receive the same complete immunity that
as well as the government and is not specifically legislators and judges do. In others they have lim-
for the benefit of the general public. This type of ited immunity, which protects them only if they do
function is usually being performed in activities not act in bad faith.
that produce revenue for the government, such A public official’s immunity is separate from
as those carried out by gas and water utilities and governmental immunity. Therefore, if governmental
city airports. Police and fire departments, restau- immunity is abolished, the public official may still be
rant inspections, sanitation, and school systems, protected by their own immunity. In contrast, even
in contrast, are almost exclusively involved in if the government is immune, the public official may
governmental functions. still be liable. To illustrate, consider the amend-
Governmental functions are subject to immunity ments made by Congress to the Federal Tort Claims
whereas proprietary functions are not. To date, many Act, making it the exclusive remedy for plaintiffs
courts have abolished local government immu- alleging torts committed by federal officers and
nity or have allowed suit when liability insurance employees, including those in the legislative and
is available. Administrative policy decisions, as judicial branches, acting within the scope of their
well as judicial and legislative actions, still enjoy employment. Under these provisions plaintiffs must
immunity. file suit against the United States only and not the
employees individually, thus effectively rendering
Public Officials the employees immune from suit. Although these
provisions do not prevent plaintiffs from suing, they
Legislators and judges, as well as some other public
substantially limit any chance of recovery because
officials, receive complete immunity so long as the
of the United States’ immunity for “discretionary”
act complained of is within the scope of their duties.
functions.
The rationale for this immunity is that a public official
Another provision of the Federal Tort Claims
must be given free reign to carry out the difficult
Act that limits recovery is one that limits liability
tasks of their office unfettered by fear of being sued.
of the government (and renders the employee
Furthermore, by granting immunity, the government
immune) for any injuries arising out of a federal
ensures that competent people are not deterred
from seeking public office out of fear of being sued.
This protection extends even to those officials who
are obviously operating out of a sense of greed or Local Links
malice toward the plaintiff. Exception is made only • Does your state have state sovereign
when the official’s act is outside the jurisdiction of immunity? Local sovereign immunity?
the office. • Does your state have some kind of state
To illustrate the extremes to which this doctrine tort claims act? If so, what are the provi-
can be taken, consider the Supreme Court decision sions of that act?
involving a judge who ordered a 15-year-old plaintiff
In the News
An in-depth analysis in support of the doctrine of sovereign immunity can be found at www.bc.edu by
entering “sovereign immunity” as your search term.
employee’s operation of a motor vehicle. However, of the unity of the husband and wife as well as the
a very important act that promotes recovery when arguments that allowing such suits would create
individuals’ civil rights have been violated is the Civil family discord and encourage fraud. Each spouse is
Rights Act of 1871 (42 U.S.C. § 1983). Under this not considered a separate and legal entity and can
so-called 1983 action, anyone who “under color of bring valid claims against one another. The claim
any statute, ordinance, regulation … of any state” that abolition of this immunity would result in a flood
violates the federal civil rights of any person “shall of litigation has not materialized. Some fraudulent
be liable to the party injured in an action at law.” cases have arisen in which the defendant spouse has
An inmate of a correctional institution, for example, failed to fully litigate a claim against him or her so
may file a 1983 action against the state government, that the other spouse could collect the insurance.
the correctional institution, and its employees if But most courts have chosen to weed out those
they are not provided adequate medical care while claims from the meritorious claims rather than bar all
institutionalized. They must show that the employ- interspousal cases.
ees were acting “under the color of state law,” that Even those states that have not completely
they violated their constitutional right (in this case, abolished interspousal immunity have applied cer-
the right to be protected from cruel and unusual tain limitations. Some, for example, have abolished
punishment under the Eighth Amendment), that immunity in reference to automobile accidents or
they suffered damages as a result of the employees’ when the tort committed was intentional.
actions, and that the employees were not immune.
Such 1983 actions are often relied upon when Parent-Child Immunity
suing governmental officials like police officers and
Some of the same reasons given to justify inter-
correctional officers.
spousal immunity were also given under the com-
The subject of immunity is a crucial one when
mon law to bar suits by children against their parents
deciding whom to sue. It is imperative before filing
and vice versa. Briefly, the fear was that such suits
suit that you review applicable state or federal statutes
would breed disharmony in the family, encourage
as well as any case decisions pertaining to immunity.
collusion and fraud among family members, and
A case involving the state as a defendant that looks
create a flood of litigation.
particularly appealing under the “deep pocket” theory
Some states have chosen to abolish this immu-
(the theory that one should go after the defendant
nity, particularly in cases involving motor vehicle
with the most money) can take on a different light
accidents. The reason commonly given is that
when the issue of immunity is considered.
most suits are between a family and its insurance
company and not between individual members of
Interspousal Immunity a family. Even in those states that have not abol-
Under the common law, spouses were immune from ished such immunity, many have allowed suit when
suit by their spouses, and parents were immune the tort was intentional, when it involved loss of
from suit by their children. Spousal immunity arose property or other pecuniary loss, when the injury
out of the precept that a husband and wife were occurred in the course of a business activity, when
one entity and could not therefore sue each other. the child was legally emancipated or was a step-
Consequently, a wife, for example, could not sue her child of the defendant, or when the parent-child
husband if she was injured while a passenger in a car relationship was terminated by the death of one
that he negligently drove. of the parties prior to the suit. No immunity exists
The majority of states have now abolished inter- between siblings or in other family relationships. All
spousal immunity, rejecting the common law notion states have at least limited the doctrine of parental
immunity. In general, a minor is not allowed to sue
their parent for personal injuries if their injuries
Local Links were caused by the parent’s negligence as part of
In your state what kind of immunity do prison the parent-child relationship. A minor child may sue
workers receive? their parents for personal injuries if their injury was
a result of a parent’s intentional abuse.
One of the problems that can arise in the con- The other rationale used to justify charitable
text of parent-child suits is the matter of negligent immunity is sometimes referred to as the trust-fund
supervision. Consider the case of a child left unsu- theory. This theory is based on the premise that
pervised by her mother and who, as a result of this funds given for charitable purposes should not be
lack of supervision, is run over by the defendant. used to pay judgments resulting from tort claims.
Should the defendant be allowed to bring a third- The refutation of this argument is that the trust-fund
party claim against the plaintiff’s mother for negli- theory refers to how a judgment should be satisfied
gent failure to supervise the child? Some courts have and not to the root question of whether an individual
said no, arguing that permitting such claims would in has a right to bring an action. In short, the argument
effect reduce the child’s compensation by allowing goes, the question of liability should not be based
the defendant to obtain contribution from the par- on the charity’s ability to satisfy a judgment.
ent. Others have allowed such claims and have cre- The majority of states have abolished charitable
ated a “reasonable parent” standard in determining immunity altogether; others have abolished it only
the duty of supervision owed to a child. in reference to charitable hospitals. Some, in defer-
ence to the trust-fund theory, have allowed liability
Charitable Immunity when liability insurance is available but have denied
it when a judgment would have to be paid out of
Charitable organizations, including educational
trust funds. Still others, relying on the rationale of
and religious organizations, received immunity
the implied-waiver theory, have allowed those who
under the common law in nine states. The purpose
are not beneficiaries of the charity, such as employ-
of such immunity was to protect charitable institu-
ees or visitors, to sue.
tions from tort claims and thereby promote their
existence. Some courts have argued that the bene-
ficiaries of charitable organizations impliedly waive Local Links
their right to sue when they accept the benefits What is the status of the following immunities
offered by that organization. Other courts have in your state?
characterized this so-called implied-waiver theory 1. Interspousal immunity
as a legal fiction that has no relevance in emer- 2. Parent-child immunity
gency situations, such as the receipt of emergency 3. Charitable immunity
aid from a charitable hospital.

1. The coaches of a school athletics program are alleged to be negligent in causing injury and death to
some football players as a result of heat stroke during team practice. The school charges admission to
football games, but the program has been operating at a net loss for the past five years. Can negligence
actions be filed against the school district and the coaches?
2. A prisoner in a state prison believes that his public defender failed to adequately represent him and that
because of this lack of competent representation he was convicted. Can he sue the public defender
under a § 1983 claim or, alternatively, under a theory of negligence (malpractice)?
3. An action is brought against the Archdiocese of Newark for the reckless and negligent hiring of a priest
who forced a child to engage in sexual conduct with him while attending a camp sponsored by the
church. The child ultimately commits suicide, and his brother, who attended the same camp, suffers
medical problems as a result of feeling responsible for his brother’s death. Can the parents recover for
their damages and their children’s damages?
4. A minor suffers mental and emotional harm as a result of being repeatedly physically abused by his
father. Can he sue his father?
Statutes of Limitations and time limit should be set for discovery under the dis-
covery doctrine.
Statutes of Repose A similar issue arises in the case of malpractice
by lawyers and other professionals. When should
A statute of limitations, as the name indicates, is
the statute of limitations begin to run when a lawyer
a statute limiting the time in which an action can
negligently prepares a will? What if a latent construc-
be brought. Any action not commenced within that
tion defect does not show up until many years after
time period is barred. The purpose of such statutes
the completion of construction? In some states the
is to protect individuals from having to defend stale
discovery doctrine has been applied.
claims. They also allow people to have some mea-
It is important to consult the statutes in your state
sure of stability and predictability in their lives by
to determine the applicable statute of limitations
limiting the time frame in which they can anticipate
and to ascertain when a cause of action accrues. This
being sued.
is one of the first questions that an attorney must
Because most statutes of limitations begin to
answer when deciding whether to take a case. Failure
run when a cause of action accrues, the question
to determine the appropriate statute of limitations
is when accrual takes place. Most courts have held
could be grounds for malpractice.
that accrual occurs when there has been an actual
Whereas the statute of limitations begins to run
injury to the plaintiff’s person or property. Problems
at the time of injury, a statute of repose begins
arise, however, when the plaintiff could not reason-
to run at the date of sale of a product. Such stat-
ably have discovered their injury until after the stat-
utes are designed to limit a manufacturer’s liability,
ute had run. Suppose, for example, that the statute
to lower insurance costs for manufacturers, and to
of limitations on medical malpractice claims is five
introduce a sense of certainty in the area of product
years but that the plaintiff did not begin to suffer
liability litigation. Most statutes of repose are five to
complications from the medical procedures they
twelve years and in some cases may bar suit even
underwent until six years later. By the time they dis-
before injury occurs. As a practical matter, however,
covered they had a cause of action, they would be
few suits are actually prevented, as few plaintiffs are
barred from pursuing it.
injured by old, defective products. The effects are
To mitigate the harshness of a statute that pre-
devastating, however, to certain victims, such as
cludes recovery in a case such as this, many courts
those who were injured by DES or asbestos or by
have created the so-called discovery doctrine, which
some kinds of long-lasting machinery. Some courts
provides that the statute does not begin to run until
have found statutes of repose to be constitutionally
the injury is, or should have been, discovered. Many
impermissible.
states apply this rule to all surgical cases, but some
have limited it to claims that an object was left in
the patient’s body. Still others have held that the statute
begins to run when the doctor-patient relationship Application
terminates, regardless of whether the plaintiff has
discovered their injury at that time. The Baxters will likely claim that Teddy and
Some have argued that the discovery doctrine Mr. Goodright were contributorily negligent. If they
contributes to the rising cost of medical malpractice prevail in this claim and they live in a contributory-
insurance. Many policies cover a physician’s conduct negligence state, both Teddy and Mr. Goodright
during a particular year even though a claim based will be precluded from recovering. If, however, they
on that conduct may not arise for several years. As live in a comparative-negligence state, their recov-
a result of the actuarial projections necessitated by eries will be reduced in direct proportion to their
this type of policy, premiums are very high. Arguably, percentage of negligence. Whereas Teddy would
premiums could be reduced if policies were issued likely be found negligent, Mr. Goodright would
on a claims-made basis so that only those claims probably not be found negligent as long as he
filed against the physician that year, regardless of acted reasonably in rescuing Teddy. The last-clear-
when the act of malpractice occurred, would be chance doctrine is inapplicable because the Baxters
covered. Alternatively, some argue that a maximum were not present during the time of the attack on

1. Pam consults with an attorney after she is severely injured in an automobile accident. The attorney con-
vinces her to settle out of court for $100,000. Ten years later, when she is having her will done by another
attorney, she mentions her personal injury case and the name of the attorney who represented her. She
discovers that the attorney was subsequently disbarred for unethical conduct, specifically relating to his
collusive agreements with a particular insurance company. She also finds out that the actual value of her
case was probably closer to $1 million. Under the statute of limitations in your state, can she sue her
former attorney and the firm for which he worked? If the statute of limitations has already run, does she
have any other options?
2. John buys a defective air gun and is injured. He does not realize until 10 years later that he has a possible
claim against the manufacturer. Under the laws of your state, can he still sue?
Local Links attorney will opt for a strict liability claim if at all
possible. Remember that contributory negligence
Does your state have a statute of repose? is generally not a defense to strict liability, although
If so, what is the time period in which suits assumption of risk will usually be a complete
must be filed? Has your state created some defense. Nevertheless, assumption of risk requires
kind of discovery doctrine? subjective proof, putting the burden on the Baxters
to show that Teddy knew the risk that he was con-
fronting. The Baxters’ task in proving assumption of
Teddy, and Mr. Baxter did everything he could to risk would be more difficult than proving contrib-
rescue Mr. Goodright when he became aware of utory negligence, in which an objective standard
Gertrude’s attack. would be used to evaluate Teddy’s conduct.
Arguably, Teddy impliedly assumed the risk by Although no immunities could be raised as
going into the Baxters’s backyard, as he was aware of defenses, consideration of the applicable statute
Gertrude’s presence and of her propensity to attack. of limitations would be important. If Teddy and
The defendants will have to prove, however, that Mr. Goodright “sat” on their cases for a considerable
Teddy actually knew that there was a risk and not period of time, their attorneys would be required to
merely that he ought to have known. Again, because conduct their initial investigations expeditiously and
of his classification as a rescuer, Mr. Goodright will file immediately before the statute of limitations ran.
probably be successful in rebutting any claim that he If the attorneys failed to file in a timely manner and
assumed the risk. their clients were consequently precluded from filing
As a result of the consideration of the defenses due to the statute of limitations, the attorneys would
that can be raised in this case, it is likely that Teddy’s be subject to malpractice claims.
Summary
The three defenses most commonly raised in is the last-clear-chance doctrine. This doctrine
negligence cases are contributory negligence, does not apply if neither the defendant nor the
comparative negligence, and assumption of risk. plaintiff discovers the danger as a result of their
Because the contributory-negligence rule is some- inattentiveness. The doctrine is also inapplicable
times viewed as harsh and unjust, courts have if the defendant’s act of negligence precedes
developed various escape mechanisms by which the plaintiff’s predicament and precludes them
plaintiffs can avoid this rule. The most significant from avoiding the accident after discovering the
exception to the contributory-negligence defense plaintiff’s peril.
Contributory negligence cannot be used as a enforced if the defendant has unusual bargaining
defense against an intentional tort. Nor is it allowed power or if the plaintiff is unaware of the risk. In
if the defendant’s conduct was willful and wanton or terms of implied consent, the plaintiff will not be
reckless unless the plaintiff’s conduct was also willful considered to have acted voluntarily if they had no
and wanton or reckless. Contributory negligence can reasonable choice but to confront the danger. Those
be raised in the case of negligence per se unless the states that have adopted comparative negligence
statute on which the defendant’s negligence is based have, to some degree, removed assumption of risk
was enacted solely to protect a class of persons of as a separate defense.
which the plaintiff is a member and if the statute’s intent Immunity is a complete defense to tort liability.
was to place sole responsibility on the defendant. Immunity of federal government officials has been
All but a few states have adopted a comparative- curtailed by the Federal Tort Claims Act. Federal offi-
negligence system. Under a pure comparative- cials performing discretionary functions are immune
negligence system the plaintiff recovers regardless of from suit. State governments traditionally enjoyed
the extent of their negligence. Under the 50 percent sovereign immunity although most states have abol-
approach, a plaintiff’s claim is barred if their ished it to some extent. Local governmental entities
negligence is either as great as or not greater have enjoyed at least partial immunity. Immunity is
than the defendant’s negligence. Difficulty is often typically granted for governmental functions but
encountered in assigning fault to the parties, not allowed for proprietary functions. Legislators,
particularly when there are more parties involved judges, and some other public officials receive com-
than just the plaintiff and defendant. plete immunity as long as they are acting within the
As with contributory negligence, compara- scope of their duties.
tive negligence cannot be raised as a defense to an The majority of states have now abolished
intentional tort. It can be raised if the defendant’s interspousal immunity, or at the least have imposed
conduct was willful and wanton, reckless, or negli- various limitations on such immunity. Similarly, some
gent per se. Some jurisdictions continue to apply states have chosen to abolish parent-child immunity.
the last-clear-chance doctrine, although the Uniform Charitable immunity has been abolished altogether
Comparative Fault Act expressly rejects its use in a in the majority of states. Some courts have adhered
comparative-negligence system. to the trust-fund theory and have denied liability if
The distinction between contributory neg- the judgment would have to be paid out of trust
ligence and assumption of risk is often blurred. funds. Still other courts have adhered to the implied-
Contributory negligence is sometimes characterized waiver theory and have allowed recovery only to
as “carelessness” whereas assumption of risk is some- those who are not beneficiaries of the charity.
times perceived as “adventurousness.” In the defense Statutes of limitations and statutes of repose
of contributory negligence, an objective standard is prevent the bringing of stale claims and allow some
used; in assumption of risk a subjective standard is measure of stability and predictability in people’s lives.
relied on. Assumption of risk, unlike contributory neg- The key question that arises in reference to these stat-
ligence, can be used as a defense to reckless conduct utes is the question of accrual. Under the discovery
and in a case of strict liability. doctrine a statute does not begin to run until the injury
A plaintiff can either expressly or impliedly is or should have been discovered. A statute of repose
assume the risk. An express waiver will not be begins to run at the date of sale of a product.
Key Terms
accrual comparative negligence
Time at which a statute of limitations begins to Defense that the plaintiff’s recovery should be
run, usually at the time the plaintiff is injured reduced in direct proportion to the plaintiff’s
assumption of risk percentage of contribution to their own injuries
Defense that the plaintiff voluntarily consented contributory negligence
to take the chance that harm would occur if they Defense that the plaintiff contributed to their
engaged in certain conduct own injuries and should therefore be barred
from recovery
discretionary function proprietary function

Act of a government employee requiring the use Function performed by the government that
of judgment could just as easily be performed by a private
governmental function entity
Tasks typically performed by a governmental statute of limitations
entity Statute that limits the time period in which a
immunity claim can be filed
Absolute defense derived from the defendant’s statute of repose
status (e.g., a government official) or relation- Statute of limitations in product liability cases
ship to the plaintiff (e.g., spouse or child of the that limits the time period during which a suit
plaintiff) can be filed
last-clear-chance doctrine
Doctrine that allows the plaintiff to recover in
a contributory-negligence system despite the
plaintiff’s negligence
Review Questions
1. What is the difference between contributory 8. Name two administrative problems that can
negligence, comparative negligence, and arise in the context of comparative negligence.
assumption of risk?
9. What if a person is not a party to the action?
2. What is the rationale behind contributory Should fault be assigned to their actions?
negligence?
10. How have states that have adopted compar-
3. What have some courts done to mitigate the ative negligence treated the last-clear-chance
harshness of the contributory negligence doctrine?
doctrine?
11. Are contributory negligence and comparative
4. What is the last-clear-chance doctrine and negligence a defense to
when is it used? a. intentional torts?
a. What variations to this doctrine exist? b. reckless or willful and wanton conduct?
b. What is the first-clear-chance doctrine? c. negligence per se?
c. When is the last-clear-chance doctrine not
applicable? 12. What are the three elements of assumption of
risk?
5. When is contributory negligence not a
defense? 13. How have courts that have adopted comparative
negligence treated assumption of risk?
6. What is the justification for the development of
the comparative-negligence standard? 14. What are differences between express and
implied assumption of risk?
7. What is the difference between pure comparative
negligence and the 50 percent approach? 15. What is required for a release to be
a. What is the difference between the “not enforceable?
greater than” and “not as great as”
approach? 16. What is a profession than cannot use assumption
b. Why is this difference significant? of risk as a defense?
17. What must be shown before a plaintiff will be 24. Which public officials are granted immunity,
considered to have impliedly assumed the risk? and under what conditions is this immunity
granted?
18. How do the courts treat professional and
amateur athletes differently when it comes to 25. How does a public official’s immunity relate to
impliedly assuming the risk? governmental immunity?
19. In what respect is immunity a complete defense? 26. What is a 1983 action? Who can bring one?
20. What is the rationale underlying sovereign 27. Why was interspousal immunity created, and
immunity? what is its status today?
21. For what reasons have many states abolished 28. What is parent-child immunity?
state sovereign immunity?
a. What immunities do states typically 29. What are the justifications for charitable immu-
preserve? nity, and what is its status today?
b. What kind of statutory immunity is often
created by states, and what are the basic 30. What is the purpose of a statute of limitations?
provisions of these statutes? a. When does a statute accrue?
b. What is the discovery doctrine, what is its
22. What is the difference between a governmen- purpose, and why is it sometimes criticized?
tal function and a proprietary function? c. What is a statute of repose, and what is a
potential problem with this statute?
23. Give an example of a function that is usually
protected by immunity and of one that
generally is not.
Practice Exam
True-False
1. Tort defenses are largely controlled by statute. 5. In those states that have adopted a contributory-
negligence system, the defendant is required to
2. Contributory negligence prevents a negligent prove and specifically plead contributory
plaintiff from recovering unless the defendant negligence in order to use it as a defense.
is more negligent than the plaintiff.
6. Without exception, the rules that govern proxi-
3. The rationale for one reason for the judicial mate cause in relation to a defendant’s conduct
creation of contributory negligence is that also apply to a plaintiff’s conduct in determining
judges distrust jurors and are afraid that they contributory negligence.
might harm industry by giving large awards to
injured plaintiffs. 7. To recover under the last-clear-chance doctrine,
plaintiffs must prove only that the defendant
4. Guilty defendants can go unpunished under failed to take advantage of an opportunity to
contributory negligence. prevent harm to the plaintiff.
8. Last clear chance is basically a defense for the of risk as a separate defense or have merged it
plaintiff. into the defense of comparative negligence.
9. Last clear chance doctrine is available if both 22. When professional sports are involved, those
plaintiff and defendant are inattentive. who participate have assumed the risks as
long as the risks are understood or completely
10. Contributory negligence is not a defense to inten- obvious.
tional torts or to claims of negligence per se.
23. Professional athletes are assumed to be more
11. Comparative negligence is an easier system to cognizant of the risks than amateurs.
administer than contributory negligence.
24. If a plaintiff protests against assuming a risk but
12. In assigning a percentage of fault to a plaintiff’s ultimately agrees to assume it, their consent
conduct, one considers the extent to which will be considered voluntary.
that conduct contributed to the resulting harm
or the extent to which it deviated from a 25. Waivers of liability are effective against
reasonable standard of care. defendant’s intentional torts.
13. When a pure comparative-negligence standard 26. Medical professionals may use waivers to limit
is used, the plaintiff can recover no matter how their liability.
extensive their own negligence.
27. Actual knowledge of the risks are required for
14. Plaintiffs are not allowed to recover if their assumption of risk.
negligence is less than all of the defendants
combined but greater than that of each 28. Assumption of risk may be used as a defense
individual defendant. in strict liability cases.
15. The last-clear-chance doctrine has been 29. Most states have retained complete sovereign
retained in most states that have adopted immunity and also provide complete immunity
comparative negligence. for judges and legislators.
16. Comparative negligence can be used to 30. State tort claims acts usually require that written
reduce a plaintiff’s recovery if the defendant is notice of a claim be given during a designated
reckless or willful and wanton. time period after the discovery of the injury.
17. In some states that have adopted comparative 31. Many courts have abolished local governmen-
negligence, apportionment of fault is not tal immunity.
allowed if the defendant violated a statute that 32. Government functions are subject to local
is designed to protect members of the plaintiff’s government immunity, but proprietary functions
class and if that statute places sole responsibility are not.
on the defendant.
33. Immunity is granted to legislators, judges, and
18. Assumption of risk completely bars the plaintiff other public officials so that they can carry out
from recovery in most modern courts. the difficult tasks of their office without fear of
19. Assumption of risk applies if plaintiff should being sued, but that immunity does not extend
have known of the risk. to those who act out of greed or malice toward
a plaintiff.
20. Assumption of risk can be raised as a defense
in strict liability cases and can be used in 34. High-ranking administrative officials receive no
defense of reckless conduct. immunity.
21. Those states that have adopted comparative 35. If the government is immune, a public official is
negligence have either abolished assumption also immune.
36. Under the FTCA the United States government 41. Some courts bypass parent-child immunity
and its employees are liable for any injuries when an intentional tort or business activity is
arising out of a federal employee’s operation of involved.
a motor vehicle.
42. Some courts disallow negligent supervision
37. Under the FTCA, no liability exists when a suits because they reduce the child’s
discretionary function is involved. compensation.
38. A 1983 action occurs when a defendant acts 43. In response to the argument that beneficiaries
under color of a state statute, ordinance, or of a charitable organization should not be
regulation and violates a plaintiff’s civil rights. able to sue, opponents of charitable immunity
argue that this justification should not apply in
39. Under the common law a husband and wife emergency situations.
were considered one entity.
44. Some states allow suit against charitable orga-
40. Most states have abolished interspousal nizations when liability insurance is available.
immunity.
Matching
GROUP 1
______ 1. Defendant fails to take advantage of opportunity to avoid a. assumption of risk

harm to plaintiff
______ 2. Because of earlier negligence defendant cannot take b. comparative negligence

advantage of opportunity to prevent harm to plaintiff
______ 3. Punishes negligent plaintiffs c. contributory negligence
______ 4. The 49 percent rule d. first clear chance
______ 5. Punishes adventurous plaintiffs e. last clear chance
GROUP 2
______ 1. King can do no wrong a. parent-child immunity
______ 2. Abolished in some states b. sovereign immunity
______ 3. Abolished in most states c. Federal Tort Claims Act
______ 4. A 1983 action d. Civil Rights Act
______ 5. Allows U.S. government to be sued for negligence of e. parent-child immunity

employees
______ 6. Interspousal immunity f. sovereign immunity

GROUP 3
______ 1. What happens when injury occurs a. statute of limitations
______ 2. Mitigates harshness of statute of limitations b. statutes of repose
______ 3. Prevents stale claims c. accrues
______ 4. Begin to run when product is sold d. discovery doctrine
Fill-in-the-Blank
1. Most states have adopted some form of a(n) 9. Activities carried out by water and gas utilities
____________ negligence standard. are considered ____________ functions of a
local government.
2. Under the ____________ ____________
____________ doctrine the defendant remains 10. An inmate may file a _______ action against the
liable because of a failure to take advantage of state government, the correctional institute,
an opportunity to prevent harm to the plaintiff. and the employees.
3. Under a comparative-negligence defense, a 11. ____________ immunity was instituted to

plaintiff who was awarded $1,000,000 and who protect charitable institutions from tort claims.
was found to be 30 percent negligent would
receive an award of ____________. 12. Under the ____________ ____________ theory,
beneficiaries of charitable organizations waive
4. A plaintiff who is 50 percent negligent can- their right to sue when they accept the benefits
not recover in a state that adopted a(n) of a charitable organization.
____________ approach.
13. ________ does not exist between siblings or
5. In assessing a plaintiff’s conduct who has other family members.
allegedly assumed the risk, a(n) ____________
standard is used, whereas in assessing a 14. The purpose of ____________ is to limit the
plaintiff’s conduct who was allegedly negligent, time frame in which individuals can be sued.
a(n) ____________ standard is used. 15. A cause of action ______ when an actual injury
6. ____________ is not a complete defense to occurs to the plaintiff’s person or property.
intentional tort liability. 16. The ___________ begins to run upon the sale
7. Under the 50:50 apportionment, the plaintiff of a product.
would be barred under the _________ 17. Under the ____________ doctrine, an action
approach. does not begin until an injury is or should have
8. Local governments can often claim immunity been discovered.
when a(n) ____________ function is involved.
Multiple-Choice
1. Under the doctrine of contributory negligence, c. the rationale is that negligent plaintiffs
a. worthy plaintiffs are protected. should be punished for failing to protect
b. the question of negligence is left up to the their own safety.
judge. d. all of the above.
2. The last-clear-chance doctrine c. they must have a reasonable choice to do

a. mitigates the harshness of the contributory- something other than accept the risk.
negligence defense. d. all of the above.
b. prevents the plaintiff from recovering if both 7. The FTCA applies to
the plaintiff and defendant are inattentive and
the defendant fails to discover the danger to a. intentional torts committed by law enforce-
the plaintiff because of his inattentiveness. ment officials.
c. prevents the plaintiff from recovering if the b. a federal employee’s acts that are consid-
defendant is unable to avoid harming the ered discretionary.
plaintiff because of the defendant’s earlier c. a federal employee’s acts that are part of a
negligence. planning process.
3. A plaintiff who assumes the risk 8. When sovereign immunity is abolished,
a. is necessarily negligent. a. it is done because courts believe being

b. can be considered negligent as well as the responsible for the torts of employees
defendant. is one of the costs of administering a
c. cannot be considered negligent. government.
d. involuntarily exposes themself to a risk. b. it is done even though public insurance is
not available.
4. Express agreements to accept the risk will c. state tort claims are usually abolished
usually be enforced simultaneously.
a. if they are prepared by common carriers, d. all of the above.
public utilities, or other regulated industries. 9. Interspousal immunity and parent-child
b. even if the defendant is the sole or unique immunity were instituted
provider of a service.
c. even if the defendant has unusual bargaining a. to prevent a flood of litigation.
power. b. out of a concern that allowing such suits
d. none of the above. would encourage family discord.
c. out of a fear of fraudulent suits.
5. A waiver of liability will not be enforced d. all of the above.
a. for intentional torts but will be enforced for 10. Statutes of repose
willful and wanton or gross negligence.
b. unless it is expressed in language that is a. are usually one to five years long.
clear and unequivocal. b. have been found to be constitutionally
c. if it does not contain the word impermissible.
“negligence.” c. tend to increase insurance costs for
d. all of the above. manufacturers.
6. For a plaintiff to impliedly assume a risk,
a. they must be aware of the risk.
b. they must voluntarily assume the risk.
Practice Pointers
Preparing a Defense
Paralegals often participate in the discovery process, which (if you represent the defendant) involves gathering
information that supports your client’s defense. This process includes
• sending out interrogatories and requests for production of documents.
• setting up depositions.
• interviewing witnesses.
• requesting the plaintiff to sign medical release authorizations (which allow the release of medical records
by doctors and other medical providers).
• checking with the county recorder’s office and the clerk’s office to determine if the plaintiff has been
involved in other suits.
• checking Motor Vehicle Department records (to determine vehicle ownership, for example).
Once the requested records are assembled, medical records, accident reports, repair records, and the
records of the major medical insurance carrier must be reviewed to determine the
• nature, type, and extent of the plaintiff’s injuries.
• existence of preexisting injuries and any claims relating to those injuries.
• names, addresses, and phone numbers of potential witnesses.
• treatments the plaintiff has received and the prognosis for recovery.
Medical Records
To secure medical records and the records of the plaintiff’s medical insurance carrier, interrogatories must be
sent out to identify the plaintiff’s treating physicians both before and after the accident (see Chapter 6). These
doctors are then contacted to find out if any advance fees are required before the records will be copied.
Medical authorization requests are sent to the plaintiff’s attorney with a request to have the plaintiff sign them.
If the plaintiff complies, these forms are submitted to the appropriate physicians. If the plaintiff refuses to sign
the medical authorization requests and the procedural rules permit such a refusal, the records are subpoenaed
using a subpoena duces tecum and a notice of deposition, which are sent to the custodian of the medical
records. A notice of deposition follows, along with a letter stating that if the custodian voluntarily agrees to
submit the records, they need not appear at the deposition. The custodian must sign an affidavit affirming that
all of the requested records have been sent and must return the affidavit along with the records (all of which
must be returned before the date of the deposition).
Police Records and Other Official Records
To obtain accident reports, you must send a written request to the law enforcement agency and enclose any
required fees. Many agencies require forms to be filled out, and some require that a need be established
before the records will be provided, because the records may not be available to the public. A similar process
must often be followed to secure death certificates (usually from a department of health services), motor vehi-
cle registration records, and driver’s license information.
County Recorder’s Office and Court Clerk’s Office
Become familiar with the location, procedures, and personnel in the county recorder’s office and the court
clerk’s office. Paralegals often are asked to obtain records and file documents with these offices. Find out if the
records in these offices are available online and whether this service is free or subscription-based.
Tort Teasers
1. The so-called seat belt defense is used by defense counsel to argue that the plaintiff was contributorily
negligent or negligent per se in their failure to wear a seat belt. Assume you are representing a defen-
dant in a motor vehicle accident case and argue (a) the plaintiff was contributorily negligent; (b) the
plaintiff was comparatively negligent; (c) the plaintiff assumed the risk; (d) the plaintiff failed to mitigate
their damages; and (e) the plaintiff was negligent per se. Be as specific as possible in terms of the type
of legal argument you would want to make and the type of evidence that you would want to introduce.
Would you rather argue that the plaintiff contributed to their own injuries or that they assumed the risk?
Why? Now assume you are representing the plaintiff and want to argue that the seat belt defense is
inappropriate. In your arguments consider whether the plaintiff has a duty to use a seat belt and whether
their failure to do so constitutes the proximate cause of the accident. Furthermore, you might want to
consider when the plaintiff’s duty to mitigate their damages arises.
2. Police officer left a handcuffed prisoner in the back seat of his police cruiser. The back seat was separated
from the front seat by a Plexiglas shield. On the way to the jail, the officer stopped and exited the cruiser
to assist with traffic control and left the keys in the ignition with the engine and emergency lights on. The
prisoner somehow maneuvered into the front seat and drove away at a very high rate of speed, crashing
head on into a vehicle and causing the death of both the driver of the other vehicle and himself. Should
immunity be extended to the police officer and the City for the officer’s gross negligence? Pile v. City of
Brandenburg, 215 S.W.3d 36 (Ky. 2006).
3. The plaintiff was injured from a head-on bump during a ride on the bumper cars at an amusement park.
Defense argued that there is an assumption of risk involved when riding a ride such as this one and inher-
ent risks, therefore they owed no duty of care to plaintiff. Do you think the defendant should be held to a
higher standard of care? Do you think assumption of risk applies in riding carnival rides? Nalwa v. Cedar
Fair, L.P., 290 P.3d 1158 (California 2012).
4. A woman purchases doughnuts sealed in their original package. She opens the package in her auto-
mobile and while driving consumes several pieces of one doughnut by breaking them off with her
fingers and popping them into her mouth. Because of an abscessed tooth and sore jaw, she sips milk
through a straw, allowing the doughnut to dissolve in her mouth, rather than chewing the doughnuts.
It is the dissolving nature of the doughnut that prompts her to buy this type of product. Shortly after
beginning to consume the doughnut, she feels something stick in her throat and immediately suffers
indigestion. It is discovered through subsequent x-rays that the woman had consumed a piece of
doughnut that contained a metal wire and caused her injury. Do you think the manufacturer is justified
in claiming contributory or comparative negligence? Why or why not? Coulter v. American Bakers Co.,
530 So.2d 1009 (Florida 1988).
5. Prisoner is detained seven days beyond his sentence due to a clerical error. The Department of Correc-
tions argues that it has immunity, and the lawsuit should be dismissed. Do you agree? Kinegak v. State
Dept. of Corrections, 129 P.3d 887 (Alaska 2006).
6. A police officer was shot and killed while working in a county courthouse by a county employee who
had smuggled in a gun. The police officer’s widow brought suit under the FTCA arguing that the security
system in the courthouse was inadequate. The defense here argued they had immunity and the court
agreed. Are there any negligence defenses available here? How do you feel about the immunity since it
was a county courthouse? Sczyrek v. County of Essex, 735 A.2d 33 (NJ 1999).
7. A woman is injured while riding an ATV (all-terrain vehicle) she borrowed from a friend. She is hospital-
ized for her injuries, during which time she requires near constant narcotic pain medication and is often
unaware of what is going on around her. A year after she is injured, she files suit against the manufacturer
of the ATV. This date is 10 years and 13 days after her friend purchased the ATV. The state has a 10-year
statute of repose. The plaintiff argues that statute of repose was tolled by the legal-disability statute
during the 20 days that she remained mentally incapacitated in the hospital. What information would you
need about the statute of repose and the disability statute to evaluate her argument? What will happen
to her suit if she is not successful in making this argument? Should the statute of repose prevent the
plaintiff’s case if the product is defective. Penley v. Honda Motor Co., 31 S.W.3d 181 (Tenn. 2000).
8. Maurice saw defendant hit his friend, Kevin, over the head with a broken beer bottle. Maurice was
stabbed in the neck with the broken beer bottle when he attempted to break up the fight between Kevin
and defendant. What defenses should the defendant raise in the lawsuit filed by Kevin and Maurice?
Explain what defenses you believe defendant should raise, and why? Duda v. Phatty McGees, Inc., 758
N.W.2d 754 (S.D. 2008).
Internet Inquiries
In states that participate in the VitalChek program, qualified individuals can obtain certified copies of vital
records, including birth and death certificates, via a request by phone, mail, fax, or the Internet. Visit Vital-
Chek’s site at www.vitalchek.com. Guidelines about ordering vital records from most states are available
at Vital Records Info at www.vitalrec.com. Go to the website for VitalChek and find out if your state is a
participant. If it is, answer the following questions:
a. Can you order birth and death certificates by fax? Online?
b. What is the cost of ordering a birth certificate? A death certificate?
c. What information must you provide to get a copy of a birth certificate?
d. What information must you provide to get a copy of a death certificate?
e. Who is entitled to get a death certificate?
f. What issues can you see from allowing this online?
Your firm has been asked by the state court to represent an inmate in one of your state prisons who was
severely injured when he was electrocuted as a result of reaching up and screwing in a light bulb above
his bed. He was in solitary confinement at the time and had repeatedly requested that this light bulb be
repaired as it had bare wires hanging down from the ceiling. The inmate had to stand on his bed in order
to reach the light. This was the only light in his room, and without it he was in total darkness.
Before deciding whether to represent this inmate in a negligence suit against the prison, your supervising
attorney asks you to do some preliminary research as follows:
1. She wants you to read the immunity statutes in your state regarding state institutions. What do you
discover? Can the prison be sued? Can the individual guards be sued? Can the state be sued?
2. She is concerned that the inmate was negligent himself. What will you need to do to determine if he was
negligent?
3. The inmate has been trying to find someone to represent him for about a year. He was hospitalized for
his injuries 13 months ago. What is the statute of limitations in your state for a negligence action? Is this
statute tolled while a plaintiff is incarcerated?
Chapter 9
Malpractice and Professional Negligence

Chapter Topics
What Is Reasonable Care? Defenses to Professional Negligence
How Negligence Can Occur Maintaining Adequate Records
Specialists Underlying Causes of Professional Negligence Suits
Informed Consent How to Prevent Professional Negligence Suits
Battery versus Negligence Medical Malpractice Crisis
Chapter Objectives
• Explain the standard of care to which a profes- • Recognize defenses that can be raised in
sional is held. response to a professional negligence claim.
• Identify ways in which professional negligence is • Appreciate the reasons for the increase in profes-
committed. sional negligence claims.
• Explain the informed-consent doctrine.
T he attorney by whom you have just been hired as a paralegal is a recent law school graduate. Early in his
career, he discovers, through personal experience, many of the legal predicaments in which an attorney
can find themselves. First, he advises a potential client who was injured in an automobile accident that they
have no viable cause of action. Two days after the statute of limitations runs out, that person consults with
another attorney on a separate matter. This attorney advises them that they did in fact have a valid cause of
action for which they probably could have netted a considerable recovery and judgment.
Next, unaware of the malpractice charges most likely pending against him, your attorney blatantly
decides not to relay a settlement offer to another client because in his opinion it is not a good offer.
When the case goes to trial, the client is awarded less than he would have received under the terms of the
settlement offer. The client is most displeased when he discovers that the terms of the settlement offer
were never relayed to him.
Finally, the attorney forgets to file a list of exhibits and witnesses on the date it is due. As a result, the
judge refuses to allow the key witness to testify, and the case is unsuccessful when it goes to trial. What will
clients in each of these cases have to prove if they allege professional negligence? What possible issues
CHAPTER 9 Malpractice and Professional Negligence | 261
might the attorney argue in his defense? It is important to note that malpractice claims are not always
interchangeable with professional negligence claim. We will see an overlap as they are used under many
of the same circumstances and do overlap occasionally but are not the same thing. Negligence is far more
reaching than malpractice and reaches all areas of professionals. Malpractice can be referred to as inten-
tional negligence and is more difficult to prove. This chapter is entitled malpractice but encompasses all
professional negligence as well.
What Is Reasonable Care? that is required of a professional. A veterinarian, for

instance, may recommend surgery for an ailing dog,
As we discussed in Chapter 5, the duty of care but if the dog dies from complications, the veteri-
required of professionals is one of reasonableness. A narian is not necessarily negligent even though the
professional is required to have the skill and learning outcome proves the prognosis incorrect. The veter-
commonly possessed by members in good standing inarian’s recommendation need only be reasonable,
within that profession. The question that frequently not accurate.
arises is whether professionals should be required In many instances several possible options are
to meet national or local standards. For example, available to the professional. The rule of reasonable
should a physician who practices in a rural area be care does not require that all other professionals
held to the same standard of care as one who prac- would have chosen the same course of action as that
tices in an urban, high-tech office? In the medical decided upon by the defendant professional. The
area, many states have opted for a local standard, fact that other dentists, for example, might testify
apparently with an implicit acknowledgment that that they personally would have opted for a different
expectations of reasonableness are dependent on procedure than that used by the defendant does
locale. Some courts, however, influenced by the ele- not necessarily make the defendant’s conduct neg-
vated expectations of professionals resulting from ligent. If, however, only one recognized method of
enhanced communications, have discarded the treatment is used by dentists in good standing in
“locality rule” in favor of a national standard. the profession for this condition and the defendant
Professional negligence can occur with many dentist chooses another course of action, the choice
professions where the professional has duties and will likely be considered negligent. There can be
obligations to their clients. It can include doctors, other factors taken into consideration as well such
attorneys, insurance brokers, accountants, financial as if the patient refuses certain procedures for what-
advisors, real estate agents or brokers, etc. Profes- ever reason, the dentist cannot be held negligent for
sional negligence normally includes actions that results of the patient’s lack of consent. Also, if the
result from a mistake or not following through with patient’s injuries are a result of them not following
something, whereas malpractice generally includes through with follow-up care or instructions, and not
not abiding by the rules and intentionally allowing the actual professional’s actions, there would be no
something to happen. professional negligence action.
Negligence is not necessarily equated with
unfavorable outcome. Simply because a course of
action or procedure ultimately yields undesirable
results does not make it negligent. Hindsight, as we
How Negligence Can Occur
all know, is perfect, but reasonable foresight is all Professional negligence, like any other type of
negligence, can occur in a number of ways (see
Exhibit 9–1). A professional may lack the requisite
Local Links training to perform a given task. They may fail to ask
What standard do the courts in your jurisdic- for the information necessary to make an informed
tion use to determine the actions needed to recommendation to the plaintiff or may fail to refer
prove medical malpractice? their client to a specialist when the situation dictates
such a referral. An attorney in general practice with
262 | Part ii Reasons to Sue
Exhibit 9–1 What Constitutes Professional Negligence
• Failure to have skills and learning commonly possessed by members in good standing within a profession
• Failure to use good judgment in choosing course of action, to the extent that the action chosen
constitutes a deviation from the standard of care reasonably expected of professionals in the field
• Failure to ask for essential information from client
• Failure to make referrals when appropriate
• Failure to keep abreast of changes in their profession
• Failure to follow up on client’s progress, condition, or status
• Failure to adhere to specialist’s standard of care when appropriate
• Failure to provide informed consent.
no training or experience in securities fraud, for voluntarily admitted to the psychiatric unit.
example, could be negligent if they represented a He had a history of substance abuse, suicidal
client in a securities fraud case to the detriment of thoughts, and had attempted suicide by placing a
that client. gun in his mouth. He survived because the gun mis-
Even if a professional chooses an appropriate fired. The psychiatrists failed to speak with the boy
course of conduct, they may be negligent if they and failed to review his chart prior to releasing him.
fail to use due diligence and care. Professionals who The chart contained notations regarding the boy’s
resort to unorthodox procedures are more likely to constant thoughts of suicide. The boy committed
be found negligent if the client ultimately suffers suicide less than two months after his release. The
some kind of damage than professionals who rely doctor’s motion for summary judgment arguing
on more conventional techniques. The degree of no proximate cause was denied (Purcell v. Breese,
innovation that will be considered legally acceptable 552 S.E.2d 865 [GA. App. 2001]). Doctors may also
will be determined largely by the seriousness of the commit malpractice by prescribing medications to
situation. If a physician uses a method unknown or patients without first examining the patient. The
disapproved of by their peers when dealing with a Washington Department of Health revoked a doc-
critically ill patient, they are more likely to be found tor’s license to practice medicine after he wrote
negligent than if they are dealing with someone prescriptions to patients he never personally exam-
suffering a minor illness. In extremely difficult cases ined. The court held that the doctor was not able
the professional may be expected to consult with to safeguard against improper diagnosis or identify
someone else in the field. A general physician, for adverse reactions to the prescribed drugs (Ancier
example, who identifies a condition that they are v. State Dept. of Health, 2007 WL 2473472 [Wash.
ill-equipped to handle has an obligation to consult App. 2007]).
with a specialist. The elements of a malpractice claim are set forth
A professional is obligated to keep current of in O’Neal v. St John Hospital & Medical Center,
new developments in the field. Accountants are 791 N.W.2d 853 (Mich. 2010). The issue in this
expected to be aware of recent changes in tax law. case was the connection between the defendant’s
Physicians are expected to be aware of innova- conduct and the plaintiff’s injury. The plaintiff suf-
tions in medications and procedures. Attorneys are fered an injury that was more probably than not
expected to be aware of current laws and cases. proximately caused by the negligence of defen-
Professionals are obligated to pay attendant. Important to note in this case is that not all
ti on to their clients’ complaints and feed- medical malpractice cases can or will be expressed
back. A physician who fails to remain apprised in statistical or percentage terms nor is a plaintiff
of their patient’s change in condition may be required to use percentage terms to express proxi-
negligent. In one case a 15-year-old boy was mate causation.
Case
O’Neal v. St. John Hospital and Medical Center 791 N.W. 2d 853
(Mich. 2010)
Hathaway, J.?
This case addresses the burden of proof necessary expert explained his opinion in statistical terms and
to establish proximate causation in a traditional testified that a patient with ACS has a 10 to 20 percent
medical malpractice action. At issue is whether the chance of developing a stroke. He further testified that
Court of Appeals properly reversed the trial court’s with a timely exchange transfusion, the risk of stroke is
denial of summary disposition. The trial court ruled reduced to less than 5 to 10 percent.
that plaintiff had established a question of fact on Defendants brought a motion for summary dispo-
the issue of proximate causation sufficient to with- sition challenging the sufficiency of plaintiff’s expert
stand a motion for summary disposition. The Court testimony on the issue of proximate causation. Even
of Appeals reversed. It treated plaintiff’s claim as a though plaintiff’s complaint pled only traditional
loss-of-opportunity claim instead of a traditional med- malpractice, defendants’ motion made no distinction
ical malpractice claim and held that plaintiff did not between the proof required for proximate causation
raise a genuine issue of fact, as required by Fulton in a traditional malpractice claim and the burden
v. William Beaumont Hosp., 253 Mich.App. 70, 655 required for a claim based on loss of opportunity.
N.W.2d 569 (2002), because plaintiff could not prove Instead, defendants argued that plaintiff’s case was
that receiving the alleged appropriate treatment would controlled by both the first and second sentences
have decreased his risk of stroke by greater than 50 of MCL 600.2912a(2), which requires that the plain-
percentage points. We disagree with the Court of tiff prove “that he or she suffered an injury that more
Appeals’ analysis and conclusion. probably than not was proximately caused by the neg-
ligence of the defendant or defendants” and that “the
I. FACTS AND PROCEEDINGS
plaintiff cannot recover for loss of an opportunity to
This case involves allegations of negligence in medical survive or an opportunity to achieve a better result
care. Plaintiff had an illness known as sickle cell ane- unless the opportunity was greater than 50%.”
mia. Plaintiff developed acute chest syndrome (ACS), Defendants argued that a reduction in the risk of
which is a known complication of sickle cell ane- stroke from 10 to 20 percent to less than 5 to 10 per-
mia. Plaintiff claims that his ACS was misdiagnosed cent amounted to at best a 20 percentage point differ-
as pneumonia and as a consequence he did not ential,1 which would be insufficient to meet the burden
receive the correct treatment. Plaintiff’s experts opined of proof on proximate causation. Defendants relied
that ACS requires treatment with an aggressive blood on Fulton to support their position that plaintiff must
transfusion or an exchange transfusion, either of which comply with this percentage point differential theory.
needs to be given on a timely basis. While plaintiff ulti- Plaintiff countered that defendants’ statistical portrayal
mately received a transfusion, his experts opined that of these numbers was mathematically inaccurate
it was given too late and as a consequence, plaintiff because his experts’ testimony supported a finding
suffered a disabling stroke. Plaintiff alleged that defen-
dants’ failure to provide a timely transfusion violated the
standard of care and that defendants’ negligence was
a proximate cause of his disabling stroke. Plaintiff’s 1 The Court of Appeals reasoned: “This number is the difference
complaint pled a traditional malpractice claim and did between the highest chance plaintiff had of developing a stroke with-
not plead a claim for lost opportunity. out proper treatment (i.e., 20 percent) and the lowest chance of devel-
oping a stroke with proper treatment (i.e., less than five percent, or in
In support of his position, plaintiff offered two expert
the light most favorable to plaintiff, zero percent)”. O’Neal v. St. John
hematologists who testified that defendants’ viola- Hosp. & Med. Ctr., unpublished opinion per curiam of the Court of
tions of the standard of care more probably than not Appeals, issued November 4, 2008 (Docket Nos. 277317 and 277318),
caused plaintiff’s injuries. Plaintiff’s third hematology p. 5 n. 7, 2008 WL 4791055.
(continued)
Case | O’Neal v. St. John Hospital and Medical Center 791 N.W. 2d 853 (Mich. 2010)
(continued)
that his injuries were more probably than not proxi- II. STANDARD OF REVIEW
mately caused by defendants’ negligence. The trial
This case involves review of a trial court’s decision on
court agreed with plaintiff. The trial court denied
a motion for summary disposition which this Court
defendants’ motion, ruling that plaintiff had presented
reviews de novo.6 The issue also involves questions
sufficient testimony to establish a question of fact on
of statutory interpretation. Statutory interpretation is a
proximate causation.
question of law, which this Court also reviews de novo.7
The Court of Appeals based its decision entirely
on Fulton and reversed the trial court in an unpublished III. ANALYSIS
opinion per curiam, holding that this case presented a
At issue is whether the Court of Appeals properly
claim for a loss of opportunity and that plaintiff had not
reversed the trial court’s denial of summary disposition
met his burden of proof under MCL 600.2912a(2).2 The
on the issue of proximate causation. In order to answer
Court of Appeals reasoned that plaintiff was bound by
this question we must review MCL 600.2912a.
the Fulton analysis and that a percentage point differ-
MCL 600.2912a provides:
ential applied to this case.3 The Court opined:
(1) Subject to subsection (2), in an action alleging
In asserting that defendants’ negligence resulted
malpractice, the plaintiff has the burden of proving
in a stroke, plaintiff essentially argues that had defen-
that in light of the state of the art existing at the
dants ordered a transfusion sooner, plaintiff would
time of the alleged malpractice:
have avoided a stroke. Thus, to say defendants’ fail-
ure to apply proper treatment caused the stroke is to (a) The defendant, if a general practitioner, failed
say that this failure deprived plaintiff a greater opportu- to provide the plaintiff the recognized standard
nity to avoid the stroke. Consequently, plaintiff’s claim of acceptable professional practice or care in
amounts to one of lost opportunity to achieve a better the community in which the defendant prac-
result, and § 2912a(2) is applicable. tices or in a similar community, and that as
In Fulton, this Court set forth the formula by which a proximate result of the defendant failing to
to calculate whether the opportunity to achieve a better provide that standard, the plaintiff suffered an
result was greater than 50 percent—specifically, the injury.
Court must “subtract[ ] the plaintiff’s opportunity to sur- (b) The defendant, if a specialist, failed to provide
vive after the defendant’s alleged malpractice from the the recognized standard of practice or care
initial opportunity to survive without the malpractice.” within that specialty as reasonably applied in
Ensink [v. Mecosta Co. Gen. Hosp., 262 Mich.App. 518, light of the facilities available in the community
531, 687 N.W.2d 143 (2004)], supra at 531.4 or other facilities reasonably available under
We granted leave to review this matter, asking the the circumstances, and as a proximate result
parties to brief: of the defendant failing to provide that stan-
(1) whether the requirements set forth in the second dard, the plaintiff suffered an injury.
sentence of MCL 600.2912a(2) apply in this case; (2) In an action alleging medical malpractice, the plaintiff
(2) if not, whether the plaintiff presented sufficient has the burden of proving that he or she suffered an
evidence to create a genuine issue of fact with injury that more probably than not was proximately
regard to whether the defendants’ conduct proxi- caused by the negligence of the defendant or defen-
mately caused his injury or (3) if so, whether Fulton dants. In an action alleging medical malpractice, the
v. William Beaumont Hosp., 253 Mich.App. 70, plaintiff cannot recover for loss of an opportunity to
655 N.W.2d 569 (2002), was correctly decided, or survive or an opportunity to achieve a better result
whether a different approach is required to correctly unless the opportunity was greater than 50%.
implement the second sentence of § 2912a(2).5
2 Id. at 4. 6 Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873
4 Id. at 4. (2000).
5 O’Neal v. St. John Hosp. & Med. Ctr., 485 Mich. 901, 776 N.W.2d 7 In re Investigation of March 1999 Riots in East Lansing, 463
669 (2010). Mich. 378, 383, 617 N.W.2d 310 (2000).
(continued)
Case | O
’Neal v. St. John Hospital and Medical Center 791 N.W. 2d 853 (Mich. 2010)
(continued)
This statute, which governs the burden of proof in not was proximately caused by the negligence of the
medical malpractice cases, was originally added to the defendant or defendants.” This language reiterates
Revised Judicature Act in 1977. It has been amended the language of the previous subsections and merely
on several occasions, with the most recent amend- restates the well-accepted, well-established historical
ment in 1993 adding subsection (2), which is at issue rule for proximate causation.11
in this case. Subsection (2) contains two sentences. As the meaning of this sentence is well-established,
It is undisputed that the first sentence, which repeats no further statutory construction is necessary.
the burden of proof as articulated in subsections (1)(a) The proper interpretation of proximate causation
and (b), merely reiterates the longstanding rule requir- in a negligence action is well-settled in Michigan. In
ing a plaintiff to prove “that he or she suffered an injury order to be a proximate cause, the negligent conduct
that more probably than not was proximately caused by must have been a cause of the plaintiff’s injury and the
the negligence of the defendant or defendants.” MCL plaintiff’s injury must have been a natural and proba-
600.2912a(2). ble result of the negligent conduct. These two prongs
The second sentence of § 2912a(2) addresses a are respectively described as “cause-in-fact” and
subcategory of injuries in medical malpractice litiga- “legal causation.” See Skinner v. Square D Co., 445
tion governed by the loss-of-opportunity doctrine. Mich. 153, 162–163, 516 N.W.2d 475 (1994); Sutter v.
The Legislature did not define the phrase “loss of an Biggs, 377 Mich. 80, 139 N.W.2d 684 (1966); Glinski
opportunity to survive or an opportunity to achieve a v. Szylling, 358 Mich. 182, 99 N.W.2d 637 (1959).
better result.” However, while not defined in the stat- While legal causation relates to the foreseeability
ute, the doctrine was initially recognized and defined in of the consequences of the defendant’s conduct,
Michigan in Falcon v. Mem. Hosp., 436 Mich. 443, 462 the cause-in-fact prong “generally requires showing
N.W.2d 44 (1990).8 that ‘but for’ the defendant’s actions, the plaintiff’s
It is generally accepted that the 1993 amendment to injury would not have occurred.” Skinner, 445 Mich.
§ 2912a was adopted in a direct reaction to at 163, 516 N.W.2d 475. It is equally well-settled that
Falcon, meaning that it repudiated Falcon’s reduced proximate causation in a malpractice claim is treated
proximate causation theory. 9 Thus, it is generally no differently than in an ordinary negligence claim,
accepted that in adopting this amendment, the Legis- and it is well-established that there can be more
lature intended to limit medical malpractice claims to than one proximate cause contributing to an injury.
the pre-Falcon state of the law: if it was more probable Brisboy v. Fibreboard Corp., 429 Mich. 540, 418
than not that the plaintiff would have died even with the N.W.2d 650 (1988); Barringer v. Arnold, 358 Mich.
best of treatment, a claim for medical malpractice is 594, 101 N.W.2d 365 (1960); Gleason v. Hana-
precluded.10 fin, 308 Mich. 31, 13 N.W.2d 196 (1944). Finally, it
We next turn to the correct interpretation of both sen- is well-established that the proper standard for
tences of § 2912a(2) and their applicability to the case proximate causation in a negligence action is
before us. In examining the first line of § 2912a(2), we that the negligence must be “a proximate cause”
are guided by the principle that nothing in § 2912a(2) not “the proximate cause.” Kirby v. Larson, 400
has changed the burden of proof for traditional medical Mich. 585, 256 N.W.2d 400 (1977). Thus, the bur-
malpractice claims. The language of the first line of den of proof for proximate causation in traditional
subsection (2) is clear: “in an action alleging medical medical malpractice cases is analyzed accord-
malpractice, the plaintiff has the burden of proving that ing to its historical common-law definitions and
he or she suffered an injury that more probably than the analysis is the same as in any other ordinary
8 436 Mich. at 460–462, 469–470, 462 N.W.2d 44 (opinion

by LEVIN, J.).
9 Stone v. Williamson, 482 Mich. 144, 169, 753 N.W.2d 106 (2008). 11 Kirby v. Larson, 400 Mich. 585, 600–607, 256 N.W.2d 400
10 Nothing in our opinion today alters or changes that premise. (1977) (opinion by WILLIAMS, J.).
(continued)
Case | O’Neal v. St. John Hospital and Medical Center 791 N.W.2d 853 (Mich. 2010)
(continued)
negligence claim. Nothing in this opinion changes or been diagnosed while she was pregnant and if she
alters these well-settled principles.12 had been treated after her child was delivered, she
We next consider whether the Court of Appeals would have had an eighty-five percent chance to sur-
erred by relying on Fulton and applying the second sen- vive. Dr. Taylor opined that when Fulton was actually
tence of § 2912a(2) to the present case. The second diagnosed with cancer, her opportunity to survive had
sentence of § 2912a(2) provides “In an action alleging decreased to sixty to sixty-five percent. Therefore,
medical malpractice, the plaintiff cannot recover for loss according to Dr. Taylor, Fulton’s opportunity to survive
of an opportunity to survive or an opportunity to achieve the cancer decreased by twenty to twenty-five percent
a better result unless the opportunity was greater than because of defendants’ malpractice. In reply, defen-
50%.” While the debate over the meaning of the sec- dants argued that Dr. Taylor’s affidavit was improper
ond sentence demonstrates that significant questions because it contradicted his deposition testimony and
surround loss-of-opportunity cases, it is clear from the that, in any event, this affidavit was not enough to cre-
plain language of the statute that the second sentence ate a question of fact under MCL 600.2912a(2).13
is intended to apply to loss-of-opportunity cases. Today Fulton determined that a percentage point differ-
we address whether the second sentence of § 2912a(2) ential subtraction analysis was required by the stat-
also applies to traditional malpractice cases and we ute. As demonstrated by the Fulton analysis, the
unequivocally hold that it does not. Because the Court conclusion is reached by a simplistic subtraction for-
of Appeals in this case relied on Fulton, which errone- mula. Fulton subtracted the statistical likelihood of a
ously applied the second sentence to a traditional mal- better outcome without treatment from the statistical
practice case, we review Fulton and determine what, if likelihood of a better outcome with treatment to deter-
any, continuing validity it has. mine if the resulting number is greater than 50.
Fulton involved a claim for the failure to timely Fulton’s simplistic subtraction formula is not an
diagnose cervical cancer. The plaintiff, the personal accurate way to determine whether a defendant’s
representative of the decedent’s estate, alleged that malpractice is a proximate cause of the injury.
if decedent’s cancer had been diagnosed during her F u l t o n ’s a n a l y s i s w a s e r ro n e o u s b e c a u s e i t
pregnancy, she would have had treatment options misconstrued proximate causation as it applies to a
available that could have saved her life. The theory was traditional malpractice case. Under the Fulton subtraction
that the decedent was not diagnosed until her can- formula, it is mathematically impossible for there to be
cer was untreatable and, as a consequence, she died. more than one proximate cause. Thus, in creating and
The plaintiff’s expert’s testimony on proximate applying this simplistic formula, Fulton fundamentally
causation was described by the Court of Appeals as altered plaintiff’s burden of proof. Fulton transformed
follows: the burden of proof in traditional malpractice cases from
Defendants moved for summary disposition a proximate cause to the proximate cause because
under MCR 2.116(C)(10), arguing that plaintiff could it allows for only one proximate cause in any case.
not show that their negligence was the cause of This proposition is in error because it has no basis in
Fulton’s death. In response, plaintiff submitted an affi- statute or common law, and it is inconsistent with the
davit from Dr. Taylor, opining that if Fulton’s cancer had clear and unambiguous language of the first sentence of
§ 2912a(2). Moreover, as the Court of Appeals’ decision
in this case illustrates, Fulton’s analysis is being applied
12 This is true despite the contrary statements in Justice YOUNG’S to all malpractice cases, even when they are pled only as
dissent. The comments of the dissent amount to nothing more than traditional malpractice cases.
another intemperate outburst of inappropriate accusations and illogical
The Court of Appeals analysis in the present case per-
assertions. While the dissent decries confusion, the only apparent con-
fusion in this matter lies in the dissent itself, which lacks sound analyt-
petuates the Fulton doctrine and the confusion surround-
ical reasoning and even a basic understanding of the law of proximate ing proximate causation in medical malpractice claims.
causation. The dissent, if followed to its logical conclusion, would allow Much of the confusion stems from the inherent nature
recourse for the negligent actions of medical providers only in those
instances in which one provider’s conduct is at issue and only when no
pre-existing medical condition exists. 13 Fulton, 253 Mich.App. at 74–75, 655 N.W.2d 569
(continued)
Case | O
(continued)
of medical malpractice: the plaintiff is generally seek- the risk of stroke to less than 5 or 10 percent. Dr. Griffin’s
ing treatment for a preexisting medical condition that testimony demonstrates that Plaintiff had more than a
is causing a problem of some sort on its own, whereas 50 percent chance to avoid a stroke.
in an ordinary negligence claim the plaintiff is generally As this case demonstrates, the way causation is ana-
an otherwise uninjured person who is claiming that the lyzed is important, especially when reviewing statistical
entire injury was caused by the incident. data. In this instance, do these facts represent at best
In the present case, plaintiff was prepared to offer a 20 percent chance to avoid an injury, as the Court
three expert witnesses to testify on his behalf on the of Appeals concluded, or do they establish proximate
issue of proximate causation at the time of trial. Two of causation as found by the trial court? To answer this
plaintiff’s experts unequivocally opined, in a discovery question, we must determine whether we use a percent-
deposition, that had the necessary treatment been age point differential subtraction analysis (as used by
given, it was more probable than not that plaintiff would the Court of Appeals in applying the Fulton formula) or
not have had a stroke. whether we follow the approach taken by the trial court.
Plaintiff’s first expert, Dr. Richard Stein, opined: In doing so we must follow the analysis that is most
consistent with our historical rules governing proximate
Q. I just have one question. Doctor, based on the
causation and the plain language of § 2912a(2), which
extrapolation of the peds data that you’ve described for
requires that a plaintiff prove that he or she suffered
us, within a reasonable degree of medical certainty, and
an injury that more probably than not was proximately
by that, I mean with a greater than 50 percent likelihood,
caused by the negligence of the defendant or defen-
if Dr. Tapazoglou had met the standard of care as you
dants, in the context of this case. While the use of math-
defined it today, would the stroke have been avoided?
ematical statistics is not required by the statute, and we
A. To a reasonable degree of medical certainty, my do not impose such a requirement, we conclude that
opinion is yes, and I have already stated the basis for the analysis used by plaintiff’s experts and the trial court
that opinion. represents the correct approach in this instance because
After opining that an exchange transfusion was nec- it accurately represents the historical view of proxi-
essary to reduce plaintiff’s hemoglobin S concentra- mate causation as expressed in the first sentence of §
tion to less than 30 percent, Dr. Luce, plaintiff’s second 2912a(2) based on its application to these facts.
expert, opined: In this case, it is undisputed that with or without
treatment plaintiff was more probably than not going
Q. With respect to Mr. O’Neal, if the hemoglobin S had
to avoid the stroke. In other words, even without
been reduced to less than 30 percent, do you have
treatment it was more probable that plaintiff
an opinion as to whether or not he would have had
would not have a stroke. However, plaintiff did have
the stroke anyhow?
a stroke. If the Fulton 50 percentage point differential
A. I think it is probable that he would not have. subtraction analysis is used, plaintiff cannot proceed
Q. When you say “probable,” are you prepared to say with a traditional claim because the failure to provide
more probably than not had Mr. O’Neal had his hemo- treatment was not the cause of the injury expressed in
globin S reduced to less than 30 percent he would not percentage point differential terms. As previously indi-
have had a stroke? cated, however, the problem is that a 50-percentage
point differential subtraction analysis necessarily means
A. Correct. that there can only be one cause of an injury. This analy-
The testimony of the third expert, Dr. Griffin Rodgers, sis is not consistent with the historical test for proximate
was more specific in expressing the statistics. The trial causation, which has always been that the malprac-
court summarized his testimony: tice be a proximate cause rather than the proximate cause.
Dr. Griffin Rodgers, a hematologist, testified that a Applying a 50-percentage point differential sub-
patient in sickle cell crisis of acute chest syndrome has traction analysis requires that we change the
in the order of 10 or 20 percent chance of developing traditional analysis of causation in medical malprac-
a stroke. With a timely exchange transfusion, it reduces tice cases to the one most immediate, efficient, and
(continued)
Case | O
(continued)
direct cause of the injury. This, however, is the standard the historical analysis of proximate causation because
for determining the proximate cause rather than a prox- it involves a comparative analysis, not a simplistic sub-
imate cause. This approach is simply not in keeping traction formula. Determining what is “more probable
with our historical view of causation.14 than not” is inherently a comparative analysis. The
The Fulton approach is incorrect because it proper method of determining whether defendant’s
requires a reliance on probabilities and possibilities conduct more probably than not proximately caused
of things that have not yet occurred, rather than reli- the injury involves a comparative analysis, which is
ance on what has actually occurred. Plaintiff in this dependent upon the facts and circumstances and
case did have a stroke and was injured; his claim is expert opinion in a given case.15
for an existing injury, not just the possibility of one. We conclude that Fulton’s simple subtraction anal-
Plaintiff’s injury is no longer a statistical probability, ysis is wrong and unsupportable. While § 2912a(2)
it is a reality. The focus, once he was injured, is on does not mandate the use of statistics or require
the connection between defendants’ conduct and the any particular mathematical formula, the historic
injury. The relevant inquiry for proximate causation is analysis of proximate cause must be followed to
whether the negligent conduct was a cause of plain- wit: the analysis or formulation used cannot require
tiff’s injury and whether plaintiff’s injury was a natural that the cause must be the proximate cause rather
and probable result of the negligent conduct. If so, than a proximate cause.
defendants’ conduct was a proximate cause, even No single formula can be dispositive for all cases.
though there may have been other causes. The anal- In this case if we were to use a standard percentage
ysis for proximate causation is the same whether we decrease calculation (meaning that defendants were
are discussing medical malpractice or ordinary negli- responsible for 15 percentage points out of the 20 total
gence. Defendants’ conduct in this case meets this percentage points of plaintiff’s risk of the bad result,
standard when the defendants’ actual conduct, rather so that there is a 15/20 chance or 75 percent chance)
than plaintiff’s statistical probability of achieving a defendant’s malpractice was a proximate cause of the
better outcome, is the focus of the inquiry. injury.16 Similarly, if the evidence is viewed as a stan-
In this instance, plaintiff suffered an injury that dard percentage increase calculation (meaning that
was more probably than not proximately caused by defendant was responsible for 15 percentage points
the negligence of defendants. As the trial court prop- of increase over the 5 percentage points to begin
erly found, defendants’ negligent conduct increased with, thus causing a 300% (15/5) increase in plaintiff’s
plaintiff’s risk of stroke from less than 5 to 10 percent to risk of harm), defendant’s malpractice was a proxi-
10 to 20 percent. When viewed in the light most favor- mate cause of the injury.17
able to plaintiff, the change is from less than 5 percent
to 20 percent. As the trial court analyzed, this rep-
15 Comparative analyses could include standard percentage
resents a change that is greater than 50 percent in this
increases, standard percentage decreases, or other scientifically
instance. The trial court’s approach is in keeping with accepted statistical analyses offered by the experts.
16 Moreover, either of the mathematical formulas used as an
example (standard statistical decrease or increase) may not be
appropriate in all cases because either could limit causation to one
14 Common-law rules apply to medical malpractice actions unless proximate cause in those cases involving the conduct of more than
specifically abrogated by statute. See MCL 600.2912(1) which one defendant.
provides: 17 I recognize that Justice CAVANAGH and I differ on whether
A civil action for malpractice may be maintained against any an increased risk of harm is a valid statistical method for determin-
person professing or holding himself out to be a member of a state ing proximate causation in a traditional malpractice case. However,
licensed profession. The rules of the common law applicable to both Justice CAVANAGH and I agree that claims evaluated in that
actions against members of a state licensed profession, for malprac- manner may be brought; we only disagree about whether those
tice, are applicable against any person who holds himself out to be a claims proceed as claims for traditional malpractice or claims for
member of a state licensed profession. loss-of-opportunity.
(continued)
Case | O
(continued)
It is also important to emphasize that not all tra- We emphasize that we hold that the second sen-
ditional medical malpractice cases can or will be tence of § 2912a(2) applies only to medical malprac-
expressed in statistical or percentage terms, nor is tice cases that plead loss of opportunity and not to
a plaintiff required to express proximate causation those that plead traditional medical malpractice; we do
in percentage terms. The plain language of the not address the scope, extent, or nature of loss-of-op-
statute requires that proximate causation in tradi- portunity claims as that issue is not before us. Signif-
tional malpractice cases be expressed by showing icant questions surround such claims.20 However, we
that the defendant’s conduct was more probably than decline to decide issues that are not necessary to the
not a cause of the injury, not by statistical or percent- resolution of the case before us.
age terms.18
IV. CONCLUSION
Given that Fulton used an incorrect mathematical
formula and is being used to transform the burden For all the foregoing reasons, we conclude that
of proof in traditional malpractice cases, we must the Court of Appeals erred in the present case by
next decide if it has any continuing validity. We find reversing the trial court’s denial of summary disposi-
that it has none in the context of traditional medi- tion. The case before us presents a traditional mal-
cal malpractice cases. In Stone, all seven justices practice claim. It does not present a claim for loss
of this Court recognized that Fulton’s analysis was of opportunity. In traditional malpractice cases, the
incorrect or should be found to no longer be good plaintiff is required to prove that the defendant’s neg-
law, though their reasons for doing so varied.19 While ligence more probably than not caused the plaintiff’s
I was not a member of this Court when Stone was injury. In this case, the testimony of plaintiff’s expert
decided, I also conclude that Fulton did not correctly witnesses supports plaintiff’s position on proximate
set forth the burden of proof necessary to estab- causation. While that testimony is not dispositive,
lish proximate causation as set forth in § 2912a(2). it is sufficient to raise a question of fact to defeat a
As all justices of this Court have concluded that motion for summary disposition, allowing the issue
Fulton’s analysis of § 2912a(2) is wrong, it is illogi- to be adjudicated on the merits by the trier of fact.
cal to fail to overrule Fulton, because by failing to Finally, we overrule Fulton to the extent that it has
do so, this Court fosters unnecessary confusion led courts to improperly designate what should be
for litigants and the lower courts. Accordingly, we traditional medical malpractice claims as loss-of-op-
overrule Fulton to the extent that it has led courts portunity claims and has improperly transformed
to improperly designate what should be traditional the burden of proof in a traditional malpractice case
medical malpractice claims as loss-of-opportunity from a proximate cause to the proximate cause.
claims and has improperly transformed the bur- Accordingly, we reverse the judgment of the Court
den of proof in a traditional malpractice case of Appeals and remand this matter to the Court of
from a proximate cause to the proximate cause. Appeals for consideration of the issue not decided on
appeal in that court.
18 We also recognize that different mathematical formulations can

have varying results and that the results must be viewed in the light 20 Questions exist about the full scope and extent of loss-of-
most favorable to the nonmoving party. For example, while percentage opportunity claims and the extent of damages recoverable in those
increases and percentage decreases would both be valid methods actions, which we do not decide today. For example, a partial discus-
to determine proximate causation, they can yield different results. In sion of the scope of loss-of-opportunity claims was at issue in Wickens
those instances, if either calculation demonstrates that the plaintiff v. Oakwood Healthcare Sys., 465 Mich. 53, 631 N.W.2d 686 (2001).
suffered an injury that more probably than not was proximately caused While Justice CAVANAGH and I do not fully agree in this case, I do
by the negligence of the defendant or defendants, the plaintiff’s case agree with Justice CAVANAGH’s partial dissent in Wickens that a
may proceed. living person may pursue a claim for loss of opportunity under the cir-
19 Stone, 482 Mich. at 164, 753 N.W.2d 106 (opinion by TAYLOR, C.J. ). cumstances presented in that case.

1. Why did the defendants bring a motion for summary disposition in the case?
2. What is the standard of review this court used for the lower court decision?
3. How does this court define proximate cause?
4. Explain the Fulton case percentage point differential subtraction analysis and whether the court here
used that analysis in their finding?
5. How did this court bring up the issue of loss of opportunity as opposed to a traditional medical malpractice
claim?

1. Before, during, and after her mastectomy, Helen undergoes blood transfusions. Some of the blood
with which she is transfused is drawn from someone who has Hepatitis C. Her physician neglects to
reveal the Hepatitis C results as he does not think it is relevant to her current cancer treatment. As a
result, Helen contracts and eventually succumbs to complications of Hepatitis C. Her estate sues the
surgeon and her attending physician for negligence. If the physician was not proficient in the treatment
and diagnosis of Hepatitis C and neglected to call in a specialist to consult with the patient, would he
be considered negligent? What about a claim for malpractice? If expert testimony could prove that the
fact of not treating the patient immediately for Hepatitis C eventually caused her to have complications
and die, would that make a difference? What should the physician have done in this case?
2. Following surgery for an enlarged prostate, Herman suffers from abdominal myoclonus, which results
in violent, jerking abdominal contractions. His medical malpractice claim is dismissed because his
attorney fails to make proper service of process. Herman is prepared to introduce expert medical testi-
mony that the anesthesiologist’s failure to wait for more than 10 minutes before administering a second
dose of anesthetic deviated from accepted practice and that the resulting overdose of anesthetic was
the proximate cause of Herman’s myoclonus. His medical expert will admit, however, that he has never
previously seen a case of abdominal myoclonus, that he does not know of any reported cases of
abdominal myoclonus caused by the spinal anesthetic used in this case, and that the studies he will
rely upon (involving 65,000 cases) report only one or two cases of myoclonus, but only in the legs
rather than in the abdomen. The doctor will also testify that abdominal myoclonus can occur sponta-
neously, without any drugs, trauma, or evidence of disease.
Do you think Herman will be able to prevail in a legal malpractice claim against the attorney, based
on the failure to make proper service of process? (To answer this question, you must decide whether
the underlying medical malpractice claim is viable.) What could Herman do to ensure his claim is
stronger?
In the News
Links to several articles relating to the evaluation of medical malpractice cases and to working with
medical experts are available at www.lectlaw.com.
Specialists in important healthcare decisions. Informed consent

is the backbone of the relationship and a medical
Specialists are held to a higher standard of care professional has a duty to educate their patients so
than generalists. They must adhere to the standard they can make informed decisions.
of the “reasonably careful and prudent specialist” Particularly in the area of medical treatment,
in that field. Therefore, a neurosurgeon is held to the issue of consent is very important. Certainly,
the standard of care of the average neurosurgeon every human being has a right to determine what
rather than the average physician. A patent attorney is to be done with their body, and no physician
would be held to the standard of care of the average may force unwanted treatment on anyone. Under
patent attorney rather than a general attorney. As a the doctrine of informed consent, a physician has
result, a specialist may be found negligent in a situ- a duty to warn patients of possible hazards, com-
ation in which a general practitioner doing the same plications, and expected and unexpected results of
thing might not. treatment, as well as risks of any alternative treat-
Specialists are typically required to adhere to a ments. Particularly if a therapy is new or experimen-
national standard of care in their field rather than a tal, the physician has a duty to warn the patient that
local one. The reasoning is that clients particularly all side effects of the treatment are not completely
seek out a specialist because they want someone known. The duty to warn increases as the probabil-
who is aware of advances in the field. In this age ity or severity of risk to the patient increases. Any
of ubiquitous national communication networks patient who is unaware of the inherent risk of a
and increasing standardization of medical training, proposed procedure cannot voluntarily consent to
the underpinnings of the locality rule are extremely that procedure.
doubtful (Orcutt v. Miller, 595 P.2d 1191 [Nevada If alternative treatments exist, a physician is
1979]). A pediatrician, for example, who failed to obligated to advise a patient about those alter-
make a standard PKU test on a newborn was found natives. Failure to explain an alternative may in
negligent even though the hospitals in his commu- itself constitute negligence. If a physician does not
nity did not use such a test. Because these tests think that an alternative would work in a particular
were in general use by pediatricians throughout patient’s case, however, they have no obligation to
the rest of the country, the defendant’s conduct was suggest that alternative. In emergency situations,
held against the national standard of care and he when a patient is unconscious or so ill that they
was found negligent (Naccarato v. Grob, 180 N.W.2d are unable to comprehend what is being said, the
788 [Mich. 1970]). physician has a right to render treatment without
Attorneys and other professionals are held to a informing the patient of the risks involved.
general standard of care unless they present them- In determining what should and should not
selves as certified specialists. Those who advertise be disclosed to a patient, some courts look to the
themselves as certified specialists are held to the expectations of a reasonable layperson and ask what
standard of care of a specialist. a patient in that position would reasonably need to
know to make an informed decision. In the words of
one court, informed consent should be judged by
Informed Consent whether the physician disclosed all those facts,

risks, and alternatives that a reasonable person in
Professionals have a fiduciary relationship with the situation which the physician knew or should
their clients in that the relationship is one of trust have known to be the plaintiffs would deem
and confidence. Medical informed consent is significant in making a decision to undergo the
fundamental to a successful physician-patient recommended treatment. This gives maximum
relationship and includes an exchange of ideas. effect to the patient’s right to be the arbiter of
The principle of autonomy underlying the doctrine the medical treatment they will undergo without
of informed consent requires clients to be given either requiring the physician to be a mind reader
ultimate dominion over their bodies and those events into the patient’s most subjective thoughts or
that affect their lives, and to be active participants requiring that they disclose every risk lest they
be liable…. The physician is bound to disclose the healing process. If a risk is highly improbable,
only those risks which a reasonable person would and if advising the patient of this risk would, in the
consider material to their decision whether or not physician’s opinion, induce the patient to forego
to undergo treatment. This standard creates no necessary treatment or would severely reduce
unreasonable burden for the physician…. This the efficacy of any treatment, the physician is not
formulation has been described as the “prudent required to disclose this information. If the prob-
patient” standard. It attempts to reconcile the ability of the risk is statistically high, however, the
tension between the patient’s right to self- patient should be informed regardless of the effect
determination and the physician’s responsibility it might have on their morale. Even if the probability
to exercise sound medical judgment (Cooper v. of the risk is statistically low but the consequence is
Roberts, 286 A.2d 647 [Pa. 1971]). extremely severe, the patient should be informed.
Under this standard the question boils down to If the probability of harm is statistically low and
whether a reasonable patient in that situation would its severity is relatively minor, the physician can
have submitted to the procedure had they been tailor the warning to avoid unnecessarily exciting
advised of the risks involved. or upsetting the patient.
Other courts rely on the “professional” stan-
dard, under which a physician must disclose only
those risks and alternatives that the reasonable med-
ical practitioner in the community would disclose Battery versus Negligence
under similar circumstances. Some consider this a
Plaintiffs alleging lack of consent may sue on a theory
paternalistic standard that leaves the choice to the
of either battery or negligence (based on lack of
medical community, rather than the patient, whose
informed consent). If a patient is in total ignorance
life is most intimately affected by the choices made.
of what is to be done, or if the physician obtains
consent for one procedure and then performs
Nature of Risk Involved another, an action for battery will lie. In the more
A physician must balance the need to provide typical case, however, the patient is aware of the
information against the effect such information procedure and in fact signs a consent form but does
will have on the patient’s morale. Studies show a not clearly understand some of the risks inherent
close connection between a patient’s mental state in the procedure. In this case a more appropriate
and their response to treatment, so physicians cause of action is negligence. Today negligence
naturally want to avoid doing anything to jeopardize has for the most part displaced battery as a basis

1. Leslie has a CT scan under his doctor’s orders. Prior to the test, he is given no information about the risks
of the procedure, which include the injection of a contrast dye. He does answer routine questions by the
hospital staff regarding allergies, illnesses, medications, and previous reactions to contrast materials.
Later he develops thrombophlebitis at the site of the injection. Does Leslie have a valid claim based on
lack of informed consent? Would this be professional negligence or malpractice?
2. Hazel has a heart valve replacement. Before the surgery, her cardiologist tells her that mechanical valves
(like the Beall valve which is to be implanted in her) outlast natural-tissue valves. She is not told about
the danger of the development of thromboemboli and strokes, nor about the need for a lifelong regimen
of anticoagulants. After the surgery, Hazel suffers multiple episodes of thromboemboli, leaving her with
severe, permanent brain damage. Later, a natural-tissue implant is used to replace the Beall valve. Does
Hazel have a valid claim based on lack of informed consent? What standard should be used for the
cardiologist in this case?
for liability. The practical difference between the disclosed to the patient were material risks. In
two theories is that if battery is alleged, lay-witness determining what is and is not material, the courts
testimony is sufficient. In cases of negligence, how- consider the severity of the consequences and the
ever, expert witnesses are required to testify to the probability of their occurrence, as well as the feasi-
standard of care and the fact that it was breached. bility of any alternatives. The plaintiff is also required
Also, the statute of limitations for battery is typically to prove that the outcome was a foreseeable risk
longer than the statute for negligence. and not an unpredictable consequence. If the risk
If the cause of action is for negligence, the pertaining to that outcome is remote, recovery will
primary issue is whether the risks that were not not be allowed.
Case Cuc Thi Ngo v. Queen’s Medical Center, 358 P.3d 26 (Hawaii 2015)
Opinion of the Court by McKENNA, J.
Introduction The Circuit Court of the First Circuit (“circuit court”)

granted judgment as a matter of law (“JMOL”) in favor
This case arises from the death of a nine-year-old
of Defendants on the informed consent claim.3
minor child (“Minor”) from cardiac arrest caused
The Intermediate Court of Appeals (“ICA”) affirmed
by hypovolemic shock, a condition that results when
the circuit court’s decision on appeal, concluding that
“severe blood and fluid loss make the heart unable to
Plaintiffs failed to meet their evidentiary burden regard-
pump enough blood” through the body. Ngo v. Queen’s
ing the “materiality of the risk of harm” that resulted
Med. Ctr., No. 30172, at 5, 2013 WL 6865676, *2 (App.
from Defendant’s treatment of Minor with Reglan.
Dec. 30, 2013) (mem.). Petitioners/Plaintiffs–Appellants
At issue in this appeal is the extent of a plaintiff’s
are Minor’s parents (“Parents”), brothers, and the
burden of presenting expert medical evidence regard-
personal representative of Minor’s Estate (collectively
ing the “materiality of the risk of harm” that occurred
“Plaintiffs”). Plaintiffs claim, inter alia, that Respondents/
in order to support a prima facie case for a physician’s
Defendants–Appellees the Queen’s Medical Center
negligent failure to obtain informed consent.4
(“QMC”),1 Dr. Thinh T. Nguyen (hereinafter “Defendant”),
Hawai‘i law on the doctrine of informed con-
and The Emergency Group, Inc. (collectively,
sent has evolved significantly in the past three
“Defendants”) failed to provide information required
decades. The doctrine originated in the common law,
under the informed consent doctrine before treating
and was largely codified in 1976 in Hawai‘i Revised
Minor for nausea and vomiting with the anti-emetic
Statutes (“HRS”) § 671–3, which has since been
medication Reglan.2 Plaintiffs assert that Reglan led
amended several times. Some common law precepts,
to Minor’s hypovolemic shock because it increased
however, still govern. For example, we have held
the motility of Minor’s stomach and small intestines,
that “expert testimony will ordinarily be required to
or, in other words, increased Minor’s diarrhea. It is
establish the ‘materiality’ of the risks, i.e., ‘the nature
undisputed that Defendant did not give Plaintiffs
of risks inherent in a particular treatment, the proba-
any information about Reglan or its risks and side
bilities of therapeutic success, the frequency of the
effects, and did not provide any information regarding
occurrence of particular risks, and the nature of avail-
alternative treatments.
able alternatives to treatment[ ]’ ” (“expert testimony
requirements”).
1 QMC is not a party in the appellate proceedings as the sole
issue on appeal is Defendant’s alleged failure to obtain Plaintiffs’
informed consent; thus, issues concerning QMC will not be discussed
except where relevant. 3 The Honorable Glenn J. Kim presided.
2 Anti-emetic medications help to prevent nausea and vomiting. 4 Plaintiffs present the following questions on certiorari:
(continued)
Case | Cuc Thi Ngo v. Queen’s Medical Center, 358 P.3d 26 (Hawaii 2015) (continued)
1. Whether it was error to exclude or discount Defendant diagnosed Minor with viral gastroenteritis,
evidence of information contained in a drug’s an infection of the stomach. He ordered intrave-
package insert or [Physicians’ Desk Reference] nous (“IV”) fluid of normal saline and ten milligrams
entry, in combination with expert testimony as to of Reglan through an IV line. Upon discharge,
the significance of that information, on a claim Minor was given a prescription for ten milligrams
of informed consent. of Reglan tablets to take as needed for nausea, and
2. Whether a physician’s admitted failure to disclose instructed to follow up with her primary physician in
the information required by [Hawai‘i Revised Stat- three to four days.
utes (“HRS”) §§ ] 671–3(b)(1) through (6), when Minor continued to suffer from diarrhea and vom-
coupled with evidence of the materiality of such iting after returning home. Minor’s mother testified
failure, precludes a finding of informed consent. that she gave Minor Reglan tablets every six hours
as directed. 6 One of Minor’s brothers called QMC
Ray v. Kapiolani Med. Specialists, 125 Hawai‘i 253, 262,
three times—on Friday night, Saturday morning,
259 P.3d 569, 578 (2011) (citations omitted). “The standard
and Saturday night—concerning Minor’s continued
of disclosure of material risks prior to treatment, however,
symptoms. Each time, QMC staff told him to let the
... is capable of determination under the patient-oriented
medicine work, and to follow up with Minor’s primary
standard without reference to prevailing medical stan-
physician on Monday. The family testified that Minor’s
dards or medical judgment....” Carr v. Strode, 79 Hawai‘i
symptoms remained the same throughout the week-
475, 485 n. 6, 904 P.2d 489, 499 n. 6 (1995).
end. At 3:00 a.m. on Sunday morning, Minor told
In addition, Plaintiffs’ complaint clearly alleged
her Parents that she was having trouble breathing.
that Defendant treated Minor “without obtaining
At 7:00 a.m., Minor became unconscious and an
the informed consent of Plaintiff[.]” The informed con-
ambulance was called to take her to the hospital,
sent doctrine includes a physician’s duty to disclose
where she died of cardiac arrest caused by hypovo-
“recognized alternative treatments or procedures”
lemic shock.
and “intended and anticipated results of the proposed
treatment or procedure[.]” Relevant evidence of alter- B. Circuit Court Proceedings
native treatments and the use of Reglan in children
On February 12, 2007, Plaintiffs filed a complaint in circuit
was adduced. Therefore, the ICA erred in concluding
court against Defendants, alleging medical negligence
that Plaintiffs waived the issue of Defendant’s failure
and negligent failure to obtain informed consent.
to inform them of all statutorily mandated information.
Accordingly, we vacate in part (1) the ICA’s February 11, 1. The Trial
2014 Judgment on Appeal as to Plaintiffs’ informed con-
sent claims; and (2) the circuit court’s July 28, 2009 a. Testimony of Defendant
Final Judgment as well as its order granting Defendants’ At trial, Plaintiffs called Defendant as an adverse
motion for JMOL as to Plaintiffs’ informed consent claims witness. The following exchange took place regard-
and remand the case to the circuit court for further ing Defendant’s failure to provide pretreatment
proceedings consistent with this opinion. disclosures:
II. Background Q. When you prescribed and caused the intravenous
dosage of Reglan to be given, before doing so, did you
A. Facts
ever tell the parents of any risks involved with Reglan?
On Friday, February 13, 2004, Minor’s Parents and A. No.
two brothers took nine-year-old Minor to the QMC Q. After the IV was in process, did you ever tell the par-
emergency room (“ER”) to be treated for diarrhea and ents of any risks associated with Reglan?
vomiting, which she had been experiencing since the A. No[.]..
previous night.5 Defendant treated Minor at the QMC Q. When you wrote out the prescription, ... before the
ER, where he performed a variety of tests, which parents left the hospital, did you at any time give them
revealed an elevated heart rate, mild to moderate dehy- any warnings of any kind about the drug Reglan?
dration, and a possible infection. A. No.
(continued)
Defendant testified that he did not inform Parents of ADVERSE REACTIONS
the manufacturer’s position on the safety and effective- In general, the incidence of adverse reactions correlates
ness of Reglan in pediatric patients. He contended that with the dose and duration of [Reglan] administration.
the manufacturer’s warning meant that the safety and The following reactions have been reported, although
effectiveness of Reglan in pediatric patients had not in most instances, data do not permit an estimate of
been established to standards set by the United States frequency:
Food and Drug Administration (“FDA”); however, he tes-
Gastrointestinal
tified that “[his] training and experience has made this
drug a safe medication.” Defendant also testified that Nausea and bowel disturbances, primarily diarrhea.
he prescribed Reglan to pediatric patients as “an off-la- c. Testimony of Dr. Gary Leroy Towle (“Dr. Towle”)
bel use[,]” and that he prescribed the dosage based on
Plaintiffs called Dr. Towle to testify as an expert on
Minor’s weight, which was approximately 150 lbs.
the standard of care and the material risks of Reglan.
Defendant testified that he knew diarrhea was a side
Dr. Towle testified that “Reglan is not recommended
effect of Reglan. He further testified that he did not
for use in children except for very specific circum-
attempt to treat Minor’s diarrhea other than by ordering
stances” not present in this case. Interpreting the
IV fluids to hydrate her.
manufacturer’s insert, Dr. Towle testified that the
In addition, Defendant testified that at the time
manufacturer could not say Reglan was safe to treat
he administered Reglan to Minor, he knew that an
pediatric patients, but was not saying it was unsafe
alternative drug without Reglan’s side effects was
either. Rather, Reglan’s safety in pediatric patients was
“out there but [he] didn’t use it” because “it wasn’t
undetermined…
available to [him] to use.” Plaintiffs’ counsel clari-
Dr. Towle testified that he would have started with
fied that the alternative drug was Zofran. Plaintiffs’
other anti-emetics, such as Phenergan and Zofran,
counsel also introduced into evidence a list of drugs
which the FDA has specifically approved to treat pedi-
approved by the FDA in 1991, which included Zofran.
atric patients, and which were safer for use in children
Defendant further testified that he knew of the
with nausea and vomiting. He testified that one of the
existence of an alternative anti-emetic medication
more common side effects of Reglan was increased
approved by the FDA to treat pediatric patients for
diarrhea, and while Zofran or other “anti-emetics
nausea, Phenergan; however, he contended that it
theoretically can increase diarrhea[,] Reglan is more
was a “worse drug[.]”
likely to” have this effect. Dr. Towle also testified that
b. Reglan Manufacturer’s Package Insert Zofran was an “excellent anti-emetic. It’s used in che-
During Defendant’s testimony, a printout of the FDA motherapy patients, in cancer patients, and also for
version of the Reglan manufacturer’s package insert in people with gastroenteritis. It works very well. It has
effect at the time (“manufacturer’s insert”) was entered a relatively low side effect profile. It’s very popular
into evidence over objection.5 and it could be the most popular one now replacing
The manufacturer’s insert states, in relevant part, as even Tigan and Phenergan.”
follows: Dr. Towle stated, however, that he could not testify
to a reasonable degree of medical probability
CONTRAINDICATIONS
that Reglan increased Minor’s nausea and diarrhea, nor
[Reglan] should not be used whenever stimulation of that it had any side effects that were of consequence
gastrointestinal motility might be dangerous, e.g., in the to Minor. Dr. Towle also stated that he could not say
presence of gastrointestinal hemorrhage, mechanical
obstruction or perforation.
Pediatric Use 5 Defendant testified that although he had not read the version of
the manufacturer’s insert admitted at trial, he had known of the infor-
Safety and effectiveness in pediatric patients have not
mation it contained at the time he administered Reglan to Minor. In
been established (see OVERDOSAGE). addition, another expert, Dr. Gary Leroy Towle, explained that the
The safety profile of [Reglan] in adults cannot be version admitted at trial was substantially similar to the Physicians’
extrapolated to pediatric patients. Desk Reference or manufacturer’s package insert for Reglan.
(continued)
whether Defendant should have warned Parents about In the Court’s view, not only is there no expert tes-
any risks because “[i]t’s like asking what’s the dose of timony, as is required [,] ... the parents ... were never
some medicine you’re not supposed to give. I can’t asked whether if they had been informed of certain
answer that.” things they would have given permission, etc., etc.,
[sic] which are all elements of informed consent.7
d. Testimony of Dr. James Gallup (“Dr. Gallup”)
... [W]hat we’ve got here is a case of medical neg-
Plaintiffs also called Dr. Gallup to testify as an expert ligence, period. Informed consent may sound like
on the cause of Minor’s death. With respect to any — may sound viable sort of in some sort of common
effect Reglan may have had on Minor’s system, Dr. sensible view, well, he should have told the parents
Gallup opined that “it did what Reglan is noted well about Reglan and what it could cause, etc. But ... in the
to do and that is stimulate the contraction of smooth Court’s view there simply is no legally cognizable claim
muscle, particularly in the intestine and the stomach to for informed consent on the facts of this case.
a lesser extent.” Dr. Gallup testified that Reglan relaxes And you add that to — and in a sense that’s why
the “sphincter so that any fluid in the stomach can easily there was no expert testimony on materiality because
get transported down through the small intestine into it’s simply not an informed consent case.
the large intestine.” He further testified that Zofran does The circuit court granted JMOL in Defendants’ favor
not do this and “works almost exactly in the opposite on the issue of informed consent, concluding that,
direction.” even viewing the evidence and inferences therefrom
D r. G a l l u p o p i n e d t h a t R e g l a n m o d e r a t e l y in the light most favorable to Plaintiffs, a reasonable
increased Minor’s diarrhea, which significantly jury could not find in their favor. On July 28, 2009, the
increased her dehydration. He further opined that circuit court subsequently entered its Final Judgment.
the increase in dehydration was a substantial factor
2. Plaintiffs’ Renewed Motion
leading to Minor’s hypovolemic shock because the
dehydration “quite significantly hastened the loss of On August 10, 2009, Plaintiffs filed a “Renewed Motion
workable fluid ... into the intestinal tract and loss from to Amend the Complaint to Conform to the Evidence
the body ultimately.” As to Minor’s cause of death, and Renewed Motion for Judgment as a Matter of Law,
he opined that Minor “died from cardiac arrest as
a result of hypovolemic shock[.]” He further opined
that Reglan was a substantial factor in causing 6 Hawai‘i Rules of Civil Procedure (HRCP) Rule 50(a) (2000)
Minor’s death. provides:
On redirect, Dr. Gallup clarified that Reglan “may (1) If during a trial by jury a party has been fully heard on an
have increased the volume [of diarrhea, but] may not issue and there is no legally sufficient evidentiary basis for a reason-
able jury to find for that party on that issue, the court may determine
have increased the frequency.”
the issue against that party and may grant a motion for judgment as a
e. Motion for Judgment as a Matter of Law matter of law against that party with respect to a claim or defense that
cannot under the controlling law be maintained or defeated without a
At the close of Plaintiffs’ case in chief, Defendants favorable finding on that issue.
moved for JMOL on the issue of informed consent, (2) Motions for judgment as a matter of law may be made at any
arguing that Plaintiffs’ experts failed to opine on the time before submission of the case to the jury. Such a motion shall
specify the judgment sought and the law and the facts on which the
materiality of the risks of Reglan to meet Plaintiffs’
moving party is entitled to the judgment.
burden of adducing expert medical testimony. Plain- HRCP Rule 50(a) (emphasis added). Although Plaintiffs cross-
tiffs cross-moved for JMOL, 6 contending that the moved for JMOL, the circuit court would not have been able to
testimony of Drs. Towle and Gallup in combination with grant the motion at that time because Defendants had not pre-
the manufacturer’s insert constituted “competent expert sented any evidence, and thus, had not “been fully heard” on
the informed consent claims.
evidence” of the risks. The circuit court agreed with
7 We note that the circuit court erred in concluding that Plaintiffs
Defendants, and stated: failed to establish an element of informed consent by not specifically
[T]he issue essentially is there’s not a legally cog- testifying that they would have withheld consent if properly informed of
nizable informed consent claim in this case.... the risks. We address this error in note 16 in Part IV.B, infra.
(continued)
or, in the Alternative, Motion for New Trial” (“Renewed With respect to Plaintiffs’ evidence at trial, the ICA
Motion”). Plaintiffs argued, inter alia, that JMOL on concluded that Dr. Towle’s testimony that he could not
the informed consent claim should have been entered opine on whether the risks should have been explained
in their favor because Defendant failed to provide to “[P]arents because Reglan ‘should not have been
statutorily mandated information pursuant to HRS § given [to Minor] no matter what in these circumstances
671–3(b) (Supp.2008)8 about (1) recognized alterna- [ ]’ ” “did not sufficiently elaborate on the probabilities
tive treatments and/or medications, and (2) recognized that Reglan treatment would be successful [.]” Id. The
material risks of serious complications or mortality ICA further concluded that Dr. Towle’s testimony
associated with the proposed treatment or procedure. “that Reglan posed a greater risk of gastric motility,
The circuit court denied Plaintiffs’ Renewed Motion i.e., diarrhea, than other anti-emetics” did not establish
at an October 14, 2009 hearing, and entered its order the frequency of occurrence nor significance of that
the following day. risk. Ngo, mem. op. at 17.
On November 13, 2009, Plaintiffs appealed the July Addressing Plaintiffs’ argument that Defendant’s
28, 2009 Final Judgment and October 15, 2009 order testimony in conjunction with the manufacturer’s
denying their Renewed Motion to the ICA. warning established the materiality of the risk, the
ICA concluded that “the manufacturer’s warning, in
C. Appeal to the ICA
and of itself, does not establish the materiality of risk
On appeal, the ICA affirmed the circuit court’s grant of of harm with respect to Reglan, because it does not
JMOL in Defendant’s favor, concluding that Plaintiffs’ constitute ‘expert testimony’ and does not permit a
“expert testimony presented at trial [did] not sufficiently legitimate inference regarding the materiality of the
establish the ‘materiality of the risk of harm’ imposed risk.”9 Ngo, mem. op. at 19 (citing Craft, 78 Hawai‘i at
by [Defendant’s] administration of ten milligrams 306, 893 P.2d at 157).
of Reglan to [Minor].” Ngo, mem. op. at 15. In partic- Finally, the ICA held that Plaintiffs waived their claim
ular, the ICA concluded that “expert testimony was not that Defendant “failed to provide statutorily mandated
adduced to establish the ‘probabilities of therapeutic information to [Minor’s] parents other than the risks
success’ or ‘the frequency of the occurrence of particular of Reglan ... [b]ecause Plaintiffs failed to raise this argu-
risks’ and therefore, Plaintiffs failed to carry their evi- ment to the circuit court[.]” Ngo, mem. op. at 22.
dentiary burden.” Ngo, mem. op. at 16 (citing Carr, 79
III. Standard of Review
Hawai‘i at 486, 904 P.2d at 500).
“A trial court’s ruling on a motion for judgment as a
matter of law is reviewed de novo.” Ray, 125 Hawai‘i
at 261, 259 P.3d at 577 (emphasis omitted) (citations
8 HRS § 671–3 (Supp.2008) provides, in relevant part:
omitted). Hawai‘i appellate courts apply the same stan-
(b) The following information shall be supplied to the patient or the
patient’s guardian or legal surrogate prior to obtaining consent to a dard as the trial court. Miyamoto v. Lum, 104 Hawai‘i 1,
proposed medical or surgical treatment or a diagnostic or therapeutic 7, 84 P.3d 509, 515 (2004) (citation omitted). Trial courts
procedure: apply the following standard:
(1) The condition to be treated; A motion for judgment as a matter of law may be
(2) A description of the proposed treatment or procedure;
granted only when after disregarding conflicting evi-
(3) The intended and anticipated results of the proposed treatment or
procedure;
dence, giving to the non-moving party’s evidence all
(4) The recognized alternative treatments or procedures, including the
option of not providing these treatments or procedures;
(5) The recognized material risks of serious complications or mortality
associated with: 9 The ICA explained that its holding “that no legitimate inference
(A) The proposed treatment or procedure; about the materiality of risks ... can be drawn from the Reglan
(B) The recognized alternative treatments or procedures; and manufacturer’s warning is consistent with case law in other juris-
(C) Not undergoing any treatment or procedure; and dictions, which hold that testimony that a treatment may or may
(6) The recognized benefits of the recognized alternative treatments not be safe does not establish risks pertinent to an informed
or procedures. consent issue.” Ngo, mem. op. at 20 (citations omitted).
(continued)
the value to which it is legally entitled, and indulging the statutory requirements. See Leyson, 5 Haw.App.
every legitimate inference which may be drawn from at 516, 705 P.2d at 46, overruled on other grounds
the evidence in the non-moving party’s favor, it can be by Bernard II, 79 Hawai‘i 362, 903 P.2d 667 (noting
said that there is no evidence to support a jury verdict that it was not clear from the language or history of
in his or her favor. HRS chapter 671 whether the legislative intent was to
Ray, 125 Hawai‘i at 261, 259 P.3d at 577 (brackets supplant Nishi’s general standards of required disclo-
omitted) (quoting Miyamoto, 104 Hawai‘i at 7, 84 P.3d sures). As the interplay between the common law and
at 515). the statute has not always been clear, we review the
development of the doctrine of informed consent.
IV. Discussion
A. An Overview of Informed Consent in Hawai‘i
Hawaii’s informed consent doctrine is generally based
on the policy judgment that “every human being of 1. The Common Law Doctrine of Informed Consent
adult years and sound mind has a right to determine The common law doctrine of informed consent was
what shall be done with his or her own body[.]” Leyson first recognized as a subset of medical negligence
v. Steuermann, 5 Haw.App. 504, 513, 705 P.2d 37, 44 actions. In Nishi, this court explained that the com-
(1985) (brackets and citation omitted), overruled on mon law doctrine of informed consent imposed upon a
other grounds by Bernard v. Char, 79 Hawai‘i 362, 903 physician “a duty to disclose to his patient all relevant
P.2d 667 (1995) (hereinafter “Bernard II”). “Physicians information concerning a proposed treatment, includ-
have an obligation to obtain the informed consent of ing the collateral hazards attendant thereto, so that the
their patients before administering diagnostic and patient’s consent to the treatment would be an intel-
treatment procedures.” Barcai v. Betwee, 98 Hawai‘i ligent one based on complete information.” 52 Haw.
470, 483, 50 P.3d 946, 959 (2002) (citing Carr, 79 at 191, 473 P.2d at 119 (citation omitted), overruled
Hawai‘i at 479, 904 P.2d at 493). It is “well-settled by Carr, 79 Hawai‘i 475, 904 P.2d 489.
that a physician owes a duty to a patient to disclose In determining the question of a physician’s liability
sufficient information about a proposed course of for nondisclosure, the Nishi court noted that “courts
treatment or surgical procedure so that the patient generally follow the rule applicable to medical malprac-
can make an informed and intelligent decision about tice actions predicated on alleged negligence in treat-
whether to submit to the treatment or surgical proce- ment which requires the question of negligence to be
dure [.]” Bernard v. Char, 79 Hawai‘i 371, 380, 903 P.2d decided by reference to relevant medical standards
676, 685 (App.1995), aff’d, 79 Hawai‘i 362, 903 P.2d and imposes on the plaintiff the burden of proving the
667 (hereinafter “Bernard I ”). applicable standard by expert medical testimony.” 52
Before the informed consent doctrine was codi- Haw. at 195, 473 P.2d at 121. The Nishi court then held
fied in HRS § 671–3, Hawai‘i courts recognized the that the “plaintiffs did not adduce any expert medical
common law doctrine of informed consent. See Nishi testimony to establish a medical standard from which
v. Hartwell, 52 Haw. 188, 191, 473 P.2d 116, 119 the jury could find that defendants deviated from their
(1970), overruled by Carr, 79 Hawai‘i 475, 904 P.2d duty....” 52 Haw. at 196, 473 P.2d at 121. Rather, the
489. The expert testimony requirements originated “defendants, by their testimonies, established the
in the common law. See, e.g., Mroczkowski v. Straub medical standard applicable to this case. The medical
Clinic & Hosp., Inc., 6 Haw.App. 563, 567, 732 P.2d standard so established was that [of] a competent and
1255, 1258 (1987) (trial court granted directed verdict responsible medical practitioner....” 52 Haw. at 196–97,
based on patient’s failure to introduce expert testimony 473 P.2d at 121.
as to specific risks of harm defendant was required to In 1976, the informed consent doctrine was codified
disclose); Bernard I, 79 Hawai‘i at 383, 903 P.2d at in HRS § 671–3.12 HRS § 671–3 (1976 Repl.) “directed
688 (adopting expert testimony requirements in dental the board of medical examiners (board) to specifically
malpractice case founded on the common law doc- itemize the probable risks and effects of each specific
trine of informed consent). When the doctrine was treatment or surgical procedure.” Mroczkowski, 6 Haw.
codified, Hawai‘i courts continued to utilize elements App. at 567, 732 P.2d at 1258. The resulting itemiza-
of the common law doctrine to analyze and interpret tions were to be prima facie evidence of the information
(continued)
a physician was required to disclose to a patient in in Bernard II, 79 Hawai‘i 362, 903 P.2d at 670. The five
order to obtain informed consent. Id. (explaining that elements are as follows:
the board’s standards were “admissible as evidence (1) [the physician] owed a duty to disclose to [the
of the required specific standards of care only if the patient] the risk of one or more of the collateral injuries
board’s specific standards [we]re designed to reason- that [the patient] suffered; (2) [the physician] breached
ably inform the patient of, inter alia, the recognized [his or her] duty; (3) [the patient] suffered injury; and
serious possible risks and complications of each spe- (4) [the physician’s] breach of duty was a cause of [the
cific treatment or surgical procedure”). The board, patient’s] injury in that: (a) [the physician’s] treatment
however, did not fulfill the statutory mandate because was a substantial factor in bringing about [the patient’s]
there were too many medical and surgical procedures injury and (b) [the patient], acting rationally and reason-
to provide such an itemization. 6 Haw.App. at 567, 732 ably, would not have undergone the treatment had he
P.2d at 1259. [or she] been informed of the risk of the harm that in
In Leyson, 5 Haw.App. 504, 705 P.2d 37, overruled fact occurred; and (5) no other cause is a superseding
by Bernard II, 79 Hawai‘i 362, 903 P.2d 667, the cause.
ICA first recognized the emerging confusion in Bernard II, 79 Hawai‘i at 365, 903 P.2d at 670 (alter-
the informed consent doctrine. First, the ICA ations in original) (quoting Leyson, 5 Haw.App. at
opined that that there appeared to be a conflict 516–17, 705 P.2d at 47); see also Barcai, 98 Hawai‘i
in Nishi regarding the scope of a physician’s duty. at 483–84, 50 P.3d at 959–60 (reaffirming the five ele-
The ICA explained that “Nishi initially describe[d] the ments required to establish a claim of negligent failure
[informed consent] doctrine as a precise and definite to obtain informed consent under Hawai‘i law).
duty[,]” 5 Haw.App. at 513, 705 P.2d at 44, on the part HRS § 671–3 was amended in 1983,13 and pro-
of the physician to disclose “all relevant information vided that the applicable general standard of informa-
concerning a proposed treatment, including the tion a physician was required to disclose, among other
collateral hazards attendant thereto, so that the things, was “all recognized serious possible risks of
patient’s consent to the treatment would be an intelligent harm and complications that the physician knew of or
one based on complete information[,]” 5 Haw.App. should have known [.]” Mroczkowski, 6 Haw.App. at
at 512, 705 P.2d at 44 (quoting Nishi, 52 Haw. at 191, 567, 732 P.2d at 1258; see also Keomaka v. Zakaib, 8
473 P.2d at 119), “but then it alternatively describe[d] Haw.App. 518, 525, 811 P.2d 478, 483, cert. denied, 72
the doctrine as a duty to comply with relevant medical Haw. 618, 841 P.2d 1075 (1991) (holding that a physi-
standards [ ]” by requiring plaintiffs to prove the cian owes a duty to disclose items set forth in HRS §
applicable medical standard of disclosure. 5 Haw. 671–3(b), “including the ‘recognized serious possible
App. at 513, 705 P.2d at 44. Second, the ICA noted risks’ and the ‘recognized possible alternative forms of
that the duty to inform had been codified in HRS § treatment[ ]’ ”).
671–3; however, it was “not clear from the language or
2. The Patient–Oriented Standard of Disclosure and
history of chapter 671 whether the legislature’s intent
Expert Testimony Requirements
was to supplant Nishi’s ambiguously defined duty of
disclosure.” 5 Haw.App. at 516, 705 P.2d at 46. The ICA Nishi and HRS § 671–3 left unresolved the question
also noted that under the common law, a “physician of the standard applicable to the tort of a physician’s
[was] not required to disclose risks that are unexpected negligent failure to obtain informed consent, as well
or immaterial, by whatever standard, nor ... risks that are as the role of expert testimony in establishing a prima
commonly understood, obvious, or already known to the facie case of negligent failure to obtain informed con-
patient.” 5 Haw.App. at 513–14, 705 P.2d at 45 (footnote sent. In Carr, 79 Hawai‘i 475, 904 P.2d 489, this court
omitted) (quoting W. Page Keeton, Dan B. Dobbs, Robert addressed these issues.
E. Keeton, and David G. Owen, Prosser and Keeton on This court first expressly adopted the “patient-ori-
The Law of Torts, § 32 at 192 (5th ed. 1984)). ented standard” to govern whether a physician owes
The ICA then set out five material elements for the a duty to disclose a particular piece of information
tort of a physician’s negligent failure to disclose risks to a patient prior to treatment, overruling Nishi to
of harm prior to treatment, which this court adopted the extent that it required a plaintiff to prove the
(continued)
applicable standard of disclosure of material risks Experts are ordinarily indispensable to identify and
prior to treatment by expert medical testimony. 79 elucidate for the factfinder the risks of therapy and the
Hawai‘i at 485, 904 P.2d at 499. Recognizing that consequences of leaving existing maladies untreated.
(1) Nishi was decided without the benefit of the They are normally needed on issues as to the cause of
seminal decision on the patient-oriented standard any injury or disability suffered by the patient.... Save
of disclosure, Canterbury v. Spence, 464 F.2d 772 for relative[ly] infrequent instances where questions of
(D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, this type are resolvable wholly within the realm of ordi-
34 L.Ed.2d 518 (1972); (2) the informed consent doc- nary human knowledge and experience, the need for
trine had been codified; and (3) the growing nation- the expert is clear.
wide trend favored the patient-oriented standard, 464 F.2d at 791–92, quoted in Carr, 79 Hawai‘i at
this court held that the dispositive inquiry regarding 486, 904 P.2d at 500.
a physician’s duty of disclosure in an informed con- In Barcai, this court reaffirmed our holdings con-
sent case was no longer “what the physician believes cerning the “materiality” of the risk in informed consent
his or her patient needs to hear in order for the cases. This court explained that “expert testimony
patient to make an informed and intelligent deci- will ordinarily be required” to establish the first aspect
sion[.]” 79 Hawai‘i at 486, 904 P.2d at 500. Rather, of “materiality” — “the ‘materiality’ of the risks, i.e.,
“the focus should be on what a reasonable person ‘nature of risks inherent in a particular treatment, the
objectively needs to hear from his or her physician probabilities of therapeutic success, the frequency
to allow the patient to make an informed and intel- of the occurrence of particular risks, and the nature
ligent decision regarding proposed medical treat- of available alternatives to treatment.’ ”10 98 Hawai‘i
ment.” Id. This court therefore held, “a plaintiff is
not required to prove the standard of disclosure
required for informed consent with medical expert
10 We note that expert testimony is not required in all situations. As
evidence[.]” 79 Hawai‘i at 487, 904 P.2d at 501.
stated infra, expert testimony is not required to determine what a rea-
In a footnote, this court differentiated between the sonable patient needs to hear in order to make an informed decision
standard of care and the standard of disclosure of regarding proposed medical treatment. In addition, expert testimony is
material risks prior to treatment with respect to the ordinarily, but not universally required to rebut a defendant physician’s
necessity of expert testimony as follows: justification of nondisclosure on the basis of the therapeutic privi-
It is clear that the standard of care for a claim lege exception. Barcai, 98 Hawai‘i at 486, 50 P.3d at 962 (“[W]here [a]
defendant physician justifies nondisclosure on the basis of the thera-
based on allegedly negligent medical treatment must
peutic privilege exception, expert testimony may be required to refute
be established by reference to prevailing standards of the contention.”). The therapeutic privilege exception “recognizes
conduct in the applicable medical community and must that, under some circumstances, disclosure of certain risks would not
be so proved by expert medical testimony because ... be in the patient’s best medical interests.” Carr, 79 Hawai‘i at 480, 904
“a jury generally lacks the requisite special knowledge, P.2d at 494. With regard to the necessity of expert testimony to rebut
the therapeutic privilege exception, this court has stated:
technical training, and background to be able to deter-
If the jury could evaluate the defendant physician’s testimony without
mine the applicable standard without the assistance
specialized expert knowledge, no such expert testimony is needed,
of an expert.” The standard of disclosure of material and the jury should be instructed on the informed consent issue.... It is
risks prior to treatment, however, as we have dis- only when the particular facts associated with the physician’s rationale
cussed above, is capable of determination under the for withholding disclosure involve “medical facts” that expert testi-
patient-oriented standard without reference to prevail- mony will be required to rebut the claim and allow the jury to consider
an informed consent claim.
ing medical standards or medical judgment, although
98 Hawai‘i at 486 n. 10, 50 P.3d at 962 n. 10.
such evidence may, subject to a Hawai‘i Rule of Evi- Barcai further stated that “all of the Hawai‘i cases cited since Nishi—
dence 403 balancing, be relevant and admissible. and [ ] Canterbury, as well— ... repeatedly discuss the exception in the
In further support of the conclusion in Carr that context of explicating ‘limits’ to the patient oriented standard, thereby
expert testimony is required in informed consent cases, suggesting that Hawai‘i appellate courts have intended this exception
to remain applicable.” 98 Hawai‘i at 485 n. 9, 50 P.3d at 961 n. 9 (cita-
this court cited the United States Court of Appeals for
tions omitted). We discuss the exception as illustrative of the necessity
the District of Columbia’s decision in Canterbury, 464
of expert testimony in informed consent cases. We do not address
F.2d 772. This seminal decision explained why expert the continued viability of the therapeutic privilege exception under the
testimony is critical in informed consent cases: current iteration of HRS § 671–3(b), as that issue is not before us.
(continued)
at 484, 50 P.3d at 960 (emphasis added) (quot- information, in particular, “recognized material risks of
ing Carr, 79 Hawai‘i at 486, 904 P.2d at 500 (citing serious complications or mortality [,]” as opposed to
Bernard I, 79 Hawai‘i at 383, 903 P.2d at 688)). This general standards of medical practice established by
court then explained that, “[b]ecause lay jurors do not the board and maintained the patient-oriented stan-
normally possess such information, it must be made dard from Carr. See S. Stand. Comm. Rep. No. 1228,
available to them by an expert[,]” so that the jury can in 2003 Senate Journal, at 1547; see also H.B. 651,
make a factual determination regarding the second H.D. 2, 22d Leg., Reg. Sess. (2003) (prior version of
aspect of “materiality” — the materiality of the medi- bill that became the 2003 act amending HRS § 671–
cal information to a patient’s decision, i.e., “whether a 3(b) contemplated switching to a physician-oriented
reasonable person would have wanted to consider the standard).
purportedly withheld information before consenting to In Ray, this court “interpreted HRS § 671–3(b) as
the treatment.” Id. (citing 79 Hawai‘i at 486, 904 P.2d supplying the standard for a physician’s duty to
at 500). The second aspect of materiality does not disclose information to the patient.” 125 Hawai‘i at 266,
require expert testimony, although, as recognized by 259 P.3d at 582. Under HRS § 671–3(b) (Supp.2008),
footnote 6 from Carr quoted above, expert testimony a physician’s duty to inform encompasses four sepa-
can also be helpful. rate duties: (1) the general duty to supply information
Following Barcai, HRS § 671–3 was amended in about a proposed medical treatment or procedure
2003 (effective January 1, 2004) to integrate advances embodied by HRS § 671–3(b)(1)–(3); (2) the duty
to legal and medical standards regarding the materi- to inform the patient of recognized alternative treat-
ality of the risk of harm. See 2003 Haw. Sess. Laws ments or procedures, including the option of not pro-
Act 114, § 2 at 221–222; see also S. Stand. Comm. viding these treatments or procedures, as provided
Rep. No. 1228, in 2003 Senate Journal, at 1547. HRS in HRS § 671–3(b)(4); (3) the duty to warn of material
§ 671–3 (Supp.2003)11 mandated disclosure of specific risks as provided in HRS § 671–3(b)(5); and (4) the duty
to inform patients of the recognized benefits of any
11 HRS § 671–3 (Supp.2003) provided, in relevant part:
recognized alternative treatments or procedures as
(a) The board of medical examiners may establish standards for health provided in HRS § 671–3(b)(6).
care providers to follow in giving information to a patient, or to a Under HRS § 671–3(b)(5)(A), Plaintiffs’ main claim,
patient’s guardian or legal surrogate if the patient lacks the capacity a physician is required to inform patients of “recog-
to give an informed consent, to ensure that the patient’s consent to nized material risks of serious complications or mor-
treatment is an informed consent. The standards shall be consistent
tality associated with ... [t]he proposed treatment or
with subsection (b) and may include:
(1) The substantive content of the information to be given; procedure[.]” Thus, at trial, a plaintiff alleging a viola-
(2) The manner in which the information is to be given by the health tion of this subsection bears the burden of presenting
care provider; and expert medical evidence to establish prima facie that
(3) The manner in which consent is to be given by the patient or the the risk of harm to which the plaintiff was subjected is
patient’s guardian or legal surrogate.
a “recognized material risk[ ] of serious complications
(b) The following information shall be supplied to the patient or the
patient’s guardian or legal surrogate prior to obtaining consent to a
or mortality associated with ... [t]he proposed treat-
proposed medical or surgical treatment or a diagnostic or therapeutic ment or procedure[.]” Cf. Ray, 125 Hawai‘i at 268, 259
procedure: P.3d at 584 (holding that a “plaintiff will need to show
(1) The condition to be treated; that the medical community recognizes the different
(2) A description of the proposed treatment or procedure; dosage as an alternative treatment” in an HRS § 671–
(3) The intended and anticipated results of the proposed treatment or
3(b)(4) claim). “[E]xpert ‘testimony is not c onclusive
procedure;
(4) The recognized alternative treatments or procedures, including the and like any testimony, the jury may accept or reject
option of not providing these treatments or procedures; and it.’ ” 125 Hawai‘i at 262, 259 P.3d at 578 (quot-
(5) The recognized material risks of serious complications or mortality ing Bachran v. Morishige, 52 Haw. 61, 67, 469 P.2d
associated with: 808, 812 (1970)).
(A) The proposed treatment or procedure
Once a plaintiff adduces expert testimony establish-
(B) The recognized alternative treatments or procedures; and
ing prima facie that the risk of harm that occurred is
(C) Not undergoing any treatment or procedure; and
(6) The recognized benefits of the recognized alternative treatments a “recognized material risk[ ] of serious complication
or procedures. or mortality[,]” whether the physician was required to
(continued)
supply that information to the patient prior to obtaining C. The ICA Erred in Concluding that Plaintiffs
consent is a question for the factfinder that does not Waived Their Claim that Defendant Failed to Pro-
require expert testimony, although, as noted in the quo- vide Other Statutorily Mandated Information
tation from Carr, supra (citing Craft), expert testimony
Plaintiffs also contend that the ICA erred in ruling that
can also be relevant and admissible. See 79 Hawai‘i at
they waived their argument that Defendant failed to
485 n. 6, 904 P.2d at 499 n. 6 (citation omitted). In other
provide all statutorily required disclosures, including
words, the jury, applying the patient-oriented standard,
information about “alternative treatments or medica-
decides “what a reasonable person objectively needs
tions, the risks of Reglan and alternative treatments,
to hear from his or her physician to allow the patient
or the alternative of no treatment, or the benefits
to make an informed and intelligent decision regarding
of Reglan and its alternatives, including the alternative
proposed medical treatment.” Ray, 125 Hawai‘i at 267,
of no treatment.”
259 P.3d at 583 (quoting Carr, 79 Hawai‘i at 486, 904
Plaintiffs assert that they in fact raised the non-
P.2d at 500) (quotation marks omitted).
disclosure issue. Plaintiffs specifically alleged in
B. The Circuit Court Erred in Granting JMOL their complaint that Defendant treated Minor “with-
Because Reglan’s Package Insert Combined With out obtaining the informed consent of Plaintiff,” and
Expert Testimony Sufficiently Established the Mate- “failed to adequately inform Plaintiffs of the nature of
riality of the Risk of Reglan the treatment and risks thereof [.]” Although Plaintiffs’
complaint omitted the specific statutory provisions,
Plaintiffs argue that the ICA erred in concluding that
Plaintiffs’ allegation that Defendant treated Minor
they failed to establish the materiality of the risk by
“without obtaining the informed consent of Plain-
expert testimony, and in affirming the circuit court’s
tiff[ ]” clearly implicated a physician’s duty of disclo-
grant of JMOL in Defendants’ favor on that basis. Plain-
sure, which includes the duties enumerated in HRS §
tiffs assert that the manufacturer’s warning, in combi-
671–3(b).
nation with expert testimony as to the significance of
We recently ruled on the scope of a physician’s duty
that information, sufficiently established the materiality
under HRS § 671–3(b)(4) in Ray, 125 Hawai‘i 253, 259
of the risk of harm to which Minor was subjected when
P.3d 569. The plaintiffs in Ray adduced evidence in
Defendant administered Reglan to Minor. We agree.
support of their contention that recognized alternative
“Claims for negligent failure to obtain informed con-
dosing regimens of the same treatment had a lower
sent typically arise when a plaintiff patient alleges that
risk of the harm the patient ultimately suffered. 125
the defendant physician failed to warn the patient of a
Hawai‘i at 267, 259 P.3d at 583. The defendants moved
particular risk associated with the procedure and the
for JMOL on the issue of informed consent because it
particular risk ultimately occurred.” Barcai, 98 Hawai‘i
was undisputed that defendants informed the patient
at 483, 50 P.3d at 959.
of the risk of injury that occurred. 125 Hawai‘i at 265,
To establish a claim of negligent failure to
259 P.3d at 581…
obtain informed consent under Hawai‘i law, the plaintiff
must demonstrate that: (1) the physician owed a duty V. Conclusion
to disclose the risk of one or more of the collateral inju-
Based on the evidence adduced at trial, the circuit
ries that the patient suffered; (2) the physician breached
court erred in granting JMOL in favor of Defendants
that duty; (3) the patient suffered injury; (4) the physi-
on Plaintiffs’ informed consent claims. Because
cian’s breach of duty was a cause of the patient’s injury
the court did so at the end of Plaintiffs’ case, how-
in that (a) the physician’s treatment was a substantial
ever, the defense may not have been fully heard on
factor in bringing about the patient’s injury and (b) a rea-
the informed consent claims. Although we answer
sonable person in the plaintiff patient’s position would
Plaintiffs’ first question on certiorari in the affir-
not have consented to the treatment that led to the
mative and rule that Plaintiffs presented sufficient
injuries had the plaintiff patient been properly informed;
evidence to have the jury consider their informed con-
and (5) no other cause is a superseding cause of the
sent claims, we decline to answer the second
patient’s injury…
(continued)
question. 12 Accordingly, we vacate in part (1) the order granting Defendants’ motion for JMOL as to
ICA’s February 11, 2014 Judgment on Appeal as to Plaintiffs’ informed consent claims and its award of
Plaintiffs’ informed consent claims; and (2) the circuit costs, and remand the case to the circuit court for
court’s July 28, 2009 Final Judgment as well as its further proceedings consistent with this opinion.

Patricia is under the care of a doctor for the treatment of recurring gastrointestinal infections. She is admitted
to the hospital and treated intravenously with the antibiotic Flagyl, which is a potent antibiotic with severe
side effects. She develops peripheral neuropathy as a result of the Flagyl treatment and argues that her
doctor failed to inform her of the risks of this antibiotic. Does the doctrine of informed consent apply to the
intravenous administration of a therapeutic drug in a state that has a battery standard rather than a negli-
gence standard for informed consent?
Defenses to Professional contributory negligence, comparative negligence,

or assumption of risk. To allege contributory negli-
Negligence gence, the defendant must show that the plaintiff’s
negligence was concurrent with their own. If the
A plaintiff attempting to prove professional neg-
plaintiff’s negligence merely added to the effects of
ligence must prove both the standard of care
the defendant’s negligence, the defendant will not
expected within the profession and the defendant’s
be relieved of liability. The damages awarded to the
deviation from that standard. To do this requires
plaintiff, however, may be reduced. Exhibit 9–2 lists
expert testimony, which is usually provided by a pro-
defenses to the charge of professional negligence.
fessional in that same area of practice. If the defen-
dant is a specialist, the expert is typically a specialist
in the same area. The expert witness must also be Contributory Negligence
familiar with the procedures or techniques used in Typically, when the defense of contributory negli-
the case, although they need not follow the same gence is raised, the defendant argues that the client
practices. refused to comply with their instructions or were oth-
In courts that follow the locality rule, the expert erwise uncooperative. If a client lies to their attor-
must be familiar with the standard of care in the rel- ney about the facts of the case, they cannot later
evant community or similar communities. The plain- claim that the attorney was negligent, because the
tiff also has the burden of proving that their injuries, attorney relied on the client’s veracity in making stra-
more probably than not, resulted from the negli- tegic decisions. The same goes for a patient and
gence of the professional (duty, breach of duty, prox- physician. If a patient neglects to tell their physician
imate cause). about any past medical issues or reactions, they can-
The professional can then choose either to not claim the physician was negligent because they
refute the plaintiff’s factual allegations of neg- relied on truthful medical history. If, however, the
ligence or to raise the affirmative defenses of client’s negligence merely compounded the attor-
ney’s negligence, the attorney will remain liable and
12 See supra notes 4 (questions on certiorari) and 8 (regard- the plaintiff’s damages will simply be reduced. In
ing HRCP Rule 50, which governs JMOLs). the medical arena, a physician may argue that the
Exhibit 9–2 Defenses to Professional Negligence
• Rebut plaintiff’s factual allegations.

• Prove plaintiff was negligent and that plaintiff’s negligence was concurrent with professional’s negligence.
• Prove plaintiff assumed the risk by knowingly and voluntarily consenting to risks involved in their
treatment.
• Prove state of emergency (in medical situations).
patient contributed to their injuries by delaying so What constitutes adequate care in an emer-
long in seeking medical attention that the condition gency depends on the circumstances in which the
became untreatable. The physician would then have emergency occurs. A doctor intent on treating a
to prove that the untoward effects suffered by the severe head injury who fails to notice a fractured arm
patient were the sole result of the patient’s procras- may or may not be considered negligent for their
tination and that the physician was not in any way failure to diagnose the fracture. Such a question
negligent themself. would be submitted to the jury for its determination
of whether the doctor’s conduct conformed to the
Assumption of Risk expectations for a reasonable doctor working under
those conditions.
Related to the issue of informed consent is the doc-
trine of assumption of risk. A patient who under-
stands the risk involved in treatment and knowingly
consents to that treatment can be said to have
Maintaining Adequate
assumed the risk. Of course, if those risks are not Records
carefully explained or the plaintiff does not clearly
Maintenance of adequate records on a client’s case
understand them, this defense is inapplicable. No
may be of critical importance in proving that no
client can assume the risk of negligent care. For
negligence occurred. Professionals should there-
example, a physician who advises a patient regard-
fore allocate sufficient time for the completion of
ing the risk involved if given improper care and then
such records even though it may seem a frivolous
provides improper care cannot claim that the patient
expenditure of valuable time when being done.
assumed the risk.
The passage of time weakens our memories. There-
fore, a professional confronted with a lawsuit one,
Emergency Situations two, or more years after they last saw the client may
In medical situations the defense of emergency can not remember anything about the case. They will
also be used. Treatment given during a life-and- be grateful in that circumstance if they can locate
death emergency is not required to be of the same records that can be used to refresh their recollection
level of care as that provided under less stressful and that they can use to establish their defense. Of
circumstances. If death is imminent and treatment course, such records can also be used to build the
is absolutely necessary for the patient’s protection, plaintiff’s case.
the defense of emergency may be a viable defense Acquiring medical records may present a prob-
to a claim of negligent treatment. A patient who suf- lem, because the physical record itself is consid-
fers brain damage subsequent to being treated for ered the property of the healthcare provider. The
a cardiac arrest, for example, may file a negligence content of the record, however, is usually consid-
claim for their damages, but will most likely meet ered to be the patient’s property, so if the patient
with the defense of emergency. However, if the will waive the physician-patient privilege, most
emergency is caused by the physician’s negligence, state laws require that the record be released
they cannot use it as a defense. The physician in to them. Trial courts have uniformly ordered the
such cases bears the burden of proving that an release of such records. In a personal injury case
emergency in fact existed and that it was not due in which the plaintiff has made their medical prob-
to any fault of their own. lems the subject of litigation, all relevant medical
records are subject to subpoena by the defendant. only the tip of the iceberg; it is estimated that only
If the defendant professional, for example, claims 10 percent of legal malpractice ever becomes an
that the plaintiff’s injuries preceded the damages insurance claim. (For references to the statistics
the plaintiff alleges were caused by the defendant, cited here and for further reading, see Manuel
the defendant has a right to subpoena the records Ramos, “Legal Malpractice: Reforming Lawyers
of physicians who previously treated the plaintiff for and Law Professors,” 70 Tulane L. Rev. 2583 [June
related complaints. 1996].)
The ABA Standing Committee on Lawyers’ Pro-
fessional Liability, after conducting a study for the
years 1996–1999, concluded that the frequency
Underlying Causes of and severity of claims against lawyers increase
Professional Negligence as there is a downturn in the economy. Mirroring
Suits the stable economy of the late 1990s, the claims
against lawyers remained very stable. (To see the
Professional negligence claims appear to be on actual statistics arising out of this study, you can
the rise, particularly those involving attorneys. review the book Profiles of Legal Malpractice
Mandatory continuing legal education programs Claims: 1996–1999 from the American Bar Asso-
in almost every state and the increasing cost of ciation.) Interestingly, this same study found that
malpractice insurance premiums attest to the nearly 68 percent of the malpractice claims filed
increased incidence of professional negligence against lawyers resulted in no payment at all to the
suits against attorneys. claimant, and that only a little more than 1 percent
As of 1992, malpractice claims cost lawyers and of the cases resulted in a judgment for the plain-
their insurers over $4 billion each year, and these tiff. (For references to the statistics cited here and
costs were projected to increase, according to for further reference, see Steven Berenson, “Is It
Robert O’Malley of Attorneys’ Liability Assurance Time for Lawyer Profiles?” 70 Fordham L. Rev. 675
Society, the nation’s largest malpractice insurance [December 2001].)
carrier. The annual claims for doctors is on par with Today’s lawyer can anticipate having three or
that for attorneys, although the per capita amount more claims filed against them before they finish
paid for malpractice claims is significantly higher for their career. The attorney most likely to be sued is
lawyers than doctors (because at least 40 percent the litigator. The statistics from about 30,000 legal
of the nation’s lawyers are uninsured). Some states malpractice claims gathered by the American Bar
have now required those attorneys who are unin- Association’s Standing Committee on Lawyers’ Pro-
sured to disclose that fact to clients and potential fessional Liability show that plaintiffs’ personal injury
clients. Some attorneys think having malpractice lawyers account for about 25 percent of all claims
insurance encourages lawsuits, and others prac- nationwide and as high as 31 percent in California
tice part-time and cannot justify the exorbitant (taken from a 1986 study conducted by the ABA
costs. Although much press has been devoted to National Data Center for Malpractice). When claims
exorbitant jury awards, legal malpractice costs are against lawyers arising out of litigation in other areas
greater than what is collected annually from puni- of law—such as business, property, and family law—
tive and compensatory damages awarded by juries are included, the allegations against litigation attor-
nationwide (in 1992 about $5.8 billion was awarded neys account for almost 50 percent of all claims.
in total damages by juries, of which approximately Furthermore, these same statistics document
$580 million was due to punitive damages). The that the greatest number of errors committed by lit-
reported number of malpractice claims represents igators are administrative errors. Interestingly, such
In the News
To read the U.S. Health and Human Services Department’s Summary of the HIPAA Privacy Rule, go to
www.hhs.gov or www.cdc.gov and enter “HIPAA Federal law” as your search term.
errors are 100 percent greater for plaintiffs’ personal their damages should be. Those watching televi-
injury lawyers than for lawyers in general. (Admin- sion shows about life in the medical and legal fields
istrative errors constitute 26 percent of all claims in may expect the professionals they deal with to have
general and 50 percent of all claims against plain- the same charismatic persona and demonstrate the
tiffs’ personal injury lawyers.) Forty percent of the same infallibility they see depicted on television.
administrative errors involve failure to file actions in a When reality does not conform to their expectations,
timely manner, usually because of missed statutes of some seek recourse by filing suit.
limitation. Surprisingly, experienced lawyers account
for a disproportionate number of these claims.
Although the public has become more sophis-
ticated in terms of its legal rights, the primary cul-
How to Prevent
prit behind many malpractice claims is a breakdown Professional Negligence
in communication. Poor client relations is proba-
bly the single most important factor contributing
Suits
to these claims. The most common complaint lev- Although professionals can do little to counteract this
ied against attorneys, according to most state bar sort of publicity, they can take several steps to improve
organizations, is lack of communication with their client relations (see Exhibit 9–3). First, they can ensure
clients. Many attorneys are notoriously bad about that their workload does not exceed their capacity to
returning telephone calls to clients or advising perform. Many professionals, fearful of experiencing a
clients about the status of their case. The failure decline of clients in the future, take on more clients
of lawyers to communicate with their clients has than they can possibly handle at one time. Juggling
resulted in so many disciplinary and civil complaints an unrealistic workload forces them to cut corners, and
that the American Bar Association’s Model Rules of the first corner usually cut is client communication.
Professional Conduct now include Rule 1.4, which Therefore, professionals should accept no more clients
requires clients to be kept “reasonably informed than they can reasonably handle and hire enough sup-
about the status” of the case and lawyers to port staff to sufficiently help.
promptly respond to reasonable requests for infor- Second, professionals need to learn how to
mation. Failure to return phone calls when there are manage their businesses. Most have dedicated
overt requests for help or information is considered many years of their lives to honing their technical
particularly egregious and may be grounds for a
negligence claim.
Professionals can maintain a good rapport with
Exhibit 9–3 Ways to Avoid Malpractice
their clients by talking openly with clients about
Exposure
their problems, listening to their complaints, and
behaving in a manner that indicates they respect • Maintain a reasonable workload
their clients. Those who do so are far less likely to • Calendar deadlines; maintain a back-up
be sued for negligence, even when they make mis- calendar
takes, than are those who act as if they do not have • Maintain client confidences
time to spend with their clients or treat clients in a • Be alert to client dissatisfaction
paternalistic, disdainful manner. • Keep clients well informed
Another possible explanation for the increase in • Return client phone calls and respond to
malpractice claims is the unreasonable expectations client correspondence in a timely fashion
many plaintiffs have as a result of what they hear • Keep client files well organized
from friends and what they learn from the media. • Use management techniques and devices
The media tends to glamorize personal injury cases, that enhance efficiency
for example, by heavily publicizing large jury awards • Allocate the time necessary to complete tasks
and then only casually mentioning when those completely
awards are reduced, or the verdicts are overturned. • Bill periodically and in detail; monitor accounts
People compare these multimillion-dollar awards receivable on a regular basis
to their own claims and unrealistically assess what
skills, but few have allocated much time or attention maintained. Therefore, it is often up to the legal
to consideration of the management of their prac- assistant to make sure that faxes, electronic mail
tices. Simple, inexpensive management devices (e-mail) and other computer-generated information
that would make them more efficient and less likely are reviewed periodically to ensure confidentiality
to commit silly errors of omission are often over- and that client conferences are conducted in places
looked, as are the importance of legal assistants where privacy is protected.
and paralegals.
Third, professionals must be willing to dedicate
Unauthorized Practice of Law
the amount of time necessary to handle a client’s One of the axioms by which the paralegal profes-
problem competently. Consequently, if research sion operates is that legal assistants cannot give
should be done or if other practitioners should legal advice. Doing so constitutes the unauthorized
be consulted, the professional must be willing to practice of law and can be the basis of a malpractice
expend the time and money necessary to do this. claim. The question, however, is, what constitutes
Professionals who constantly take shortcuts in this legal advice? Does suggesting to a client that they
area are on the verge of malpractice claims. might want to consider filing a particular motion
constitute legal advice? What about conducting
Role of Legal Assistants research to determine the meaning of a particular
statute? Case law is generally not helpful in answer-
Confidentiality ing these types of questions. You may find it more
One way to prevent malpractice claims is to ensure enlightening to consult attorney general and ethics
that client confidences are maintained. In accor- committee opinions rendered in your state, as well
dance with the attorney-client privilege, confiden- as the state guidelines.
tial information between an individual and their Most importantly, consult with your attorney
attorney cannot be disclosed unless the individ- as to what tasks you should perform. Clarify, for
ual consents to the disclosure. Any information example, what your role should be in dealing with
exchanged between a client and their attorney clients. Determine what types of questions you
that is not disclosed to a third person is considered should answer yourself and which ones you should
confidential. Disclosure to a third person does not refer to the attorney. Most attorneys are careful
waive the privilege if the person to whom the infor- about supervising the work of their legal assistants
mation is disclosed receives it for the purpose of because they are aware that the ultimate responsi-
furthering the client’s interest or the disclosure is bility for any work product lies with them. Never-
necessary for the communication of information. If, theless, some attorneys, because of their workload
for example, an attorney writes a letter to a private or outright carelessness, are less than diligent in
investigator outlining the case so that the investi- carrying out their supervisorial tasks. In some cases,
gator has sufficient information to begin work, the you may have to insist that an attorney review your
letter is considered privileged because the informa- work. If an attorney should ever gloss over their
tion is intended to further the client’s interest. Once refusal to carry out their review responsibilities by
a privilege is lost, it cannot be regained. Therefore, assuring you of their implicit trust in you, do not
a legal assistant must never do anything that could be unduly flattered. For the protection of all con-
jeopardize the attorney-client privilege. cerned, it is imperative that you work under the
This privilege may be claimed by the individ- auspices of an attorney or risk losing your career.
ual, their attorney, or anyone authorized to claim The question regarding the appropriate scope
the privilege on behalf of the individual, such as of duties of legal assistants is further complicated
a representative of the client’s estate. All employ- by the close working relationship legal assistants
ees of an attorney or law firm are subject to any often establish with clients. Some clients have more
prohibitions regarding disclosure and must not contact with the legal assistant than with the attor-
disclose privileged information to spouses or any- ney, so these clients may naturally turn to the legal
one else. As the intermediary between support assistant for legal advice. Even though the legal
staff and lawyers, the legal assistant is often in the assistant may know the answer, they must confirm
best position to ensure that client confidences are the answer with an attorney. Failure to do so can
result in problems for the attorney, the legal assis- Trust Accounts
tant, and the client. Furthermore, incorrect advice Although attorneys cannot delegate ultimate
may lead to a malpractice claim against the attorney responsibility for client trust accounts to anyone,
and the firm, and an ethics complaint against the legal assistants can make sure that the trust account
attorney who allowed the legal assistant to engage can be quickly and accurately reviewed by the attor-
in the unauthorized practice of law. ney each month. Legal assistants must exhibit great
care in dealing with clients’ money and remember
Client Relations that they are doing so on behalf of the client and
Despite the caveat against giving legal advice, legal under the direction of the attorney. Courts show no
assistants can do their part to prevent professional mercy when discrepancies concerning trust accounts
negligence claims by improving client relations. arise, even when the attorney was merely careless.
A legal assistant can maintain close contact with
clients, informing them of the progress of their cases, Filing and Court Date
listening to their concerns, and answering their Legal assistants can also assume responsibility for
questions. By doing these things they can shield the meeting filing dates. By using management tools,
attorney from some of the time-consuming interper- such as “tickler” systems, to alert them to upcom-
sonal tasks that make for good rapport with clients ing deadlines, they can minimize the chances of
but are often avoided by attorneys because of their missing important filing and court dates (including
limited time. trial dates, trial setting conferences, depositions,
Making clients aware of the strengths and weak- and brief due dates). Because legal assistants must
nesses of their case and keeping them apprised as be intimately familiar with the procedural rules
to the status of their case minimizes exposure to and customs of the courts in their jurisdiction, you
malpractice claims. Additionally, regular communica- should pay special attention to procedural law
tion helps create realistic expectations on the part of courses in your program of study.
the client and reassures the client that their case is
important to the firm.
Maintenance of Documents and Files

Medical Malpractice Crisis
Because legal assistants often bear the responsibility In the late 1950s, medical malpractice lawsuits were
for maintaining documents and files, they can make filed against one out of seven doctors. In 1969,
sure files are well organized so that information after a hearing on the issue, Congress determined
can be easily retrieved. Having information but not that the so-called medical malpractice crisis did
being able to access it is almost as bad as not having not exist. Most doctors did not carry medical mal-
the information at all. Client relations suffer when a practice insurance prior to 1970 (Ann Louis Zarwick,
client comes to the office to discuss their case and “Damages Deferred: Determining When a Cause of
the attorney cannot locate relevant documents in Action Begins to Accrue for a Cancer Misdiagnosis
the file. All files should be reviewed periodically to Claim,” U. Tol. L. Review, 445 [Winter 2010]). By the
ensure that all necessary documents are included mid-1970s a medical malpractice crisis was declared
and that they are organized logically. Although doc- because of the increase in the amount of litigation
ument control has been made more efficient with since the 1960s, the size of the judgments some-
computer technology, the legal assistant should still times awarded, and the continued increase in the
back up all information in the computer so that data cost of medical malpractice insurance.
is not lost if the computer malfunctions. Studies, however, indicate a leveling off of
Legal assistants must also ensure that informa- claims since 1985. In 1994, the American Medical
tion requested on behalf of a client is received in a Association reported that since the large increases
timely manner. If, for example, medical records are of the early 1980s, the number of claims against
requested from healthcare providers, the legal assis- hospitals and physicians dropped at an average
tant should track these records to make sure they rate of 1.9 percent per year (Martin L. Gonzalez,
have been received and appropriately filed by using Socioeconomic Characteristics of Medical Practice
a computer program or a calendar. 41 [1994]). Some attribute this decrease to the high
procedural cost associated with filing a medical mal- You would be prudent, therefore, to consult the
practice claim, which includes outlays for medical statutes in your state when getting involved in a
reports, second opinions, and expert witnesses. medical malpractice case.
A multidisciplinary team from Harvard examined Some statutes imposing limitations on the dam-
more than 100,000 medical, legal, and insurance claim ages recoverable in medical malpractice cases have
records from New York, Utah, and Colorado and inter- been challenged as a denial of equal protection and
viewed thousands of doctors and patients over more held invalid. One court, for example, concluded that
than a decade in its evaluation of malpractice liabil- a limitation on recovery not only created an arbi-
ity’s impact on the healthcare system. It concluded trary classification between malpractice victims and
that approximately 1 percent of hospitalized patients denied full recovery to the most seriously injured
are victims of medical malpractice, with conse- malpractice victims, but also constituted special leg-
quences ranging from complete recovery in less than islation that violated the equal protection provision
one month (46 percent of those negligently injured) of the state’s constitution. Florida recently became
to death (25 percent of those negligently injured). If the seventh state to hold malpractice caps unconsti-
these figures are extrapolated to the entire nation, tutional under the Florida constitution when it ruled
medical negligence accounts for 120,000 deaths that medical malpractice wrongful death claims
each year. Only approximately 2 percent of those who could not be capped (Estate of McCall v. United
were negligently injured filed a claim, but a substan- States (Fla. Mar. 13, 2014). Caps, it is argued, are not
tial majority of claims were filed in cases in which there necessary, as excessive jury awards can be reduced
was no negligence. However, for every invalid claim by judges through their remittitur powers.
filed against a doctor or hospital, seven valid claims go Some states require pretrial review panels to
unfiled. (For references to the statistics cited here and hear malpractice claims, providing that these claims
for further reference, see David Hyman, “Medical Mal- must be submitted to a panel for findings on the
practice and the Tort System: What Do We Know and issues of liability or damages or both before pro-
What (If Anything) Should We Do About It?” 80 Tex. L. ceeding to trial. Some of these statutory provisions,
Rev. 1639 [June 2002].) which are designed to encourage settlement, have
There is emerging scholarly consensus “that the been attacked as a denial of the constitutional right
core problem is one of patient safety” as opposed of access to the courts.
to malpractice litigation (Abigail R. Moncrieff, “Fed- A few states have enacted legislation called prac-
eralization Snowballs: The Need for National Action tice guidelines, which define the standard of care to be
in Medical Malpractice Reform,” 109 Colum. L. used in certain clinical situations. The standardization of
Rev. 844 [2009]). In 1999, the Institute of Medicine minimal actions necessary for care protects physicians
reported that 98,000 medical-error–related deaths from malpractice suits and discourages physicians from
occurred every year, making medical errors the practicing defensive medicine (e.g., ordering additional
eighth leading cause of death in the United States and arguably unnecessary tests and procedures to
(The Institute of Medicine, To Err is Human: Building minimize the chances of being sued for malpractice).
a Safer Health Care System, National Academy Press Under this system, doctors need only demonstrate that
[2000]). they have complied with the guidelines to avoid litiga-
Legislators attempting to slay the “malpractice tion. How much weight at trial is given to these guide-
dragon” have enacted legislation resulting in mod- lines, however, is up to the trier of fact.
ification of the informed-consent doctrine, the bur-
den of proof, evidentiary rules, shortening statutes
of limitation, the awarding of punitive damages, Local Links
the setting of the standard of care, mandating What is the most recent legislature in your
medical review panels or hearings prior to filing a state regarding attorney malpractice?
lawsuit, and imposing a statutory cap on damages.
In the News
To read more about statutes passed in reaction to the perceived medical malpractice crisis, go to www
.lectlaw.com and enter “special medical malpractice statutes” as your search term.
Summary
Professionals are held to a reasonable standard informed decision. If no information is disclosed, or
of care, in that they are required to have the skill if the physician obtains consent for one procedure
and learning commonly possessed by members in and then opts to perform another, the patient may
good standing within their profession. Choosing a sue for battery. If, however, the patient is simply
course of action that other professionals might not uninformed as to the nature of the risks involved,
have chosen or that results in an undesirable they may sue for negligence. With the latter cause
outcome does not necessarily make a professional of action, the key question is whether the risks that
negligent. Lack of proper training, failure to refer to were not disclosed were material risks. Adequate
a specialist when necessary, failure to stay abreast of records should always be maintained so that the
new discoveries, and failure to follow up on a client’s professional’s memory can be refreshed in the event
progress may all constitute negligence. Specialists of a lawsuit.
are held to the standard of care of a “reasonably There are several ways in which professionals can
careful and prudent specialist.” Unlike generalists, help to mitigate professional negligence lawsuits. The
specialists must adhere to a national standard of most important is to ensure that their workload does
care rather than a local one. not exceed the professional’s capacity to perform. Effi-
The doctrine of informed consent requires that cient management is also important as is spending
a physician warn patients of possible hazards, com- adequate time with each client to competently han-
plications, and expected and unexpected results dle their case. Having enough support staff is critical
of treatment as well as possible risks of alternative and maintaining privilege among those assistants is
treatments. This duty increases as the probabil- also key. Keeping accurate files and trust accounts as
ity or severity of risk to the patient increases. How well as staying on top of all court deadlines is crucial
much information must be disclosed to the patient to preventing professional negligence or malpractice.
depends on the situation, but enough informa- If a professional does all of these things it will keep the
tion must be given so that the patient can make an negligence cases at a minimum.
Key Terms
fiduciary relationship informed consent
Relationship based on trust and confidence that Knowledgeable consent based on disclosure
imposes an obligation to act in good faith; an of all relevant facts that allows one to make an
example is the attorney-client relationship informed decision
Review Questions
1. Are all professionals held to a local or national 5. To what standard of care is a specialist held?
standard of care? National or local?
2. Is it professional negligence by definition if the 6. What does the informed-consent doctrine

client experiences a negative outcome? require doctors to disclose?
3. Is it professional negligence if they choose a 7. What is the difference between a negligence

course of action that is different from the one that and a battery cause of action based on failure
many other professionals would have chosen? to inform?
4. List at least five ways that a professional can 8. What is a plaintiff alleging malpractice required
commit malpractice. to prove?
9. Must a plaintiff’s negligence add to or be 17. Name three things attorneys can do to prevent
concurrent with a defendant professional’s professional negligence suits?
negligence for the defendant to be relieved of
liability? 18. What communications does the attorney-client
privilege protect?
10. What does a professional who decides to a. How is this privilege waived?
allege contributory negligence usually argue? b. Who is subject to this privilege?
c. What should legal assistants do to preserve
11. Under what conditions can a patient be said to this privilege?
have assumed the risk?
19. What types of activities constitute the unautho-
12. When is the defense of emergency a viable rized practice of law?
defense to a claim of negligence? When is it not?
a. Why is it important that attorneys review
13. Why is it important for professionals to main- all of the work produced by their legal
tain adequate records? assistants?
b. How does the relationship legal assistants
14. To whom do medical records belong? When have with clients complicate the issue of
do defendants have a right to these records? unauthorized practice of law?
15. Are professional negligence suits increasing or 20. Why is it important for legal assistants
decreasing? a. to promote good client relations?
a. What percentage of legal malpractice b. to create well-organized files?
claims become insurance claims? c. to handle client monies carefully?
b. How many claims are filed against most d. to meet all filing dates?
attorneys?
c. Do most of these claims result in recovery of 21. Are medical malpractice claims increasing or
damages? decreasing?
d. What kind of attorney is most likely to be
sued, and what type of error does this attor- 22. What have some states done in an effort to
ney typically commit? reduce the number of medical malpractice
claims?
16. What are the primary reasons for most legal
malpractice claims?
Practice Exam
True-False
1. A professional who engages in conduct that 2. A professional can be found negligent if they
results in a negative outcome for their client is fail to use due diligence and care even if they
by definition negligent. choose an appropriate course of action.
3. All cases of professional negligence are also 16. What constitutes reasonable care in an emer-
malpractice. gency depends on the circumstances in which
the emergency occurs.
4. A plaintiff who is suing for malpractice will be
successful if they can prove that the defendant 17. Maintaining client records is a frivolous expen-
professional was negligent even if they cannot diture of valuable time.
prove that this negligence was the proximate
cause of their injuries. 18. In a personal injury case in which the plaintiff
has made her medical problems the subject of
5. Failure of a professional to keep informed of litigation, all of their medical records are sub-
current laws in their profession can constitute ject to subpoena by the defendant.
professional negligence.
19. Professional negligence claims appear to be
6. Specialists are generally held to a national diminishing.
standard of care.
20. Annual malpractice claims for doctors are much
7. Attorneys are held to a general standard of higher than they are for attorneys.
care even if they are certified specialists.
21. Attorneys who talk openly with their clients are
8. Professionals have a fiduciary relationship with less likely to be sued for negligence when they
their clients if they have given them informed make mistakes than attorneys who treat their
consent. clients in a paternalistic manner.
9. A doctor’s duty to warn increases as the 22. The greatest number of errors made by
probability and severity of risk to the patient litigators are administrative.
increase.
23. One reason some clients file malpractice claims
10. A physician has a legal obligation to inform a against their attorney is that they have unrealistic
patient about an alternative treatment even if expectations about their case.
he does not think the alternative treatment will
work in the patient’s case. 24. The attorney-client privilege prevents employ-
ees of an attorney from disclosing confidential
11. In an emergency situation in which the patient information to anyone except their spouses.
is comatose or too ill to comprehend what is
being said, the doctor can render treatment 25. Legal assistants should make sure that client
without informing the patient of the risks conferences are conducted in places where
involved. privacy is assured.
12. A patient’s morale will never have a bearing on 26. A legal assistant can answer a client’s question
what a professional does in informing them. about a legal issue as long as they are sure
they know the answer.
13. The primary question in a negligence cause
of action based on lack of informed consent is 27. Legal assistants are often responsible for help-
whether the risks that are not disclosed were ing to make sure that filing dates are met.
material risks. 28. The number of medical malpractice claims has
14. Treatment provided in an emergency must be escalated sharply since the late 1980s.
of the same quality of care as that provided 29. The majority of states have enacted practice
under less stressful circumstances. guidelines which define standard of care.
15. A plaintiff bringing a professional negligence
case must have expert testimony to prove the
standard of care of deviation.
Fill-in-the-Blank
1. Professionals have a(n) ____________ rela- 4. A patient who understands the risks involved
tionship with their clients, meaning that the in treatment and consents to that treatment is
relationship is built on trust and confidence. said to have ____________.
2. Under the ____________ ____________ doctrine, 5. Plaintiffs alleging lack of consent may sue on a
clients have the right to ultimate dominion over _________ or a __________ theory.
their bodies and events that affect their lives.
3. Today ____________ has for the most part

replaced ____________ as a basis for liability in
lack of informed-consent cases.
Multiple-Choice
1. In deciding whether a professional is negligent, b. Physicians who use unorthodox treatments
courts use with patients who are critically ill are less
a. a local standard. likely to be found negligent than if they use
b. a national standard. unorthodox treatments with those suffering
c. both a local and a national standard. from minor ailments.
d. neither a local nor a national standard. c. The degree of innovation that a physician
uses that is legally acceptable depends on
2. A defendant will likely be considered negligent the seriousness of the situation.
if d. All of the above.
a. they choose a course of action that is dif- 5. A professional is obligated to
ferent from what most other professionals
would have selected. a. keep abreast of changes in their field.
b. they choose a course of action different b. follow up on a client’s condition or status.
from the only recognized course of action c. make referrals when appropriate.
by members of good standing in the d. all of the above.
profession. 6. A neurosurgeon
c. neither of the above.
d. both of the above. a. is held to the standard of care of a reason-
ably careful and prudent neurosurgeon.
3. A professional commits malpractice by b. is held to the standard of care of a reason-
a. performing a task for which they lack the ably careful and prudent physician.
requisite skills. c. cannot be held liable for doing something
b. failing to refer a client to a specialist when for which a physician doing the same thing
the situation dictates. would not be liable.
c. failing to ask for the information necessary d. all of the above.
to make a recommendation to a client. 7. Under the informed-consent doctrine
a. a doctor is obligated to warn a patient
4. Which of the following is true? about possible hazards of a form of treat-
a. Physicians who use unorthodox methods ment but is never obligated to advise a
of treatment are less likely to be found patient about alternative treatments.
negligent than those who use conventional b. a doctor has a duty to warn a patient that
treatment. all the side effects of new or experimental
treatment are not known.
c. a doctor can, under some circumstances, b. the defendant’s deviation from the standard
force a treatment on an unwilling adult of care within the profession.
patient. c. that their injuries more probably than
d. all of the above. not resulted from the actions of the
professional.
8. In deciding what should be disclosed to a d. all of the above.
patient, some courts
a. consider the expectations of a reasonable 13. An expert witness in a malpractice case must
layperson. a. be familiar with the techniques and proce-
b. use a “prudent patient” standard, which dures used in the case.
requires a doctor to disclose those risks that b. use the same techniques and procedures as
a reasonable person would consider mate- those used in the case.
rial to their decision to undergo treatment c. be familiar with the standard of care in the
or not. community whether a local or national
c. use a professional standard that requires standard is used.
doctors to disclose only those risks that d. all of the above.
other reasonable doctors in the community
would have disclosed. 14. To be relieved of liability, a defendant must
d. all of the above. show that the plaintiff’s negligence
a. added to their own.
9. A doctor will not necessarily have to disclose a b. was concurrent with their own.
risk if c. either added to or was concurrent with
a. the risk is highly improbable, and the doctor their own.
believes that disclosing it would severely d. none of the above.
reduce the effectiveness of the treatment.
b. the risk is high, but the doctor believes 15. A client could be considered contributorily
that disclosing it would severely reduce the negligent if they
effectiveness of the treatment. a. fail to follow a doctor’s instructions.
c. the risk is highly improbable, but the conse- b. lie to their attorney.
quence is severe. c. delay seeking medical attention.
d. none of the above. d. all of the above.
10. In negligence causes of action based on lack of 16. The defense of assumption of risk
informed consent, a. is applicable even if the client does not
a. lay-witness testimony is all that is needed. understand the risks involved.
b. the statute of limitations is generally longer b. is inapplicable if the risks are not clearly
than it is for battery. explained.
c. a patient typically signs a consent form c. is applicable even if the defendant provides
but does not understand some of the risks negligent care.
involved. d. all of the above.
17. Emergency is a defense
11. A risk is considered a material risk if a. if death is imminent and treatment is abso-
a. the consequences of the risk are severe. lutely necessary for the patient’s survival.
b. the occurrence of the risk is highly probable. b. only if an emergency actually exists.
c. there are feasible alternatives. c. as long as the emergency was not created
d. all of the above. by the doctor’s negligence.
12. To prove malpractice, a plaintiff must show
a. the standard of care expected within the
profession.
18. Maintaining adequate client records 23. Attorneys can avoid malpractice claims by
a. may later help a professional defendant a. taking no more clients than they have time
refresh their memory about a client’s case. to handle.
b. has little relevance to building a defendant’s b. spending the amount of time necessary to
defense against a malpractice claim. competently handle their clients’ cases.
c. is generally a frivolous expenditure of c. more efficiently managing their office.
valuable time. d. all of the above.
d. none of the above.
24. Which of the following is true about the
19. In regard to medical records, attorney-client privilege?
a. the physical record is considered the a. The privilege pertains to any information
property of the patient. exchanged between an attorney and client
b. the content of the record is considered the even if that information is disclosed to a
property of the healthcare provider. third person.
c. most state laws require that the records b. Confidential communications between an
be released to the patient as long as the attorney and client cannot be disclosed
patient will waive the physician-patient unless the client consents.
privilege. c. Even if the privilege is lost, it can, under
d. all of the above. some circumstances, be regained.
d. All of the above.
20. Which of the following is true?
a. The type of attorney most likely to be sued 25. Because legal assistants are not allowed to
is the litigator. practice law, they should
b. Most attorneys can expect to have only one a. not answer any questions from a client.
malpractice claim filed against them during b. not talk with clients.
the course of their career. c. insist that an attorney review their work.
c. The greatest number of errors committed d. all of the above.
by litigators are ones involving strategy.
d. All of the above. 26. If a legal assistant provides incorrect legal
advice to a client, it may result in
21. Poor communication is a. a malpractice claim against the attorney and
a. the most common cause of client com- firm.
plaints against attorneys. b. an ethics charge against the attorney super-
b. the primary cause of malpractice claims vising the legal assistant.
against attorneys. c. the legal assistant being fired.
c. the primary reason for attorneys having d. all of the above.
poor client relations.
d. all of the above. 27. Legal assistants
a. should never discuss the status of a client’s
22. Failure to return client phone calls or to case.
keep clients reasonably informed about b. can shield attorneys from some of the
their case interpersonal tasks with clients that are
a. can be grounds for an ethical violation. time-consuming.
b. is not enough by itself to be grounds for c. can listen to clients’ concerns but should
negligence. never answer any of their questions.
c. is grounds for negligence but is not covered d. all of the above.
by the Model Rules of Professional Conduct.
28. Legal malpractice claims can be minimized by 31. A medical malpractice crisis has arisen
a. making sure clients know the strengths and a. despite the decrease in litigation since the
weakness of their case. 1960s.
b. keeping clients apprised of the status of b. even though the size of judgments has
their case. diminished.
c. reassuring clients that their case is import- c. because of the increase in the cost of
ant to the firm. malpractice insurance.
29. Client files 32. Some states have dealt with medical malprac-
a. should be well organized so that informa- tice by
tion can be retrieved quickly and easily. a. passing statutes that limit the amount of
b. should be organized logically so that they recovery in medical malpractice cases.
never have to be reviewed. b. requiring pretrial review panels to hear
c. are the sole province of the legal secretary. malpractice claims.
d. all of the above. c. enacting practice guidelines that define the
standard of care in certain situations.
30. Legal assistants d. all of the above.
a. are often delegated responsibility for client
trust accounts. 33. In an effort to reduce the number of malprac-
b. are not allowed to do anything in relation to tice cases, some legislatures have modified
client trust accounts. a. the informed-consent doctrine.
c. should make sure that client trust accounts b. statute of limitations and evidentiary rules.
can be easily reviewed by the attorney. c. rules regarding burden of proof and
d. none of the above. standard of care.
Practice Pointers
The defendant in a malpractice case may request that the plaintiff submit to an independent physical or men-
tal examination to verify injuries claimed and to justify expenses and suffering alleged. In most jurisdictions,
however, the plaintiff is required to submit to only one examination. The examination cannot take place at a
location unduly far from the plaintiff’s residence and must not include any procedure that is particularly painful
or intrusive. Physical examinations must be conducted by a licensed physician or healthcare professional, and
mental examinations must be conducted by a licensed physician or clinical psychiatrist.
Typically, the defendant submits a written demand for physical examination to the plaintiff. Such a demand
must include the time and location that the examination is to take place, the identity and specialty of the exam-
ining physician, and a description of the conditions, scope, and nature of the examination. This demand is
served on all other parties to the action but is not filed with the court. The plaintiff must then file a response to
the demand indicating whether she will comply with the terms of the demand. Alternatively, the plaintiff can
insist that certain modifications be made, such as a change in the time or location of the examination. If the
defendant then concludes that the plaintiff’s request for changes or refusal to appear is unwarranted, she may
move the court for an order compelling compliance with the demand.
If a physical examination of someone other than the plaintiff is requested, or if a mental examination of
the plaintiff or any person is demanded, a court order must be obtained unless all other parties stipulate to
allowing an examination. A motion for medical examination must include the same elements as a demand for
physical examination. Additionally, it must contain a declaration showing that the parties have attempted to
resolve the issue by stipulation. If an examination is held a long way from the plaintiff’s residence (more than
75 miles, according to federal rules), a court will order attendance only if the requesting party can show good

cause for requesting an examination at this distance and if the moving party agrees to advance travel expenses.
If a party seeking recovery for personal injuries stipulates that no claim is being made for mental or emotional
distress (other than that normally anticipated to arise from a physical injury) and that no expert testimony will
be used to show unusual mental and emotional distress, a court may not order a psychological examination.
Most states prohibit the presence of anyone other than the examinee at a psychological examination. In
many cases, however, the examiner or the examinee may tape-record a mental examination. An attorney for the
examinee does, however, have a right to attend a physical examination as well as to tape-record that examination.
The attorney has a right to suspend the examination if, in their opinion, the physician uses tests or procedures
that were not included in the order for physical examination. Either the physician or the attorney may suspend an
examination if either one believes it necessary to secure a protective order.
After submitting to a medical examination, the party may, by written demand, obtain a written report
setting forth the findings of the examiner. This report should include the examiner’s conclusion, the results
of all tests, and copies of any previous reports prepared by the examiner in reference to the examinee. If the
demanding party fails to receive these reports in a timely manner, it may move the court for an order compel-
ling delivery. If a party fails to comply with this court order, the court must exclude the testimony of the exam-
iner whose report was not delivered. By the same token, the party who conducts the examination, at the time
it serves the demanded report, is entitled to any reports prepared as a result of an examination of the same
condition. Additionally, that party is entitled to the identity of any physician who conducts an examination but
does not prepare a report, as well as the identification of any physician who later examines the patient.
Demand for Physical Examination

Smith and Lawson
1455 Happy Lane
Suite 600
Good Times, OK
(555) 897–1334
Jack Lawson
Harry Smith
Attorneys for the Defendants
Superior Court for the State of ____________
For the County of ____________
THEODORE JOHNSON, et al.,

Plaintiffs
v.
STEVEN AND MICHELLE BARRY, husband and wife DEMAND FOR PHYSICAL EXAMINATION
Defendants
TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD HEREIN:
A demand is hereby made upon Plaintiff THEODORE JOHNSON to submit to a physical examination. The examination will
take place on April 15, 20 ____________ at 10:30 am at the office of Dr. Anthony Heath, Get Well Medical Center, 700 Peaceful
Street, Suite 2, Happy Town, OK.
The examination will be conducted by Dr. Lawrence Stethoscope, a board-certified dermatologist.
February 27, 2021
Smith and Lawson
Jack Lawson
Attorney for Defendants
Tort Teasers
1. Review the hypothetical scenario at the beginning of this chapter. Has professional negligence been
committed? What defenses can be raised?
2. An attorney in general practice tries but fails to create a trust that would have given his client a tax
advantage. Though conceding his inexperience, the attorney argues that he did a fair job of working on
the matter and that he did not have a duty to refer the client to a tax specialist. Do you think the attorney
should be found negligent for his failure to seek assistance? Horne v. Peckham, 158 Cal. Rptr. 714
(Ct. App. 1979).
3. The father of a small child takes the child to an emergency room and tells the attendants that the child
has ingested a large quantity of aspirin. The attendants specifically tell the father to advise the physician
of this fact, but the father fails to make mention of it. The physician diagnoses the child as having the flu.
The child dies shortly thereafter, and the parents sue the physician for negligence. Should the parents be
able to recover? What defense might the physician raise? Hudson v. St. Paul Mercury Insurance Co., 219
So. 2d 524 (La. 1969).
4. A patient goes to his surgeon for a vasectomy. The surgeon amputates the patient’s testicle. On what
theory should the patient base his cause of action and why? Whittington v. Mason, 906 So. 2d 10 (Miss.
App. 2004).
5. A woman had struggled with depression for many years and was under the care of an internist. After
being hospitalized for severe depression and alcoholism. After being discharged from the hospital the
internist claimed she no longer needed her medications and to call the office if she felt the depression
returning. She did call back 9 months later and spoke with a different internist who prescribed her an
anti-depressant over the phone and did not require an office visit but merely said to call later to schedule
one. Eight days after receiving the medication, the patient overdosed on the medication and died. Her
estate is suing the internist who prescribed the medications saying there was malpractice, and that the
internist did not live up to the professional level that he should have. What does the estate have to prove
to show malpractice? What did the court say in this case? Was there malpractice and why or why not?
Edwards v. Tardif, 692 A.2d 1266 (Conn. 1997).
Internet Inquiries
Legal assistants are frequently assigned the task of locating and reviewing medical records. Several online
resources are available to assist in the reviewing process. If you come across terms you do not understand, two
online medical dictionaries you can consult are MedicineNet.com (select “MedTerms Dictionary”) and National
Institute of Health’s MedLinePlus (www.nih.gov).
To use the medical dictionary in MedlinePlus, select “MedlinePlus” and then enter the medical term in
the search box. If you want to get some anatomical information, in English or Spanish, “MEDtropolis” (www
.medtropolis.com) is one possible source. Select “Virtual Body” and move your cursor over the parts of the
body you want to identify and then get a close-up lateral view of those parts you want magnified. You can also
receive a narrative tour of body organs and systems.
MedicineNet.com and MedEngine! provide links to a great many other medical resources dealing with dis-
eases and conditions, procedures and tests, drugs, medical associations, medical publications and references,
and a host of other topics. Another excellent source of medical information is Martindale’s Health Science Guide,
which can be found at www.martindalecenter.com. In addition to offering general medical information, dictionar-
ies, and diagnostic and treatment information, it has tutorials on anatomy. Medscape.com (www.medscape.com)
has direct links to clinical medical articles, a physician’s directory, drug information, and MedLine (references and
abstracts from medical journals). You must register before you can access this site.
The Merck Manual of Diagnosis and Therapy (20th edition) full text is now available online for no charge at
www.merck.com, by selecting “Merck Manuals” link. Considered the physician’s “bible,” it is a seminal source
of information regarding clinical procedures, diagnosis, pharmacology, and contemporary therapy for almost
all disorders. The Merck Manual of Medical Information—Home Edition is also available online.
The most comprehensive book used for diagnosing and classifying mental disorders is the Diagnostic and
Statistical Manual of Mental Disorders—5th edition. It contains detailed criteria and is designed to be a refer-
ence for anyone needing information about mental health and diagnosis, symptoms, etc. It is available online
at any online bookstore or from www.dsm.psychiatryonline.org.
Using the online medical resources just described, find out the following:
1. What is an anterior cruciate ligament?
2. Where is it located, and what function does it serve in the body?
3. How is a torn ACL repaired?
Your attorney has recently interviewed Dr. Willard Smith, who suffered an anaphylactic reaction to a dye that
was used when administering a diagnostic test designed to test his pulmonary capacity. Because he tempo-
rarily stopped breathing but was not treated for about 10 minutes (it took that long for the paramedics to
get to him), he became comatose for several weeks, and it was believed he was going to die. He regained
consciousness and was in physical therapy for almost a year, regaining about 60 percent of the mobility and
40 percent of the manual dexterity he had before the incident. He is no longer able to work as a veterinarian
and has sustained substantial financial as well as emotional losses as a result.
Dr. Smith wants to sue the hospital where the test was administered. Your supervising attorney has asked
you to do some preliminary research before they decide whether to accept this case. What information do
you think the attorney will need before they can make an informed choice about whether to take on Dr. Smith
as a client?
Chapter 10
Misrepresentation, Nuisance,
and Other Torts
Chapter Topics
Development of Misrepresentation and Its Innocent Misrepresentation
Relationship to Other Torts Nuisance
Intentional Misrepresentation Interference with Business Relations
Negligent Misrepresentation Misuse of Legal Process
Chapter Objectives
• Distinguish among intentional, negligent, and • Distinguish between public and private nuisance
innocent misrepresentation and identify the ele- and identify the elements of both.
ments of each. • Identify the elements of the torts involving
• Identify situations in which one is entitled to rely interference with business relations.
on the representations of another. • Distinguish among the torts involving misuse of
• Identify the two ways in which a plaintiff’s legal process and identify the elements of each.
damages can be measured.
A fter meeting your sister’s fiancé, you suspect that they are not all they pretend to be. You ask a friend of
yours, who is a private investigator, to conduct a background check on them. You discover, among other
things, that your prospective in-law had an affair with someone who was married to a prominent businessper-
son. When the spouse discovered their relationship and the affair stopped, your sister’s fiancé sought revenge.
First, they went to the attorney general’s office and tried to convince an attorney to prosecute the spouse for
price fixing, even though they were aware that such claims were completely false. In a further act of revenge,
they sent the spouse materials advertising a get-rich-quick scheme that your future in-law knew was a scam and
included several fake endorsements by well-known people, in an effort to capture the spouse’s interest. Not
being one to forgive and forget, your future in-law is currently trying to purchase property next to the spouse’s
business. They plan to open a bookstore that features pornographic and other adult materials. Because the
spouse operates a religious bookstore, they are confident that this will, at the very least, have a detrimental
effect on the spouse’s business and, more likely, they hope, contribute to its failure.
CHAPTER 10 Misrepresentation, Nuisance, and Other Torts | 301
What torts has your future in-law committed? Have they committed nuisance, interference with business
relations, interference with prospective contractual relations, misrepresentation, or misuse of legal process? We
will discuss all of those and decide which are present.
Development of • The defendant misrepresents something with

the intent of inducing the plaintiff’s reliance on
Misrepresentation and Its that misrepresentation.
Relationship to Other Torts • The defendant knows that the representation
is false or acts with reckless indifference to the
Misrepresentation (which is basically the making
truth.
of false representations) can be found interwoven
• The plaintiff justifiably relies on the defendant’s
among other types of torts. A conversion, for exam-
misrepresentation.
ple, can be committed by making false represen-
tations. A battery can be committed by a person • The plaintiff suffers damages stemming from
who uses deceit to induce the plaintiff to consent this reliance.
to physical contact. A claim for intentional infliction
of emotional distress may arise out of a malicious
prosecution. What Constitutes a
Misrepresentation as a distinct cause of action Misrepresentation?
arose out of the common law action of deceit. Typically,
in a case of deceit the plaintiff lost money or property A defendant commits misrepresentation by
as a result of reliance on the defendant’s representa- affirmatively making a false statement. Alternatively,
tions. Today, however, the law of misrepresentation is they may intentionally conceal a fact from the
broader than an action for deceit. Although deceit was plaintiff. A seller of a house, for example, who
usually based on intent to deceive, misrepresentation deliberately covers a crack in the wall to conceal
can be based not only on intentional or fraudulent from the plaintiff-buyer the fact that the foundation
deception, but also on negligent deception or inno- is settling commits misrepresentation. Actions alone
cent deception (strict liability). may constitute misrepresentation. The seller of a
car who turns back the odometer misrepresents the
mileage on that car even though they say nothing
Intentional Under the common law, mere failure to disclose a
Misrepresentation material fact (as opposed to deliberate concealment)
was not considered a misrepresentation. Until
Intentional or fraudulent misrepresentation corre- the 1950s, the doctrine of caveat emptor (“let the
sponds to what was known as “deceit” or “fraud” buyer beware”) reigned, and sellers of real estate
under the common law. The elements of intentional had virtually no duty to disclose what they knew
misrepresentation are as follows (see Exhibit 10–1): about the condition of their property to potential
Exhibit 10–1 Elements of Intentional Misrepresentation
• Defendant makes a misrepresentation with intent of inducing plaintiff’s reliance.
• D
efendant knows the misrepresentation is false or acts with reckless indifference to truth or falsity of
representation.
• Plaintiff justifiably relies on misrepresentation.
• Plaintiff suffers damages as a result of reliance.

purchasers. Courts premised this doctrine on the Local Links

idea that buyers and sellers of comparable power,
skill, and experience were conscious of the risks they Has your state enacted legislation requiring
assumed and could protect themselves against those sellers of property to disclose information
risks. In the modern view, however, nondisclosure about the property’s physical condition to
may be considered concealment under certain prospective purchasers? Is there a disclosure
circumstances, especially when the defect is a form required? To see the forms used in
latent defect (not visible or readily discoverable to your state, enter “(your state) residential
the buyer). A patent defect is one that is visible or disclosure form” as your search term.
readily discoverable. A duty to disclose, is frequently
set forth in the so-called termite cases, in which the To Whom Must the
homeowner fails to tell the purchaser that the house
has been infested with termites. Misrepresentation Be Made?
S i m i l a r l y, l i a b i l i t y m a y b e i m p o s e d i f a Under the traditional common law, a defendant was lia-
defendant presents a “half-truth,” a statement ble only to those persons whom they intended to influ-
that although literally true tends to be misleading. ence by the misrepresentation. A debtor, for example,
A statement such as “We have no roof leaks in who misrepresented their credit record to a creditor
this house” is a half-truth if the roof leaked up and then failed to make payments was not liable to
until a month before the statement was made. a party who bought the debtor’s note from the credi-
If a fiduciary relationship exists between the tor. The requirement has been relaxed in recent times.
parties, such as that between parent and child, Presently a plaintiff can recover if they are a member of
agent and principal, or attorney and client, the a class whom the defendant could reasonably expect
law imposes a more demanding obligation to to learn of and rely on the misrepresentation.
disclose than if a transaction occurs at arm’s Additionally, the plaintiff’s reliance must occur in
length (i.e., no special relationship exists between the “type of transaction” the defendant could rea-
the parties). For example, a businessperson selling sonably expect the plaintiff to engage in as a result
property to their business partner (assuming they of the reliance (Restatement [Second] of Torts §§
have a fiduciary relationship for purposes of the 531 and 533). Suppose an architect supplies errone-
transaction involved) has an obligation to disclose ous specifications to a builder, who in turn subcon-
information that they would not be required to tracts the electrical work. If the subcontractor suffers
disclose if they were conducting an arm’s-length pecuniary (monetary) damages because of the faulty
transaction with a stranger. specifications, he will be allowed to recover from the
The courts are more likely to find misrepre- architect. Recovery will be allowed even if the archi-
sentation if a nondisclosed fact is essential to the tect is unaware of the identity of the subcontractor
transaction. If a seller of land fails to disclose to a when they give the specifications to the builder
buyer that nothing can be grown on the land even (Restatement [Second] of Torts § 531, illus. 5).
though they are aware that the buyer intends to Another exception to the rule requiring intent to
use the land to grow crops, they are likely to be induce reliance occurs in the context of commercial
found liable for misrepresentation. Even if a plain- documents. Those who incorporate misstatements
tiff is unable to recover damages for nondisclo- into commercial documents are liable to persons
sure, they can get rescission (which results in the who suffer as a result of their justifiable reliance on
canceling of the contract) if the nondisclosed fact the truth of those statements. A company that mar-
is a material one. kets clover seed intentionally mislabeled as alfalfa
Today a small but rapidly growing number of seed is liable to those who plant the seeds in reli-
states have enacted legislation or created regula- ance on the label and consequently suffer a loss.
tions that require sellers of residential property to Again, it does not matter whether the seed company
disclose certain aspects of the property’s physical intended to make contact with those specific buyers
condition to potential purchasers. (Restatement [Second] of Torts § 532, illus. 2).
Required State of Mind on an opinion offered by the defendant? Tradition-

ally, courts have been reluctant to allow plaintiffs to
Proof of intentional misrepresentation also requires
recover on the basis of any of the defendant’s state-
showing that the defendant knew of the falsity of the
ments that could be characterized as opinion.
statement or acted with reckless disregard of the truth.
In some circumstances, however, such reliance
A defendant who does not care enough to verify the
may be justified. If a defendant and plaintiff have a
information they are stating in order to get a party to
fiduciary relationship, or if the defendant has worked
sign a contract can be guilty of negligent misrepresen-
to secure the confidence of the plaintiff, the plaintiff
tation. State of mind is what distinguishes intentional
may be justified in relying on the defendant’s opin-
misrepresentation from negligent misrepresentation.
ion. Also, if the defendant purports to have spe-
A defendant is also culpable if they make a state-
cial knowledge that the plaintiff does not have, the
ment that is merely a belief but represent it as being
plaintiff may be justified in relying on the defendant.
actual knowledge. In one case the officers of a cor-
Similarly, if the defendant is aware that the plaintiff
poration told one of the company’s creditors that the
is particularly uninformed or unintelligent and will
company was making money. They also sent them
be easily misled by any kind of opinion, a justifiable
some erroneous financial statements. In reliance on
reliance will more likely be found. A coin dealer,
the officers’ statements, the plaintiff refrained from
for example, who tells an uninformed seller that a
collecting their debt. In truth, the company was los-
particular coin is worth $1000 when they know it is
ing money, and when the plaintiff finally sought reim-
worth at least $15,000, may be found liable for mis-
bursement, they were unable to collect the monies
representation if, in fact, any knowledgeable dealer
owed them. The defendant officers were found lia-
would recognize that figure as being wholly unrealis-
ble in this case, not because their statements were
tic (Restatement [Second] of Torts § 542). Following
false but because they had made statements regard-
are some examples of when reliance may or not be
ing the solvency of the company without actually
justifiable.
knowing whether or not the company was making
money. Their culpability lay in their representation
“Puffing”
of belief as knowledge (Sovereign Pocohontas Co. v.
Bond, 120 F.2d 39 [D.C. Cir. 1941]). Mere “puffing” or “puffery” is not actionable.
An exaggeration or statement that no reasonable
person would believe to be true is regarded as puff-
Reliance on the Misrepresentation
ery. A used car dealer who tells a customer that this
A plaintiff must also show that they relied on the defen- car is “the best deal you will ever make” is not lia-
dant’s misrepresentation. The question that commonly ble for the statement even though the dealer does
arises is whether the plaintiff made any independent not actually believe that the car is a particularly good
investigation of their own and whether their reliance deal (Restatement [Second] of Torts § 542, cmt. e).
was on the misrepresentation, their investigation, or The puffery is used to “puff up” a product and is
both. Suppose the seller of a dog fraudulently mis- usually a subjective opinion instead of an objective
represents the breeding potential of the dog, and statement of fact.
the plaintiff, wishing to confirm these representations, As Justice Learned Hand once commented,
checks with other experienced dog breeders. If the “Such statements, like the claims of campaign man-
plaintiff relies totally or almost totally on their own agers before election, are rather designed to allay
investigation, they will be deemed not to have relied the suspicion which would attend their absence than
on the seller’s misrepresentation. If, however, the sell- to be understood as having any relation to objective
er’s misrepresentation is a substantial factor in inducing truth” (Vulcan Metals Co. v. Simmons Manufacturing
the plaintiff’s reliance, the reliance requirement will be Co., 248 F. 853, 856 [2d Cir. 1918]).
fulfilled, and the seller will be found liable.
Opinion of Disinterested Party
Was the Reliance Justifiable? The result may be different if the plaintiff reason-
A related question is whether the plaintiff’s reliance ably perceives that the opinion is being expressed
was justifiable. Is a plaintiff always entitled to rely by a “disinterested” party, or one who will receive
no benefit. In that case the plaintiff’s reliance is more will frequently be considered justifiable. If a
likely to be considered reasonable. If a consumer party to a contract is unable to sue for breach of
advocacy group indicates that a particular brand of contract because the opposing party can raise a
motorized scooter is safe and the plaintiff is injured contract defense, such as the Statute of Frauds,
on that vehicle, the consumer group’s argument that the party wanting to sue may be able to claim
its endorsement was merely an opinion is likely to misrepresentation if they relied on the defendant’s
fail. By holding itself out as a disinterested party that statements. Suppose a defendant promises to
examined and ultimately endorsed the product for buy the plaintiff’s house for $50,000, but at the
consumers, the group will likely be deemed as pos- time they make this promise they actually have no
sessing special information or expertise upon which intention of buying the house. When the plaintiff
the public was reasonably justified in relying. sues for breach of contract, if the defendant raises
a statute-of-frauds defense (because the contract
Opinion Implying Facts was not in writing), the plaintiff can sue on the basis
of misrepresentation, arguing that the defendant
If a defendant renders an opinion implying that no
never intended to keep their contract. If the
facts incompatible with that opinion exist, the plain-
plaintiff can prove this was the defendant’s intent,
tiff may be able to recover if they can show that the
most courts will not allow the defendant to raise
defendant was aware of such incompatible facts. For
the statute of frauds, the parol evidence rule, lack
example, a corporation president who, in an effort to
sell stock, represents his company as being a “gold of consideration, or any other contract defense to
mine” when in fact he knows the company to be los- bar liability.
ing money may be found liable for misrepresentation
(Ragsdale v. Kennedy, 209 S.E.2d 494 [N.C. 1974]). Proximate Cause
Remember that the line between fact and opin- The plaintiff in a suit for misrepresentation must
ion is a tenuous one at best—but if the defendant prove that they sustained actual damages that were
crosses over that line by making a statement of fact proximately caused by the defendant’s misrepresen-
that they know to be false, they can be found liable. tation. In other words, the loss must be a “reason-
A statement of value that would normally be con- ably foreseeable” result of the misrepresentation.
sidered opinion may become a factual statement Suppose, for example, the plaintiff purchases stock
because of the context in which it is expressed. A in reliance on the defendant’s misrepresentation. If
defendant who says, “The land across the street sold the market value of the stock declines due to causes
for $10,000 an acre last year,” has made a statement unrelated to those misrepresentations, the defen-
of fact for which they will be liable if they are aware dant will not be considered the proximate cause of
that the land actually sold for much less. the plaintiff’s losses (Restatement [Second] of Torts §
548A, illus. 1).
Predictions
A prediction that a certain event is bound to hap- Damages
pen will almost always be regarded as an opinion. If, Damages for misrepresentation may be measured
however, the defendant knows of facts inconsistent in two ways. First, the plaintiff may be asked to
with that prediction, they may still be found liable be put in the position they were in before the
for misrepresentation. A landowner who predicts misrepresentation (referred to as the reliance
that the value of their land will increase 10 percent a measure). Alternatively, the plaintiff may be asked to
year for the next five years could be held liable if the be put in the position they would have been had the
plaintiff could show that the landowner was aware misrepresented facts been true (referred to as the
that the property was about to be condemned. benefits-of-the-bargain measure). The majority of
courts use the latter measure of damages.
Statement of Intentions To exemplify these approaches, suppose that
If a defendant makes a statement as to their own a plaintiff pays $20,000 for a tractor that is actually
intentions, a plaintiff’s reliance on that statement worth $10,000. If the tractor would have been
worth $50,000 if the misrepresentation about the Negligent

tractor had actually been true, under the benefits-
of-the-bargain approach the plaintiff will receive Misrepresentation
$40,000 (the difference between the actual value of
Although historically recovery for negligent misrep-
the tractor, $10,000, and what it would have been
resentation was not permitted, today most American
worth if it had been as it was represented, $50,000).
courts allow it. Other than intent, the requirements
Under the reliance method of measurement, the
for an action of negligent misrepresentation
plaintiff will recover $10,000 (the difference between
are essentially the same as those for intentional
the actual value of the tractor, $10,000, and what
misrepresentation.
the plaintiff paid, $20,000). Note that in assessing
The courts are most inclined to allow recovery
damages, the fact that the plaintiff would have made
for negligent misrepresentation when the defendant
a bad bargain even if the defendant had made no
makes false statements during the course of their busi-
misrepresentations is irrelevant.
ness or profession or has a pecuniary interest in the
Exhibit 10–2 lists the aspects of misrepresenta-
transaction at hand. A real estate broker, for example,
tion we have been discussing.
may be liable for negligent misrepresentation by failing
EXHIBIT 10–2 Misrepresentation

What Is a Misrepresentation?
• False or reckless statement or representation
• With knowledge statement was false or lack of verification that it was true
• Intent to induce plaintiff to act or refrain from acting on representation.
• Telling of half-truth or neglecting to reveal a material fact when obligated
To Whom Must Misrepresentation Be Made?

• Plaintiff belongs to class of persons that defendant could reasonably expect to learn of and rely on misrepresentation.
• Plaintiff is involved in the type of transaction defendant could reasonably expect plaintiff to engage in as a result of reliance.
• Defendant incorporates misstatements into commercial documents.
Defendant’s State of Mind

• Is aware of falsity of representation.
• Acts with reckless disregard for truth or falsity of representation.
• Has mere belief but acts as if they have actual knowledge.
What Is Justifiable Reliance?

• Defendant offers an opinion and:
• Defendant and plaintiff have fiduciary relationship.
• Defendant has worked to gain plaintiff’s confidence.
• Defendant is aware plaintiff is gullible or unintelligent.
• Plaintiff is likely to perceive that opinion is offered by “disinterested” party.
• Defendant suggests no facts incompatible with opinion exist when they are aware such facts exist.
• Defendant makes prediction and is aware of facts inconsistent with prediction.
• Defendant states what their intentions are, knowing the actual intentions are different.
How Are Damages Proved?

Reliance: Putting plaintiff in position they were in prior to misrepresentation.
Benefit of the bargain: Putting plaintiff in position they would have been in had the misrepresented facts been true.

1. Lucille, a blackjack dealer in Lake Tahoe, has a “tummy tuck” operation to lower the scar from a previ-
ous surgery. She says the surgeon assured her there were no risks involved, that her skin “would be as
smooth as a baby’s,” and that she would be pleased with the results. After the operation Lucille’s scar is
lowered, but her skin blisters and she experiences severe pain in an area above the stitches. The doctor
promises either to resolve the problem himself or to pay for another doctor to do so. He continues to treat
Lucille and never refuses to answer her questions or respond to her requests for treatment.
Lucille decides to consult with other physicians and then hires an attorney to litigate her grievance.
At trial, Lucille’s expert witness speculates that the blisters could be due to a chemical or “cast”
burn, a minor injury, or, as the defense expert testifies, due to silicone implants leaking that Lucille had
years earlier and that had leaked into the abdomen.
Do you think Lucille has a cause of action for misrepresentation based on her current surgeon’s rep-
resentations to her? What about her implant surgeon?
2. Bob and Jane Johnson purchased a dairy farm property at auction. Mellissa was the agent who listed the
property for auction. The Johnsons inquired as to the viability of the property for use as a dairy farm and
were assured by Mellissa that the property would be completely viable and that there was plenty of fresh
water for the cows. After purchasing the property, cows began to get ill and die, and Bob became ill as
well. Testing of the water resulted in a finding that the ground had benzene from a previous gas tank, and
it was poisoning the water. Mellissa knew there was a previous gas tank on the property and that it had
been removed but no other decontamination steps were taken. She neglected to reveal this information
to the Johnsons before purchasing. Is Mellissa liable for intentional misrepresentation? Did she have a
duty to reveal this information to the Johnsons?
3. Maria and Martin are Polish prisoners of war who meet in a displaced persons camp. He proposes to her,
and she signs what she believes to be an application for a marriage certificate but later discovers she
has actually entered into a civil marriage contract. Martin promises her a church marriage. Because she
refuses to have marital relations with him until they are properly married, Martin locks her in a room and
forces her to have sexual relations. After several days of confinement she escapes, but he induces her
to return, again promising a church marriage. Once again, she escapes, only to return reluctantly when
Martin promises her they will be married in the church.
Should Maria be granted an annulment on the basis of Martin’s false representation? Is her reliance
on Martin’s promises justifiable? Are there any defenses Martin could use in this case?
4. Peter claims that the school district he attended for 12 years and from which he graduated deprived him of
basic academic skills in reading and writing. Part of his complaint alleges that the district “allowed him ‘to
pass and advance from a course or grade level’ with knowledge that he had not achieved either its completion
or the skills ‘necessary for him to succeed or benefit from subsequent courses,’ … assigned him to classes in
which the instructors were unqualified or which were not ‘geared’ to his reading level, and … permitted him to
graduate from high school although he was ‘unable to read above the eighth grade level.’” Peter claims that as
a result of the district’s and its employees’ fraudulent representations that he was “performing at or near grade
level in basic academic skills,” he has suffered a loss of earning capacity. Should Peter be allowed to recover
for intentional misrepresentation? What about Peter’s parents’ responsibility in this case? Should they have
known he was not ready to move forward and held him back?
5. Florence brings suit against Kaiser Health Plan for malpractice because of the delay of her husband’s
doctor in ordering a biopsy in the diagnosis of her husband’s condition. Florence maintains that when
Kaiser represented that it would provide “high standards” of medical service, it promised a “standard
higher than non-negligence.” She also points out that although Kaiser claimed to be a “nonprofit” organi-
zation, it was actually built around a system that encouraged doctors to be conservative in ordering tests
and treatments. Because she and her husband were not told about Kaiser’s policies, she alleges that they
were fraudulently led to believe they would receive “the best quality of care and treatment.” Do you think
Florence has a viable claim for misrepresentation? Is the facility responsible for telling all patients that it is
a nonprofit or is that public knowledge and easily attainable?
to use reasonable care in ascertaining the truth of liable to the purchaser for their errors even though they
a representation made by a seller, even if the broker do not know the name of the purchaser. By the same
honestly believes it to be true. token, a lawyer who negligently drafts a will may be
The defendant is not required to receive compen- liable to the beneficiaries even though they may be
sation directly. If a prospective client comes to an attor- unaware of the identity of those beneficiaries.
ney’s office and the attorney negligently gives them The courts deny recovery, however, when the
incorrect advice as part of a “free first consultation,” class of people intended to be reached by the negli-
the defendant attorney is still liable for the misrepre- gent misrepresentation is not limited. Suppose a stock
sentation (Restatement [Second] of Torts § 552, cmt. d). ticker service negligently reports information to its cus-
One who negligently misrepresents something, tomer brokers. The plaintiff, a stock owner, reads the
however, is liable to a narrower class of third per- news at his broker’s office and immediately sells his
sons than is one who intentionally misrepresents stock because he expects stock prices to fall. The stock
something. One who makes an intentional misrep- ticker service is not liable because the plaintiff did not
resentation is liable to anyone whom they reason- subscribe directly to its service; therefore, the “limited
ably expect to learn about the statement (under the number of persons” requirement is not met (Jaillet v.
modern view). One who makes a negligent misrep- Cashman, 139 N.E. 714 [N.Y. 1923]).
resentation is liable only to those whom they intend Notice how, and for what social policy reasons,
to reach with the information or those they know the the court allows the common law tort of misrep-
recipient of the information intends to reach. resentation to be applied to an area of law that is
Nevertheless, as long as the defendant is aware wholly created by statute. Also, notice how courts
that a negligent misrepresentation will be passed on are more reluctant to hold adoption agencies liable
to a limited number of people, they will be liable even for their negligent misrepresentations than for their
if unaware of their precise identity. Suppose a surveyor intentional misrepresentations, out of a fear that
negligently provides a landowner with an erroneous imposing too heavy a burden on adoption agencies
description of their land. If the surveyor is aware that will unduly hamper their ability to place children in
the owner is planning to sell their land, they will be homes.
In the News
To see an interesting application of the law regarding intentional and negligent misrepresentation in the
context of car sales and advertising, read Williams Ford, Inc. v. Hartford Courant Co., 657 A.2d 212
(Conn. 1995) using your search engine. Use your reading of the case to answer Putting It into Practice 10:3.

William has an ankle replacement after fracturing his right ankle. Before the surgery he is told by his phy-
sician that the physician has performed three successful ankle replacements. When William asks the doc-
tor, what will happen if the ankle replacement does not work, the doctor responds, “The worst that could
happen is that we will just take that out and fuse it.” The doctor also assures him that amputation is “not a
problem” and “not something to worry about.” Based on the doctor’s representations, Williams agrees to
the ankle replacement. After the surgery, the ankle becomes infected; the infection does not respond to anti-
biotics, and William’s leg has to be amputated below the knee by another doctor. At trial, the doctor testifies
that he had never personally performed an ankle replacement, although members of his medical group had.
Do you think William has a claim for negligent misrepresentation? Are there any other grounds upon
which William might be able to sue?

1. What is the issue in Williams Ford Inc.?
2. Is negligent misrepresentation limited to those in the business of selling information?
3. Is a special relationship required between parties for a negligent misrepresentation to exist?
4. Is evidence of nonparty conduct admissible in this case?
5. Why did the defendant try and argue the liability for negligent misrepresentation does not exist “between
two sophisticated commercial parties with full access to information concerning a business transaction”?
What do they mean by that phrase?
6. The defendant argues further that where the controversy concerns purely economic losses allegedly
caused by statements made during the course of a contractual relationship between businesses, it is
contract law, rather than tort law, that should apply. Did the court agree with that argument?
7. Did the court find that the doctrine of contributory negligence should act as an absolute bar to recovery
for plaintiffs seeking recovery for negligent misrepresentation?
8. Does this case support a conclusion that the defendant’s negligence constituted an “immoral, unethical,
oppressive, or unscrupulous” practice?
Innocent liability theory because certain contract defenses

Misrepresentation that can be raised in a warranty suit are inapplicable
in a strict liability suit. The parol evidence rule, for
Until relatively recently, the courts have been unwill- example, which precludes the admission of oral and
ing to impose liability for innocent misrepresenta- written evidence external to a contract, is inapplica-
tions, which are, in effect, representations for which ble in a strict liability suit but is certainly appropriate
a defendant is strictly liable. At least two circum- in a warranty suit.
stances exist, however, in which many courts are Innocent misrepresentation also arises in the
now willing to allow recovery (see Exhibit 10–3). If a context of product liability. Similar to the “express
party involved in a sale, rental, or exchange transac- warranty” provisions of the Uniform Commercial
tion makes a material misrepresentation to the other Code (UCC), a seller of goods that makes
in an effort to close a deal, they will be liable even misrepresentations on a label or through public
if the misrepresentation is innocent (Restatement advertising is strictly liable for any physical injury that
[Second] of Torts § 552C [1]). If a seller of land, for results from such misinformation. Even if the plaintiff
example, represents in good faith that they are sell- does not buy the product from the defendant,
ing property that they in fact do not own, they will the defendant remains liable. (See discussion on
be liable to the purchaser for his misrepresentation warranty in Chapter 12.)
even though it is perfectly innocent. The sale, rental,
or exchange must be directly between the plaintiff
and the defendant. Suppose a manufacturer makes
a representation to a retailer, who in turn passes it on
Nuisance
to the plaintiff to induce them to buy the product. In A precise definition of the term nuisance has eluded
that case strict liability does not apply (Restatement the courts for centuries. In fact, one of the foremost
[Second] of Torts § 552C). scholars of tort law, William Prosser, refers to
Cases involving innocent misrepresentations can nuisance as “a sort of legal garbage can.” The most
also be brought on the basis of an implied or express that can be said is that a defendant’s interference
warranty theory. The plaintiff may opt for the strict with a plaintiff’s interest constitutes nuisance.
EXHIBIT 10–3 Recovery for Negligent and Innocent Misrepresentation
When Is Recovery Allowed for Negligent When Is Recovery Allowed for Innocent
Misrepresentation? Misrepresentation?
• M isrepresentation is made during course of defendant’s • D efendant makes misrepresentation during course of
business or profession. sale, rental, or exchange in effort to close the deal.
• Misrepresentation is made during transaction in which • Defendant makes misstatement on product label or in
defendant has a pecuniary interest. course of public advertising.
• Plaintiff is someone defendant intends to reach with
representation or knows recipient of representation
intends to reach.
• Defendant is aware that misrepresentation will be passed
on to limited number of persons although they do not
know their identities.

The Ballards are interested in buying a lot with an unfinished dwelling and a well. The sellers’ listing men-
tions a 100-foot well, and their real estate broker, believing the well to be working based on representations
made to him by the sellers, tells the Ballards the well is adequate. Based on their belief in the sufficiency of
the well, the Ballards buy the property. They are forced to haul water when the well fails to provide sufficient
water and they then have to deepen the well so that its water production is adequate. Do the Ballards have
a claim of innocent misrepresentation against the broker? Are there any defenses the broker can use against
the Ballards?
A nuisance can be either a public nuisance or a physical damage to the property or the disturbance
private nuisance. The essence of a public nuisance is of comfort of the property. The interference must
an interference with “a right common to the general be substantial and unreasonable to constitute a
public” (Restatement [Second] of Torts § 821B [1]). nuisance. The maintenance of a feedlot or a bar with
A private nuisance, in contrast, is an unreasonable live music in close proximity to a residential area
interference with the plaintiff’s use and enjoyment is an example of a public nuisance; the playing of
of his or her land (Restatement [Second] of Torts§ extremely loud music at 2:00 a.m. in a residential
822). The key to private nuisance is the need for the area exemplifies a private nuisance. Exhibit 10–4
plaintiff to have an interest in the land that has been defines the aspects of public and private nuisances.
affected by the defendant’s activities. It can include
EXHIBIT 10–4 Nuisance
Public Nuisance Private Nuisance

• Substantial and unreasonable interference • Substantial and unreasonable interference
• Affects right common to general public • Affects plaintiff’s use and enjoyment of land
• Public must be injured or exposed to injury • Plaintiff must suffer substantial interference with use or
• Plaintiff need not have interest in land enjoyment of land
• Plaintiff must suffer damages peculiar to them. • Plaintiff must have interest in land.
Public Nuisance welfare of its citizens to be a nuisance. Legal rem-

edies for nuisances include filing a criminal com-
To sustain a claim for public nuisance, the plain-
plaint or a civil action of an abatement. Because
tiff must show that the public at large was actually
neighbors are more likely to spot nuisances in their
injured or was exposed to the possibility of injury.
community than are local officials, some states have
It is not sufficient if only the plaintiff is injured,
set up administrative systems in which citizens can
even if they are injured in a public place. Further-
alert government officials about a nuisance property
more, the harm must be a substantial one. Under
in their neighborhood. A Texas statute, for exam-
the common law, only conduct that constituted
ple, allows the district attorney to call public meet-
a crime met the requirement of a public nuisance.
ings to identify public nuisances after receiving a
Most modern courts no longer require conduct to
request for such a meeting by a certain percentage
be criminal, although such conduct is still more likely
of the registered voters in the area. At the meet-
to be deemed a public nuisance than non-criminal
ing, neighbors may, in front of the property owner,
conduct.
voice their complaints about the alleged nuisance.
The plaintiff must also show that they suffered
After the meeting, the district attorney may elect
damage peculiar to them that was not shared by
to take legal action if they determine that sufficient
the rest of the public. Suffering the same
evidence exists. A Washington statute provides for
inconvenience or being exposed to the same threat
towing of junk cars from private property for a public
as everyone else in the community is not sufficient.
nuisance. A Florida law provides for the creation of
The rationale for this rule is that wrongs to the
local administrative boards that receive neighbors’
community as a whole should be redressed by the
complaints and conduct hearings regarding alleged
community’s representatives to avoid duplication
public nuisances. These boards have the authority to
of legal actions. The government, however, can
declare a property to be a public nuisance, to pro-
bring an action on behalf of the public without this
hibit further operation of the premises for one year,
showing. This special-injury element requires that
and/or to seek court injunctions.
the injuries of a private plaintiff be “different in kind”
from the injuries suffered by the general community,
but that they be incurred in the plaintiff’s exercise of Private Nuisance
the common right enjoyed by the community. This The key to suing on the basis of private nuisance, as
special-injury requirement has raised a barrier to mentioned earlier, is the plaintiff’s ability to show that
potential private plaintiffs bringing nuisance claims they have an interest in the affected land. Tenants,
relating to environmental hazards. as well as family members of an owner or tenant,
The courts, however, have struggled with this are considered to have such an interest. The plaintiff
notion of “particular damage.” Some have allowed must prove that the use and enjoyment of their land
recovery if the plaintiff suffered greater economic was substantially and unreasonably interfered with
loss than others in the community; others have and that the defendant’s conduct was either negli-
denied recovery in similar cases. If the plaintiff’s gent, intentional, or abnormally dangerous.
pecuniary loss precludes them from performing on a
contract or causes them additional expense in their Nuisance versus Trespass
performance, many courts have allowed the plaintiff The difference between a private nuisance and
to recover. Similarly, if the defendant has interfered trespass is subtle. A trespass consists of an interfer-
with the plaintiff’s commercial use of their land, many ence with the plaintiff’s right to possession of their
courts allow recovery for public nuisance. Commer-
cial fisheries, for example, have been allowed to
recover for losses due to pollution even though ordi- Local Links
nary citizens who used the polluted waters could not Has your state set up some kind of
recover. administrative procedure whereby citizens
A legislature can, by virtue of its police power, can notify government officials of potential
declare uses of property or conduct that are det- nuisances? What are some examples?
rimental to the health, morals, peace, or general
property; nuisance consists of an interference with the utility of the defendant’s conduct against the
the plaintiff’s right to enjoy and use their property. plaintiff’s harm. In accordance with this test, a plain-
Nuisance can occur, therefore, even if nothing phys- tiff may be barred from recovery, even though
ically enters the plaintiff’s property. Furthermore, the they suffered substantial harm, if the utility of the
fact that the interference must be substantial also defendant’s conduct exceeds the harm the plaintiff
differentiates nuisance from trespass. Recall that a suffered. If a stockyard opens up fairly close to a res-
plaintiff may recover for trespass even though suffer- idential neighborhood, the overwhelming smell will
ing no substantial harm, as the tort requires only an greatly outweigh any benefit of the stockyard and
intentional invasion of the plaintiff’s property. Most their production and the residents will most likely
conduct that constitutes a trespass typically meets have a valid claim for a nuisance.
the criteria for a nuisance as well. Blasting activi- The Restatement (Second) has rejected this bal-
ties in the vicinity of the plaintiff’s land, for example, ancing test for reasonableness and deemed that
obviously create a nuisance in light of the noise and interference is unreasonable if one of two things
vibrations that are produced. But if rocks and other is true: (1) the plaintiff’s harm outweighs the utility
debris are cast on the plaintiff’s land, a trespass is of the defendant’s conduct or (2) the harm caused
also committed. by the conduct is substantial and greater than any-
thing any individual should be required to bear with-
What Constitutes Substantial Interference out compensation (Restatement [Second] of Torts §
Substantial interference undoubtedly occurs when 829A). Under this criterion, even if the defendant’s
the plaintiff is injured or their property is damaged. activity is socially useful, they will be required to
The interference may also be substantial if the plain- compensate the plaintiff, unless so many people
tiff is inconvenienced or subjected to unpleasant are affected by the defendant’s conduct that requir-
sensory intrusions, such as obnoxious odors, glaring ing the defendant to pay damages would make it
lights, excessive dust or smoke, water pollutants, or impossible for them to continue the activity.
blaring sounds. The plaintiff must show that a rea- In one case a coal-burning electric generating
sonable person of normal sensitivity would be both- plant emitted 90 tons of sulphur-dioxide gas into
ered by the defendant’s conduct. An abnormally the atmosphere each day, causing extensive crop
sensitive plaintiff, therefore, will be precluded from damage and other harm. The defendant claimed
recovery. The interference with the plaintiff’s com- it had used due care in constructing and operating
fort must outweigh any benefit of the defendant’s the plant. Nevertheless, the emissions from the plant
actions. What constitutes substantial interference were determined to be a nuisance. Even though the
will, of necessity, hinge on the type of neighbor- economic and social utility of the plant outweighed
hood or area in which the activity occurs. Activities the harm to the farmers, the court required the
that constitute a nuisance in a quiet suburban area plant to compensate the farmers for their damages.
might not qualify as a nuisance in a densely popu- “Whether its economic or social importance dwarfed
lated urban area. the claim of a small farmer is of no consequence
in this lawsuit. It will not be said that, because a
Intentional and Unreasonable Interference great and socially useful enterprise will be liable
in damages, an injury small by comparison should
Although a defendant’s conduct can be either neg-
go unredressed. We know of no acceptable rule of
ligent, intentional, or abnormally dangerous, most
jurisprudence that permits those who are engaged
private-nuisance claims arise out of intentional con-
in important and desirable enterprises to injure with
duct. A defendant must, in other words, know with
impunity those who are engaged in enterprises of
substantial certainty that interference will occur even
lesser economic significance.” (Jost v. Dairy Cooper-
if they have no desire to interfere with the plaintiff’s
ative, 172 N.W.2d 647 [Wis. 1970].)
use and enjoyment of their land.
If the defendant’s interference is intentional,
Remedies
the plaintiff must also prove that such interference
is unreasonable. To determine whether interfer- A plaintiff alleging private nuisance may seek either
ence is unreasonable, some courts have balanced compensatory damages or an injunction. If the
nuisance is likely to be permanent, they can recover rendered this portion of the development unhealthy
for both past and future damages in the same action. and virtually uninhabitable. The court concluded that
However, if it is unclear whether the harm will be an the plaintiff had indeed “come to the nuisance” in its
ongoing one, they can recover only for those dam- building of a subdivision in the vicinity of an already
ages sustained at the time of suit and must bring existing feedlot. Nevertheless, the court enjoined
future actions for subsequent harm. the defendant from operating the feedlot because
If damages would be an insufficient remedy, the the rights of innocent third parties, the residents
plaintiff may be entitled to an injunction. If they seek of Sun City, were also involved. Because the plain-
an injunction, they must prove that the harm to them tiff had come to the nuisance, however, the court
outweighs the utility of the defendant’s conduct. required the plaintiff to indemnify the defendant for
Compare this to the Restatement approach dis- its moving costs (Spur Industries, Inc. v. Del E. Webb
cussed earlier, in which a plaintiff can recover dam- Development Co., 494 P.2d 700 [Ariz. 1972]).
ages even if the harm to them does not outweigh
the utility of the defendant’s conduct as long as it Environmental Law
would be unfair to deprive them of payment.
Currently, nuisance law is enjoying a resurgence,
especially in environmental law. Most claims for money
Defenses damages for pollution brought under state common
Contributory negligence, statute of limitations, gov- law include a claim for nuisance. Nuisance laws are
ernmental immunity, and assumption of risk can all resorted to because of some of the advantages they
be raised as defenses in private-nuisance claims. One have over statutory remedies. Public-nuisance claims
way a plaintiff can assume the risk is if they “come to provide environmental plaintiffs with a cause of action
the nuisance” by purchasing property while having that is both flexible and powerful.
advance notice that the nuisance exists. A plaintiff At one time plaintiffs rarely prevailed in hazard-
who purchases a home adjacent to an industrial plant ous waste cases, because they could not prove that
that is in full operation and spewing gases and waste the harm hazardous waste sites caused was greater
into the environment is said to have come to the nui- than the necessity and utility of most of the polluting
sance. Although at one time the courts treated com- activities. Today most courts find polluters’ conduct
ing to the nuisance as an absolute defense, modern to be unreasonable because they conclude that haz-
courts look at that fact as merely one of many fac- ardous waste contamination interferes with the use
tors to be considered in deciding whether the plain- and enjoyment of land and in most cases causes sub-
tiff should be allowed to recover. To bar recovery to stantial harm (see discussion in Wood v. Picillo). This
all plaintiffs who come to the nuisance would allow would be more in line with a strict liability nuisance.
defendants, in essence, to condemn the land in their In 1980, Congress passed the Comprehen-
vicinity so that the land would become valueless to sive Environmental Response, Compensation and
others. The courts expect defendants to contem- Liability Act (CERCLA), which authorizes the Envi-
plate the possibility that others will eventually want ronmental Protection Agency to clean up sites con-
to settle in the area and to anticipate that nuisance taminated by toxic wastes. CERCLA is also referred
claims may arise in the future. Defendants must be to as Superfund. It creates a tax on chemical and
careful when asserting and proving that the plaintiff petroleum industries and gives Federal authority to
“came to the nuisance” because it requires them to respond to hazards that may endanger the public.
prove they are in fact creating a nuisance and may When Congress passed CERCLA, many observers
be an admission of liability for future claims. anticipated that nuisance law would become out-
This point is illustrated in one interesting case moded. Instead, common law actions have emerged
involving a defendant cattle feedlot that produced as potent weapons for recovering damages caused
“over a million pounds of manure per day” in a rural by hazardous wastes.
area outside of Phoenix. The plaintiff developer The Superfund Amendments and Reauthoriza-
constructed a retirement development, “Sun City,” tion Act (SARA) amended the Comprehensive Envi-
a portion of which adjoined the feedlot. The plain- ronmental Response, Compensation, and Liability
tiff alleged that the flies and odor from the feedlot Act of 1980 (CERCLA) on October 17, 1986. (SARA)
reflected EPA’s experience in administering the com- buy the site at a later date. Third, common law defen-
plex Superfund program during its first few years dants can avoid long-term cleanup costs by arguing
and made important changes and additions to the that a site is “permanently contaminated,” thereby
program. SARA stressed how important it is to have being required to pay only the difference between the
permanent remedies and innovative treatment tech- original land value and the current value of the con-
nologies available for cleanup of hazardous waste taminated land. Such cleanup can be very expensive
sites. It provided new enforcement authorities and and take decades. Fourth, remedies under nuisance
settlement tools and increased State involvement law are contingent on balancing the costs and benefits
in every phase of Superfund. It increased the focus of the nuisance, whereas remedies under CERCLA can
on human health problems created by these hazard- require defendants to carry heavy burdens regardless
ous waste sites and encouraged greater citizen par- of the costs or benefits.
ticipation in making decisions on cleanup. Finally, it Despite the advantages to both plaintiffs and
increased the size of the trust to $8.5 billion. SARA defendants, common law actions are not a panacea.
also required EPA to revise the Hazard Ranking Sys- Designing and monitoring cleanup is easier under
tem to ensure that it accurately assessed the relative CERCLA; also because the outcome of litigation is more
degree of risk to human health and the environment predictable with CERCLA, settlement is more likely with
posed by uncontrolled hazardous waste sites that CERCLA than with nuisance claims. In nuisance cases, there
may be placed on the National Priorities List (NPL). are remedies of injunction, damages, and abatement. It
Plaintiffs have found several advantages in is not the same as the cleanup required under CERCLA.
pursuing nuisance claims instead of filing actions Furthermore, relying on state-by-state adjudication
under CERCLA: they can recover more in damages, inhibits efforts to create a uniform national campaign to
resulting in significantly higher awards; they can clean up hazardous wastes. However, in a very recent
obtain injunctions more easily; and they enjoy the case, Atlantic Richfield Co. v. Christian, 140 S.Ct. 1335
common law’s broader parameters of liability. For (2020), in a split decision, the United States Supreme
example, CERCLA excludes petroleum and petro- Court held that the Comprehensive Environmental
leum by-products in its definition of “hazardous Response, Compensation and Liability Act (“CERCLA”)
substances” and exempts the normal application of does not bar a plaintiff’s ability to bring state law claims
fertilizer and the release of nuclear materials from in state court for property damage or for nuisance, strict
its definition of “release.” These products are not liability, and trespass claims, that arise outside of CERCLA.
exempted under nuisance law. Furthermore, under Also, common law actions like nuisance, strict liability, and
traditional public-nuisance law there is no statute of trespass, require a plaintiff to file a lawsuit, whereas under
limitations, and the plaintiff need not show that their CERCLA the Environmental Protection Agency may
property was physically harmed. initiate an enforcement action any time a hazardous
Defendants also enjoy advantages under the substance is involved. If individual injuries are low and
common law tort of nuisance. First, under nuisance there are large numbers of people affected by hazardous
law, defendants are liable only for the contamination waste, individuals have little incentive to file nuisance
they cause. Thus, if a defendant is responsible for suits.
70 percent of a site’s contamination, they need pay for An illustration of litigation involving a hazard-
only 70 percent of cleanup costs, whereas they might ous waste site is Wood v. Picillo, 443 A.2d 1244
have to pay for 100 percent under CERCLA. Second, (R.I. 1982). This case chronicles the evolution of nui-
the original owner of a contaminated site can, under sance law in the context of environmental concerns.
nuisance law, defeat liability claims by subsequent Review it on the Internet and notice how the court
owners by asserting caveat emptor (“buyer beware”) acknowledges and conforms to changes in societal
as a defense. In contrast, under CERCLA, the original attitudes and scientific knowledge. Use this case for
parties remain liable for cleanup costs to those who completing Putting It into Practice 10:5.
In the News
To read more about environmental law issues, go to the website for the Center for International
Environmental Law at www.ciel.org. A guide to electronic resources for environmental law can be found
at the site for the American Society of International Law, www.asil.org as well as www.epa.gov.
In the News
CERCLA was amended by the Superfund Amendments and Reauthorization Act (“SARA”). An over-
view of SARA can be found at www.epa.gov by entering “SARA” as your search term.

1. What facts support a finding that the defendants’ dump site constitutes a nuisance?
2. How does a negligence claim differ from a nuisance claim?
3. What facts support the plaintiffs’ contention that they were injured by the chemical wastes harbored by
the defendants?
4. On what basis does the court distinguish Rose?
5. Must negligence be shown in a nuisance case involving contamination of public or private waters by pol-
lutants percolating through soil and traveling underground?

1. Seventy-five neighbors of an apartment complex sue the landlords of the complex for failure to combat
a drug-dealing operation on the property. The neighbors assert they have been confronted by drug deal-
ers, drug customers, and prostitutes, and that such confrontations, along with the sounds of gunshots,
fighting, and yelling, have made them fear for their lives. Neither the dealers, their customers, nor the
neighbors are actual tenants of the landlords. Do the neighbors have grounds for a nuisance action?
What must they prove?
2. A tuba instructor owns a condominium in a complex and gives private lessons out of their home. The
neighbors in the adjoining condominiums have complained to the condo association and are seeking
advice as to whether they have a nuisance claim against the instructor. Do the neighbors have grounds
for a public-nuisance claim? What about a private-nuisance claim?
3. Property owners whose properties are not subject to groundwater contamination emanating from the
defendants’ property argue that even though no contaminants had reached their properties, the defen-
dant should be held liable “for any loss in property values due to public concern about the contaminants
in the general area.” Do the property owners have grounds for a private-nuisance claim? Are there any
other possible claims here if the contaminants do reach their property?
4. Jet noise from an airport is described by residents as being comparable to the “noise of a riveting machine or
steam hammer.” The noise interrupts residents’ sleep, makes it difficult for them to converse on the phone,
and causes their windows to vibrate and plaster to fall. What relief, if any, are the residents entitled to?
Interference with Business Interference with Existing

Relations Contractual Relations
A person commits interference with existing contrac-
Two tort actions specifically protect business inter-
tual relations by inducing another to breach a con-
ests: (1) interference with existing contractual
tract with the plaintiff. The defendant’s interference
relations and (2) interference with prospective con-
must be intentional (negligence is not sufficient) and
tractual relations.
improper. Several factors are taken into consider- indicating their “agreement in principle.” Subsequently
ation when deciding if a tort has been committed. Texaco offered to buy Getty Oil for $125 per share,
They include the purpose and motive of the defen- after which Getty withdrew from its agreement with
dant, the means used to create the interference, and Pennzoil and agreed to merge with Texaco. Pennzoil
the type of interest with which the defendant inter- sued for interference with contractual relations, and a
feres, as well as the social interest involved in pro- jury found Texaco liable, assessing damages at $7.3
tecting both the defendant’s freedom of action and billion and awarding punitive damages of $3 billion.
the contractual interest of the plaintiff (Restatement Although at trial Texaco denied having any knowledge
[Second] of Torts §§ 766 and 767). of the agreement between Pennzoil and Getty,
One of the first and certainly most famous deci- both the jury and the appeals courts found sufficient
sions imposing liability for intentional inducement of evidence to conclude that Texaco had actively sought
a breach of contract was Lumley v. Gye, 118 Eng. to acquire Getty by inducing its breach with Pennzoil.
Rep. 749 (Q.B. 1853). In Lumley, the plaintiff’s the- After the court of appeals affirmed the jury’s verdict,
ater entered into a contract with an opera singer in Texaco and Pennzoil agreed to settle for $3 billion,
which she agreed she would not perform for anyone (Texaco, Inc. v. Pennzoil Co., 729 S.W.2d 768 [Tex. Ct.
else during a period of time. The defendant delib- App. 1987]).
erately enticed the singer to refuse to perform and
was held liable for improper interference with a con- Active Interference
tractual relationship.
The defendant must actively interfere with the con-
In more modern times, liability for contractual
tract. Merely offering a better price to a third person,
interference was found in a case in which an attor-
knowing that this might cause the third person to
ney, after terminating his employment with a law
breach their contract with the plaintiff, is not suffi-
firm, actively engaged in an attempt to procure busi-
cient. However, suppose the defendant says, “I will
ness for his new law firm. He contacted some of the
give you a better price than the plaintiff is offering,
first firm’s clients with whom he had been working
and if you accept my offer you will save enough
and advised them that he was leaving the firm and
money to afford to break your contract with the
that they could choose to be represented by him,
plaintiff and still come out ahead.” By this statement,
the firm, or any other firm or attorney. Addition-
the defendant actively induces a breach of contract
ally, he mailed these clients form letters that could
be used to discharge the firm as counsel and cre-
ate a contingency-fee agreement between him and
Kind of Contract Involved
the client. The court reasoned that the attorney
had used his position of trust and responsibility to Some kinds of contracts cannot serve as a basis for
unfairly prejudice the firm. The court also con- this tort. The plaintiff cannot recover if a contract
cluded that no public interest was served in allowing that is illegal or contrary to public policy is breached.
such use of confidential information (Adler, Barish, Similarly, most courts will not hold the defendant
Daniels, Levin & Creskoff v. Epstein, 393 A.2d 1175 liable if they induce the breach of a contract that is
[Pa. 1978]). terminable at will. An at-will employee is one who,
A more modern case involving two major oil because of the employment agreement into which
companies, Texaco and Pennzoil, aptly illustrates the they entered with their employer, can be discharged
tort of interference with contractual relations. In this at any time for any reason. The Restatement
case Pennzoil agreed to purchase Getty Oil for $110 (Second) and a growing number of courts, however,
per share. Although the companies entered into no do consider the inducing of a breach of an at-will
formal agreement, they both issued a press release contract to be contractual interference. The
In the News
To read about tortious interference with business relations cases, enter “tortious interference” as your
search term.
reasoning behind this approach is that a plaintiff At all times since the sellers entered into competition
has a right to expect that the contract will not be with plaintiffs in violation of their covenant,
tampered with until it is in fact terminated. Contracts defendant has furnished the sellers all necessary
that are unenforceable for other reasons, such as supplies of gas and oil to continue their violation of
lack of consideration or because they are not in said covenant. It is undisputed that defendant knew
conformance with the statute of frauds, can serve as of the restrictive covenant in the contract between
a basis for contractual interference. plaintiffs and the sellers and notwithstanding such
knowledge defendant solicited the seller’s entry into
Remedies the gas station business to handle its products in
The plaintiff may certainly recover for pecuniary competition with plaintiffs. Defendant also furnished
losses they sustain as a result of the interference and the sellers finances with which to open a competitive
also, according to some courts, may be allowed to station about which defendant complains, within two
recover for emotional harm. The plaintiff can recover blocks of plaintiffs’ business. Without such financial
for breach of contract against the person the defen- aid the sellers could not have opened said station.
dant induced to breach the contract. At all times since the sellers entered into competition
In one case, it is undisputed that defendant with plaintiffs in violation of their covenant defendant
purchase of a gas station, knew of the restrictive has furnished the sellers all necessary supplies
covenant in the contract between plaintiff oil of gas and oil to continue their violation of said
company and the sellers and notwithstanding such covenant. The conduct of the defendant was willful,
knowledge defendant solicited the seller’s entry into wrongful, and malicious in fact and is a basis for the
the gas station business to handle its products in plaintiffs to receive punitive damages in addition to
competition with plaintiffs. Defendant also furnished compensatory damages (McNutt Oil & Refining Co.
the sellers finances with which to open a competitive v. D’Ascoli, 281 P.2d 966 [Az. 1955]).
station about which defendant complains, within two The following excerpts from Ixchel Pharma LLC.
blocks of plaintiffs’ business. Without such financial v. Biogen, Inc. demonstrates interference with con-
aid the sellers could not have opened said station. tractual relations.
Case
Ixchel Pharma LLC v. Biogen, Inc.
470 P. 3d 571 (Cal. 2020).
Liu, J.
This case presents two questions about the bounds of prospective economic relationship with Forward and
legitimate business competition under California tort claimed that Biogen did so in violation of Business and
and antitrust law. Plaintiff Ixchel Pharma, LLC (Ixchel), Professions Code section 16600. On appeal, the United
a biotechnology company, entered into an agreement States Court of Appeals for the Ninth Circuit asked us
with Forward Pharma (Forward) to jointly develop a to decide (1) whether Biogen’s interference in Ixchel’s
drug for the treatment of a disorder called Friedreich’s at-will contract with Forward must be independently
ataxia. The drug development went according to plan wrongful and (2) how Business and Professions Code
until Forward decided to withdraw from the agreement, section 16600 applies to the settlement provision
as was allowed by its terms. Pursuant to a settlement requiring Forward to terminate its agreement with Ixchel.
with another biotechnology company, defendant I.
Biogen, Inc. (Biogen), Forward had agreed to terminate Because this case comes to us from the Ninth Circuit
its contract with Ixchel. Ixchel sued Biogen in federal at the motion to dismiss stage, we assume the truth
court for tortiously interfering with Ixchel’s contractual and of the facts as alleged in Ixchel’s operative complaint.
Case | Ixchel Pharma LLC. v. Biogen, Inc. (continued)

(Grisham v. Philip Morris U.S.A., Inc. (2007) 40 Cal.4th As a result of negotiations, Forward and Biogen
623, 629, 54 Cal.Rptr.3d 735, 151 P.3d 1151.) Ixchel entered into a settlement and license agreement
is a biotechnology company that develops drugs to (Forward-Biogen Agreement) in which Biogen
treat mitochondrial disease. Since 2012, it has been agreed to pay Forward $1.25 billion in exchange
developing a drug containing the active ingredient for a license to certain Forward patents and other
dimethyl fumarate (DMF) to treat Friedreich’s ataxia, intellectual property. In addition, section 2.13 of the
a neurodegenerative disorder affecting one in 50,000 Forward-Biogen Agreement required Forward to
Americans. “terminate any and all existing, and not enter into any
Because Ixchel did not have the resources to new, Contracts or obligations to Ixchel Pharma LLC ...
develop the drug by itself, in 2016 it entered into a Col- and/or any other Person, to the extent related to the
laboration Agreement with Forward, a biotechnology development [by Forward and its affiliate companies]
company that also develops drugs containing DMF of any pharmaceutical product having dimethyl
for the treatment of neurological diseases. Under the fumarate as an [active ingredient] for the treatment
terms of the Collaboration Agreement, Ixchel agreed to of a human for any indication, including Friedreich’s
assign certain patent rights it possessed to Forward. In ataxia.” Because Forward’s only business is the
return, Forward agreed to work with Ixchel to develop development of drugs containing DMF as an active
a new drug containing DMF to treat Friedreich’s ataxia. ingredient to treat humans, Ixchel alleges that the
Forward would investigate the feasibility of conducting Forward-Biogen Agreement effectively prohibited
clinical trials for the drug and, if feasible, would con- Forward from engaging in its entire business or a
duct those trials and pay for them. Ixchel would provide substantial part of it.
assistance with the clinical trials, as necessary. If the Forward notified Ixchel that because it had entered
clinical trials were successful, Forward agreed to man- into the Forward-Biogen Agreement, it would be ter-
age and pay for the manufacturing and commercial- minating the Collaboration Agreement with Ixchel in
ization of the drug with the assistance of Ixchel. Ixchel 60 days. After Forward terminated the agreement,
was entitled to a percentage of royalties on sales of the Ixchel lost its ability to develop its Friedreich’s
drug and retained certain rights to engage in its own ataxia treatment and has been unable to find another
commercialization of the drug independent of Forward. development partner to do so.
The Collaboration Agreement authorized Forward Ixchel filed suit against Biogen in federal district court,
to terminate the agreement “at any time” so long as asserting (1) violations of the federal and state antitrust
it provided notice to Ixchel 60 days in advance. Ixchel laws (15 U.S.C. § 1; Bus. & Prof. Code, § 16700 et seq.),
was authorized to terminate the agreement if Forward (2) tortious interference with contractual relations, (3)
informed Ixchel that it would not conduct clinical trials intentional and negligent interference with prospective
of the new drug or if it would not or did not timely sub- economic advantage, and (4) violations of the unfair
mit a new drug application for the developed drug to competition law (UCL) (Bus. & Prof. Code, § 17200 et
the Food and Drug Administration. In October 2016, seq.). (All undesignated references are to the Business
Forward informed Ixchel that it had confirmed the fea- and Professions Code.)
sibility of conducting clinical trials and would proceed The district court granted Biogen’s motion to
to conduct those trials. Thereafter, Ixchel and Forward dismiss with respect to each of Ixchel’s claims. (Ixchel
began to develop a plan for a trial study. Pharma, LLC v. Biogen Inc. (E.D.Cal., Sept. 12, 2017,
At the same time that Forward and Ixchel were No. 2:17-cv-00715-WBS-EFB) 2017 WL 4012337.)
working together, Forward was negotiating with Biogen, It determined that Ixchel had failed to state a claim
another biotechnology company, to settle a patent for interference with prospective economic advantage
dispute related to the use of DMF for the treatment or interference with contractual relations because Ixchel
of multiple sclerosis. One of Biogen’s drugs, Tecfidera, did not plead that Biogen engaged in an independently
is used to treat multiple sclerosis and contains DMF wrongful act. (Id. at p. *5.) The district court acknowledged
as an active ingredient. Ixchel alleges that because that tortious interference with contract claims do not
physicians can prescribe a drug containing DMF to generally require independent wrongfulness, but it held
treat conditions that the drug was not approved to that because the contract at issue was one terminable
treat, Ixchel’s drug development poses a competitive at will, independent wrongfulness was required. (Id. at
threat to Biogen’s Tecfidera drug. p. *4.)…

We rephrase and reorder the questions as follows the contract itself. (Quelimane Co. v. Stewart Title Guar-
(see Cal. Rules of Court, rule 8.548(f)(5)): (1) Is a plaintiff anty Co. (1998) 19 Cal.4th 26, 55, 77 Cal.Rptr.2d 709,
required to plead an independently wrongful act in order 960 P.2d 513 (Quelimane).) This general rule is subject
to state a claim for tortious interference with a con- to certain exceptions discussed below.
tract that is terminable at will? (2) What is the proper Tortious interference with prospective economic
standard to determine whether section 16600 voids advantage, on the other hand, does not depend on
a contract by which a business is restrained from the existence of a legally binding contract. A plain-
engaging in a lawful trade or business with another tiff asserting this tort must show that the defendant
business? The questions are related; the alleged viola- knowingly interfered with an “ ‘ “economic relationship
tion of section 16600 is the independently wrongful act between the plaintiff and some third party, [which car-
in Ixchel’s contractual interference claim. ries] the probability of future economic benefit to the
II. plaintiff.” ’ ” (Korea Supply Co. v. Lockheed Martin
We first address Ixchel’s claim that Biogen tortiously Corp. (2003) 29 Cal.4th 1134, 1153, 131 Cal.Rptr.2d
interfered in Ixchel’s contract with Forward. Before 29, 63 P.3d 937 (Korea Supply).)…
this court, neither party contests that the Cooperation So, while intentionally interfering with an
Agreement is a valid contract that Forward was entitled existing contract is generally “a wrong in and of itself”
to terminate at will. Nor is it at issue whether Forward (Quelimane, at p. 56, 77 Cal.Rptr.2d 709, 960 P.2d 513),
terminated the agreement according to its terms by giv- intentionally interfering with prospective economic
ing Ixchel notice 60 days prior to termination. The only advantage requires pleading that the defendant
question before us is whether Ixchel must allege that committed an independently wrongful act (Korea Supply,
Biogen committed an independently wrongful act in at p. 1158, 131 Cal.Rptr.2d 29, 63 P.3d 937). “[A]n act
order to state a claim for tortious interference with con- is independently wrongful if it is unlawful, that is, if it is
tract in light of the fact that the Cooperation Agreement proscribed by some constitutional, statutory, regulatory,
is an at-will contract. common law, or other determinable legal standard.” (Id.
A. at p. 1159, 131 Cal.Rptr.2d 29, 63 P.3d 937.)
California has traditionally recognized two eco- B.
nomic relations torts: interference with the performance With that framework in mind, we consider whether
of a contract (*1141 Imperial Ice Co. v. Rossier (1941) stating a claim for interference with an at-will con-
18 Cal.2d 33, 35, 112 P.2d 631 (Imperial Ice)) and inter- tract requires pleading an independently wrongful
ference with a prospective economic relationship act. We have long recognized that interference with
(Buckaloo v. Johnson (1975) 14 Cal.3d 815, 822, 122 at-will contracts is actionable as an economic tort.
Cal.Rptr. 745, 537 P.2d 865 (Buckaloo)). “[B]oth of these (Pacific Gas, supra, 50 Cal.3d at p. 1127, 270 Cal.Rptr.
torts protect the public interest in stable economic rela- 1, 791 P.2d 587 [citing cases]…
tionships ....” (Reeves v. Hanlon (2004) 33 Cal.4th 1140, A number of states have adopted this section of the
1152, 17 Cal.Rptr.3d 289, 95 P.3d 513 (Reeves).) Restatement to require proof of independent wrong-
The two torts are related but distinct. fulness in a claim for interference with at-will contrac-
Tortious interference with contractual rela- tual relations. (See Nostrame v. Santiago (2013) 213
tions requires “(1) the existence of a valid con- N.J. 109, 121, 61 A.3d 893; Macklin v. Robert Logan
tract between the plaintiff and a third party; (2) the Associates (1994) 334 Md. 287, 304, 639 A.2d 112;…
defendant’s knowledge of that contract; (3) the defen- Finally, allowing interference with at-will con-
dant’s intentional acts designed to induce a breach tract claims without requiring independent wrongful-
or disruption of the contractual relationship; (4) actual ness risks chilling legitimate business competition. An
breach or disruption of the contractual relationship; and actionable claim for interference with contractual rela-
(5) resulting damage.” (Reeves, supra, 33 Cal.4th at p. tions does not require that the defendant have the
1148, 17 Cal.Rptr.3d 289, 95 P.3d 513; see Pacific Gas specific intent to interfere with a contract. A plaintiff
& Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d states a claim so long as it alleges that the defen-
1118, 1126, 270 Cal.Rptr. 1, 791 P.2d 587 (Pacific dant knew interference was “ ‘certain or substantially
Gas).) It is generally not necessary that the defendant’s certain to occur as a result of [defendant’s] action.’ ”
conduct be wrongful apart from the interference with (Quelimane, supra, 19 Cal.4th at p. 56, 77 Cal.Rptr.2d

709, 960 P.2d 513.) Without an independent wrongful- former section 1673 categorically replaced the common
ness requirement, a competitor’s good faith offer that law standard of reasonableness with a per se rule. In
causes a business to withdraw from an at-will con- fact, the note stated that the statute’s limitation on con-
tract could trigger liability or at least subject the com- tractual restraints was consistent with two decisions
petitor to costly litigation. In fact, even if a business in adopting the common law reasonableness standard.
an at-will contract solicits offers on its own initiative, (Commissioners’ Note, at p. 503, citing Wright, supra,
a third party that submits an offer could face liability if 36 Cal. 342, More v. Bonnet (1870) 40 Cal. 251 (More).)
it knew that acceptance of the offer would cause the And one of those decisions expressly upheld a non-
soliciting business to withdraw from its existing con- competition agreement “because the limits [were] not
tract. Allowing disappointed competitors to state claims unreasonable.” (More, at p. 254.) Thus, the Commis-
for interference with at-will contracts without alleging sioners’ Note suggests that Civil Code former section
independently wrongful conduct may expose routine 1673, in prohibiting agreements that restrained trade
and legitimate business competition to litigation. to a “dangerous extent,” was not intended to invalidate
We therefore hold that to state a claim for inter- all restraints on trade. (Commissioners’ Note, at p. 502;
ference with an at-will contract by a third party, the see People v. Chun (2009) 45 Cal.4th 1172, 1187, 91
plaintiff must allege that the defendant engaged in an Cal.Rptr.3d 106, 203 P.3d 425 [Commissioners’ notes
independently wrongful act. We disapprove Redfearn v. are “entitled to substantial weight”].)
Trader Joe’s Co., supra, 20 Cal.App.5th 989, 230 Cal. Nor did this court’s decisions interpreting Civil Code
Rptr.3d 98 and Popescu v. Apple Inc., supra, 1 Cal. former section 1673 adopt a per se rule invalidating
App.5th 39, 204 Cal.Rptr.3d 302 to the extent they are all contracts that limit business dealings. Our cases ini-
inconsistent with this opinion… tially offered little clarity on the appropriate standard to
We turn first to the statute’s history and our prece- evaluate agreements restraining trade. In our first rea-
dent. “Under the common law, ... contractual restraints soned opinion interpreting the statute, we invalidated
on the practice of a profession, business, or trade, an agreement between manufacturers of dynamite
were considered valid, as long as they were reason- to fix prices and limit output. (Vulcan Powder, supra,
ably imposed.” (Edwards, supra, 44 Cal.4th at p. 945, 96 Cal. at pp. 514–515, 31 P. 581.) We noted that the
81 Cal.Rptr.3d 282, 189 P.3d 285; accord, Wright v. common law rule of reason “led to much perplexing
Ryder (1868) 36 Cal. 342, 357 (Wright).) As noted, the legislation” and had been replaced by Civil Code for-
Legislature in 1872 adopted Civil Code former sec- mer section 1673, but we did not explain what standard
tion 1673, which provided: “Every contract by which the new statute imposed. (Vulcan Powder, at p. 513, 31
any one is restrained from exercising a lawful profes- P. 581.) We simply said that the agreement at issue was
sion, trade, or business of any kind, otherwise than “clearly in restraint of trade and against public policy;
is provided by the next two sections, is to that extent and this conclusion is too obvious to need argument,
void.” The next two sections excepted certain contrac- authorities, or elucidation.” (Id. at p. 515, 31 P. 581.)
tual restraints upon the sale of goodwill in a business Our reasoning did not explain whether we found the
(Civ. Code, former § 1674) or upon dissolution of a agreement per se invalid or invalid by some other stan-
partnership (Civ. Code, former § 1675). dard. (See also Schwalm v. Holmes (1875) 49 Cal. 665,
The Code Commissioners’ note stated that Civil 669 [holding that exclusive sales contract was “not ille-
Code former section 1673 was enacted in response gal, as being in restraint of trade” in two-sentence dis-
to certain “modern decisions” that allowed contrac- position without further analysis].)
tual restraints to a “dangerous extent.” (Code com- Over time, however, two discernible categories of
mrs., note foll. 1 Ann. Civ. Code, § 1673 (1st ed. 1872, holdings emerged in our case law: Agreements not
Haymond & Burch, commrs.-annotators) p. 502 (Com- to compete after the termination of employment or
missioners’ Note).) Specifically, it disapproved of two the sale of interest in a business were invalid without
cases upholding agreements not to compete in the regard to their reasonableness. And agreements limit-
operation of boats. (Id. at pp. 502–503, citing Dunlop ing commercial dealings and business operations were
v. Gregory (1851) 10 N.Y. 241, California Steam Nav. generally invalid if they were unreasonable.
Co. v. Wright (1856) 6 Cal. 258.) But the Commission- As to agreements not to compete after termination
ers’ Note did not go so far as to say that Civil Code of employment or the sale of interest in a business,
an early case was Merchants’ Ad-Sign Co. v. Ster- To summarize, our decisions interpreting Civil
ling (1899) 124 Cal. 429, 57 P. 468 (Merchants’ Ad-Sign), Code former section 1673, the predecessor to Busi-
which invalidated an agreement not to compete as part ness and Professions Code section 16600, gradually
of the sale of stock in an advertising company. (Id. at evolved to evaluate contractual restraints on business
p. 434, 57 P. 468.) Our reasoning in that case rested on operations and commercial dealings based on a rea-
the plain language of the statute, and we did not exam- sonableness standard. In this respect, Civil Code for-
ine whether the restraint was reasonable. We empha- mer section 1673 did not depart from the common law
sized that “[t]he language of the code is unmistakable” rule. (See Centeno, supra, 107 Cal.App.3d at p. 68, 167
and rejected the applicability of cases adopting a more Cal.Rptr. 183 [observing in a case involving an exclusive
“liberal construction” of the statute. (Ibid.) Because the medical services contract that “[s]ection 16600 is basi-
noncompetition agreement prevented one party from cally a codification of the common law relating to con-
engaging in the business of bill posting after he sold his tracts in restraint of trade”].) But we often interpreted
interest in the advertising business to the other party, it the statute more strictly when it came to agreements
violated the plain language of Civil Code former section not to compete after the termination of employment
1673 and was therefore void. (Merchants Ad-Sign, at p. or the sale of interest in a business. Thus, instead of
434, 57 P. 468.)… adopting a per se rule that all contractual limitations
The contracts at issue in these cases involved on the freedom to engage in commercial dealings
agreements not to compete upon terminating employ- are invalid, our precedent interpreting Civil Code for-
ment or selling a business, and we understand their mer section 1673 was more nuanced.
holdings to be informed and limited by the factual con- In 1941, the Legislature repealed Civil Code
text presented. former section 1673 and reenacted it as Business and
By contrast, we did not interpret Civil Code for- Professions Code section 16600 using substantively
mer section 1673 so literally with regard to contrac- identical language. (Stats. 1941, ch. 526, § 1, p.
tual restraints on business operations and commercial 1834.) In doing so, the Legislature is presumed to
dealings. We generally declared agreements in this have incorporated this court’s construction of Civil
context valid if the restraints they imposed were rea- Code former section 1673 into section 16600. (People
sonable. In Grogan v. Chaffee (1909) 156 Cal. 611, v. Bonnetta, supra, 46 Cal.4th at p. 151, 92 Cal.
105 P. 745 (Grogan), we upheld a contract between a Rptr.3d 370, 205 P.3d 279.) Since then, this court
manufacturer and purchaser of olive oil requiring the has had occasion to construe section 16600 only
purchaser to resell the product at a certain price. We in relation to contracts restraining competition after
interpreted Civil Code former section 1673 to con- the termination of employment or the sale of interest
tain a reasonableness requirement: “It is not every in a business. (See Edwards, supra, 44 Cal.4th at p.
limitation on absolute freedom of dealing that is pro- 950, 81 Cal.Rptr.3d 282, 189 P.3d 285 [termination of
hibited. ... ‘The question is whether, under the partic- employment]…
ular circumstances of the case, and the nature of the We agreed, holding that “an employer cannot
particular contract involved in it, the contract is, or is by contract restrain a former employee from engag-
not, unreasonable.’ ... [I]t must be taken to be settled ing in his or her profession, trade, or business unless
that the sections of the Civil Code, [former] sections the agreement falls within one of the exceptions to the
1673, 1674, 1675, relating to contracts in restraint of rule.” (Edwards, supra, 44 Cal.4th at pp. 946–947, 81
trade are to be construed in the light of these princi- Cal.Rptr.3d 282, 189 P.3d 285.) We said that section
ples.” (Grogan, at p. 615, 105 P. 745.) The agreement, 16600 and its predecessor statute had rejected the
we concluded, was a reasonable restraint because its common law “ ‘rule of reasonableness’ ” for a “legisla-
purpose was not to create a monopoly but to “secur[e] tive policy in favor of open competition and employee
the legitimate benefits of the reputation which [the mobility.” (Edwards, at pp. 945, 946, 81 Cal.Rptr.3d
manufacturer’s] product may have attained.” (Id. at p. 282, 189 P.3d 285.) Stressing the statute’s plain mean-
614, 105 P. 745.) ing, we rejected the argument that section 16600 only
Similarly, in Associated Oil Co. v. Myers (1933) 217 voids restraints that entirely prohibit an employee
Cal. 297, 18 P.2d 668 (Associated Oil)… from engaging in a profession and not less restrictive
limitations that are reasonable. (Edwards, at pp. 946– Medical Group v. Abramson (1984) 161 Cal.App.3d
947, 81 Cal.Rptr.3d 282, 189 P.3d 285.) Similarly, we 284, 207 Cal.Rptr. 477…
rejected the Ninth Circuit’s “narrow restraint” construc- Finally, the holding and language in Edwards sim-
tion of section 16600, which excepted agreements lim- ply confirmed our long line of decisions inter-
iting only a narrow part of a party’s business, trade, or preting section 16600 strictly in the context of
profession. (Edwards, at pp. 948–950, 81 Cal.Rptr.3d noncompetition agreements following the termination
282, 189 P.3d 285.) of employment or the sale of interest in a business.
Ixchel argues that Edwards conclusively held Nothing about Edwards indicates a departure from
that section 16600 invalidates all restraints on trade for that precedent to also invalidate reasonable contrac-
all contracts, no matter how reasonable. It relies on our tual limitations on business operations and commer-
conclusion that “[s]ection 16600 is unambiguous, and cial dealings. Nor did Edwards address our substantial
if the Legislature intended the statute to apply only to body of law permitting such reasonable limitations.
restraints that were unreasonable or overbroad, it could In sum, a survey of our precedent construing section
have included language to that effect.” (Edwards, supra, 16600 and its predecessor statute reveals that we have
44 Cal.4th at p. 950, 81 Cal.Rptr.3d 282, 189 P.3d 285.) long applied a reasonableness standard to contrac-
But Ixchel reads too much into Edwards. “It is axiomatic tual restraints on business operations and commercial
that language in a judicial opinion is to be understood in dealings. We do not disturb the holding in Edwards and
accordance with the facts and issues before the court.” other decisions strictly interpreting section 16600 to
(Chevron U.S.A., Inc. v. Workers’ Comp. Appeals Bd. invalidate noncompetition agreements following the
(1999) 19 Cal.4th 1182, 1195, 81 Cal.Rptr.2d 521, 969 termination of employment or sale of interest in a
P.2d 613.) The plaintiff in Edwards sought to invalidate business. But those cases do not call into doubt the
a noncompetition clause in his employment agreement, applicability of a reasonableness standard to contrac-
and we “limited our review” to whether “Business and tual restraints on business operations and commercial
Professions Code section 16600 prohibit[s] employee dealings.
noncompetition agreements ....” (Edwards, at p. 941, C.
fn., 81 Cal.Rptr.3d 282, 189 P.3d 285omitted.) We held Finally, we are mindful of the consequences of strictly
that “section 16600 prohibits employee noncompe- interpreting the language of section 16600 to invali-
tition agreements unless the agreement falls within a date all contracts that limit the freedom to engage in
statutory exception ....” (Id. at p. 942, 81 Cal.Rptr.3d commercial dealing. “Every agreement concerning
282, 189 P.3d 285.) The question of whether noncom- trade ... restrains.” (Chicago Board of Trade v. United
petition agreements outside the employment context States (1918) 246 U.S. 231, 238, 38 S.Ct. 242, 62 L.Ed.
are per se invalid was not presented in Edwards. 683.) In certain circumstances, contractual limita-
Moreover, the rationale in Edwards focused on tions on the freedom to engage in commercial deal-
policy considerations specific to employment mobil- ings can promote competition. Businesses engaged
ity and competition: “The law protects Californians in commerce routinely employ legitimate partner-
and ensures ‘that every citizen shall retain the right ship and exclusive dealing arrangements, which limit
to pursue any lawful employment and enterprise of the parties’ freedom to engage in commerce with third
their choice.’ [Citation.] It protects ‘the important parties. Such arrangements can help businesses lever-
legal right of persons to engage in businesses and age complementary capabilities, ensure stability in
occupations of their choosing.’ ” (Edwards, supra, 44 supply or demand, and protect their research, devel-
Cal.4th at p. 946, 81 Cal.Rptr.3d 282, 189 P.3d 285; opment, and marketing efforts from being exploited
see ibid. [the statute “evinces a settled legislative by contractual partners.
policy in favor of open competition and employee These arrangements can have procompetitive
mobility”].) And we cited cases exclusively from the effects since they “enable long-term planning on
employment context in our reasoning. (Id. at pp. 945– the basis of known costs,” “give protection against
948, 81 Cal.Rptr.3d 282, 189 P.3d 285, citing Bosley price fluctuations, and — of particular advantage to a
newcomer to the field to whom it is important to know sellers respectively from doing business with third par-
what capital expenditures are justified — offer the ties. In **590 Great Western Distillery, we upheld a con-
possibility of a predictable market.” (Standard Oil Co. tract in which a business agreed to purchase whiskey
of California v. United States (1949) 337 U.S. 293, 306– exclusively from another whiskey distillery in exchange
307, 69 S.Ct. 1051, 93 L.Ed. 1371; see also Sterling for being the sole merchant of that whiskey in Califor-
Merchandising, Inc. v. Nestle, S.A. (1st Cir. 2011) nia. (Great Western Distillery, supra, 10 Cal.2d at pp.
656 F.3d 112, 123 [“exclusive dealing agreements 445–446, 74 P.2d 745.) Under the agreement, the pur-
‘can achieve legitimate economic benefits (reduced chaser was restrained from engaging in the business
cost, stable long-term supply, predictable prices)’”].) of buying whiskey from a third party, and the whiskey
Exclusive ***687 dealing arrangements also “may distiller was restrained from doing any business with
provide an incentive for the marketing of new products other potential whiskey buyers. Our opinion applied
and a guarantee of quality-control distribution.” a reasonableness standard in determining whether
(Dayton Time Lock, supra, 52 Cal.App.3d at p. 6, 124 the agreement ran afoul of Civil Code former section
Cal.Rptr. 678; accord, Fisherman’s Wharf Bay Cruise 1673. (Great Western Distillery, at pp. 445–446, 74 P.2d
Corp. v. Superior Court of San Francisco (2003) 745.) Similarly, here, the Forward-Biogen Agreement
114 Cal.App.4th 309, 335, 7 Cal.Rptr.3d 628.) restrained Forward from engaging in business with
For example, exclusive dealing arrangements Ixchel or another third party to develop drugs contain-
are “often a part of a franchise agreement or a ing the active ingredient DMF. Ixchel fails to meaning-
distributorship contract.” (UAS Management, Inc. v. fully differentiate Great Western Distillery from this case
Mater Misericordiae Hospital (2008) 169 Cal.App.4th with respect to the applicability of a reasonableness
357, 365, 87 Cal.Rptr.3d 81.) In exchange for the standard.
right to sell the franchisor’s products, franchisees CONCLUSION
often agree to purchase from a particular supplier or We h o l d t h a t t o r t i o u s i n t e r f e r e n c e w i t h
operate in a particular geographic area. (See, e.g., at-will contracts requires independent wrongfulness.
Dayton Time Lock, at pp. 4–5, 124 Cal.Rptr. Because Ixchel alleges that Biogen interfered with
678 [describing franchise agreement].) We decline its at-will contract, it must allege that Biogen did so
to construe section 16600 to call such arrangements through wrongful means.
into question simply because they restrain trade in We also hold that a rule of reason applies to deter-
some way. mine the validity of a contractual provision by which a
Ixchel and amicus curiae Beckman Coulter, Inc. business is restrained from engaging in a lawful trade
argue that these dire consequences are exaggerated or business with another business. Section 2.13 of
because section 16600 only voids agreements that the Biogen-Forward Agreement is such a restraint
restrain a party from “engaging in a lawful ... business” because it prevents Forward from collaborating with
and not all contractual restraints on business activity Ixchel or any other partner in the development of treat-
do so. (Italics added.) But they do not explain where ments containing the active ingredient DMF. Its valid-
the line is to be drawn. Many forms of exclusive deal- ity under section 16600 must therefore be evaluated
ing restrain parties from “engaging in a lawful ... busi- based on a rule of reason. We express no view on the
ness.” (§ 16600.) Franchise agreements often prohibit validity of the agreement at issue.
the franchisee from selling a third party’s products;
requirements and output contracts restrain buyers and
In the News
A definition of interference with prospective contractual relations and a comparison to interference
with contractual relations can be found at www.lectlaw.com or www.nolo.law by entering
“interference with prospective contractual relations” as your search term.
Privileges Interference with Prospective

If a defendant merely tries to protect their own Contractual Relations
existing contractual rights, they will be privileged to
Essentially the same rules apply to interference with
induce a breach as long as their motive is not to gain
prospective contractual relations as to interference with
business for themself. If a buyer is aware, for exam-
existing contractual relations, except for one major dif-
ple, that a manufacturer of goods has promised to
ference. Because no contract actually exists, the defen-
deliver goods to both themself and another buyer,
dant is given greater leeway as to what they can do to
they can ask that the manufacturer fulfill their con-
interfere. Although a defendant cannot interfere with
tract even if they are aware that the manufacturer
an existing contract for the purpose of obtaining busi-
will be unable to fulfill both contracts.
ness for themself, they are privileged to do so when
If an individual induces a breach for the
only a potential contract is involved. They are even
purpose of promoting social interests, they will
privileged to drive a plaintiff out of business, as long
also be privileged. One unusual case illustrating
as they do not use unlawful means such as price fixing
this point involved a burlesque troupe known as
or monopolization. But if they act out of sheer malice,
the Wu Tut Revue, whose manager so underpaid
their conduct will not be privileged.
the performers that they were forced to eke out
Interference with a plaintiff’s non-business expec-
an existence by resorting to prostitution. The
tations of financial gain can be the basis for this tort. If
defendant persuaded the theater owners with
the defendant induces a testator to leave the plaintiff
whom the troupe had contracted to perform to
out of their will, they can be held liable. Interference
cancel the contract unless higher wages were paid
with a plaintiff’s potential legal claim can also be tor-
to the performers. The defendant’s action was
tious. A defendant may be liable if they tamper with
considered justified and therefore not tortious
medical records or conceal facts from the plaintiff that
(Brimelow v. Casson, 1 Ch. 302 [1924]).
if known would reveal a cause of action.

1. Pro-Image and University Graphics are business competitors. Pro-Image has leased space from a com-
mercial landlord when it discovers that University Graphics is negotiating to rent space in the same build-
ing. Representatives for Pro-Image express their concern about the landlord renting space to their “fierce
competitor”; the landlord decides not to lease space to University Graphics to avoid conflict between
tenants. Does University Graphics have grounds for a claim of interference with existing contractual rela-
tions against Pro-Image? Does it have grounds for a claim of interference with prospective contractual
relations?
2. An attorney represents a well-known dental hygiene school student who is being sued by the school to
collect unpaid fees. The student counterclaims for fraud and misrepresentation. In the course of repre-
senting the student, the attorney contacts several students at the school and discovers that many of
them are dissatisfied with the dental hygiene program. Some of the students approach the attorney and
indicate that they might be interested in suing the school. The attorney takes the names of the students
and contacts them after the collection case is settled. The attorney holds three meetings in their office
with the students. After the third meeting, approximately 35 students withdraw from the dental hygiene
program. The school files a claim for interference with contractual relations against the attorney. Does
the school have a viable claim? Are there other possible claims besides interference with contractual
relations?
In the News
Malicious prosecution is defined and explained at www.lectlaw.com or www.findlaw.com. Enter
“malicious prosecution” as your search term.
Misuse of Legal Process not to prosecute, the grand jury refuses to indict, or the
case is dismissed because of the weakness of the case.
A plaintiff who has been subjected to unwarranted A plaintiff’s plea of guilty in acceptance of a plea bar-
judicial proceedings may sue on the basis of mali- gain is not considered a favorable conclusion for the
cious prosecution, wrongful institution of civil pro- plaintiff.
ceedings, or abuse of process (see Exhibit 10–5). The most difficult hurdle for plaintiffs to overcome
Notice that the plaintiff in these cases was originally in malicious prosecution cases is the probable-cause
the defendant in the cause of action leading to the requirement. If a defendant reasonably believes
suit involving the misuse of legal process. Suppose that the plaintiff committed certain acts, they will be
an individual became the target of a criminal investi- deemed to have probable cause. If it turns out that
gation that resulted in their becoming the defendant the defendant’s belief is mistaken, their mistake will not
in a criminal trial. If the individual believed the pros- constitute lack of probable cause as long as the mis-
ecutor’s chief witness fabricated the story involving take is a reasonable one. An acquittal does not nec-
the defendant and actively sought to bring criminal essarily indicate a lack of probable cause, because an
proceedings against the defendant out of vengeance acquittal may occur on the basis of reasonable doubt
because of a squabble the two had had years earlier, rather than lack of probable cause. Therefore, even if
the defendant in the criminal action could sue the the plaintiff is acquitted, the defendant has a right to,
prosecutor’s witness, who would become the defen- in essence, retry the plaintiff. If they can show by a pre-
dant in the malicious prosecution suit. ponderance of the evidence that the plaintiff was guilty,
they can establish the existence of probable cause.
In showing improper purpose, the plaintiff must
Malicious Prosecution show that the defendant acted out of malice or for
A defendant whose motives are for some purpose some reason other than seeing justice done. A creditor,
other than bringing the plaintiff to justice and who, for example, who uses the criminal process to compel
without probable cause, institutes criminal proceed- a debtor to pay their debt has an improper purpose
ings against another commits malicious prosecution (Restatement [Second] of Torts § 668, cmt. g).
(Restatement [Second] of Torts § 653). For the plaintiff Prosecutors are almost always immune from
to recover, the proceedings must conclude in the plain- malicious prosecution suits. Immunity is also gener-
tiff’s favor and the defendant must actively participate ally given to police officers as long as they are acting
in instigating the prosecution. A defendant who leaves within the general scope of their duties.
the decision in the hands of the prosecutor is not con-
sidered to have actively participated in the prosecution. Wrongful Institution of Civil
Rather, the defendant must have lied to the prosecutor
or attempted in some way to influence his decision to
Proceedings
prosecute. The proceedings are deemed to have con- Although the tort of malicious prosecution
cluded in favor of the plaintiff if the prosecutor decides normally applies to criminal proceedings, most
Exhibit 10–5 Misuse of Legal Process
Wrongful Institution of
Malicious Prosecution
Civil Proceedings
Defendant institutes criminal proceedings against Defendant institutes civil proceedings against
plaintiff but has no probable cause and acts out of plaintiff but has no probable cause and acts out of
motives other than a sense of bringing plaintiff to motives other than seeking compensation for
justice. wrong suffered.
Abuse of Process
Defendant uses litigation devices for improper

purposes.
states allow similar actions for wrongful institution of permissible motives, they may still be liable
of civil proceedings. The elements are essentially for abuse of process if they use certain litigation
the same as for malicious prosecution, although devices for improper purposes. Using a subpoena,
civil proceedings may encompass administrative for example, to harass someone or to induce
proceedings, bankruptcy proceedings, and insanity them to settle rather than for its usual purpose of
proceedings as well as ordinary civil lawsuits. obtaining testimony could be considered abuse
Proving lack of probable cause in a civil case is more of process (Restatement [Second] of Torts § 682,
difficult than in a criminal case because one can illus. 3). As long as the primary purpose for the
initiate civil proceedings with far less information proceeding is justified, the fact that the defendant
than in a criminal proceeding. A suit brought merely has an ulterior motive or that the proceedings may
to harass an opponent or to extort a settlement be of some incidental benefit to them is irrelevant.
when the defendant is aware there is no real chance If the instigation of bankruptcy proceedings is jus-
of succeeding exemplifies wrongful institution of tified, it does not become abuse of process merely
civil proceedings. A counterclaim brought solely because the instigator of those proceedings hopes
for the purpose of delaying proceedings is another they will gain some benefit from the closing down
example. of their competitor’s business. Typically, abuse of
process involves situations in which a party puts
Abuse of Process undue pressure on another to induce them to
engage in or refrain from a particular action.
If an individual initiates a criminal or civil proceed-
ing based on probable cause and on the basis
In the News
To read about how malicious prosecution and abuse of process differ, look at www.legaldictionary
.net as your search term.

1. Robert, a freelance reporter and owner of a helicopter news service, films a night-time air hoist rescue
of a stranded fisherman. One of the firefighters involved in the rescue claims that Robert shone a bright
spotlight from his helicopter during the rescue, causing the firefighter to momentarily lose control of the
hoist, thereby endangering his crew and the fisherman. The firefighter brings his complaint to the Federal
Aviation Administration (FAA), which exonerates Robert after an investigation. The firefighter then goes to
the city attorney’s office. The prosecutor brings charges against Robert but drops them after learning of
the FAA adjudication and the exonerating evidence presented. Robert files a claim for malicious prosecu-
tion. Do you think a court would uphold his claim?
2. Steve purchases a large screen television from a local electronics store. After watching it for a week, he
decides he wants to return it. The store refuses the return since there is no defect in the television. Steve
is furious and threatens the manager. He then states that he is taking the store to small claims court. He
then has a process server serve the store with paper copies of a complaint for small claims court. Steve
never actually filed the papers with the court, but the store does not know that fact. Is Steve liable for
abuse of process?
Summary
Misrepresentation arose out of the common law Most courts today allow a claim for negligent
action of deceit. Intentional misrepresentation, cor- misrepresentation. Recovery is most likely to be
responding to fraud under the common law, requires allowed when a defendant makes false statements
that (1) the defendant makes a misrepresentation during the course of their business or profession or
with the intent of inducing the plaintiff’s reliance on has a pecuniary interest in the transaction in which
that misrepresentation, (2) the defendant knows the they are involved. One who makes a negligent mis-
representation is false or acts with reckless indiffer- representation is liable only to those they intend to
ence to the truth, (3) the plaintiff justifiably relies on reach with their information or whom they know the
the defendant’s misrepresentation, and (4) the plain- recipient of their information intends to reach.
tiff suffers damages stemming from their reliance. Recovery for innocent misrepresentation is
A misrepresentation may consist of a false allowed if a party makes an innocent but material
statement or an intentional concealment of a fact or misrepresentation in the course of a sale, rental,
an action by itself. Under modern law, mere failure to or exchange transaction. The seller of goods who
disclose a material fact may be considered conceal- makes misrepresentations on a label or through
ment under certain circumstances. public advertisement is also liable for any innocent
A plaintiff can recover if they are a member misrepresentations resulting in physical injury.
of the class whom the defendant can reasonably A public nuisance requires interference with a
expect to be influenced by the misrepresentation. right common to the general public; a private nui-
The plaintiff must also show that their reliance sance is an unreasonable interference with the plain-
occurred in the type of transaction the defendant tiff’s use and enjoyment of their own land. To prove
could reasonably expect the plaintiff to engage in as public nuisance a plaintiff must show that the public
a result of the reliance. A defendant must know that at large was injured or exposed to the possibility of
their statement is false or act with reckless disregard injury, and the harm must be a substantial one. The
to the truth or falsity of the statement. In reference harm suffered by the plaintiff must be peculiar to
to the issue of reliance, the question is whether the them and not shared by the rest of the public. Some
plaintiff made any independent investigation of their courts allow recovery, however, if the plaintiff suffers
own, and whether reliance was on the misrepresen- greater economic loss than others in the community.
tation, the investigation, or both. Private nuisance, in contrast, requires only that
The plaintiff is not usually entitled to rely on an the plaintiff’s use and enjoyment of their land be
opinion offered by the defendant. If, however, the substantially interfered with and that the defendant’s
defendant and plaintiff have a fiduciary relationship, conduct be negligent, intentional, or abnormally
or if the defendant has worked to secure the plain- dangerous. Interference is considered substantial
tiff’s confidence or purports to have special knowl- if the plaintiff is inconvenienced or subjected to
edge, the plaintiff may be justified. Mere “puffing” unpleasant sensory awarenesses. A plaintiff may
is not actionable unless the plaintiff reasonably per- seek either compensatory damages or an injunction.
ceives that the opinion being offered is being made If they seek an injunction, however, they must
by a disinterested party. Predictions are almost prove that their harm outweighs the utility of the
always considered opinion unless the defendant is defendant’s conduct. Contributory negligence and
aware of facts inconsistent with that opinion. assumption of risk can be raised as defenses in
To recover for misrepresentation, the plaintiff private-nuisance claims.
must show that the losses suffered were the reason- Two tort actions that specifically protect busi-
ably foreseeable results of the misrepresentation. A ness interests are interference with existing con-
plaintiff may ask either to be put into the position tractual relations and interference with prospective
they were in before the misrepresentation (reliance contractual relations. Intentionally and actively
measure) or to be put in the position they would inducing another to breach a contract with the plain-
have been in had the misrepresented facts been true tiff constitutes interference with existing contrac-
(benefit of the bargain measure). tual relations. When deciding if this tort has been
committed, the courts will consider the defendant’s or abuse of process. Malicious prosecution occurs
motive and purpose, the means they use to create when a defendant actively participates in instituting
the interference, the type of interest with which they criminal proceedings against another, lacks proba-
interfere, and the social interest involved in protect- ble cause, and has motives other than bringing the
ing both the defendant’s freedom of action and the plaintiff to justice. Wrongful institution of civil pro-
contractual interest of the plaintiff. Greater latitude is ceedings is comparable to malicious prosecution
allowed defendants charged with interference with except that it involves the initiation of civil proceed-
prospective contractual relations. ings. Abuse of process occurs when an individual
Anyone subjected to unwarranted judicial pro- institutes criminal or civil proceedings on the basis
ceedings may recover on the basis of malicious pros- of permissible motives and with probable cause but
ecution, wrongful institution of civil proceedings, uses litigation devices for improper purposes.
Key Terms
abuse of process latent defect
Use of litigation devices for improper purposes Defect that is invisible or not readily discoverable
at-will employee nuisance
Employee who, because of the nature of their Substantial and unreasonable interference with
employment contract, can be discharged at any a plaintiff’s interest; includes public and private
time for any reason nuisance
deceit patent defect
Common law cause of action equated with inten- Defect that is visible or readily discoverable
tional misrepresentation; also referred to as fraud
fiduciary relationship
Relationship based on trust and confidence
imposing an obligation to act in good faith
Review Questions
1. What is the relationship between deceit and 7. How do the courts treat transactions involving
misrepresentation? parties having a fiduciary relationship differ-
ently than transactions that are done at “arm’s
2. What are the basic elements of length”?
misrepresentation?
8. To what group of persons is a defendant liable
3. How does intentional misrepresenta- if they make a misrepresentation?
tion differ from negligent and innocent
misrepresentation? 9. What state of mind is required for intentional
misrepresentation?
4. What is the doctrine of caveat emptor?
10. Is a defendant liable if a plaintiff relies on the
5. Is nondisclosure grounds for misrepresenta- defendant’s misrepresentation but also con-
tion? If yes, under what circumstances? ducts an investigation of their own?
6. Is making a statement that is a half-truth 11. Under what circumstances is a plaintiff justified
grounds for misrepresentation? in relying on a defendant’s opinion?
12. How do courts treat statements by defendants 22. Why has nuisance enjoyed a resurgence?
that could be characterized as a. What is CERCLA?
a. puffing? b. What advantages over CERCLA does a nui-
b. opinion by a disinterested party? sance claim offer a plaintiff?
c. opinion implying facts? c. What advantages over CERCLA does a nui-
d. prediction? sance claim offer a defendant?
e. statement of intentions? d. What advantages does CERCLA offer over
a nuisance claim?
13. What do plaintiffs have to prove in terms of
causation? 23. What are the elements of interference with
existing contractual relations?
14. What is the difference between a reliance mea- a. Is this tort committed by offering a third
sure of damages and a benefits-of-the-bargain person a better price, knowing that doing
measure? so could induce this person to breach his
15. In what ways do the courts treat negligent mis- contract with the plaintiff?
representation differently than they do inten- b. What kinds of contracts cannot serve as a
tional misrepresentation? basis for this tort?
c. What can a plaintiff recover?
16. Under what circumstances are today’s d. When is a defendant privileged to induce a
courts willing to allow recovery for innocent breach of contract?
misrepresentation?
24. How does interference with prospective con-
17. How do express and implied warranty theory tractual relations differ from the tort of interfer-
apply in cases of innocent misrepresentation? ence with existing contractual relations?
18. Why is nuisance referred to as the “legal gar- 25. What are the elements of malicious
bage can”? prosecution?
a. Which is the most difficult element to
19. What is the difference between private and prove, and why?
public nuisance? b. Why are prosecutors and police officers
20. What are the elements of public nuisance? rarely sued for this tort?
a. Why must the plaintiff prove that they suf- 26. What does it mean that the plaintiff must have
fered damages peculiar to them? actively participated in instigating the prosecu-
b. In what way have the courts struggled with tion in malicious prosecution?
the concept of “particular damage”?
27. How does the tort of wrongful institution
21. What are the elements of private nuisance? of civil proceedings differ from malicious
a. How does private nuisance differ from prosecution?
trespass?
b. What is considered “substantial interfer- 28. Under what circumstances is someone liable
ence”? for abuse of process?
c. Must the defendant’s conduct be inten-
tional?
d. What is considered when determining if a
defendant’s conduct is unreasonable?
e. What remedies are available to a plaintiff?
f. What defenses can be raised?
Practice Exam
True-False
1. The common law action of deceit required that 14. If a defendant promises to buy the plaintiff’s
the plaintiff lose money or property as a result house for $100,000 but actually has no inten-
of relying on the defendant’s representation. tion of doing so, and the plaintiff sues for
2. Misrepresentation is broader than deceit. breach of contract, the defendant will probably
not be allowed to raise the statute-of-frauds
3. To recover for intentional misrepresentation, a
defense just because the contract was not in
plaintiff must prove that the defendant knew
writing.
the misrepresentation was false or acted with
reckless indifference to the truth. 15. Damages for misrepresentation can include
being put in the position you were in before or
4. Misrepresentation cannot consist of actions
be put in the position had the misrepresented
alone or just of concealing a fact.
facts been true.
5. A defendant cannot be found liable for misrep-
16. Negligent misrepresentation has a different
resentation if he makes a statement that is a
element than intentional misrepresentation.
half-truth.
17. A plaintiff is most likely to recover for negligent
6. If a fiduciary duty exists there is a more
misrepresentation when the defendant has a
demanding obligation to disclose information.
pecuniary interest in or makes false statements
7. Defendants who incorporate misstatements during a business transaction.
into commercial documents are liable to those
18. A defendant who is aware that a negligent mis-
who suffer as a result of their reliance on the
representation will be passed on to a limited
truth of those statements even if the defen-
number of people will be liable even if they are
dants never intended to make contact with
unaware of their precise identity.
those persons.
19. Modern courts generally allow recovery for
8. A defendant possesses the requisite state of
innocent misrepresentation under the same
mind for intentional misrepresentation if they
circumstances as they would allow recovery for
make a statement that is merely a belief but
intentional or negligent misrepresentation.
represents it as actual knowledge.
20. Innocent misrepresentation is a viable cause of
9. The defendant is still liable even if the plaintiff
action in product liability cases even when the
relied mainly on their own investigation rather
plaintiff does not buy the product directly from
than the defendant’s misrepresentation.
the defendant.
10. A plaintiff is never entitled to rely on an opin-
21. To sustain a claim for private nuisance, the
ion by the defendant.
plaintiff must have an interest in the land that
11. “Puffing” is an actionable form of has been affected by the defendant’s activities.
misrepresentation.
22. Recovery for public nuisance is allowed even
12. A plaintiff may be able to recover if a defen- if only the plaintiff is injured, as long as that
dant expresses an opinion implying that no injury occurs in a public place.
facts incompatible with that opinion exist.
23. In a public nuisance case, the harm done must
13. A defendant can be found liable for a predic- be nominal.
tion if he knows of facts inconsistent with that
24. A legislature does not have the right to declare
prediction.
conduct that is detrimental to the welfare of its
citizens to be a public nuisance.
25. To prove private nuisance, a plaintiff must show 39. Offering a better price to a third person,
that the defendant’s conduct was intentional, knowing that this could induce this person to
negligent, or abnormally dangerous. breach their contract with the plaintiff, does
26. A plaintiff can recover for public nuisance only not constitute interference with contractual
if something physical enters the plaintiff’s prop- relations.
erty and causes a substantial interference. 40. A plaintiff in a breach of existing contractual
27. An abnormally sensitive plaintiff may be pre- relations claims can recover for pecuniary
cluded from recovery for private nuisance. losses but not for emotional harm.
28. Interference is considered “substantial” for 41. A plaintiff in a breach of existing contractual
purposes of public nuisance if the plaintiff is relations claims cannot recover for breach of
inconvenienced or is exposed to an unpleasant contract against the person the defendant
sensory experience. induced to breach the contract.
29. To recover on a private-nuisance claim, a plain- 42. A defendant is not considered to have inter-
tiff must prove that the defendant intended to fered with prospective contractual relations if
interfere with the plaintiff’s use and enjoyment they drive a plaintiff out of business, as long
of their land. as they do not act in malice or do something
illegal.
30. Even if a defendant intentionally interfered with
the plaintiff’s use of their land, some courts 43. In an interference with business relations case,
require that the plaintiff prove that the harm a plaintiff may recover emotional damages.
they suffered was greater than the utility of the 44. A defendant is given more leeway with what
defendant’s conduct. they can do to interfere with a prospective con-
31. A plaintiff suing for private nuisance can always tract than with an existing contract.
seek to recover compensatory damages or to 45. The plaintiff in a misuse-of-legal-process case
obtain an injunction. was originally the defendant in the cause
32. Coming to the nuisance can be a defense to a of action leading up to the misuse-of-legal-
private-nuisance claim. process case.
33. Nuisance claims have the advantage over 46. To recover for the tort of malicious prosecu-
CERCLA claims in that they allow plaintiffs to tion, the proceedings must be concluded in
recover more in damages and to obtain injunc- the plaintiff’s favor.
tions more easily. 47. Proceedings are not deemed to have con-
34. Under CERCLA, defendants are liable only for cluded in favor of the plaintiff for the purpose
the contamination they actually cause. of malicious prosecution if the prosecutor
declines not to prosecute.
35. Remedies under nuisance law are contingent
on balancing the costs and benefits of the nui- 48. Proving lack of probable cause is usually the
sance, but such balancing is not required under easiest part of a plaintiff’s malicious prosecu-
CERCLA. tion case and is easier to prove in these cases
than in cases of wrongful institution of civil
36. Under CERCLA, designing and monitoring
proceedings.
cleanup of hazardous waste is easier than with
nuisance claims. 49. A defendant must actively participate in the
prosecution for there to be a malicious prose-
37. Settlements are more common in nuisance
cution case.
cases rather than CERCLA.
50. Proving lack of probable cause in a malicious-
38. In deciding whether the tort of interference
prosecution case is automatic if the plaintiff is
with existing contractual relations has been
acquitted.
committed, courts consider the purpose and
motive of the defendant as well as the social 51. To prove improper purpose in a malicious-
interests involved in protecting the defendant’s prosecution case, the plaintiff must show that the
freedom of action and the plaintiff’s contractual defendant acted with malice or for some reason
interests. other than seeing that justice would be done.
52. Prosecutors and police officers are the most fre- 54. Abuse of process does not occur if the primary
quent defendants in malicious-prosecution suits. purpose of the proceedings is justified, even if
53. Wrongful institution of civil proceedings can- the defendant has some ulterior motive.
not arise out of administrative or bankruptcy
proceedings.
Matching
GROUP 1
________ 1. Nuisance a. advance notice about nuisance
________ 2. Private nuisance b. statutory remedy for toxic wastes
________ 3. Public nuisance c. loud music in evening in residential area
________ 4. CERCLA d. feedlot next to residential area
________ 5. Come to the nuisance e. legal garbage can
GROUP 2
________ 1. Interference with existing contractual a. filing suit solely to harass plaintiff
relations contractual relations
________ 2. Interference with prospective b. defendant lies to prosecutor contractual

contractual relations relations
________ 3. Malicious prosecution c. breach of at-will contract
________ 4. Wrongful institution of civil proceedings d. use of subpoena to induce settlement

civil-proceedings
________ 5. Abuse-of-process e. interference with potential legal claim
Fill-in-the-Blank
1. The tort of ____________ refers to a plaintiff’s 4. A defendant in a nuisance action can argue
right to possess his property, whereas the tort that the plaintiff ____________ ____________
of ____________ refers to a plaintiff’s right to ____________ ____________ in that the nui-
use and enjoy his property. sance existed before the plaintiff purchased
her property.
2. For a plaintiff to recover for public nuisance,
the harm caused by the defendant’s conduct 5. __________ is a federal law that can result in
must be ____________. cleanup of hazardous waste cases.
3. The ____________ ____________ element of pri- 6. ____________ ____________ occurs when

vate nuisance requires that the plaintiff suffer a defendant intentionally or negligently
an injury different in kind from that suffered by induces someone to breach a contract with
the rest of the community. the plaintiff.
7. To recover for the tort of ____________ 9. ____________ ____________ ____________

____________, the plaintiff must prove that occurs when a person misuses a litigation
the defendant instituted criminal proceedings device.
without probable cause and for purposes other
than bringing the plaintiff to justice.
8. Filing a counterclaim solely for the purpose

of delaying proceedings is an example of
____________ ____________ ____________
____________ ____________.
Multiple-Choice
1. Deceit knowledge that the plaintiff does not
a. is broader than the tort of have.
misrepresentation. c. need not have justification for relying on a
b. is the origin of the tort of misrepresentation. defendant’s misrepresentation.
c. can be based on a mental state of inten- d. is not entitled to rely on a defendant’s opin-
tional or innocent misrepresentation. ion even if the defendant worked to secure
d. all of the above. the confidence of the plaintiff.
2. Failure to disclose a material fact 5. In a case of misrepresentation,
a. constituted misrepresentation under the a. a plaintiff’s losses may be measured by

common law. using either a reliance or benefits-of-the-
b. is not considered misrepresentation today bargain measure.
because of the doctrine of caveat emptor. b. the plaintiff does not have to prove that
c. is more likely to be considered misrepresen- they suffered actual damages.
tation when a latent fact is involved. c. the plaintiff’s damages need not be proxi-
d. none of the above. mately caused by the defendant’s conduct.
3. Under misrepresentation a defendant is liable
6. For a misrepresentation, a defendant
a. even if the plaintiff’s reliance did not occur
in the type of transaction the defendant a. is not liable for negligent misrepresentation
could reasonably expect the plaintiff to if they do not receive compensation directly
engage in as a result of the reliance. from the plaintiff.
b. only to those persons he intended to influ- b. is liable to those whom they intend to reach
ence with his misrepresentation. with the information.
c. only if the plaintiff’s reliance occurred in the c. is liable to anyone they reasonably expect
type of transaction the defendant could rea- to learn about the statement.
sonably expect the plaintiff to engage in as d. all of the above.
a result of the reliance. 7. Reasons a plaintiff may find advantages to
d. all of the above. filing a nuisance claim over a CERCLA claim
4. In regard to misrepresentation, a plaintiff include:
a. is never entitled to rely on a defendant’s a. they can recover more in damages.

opinion. b. they have a broader parameter of liability.
b. is entitled to rely on a defendant’s opinion c. they can obtain injunctions more easily.
if the defendant purports to have special d. all of the above.
8. The “special-injury” requirement for private c. The defendant may prove probable cause
nuisance by showing of beyond a reasonable doubt.
a. operates as a barrier to many plaintiffs who d. All of the above.
want to bring claims as a result of environ- 10. A defendant
mental hazards.
b. can be met by showing that the plaintiff a. will not be considered to have committed
suffered greater economic loss than others a breach of existing contractual relations if
in the community. they are merely trying to protect their own
c. can be met by showing that the defendant interests.
interfered with the plaintiff’s commercial use b. is not privileged to induce a breach of con-
of her land. tract if the purpose of the breach is to pro-
d. all of the above. mote a social interest.
c. is privileged to induce a breach of his own
9. Which of the following are required for a mali- existing contractual rights even if their
cious prosecution case? motive is to gain business for themself.
a. The defendant must actively participate in d. all of the above.
instigating the prosecution.
b. The proceedings must have been in the
defendant’s favor.
Tort Teasers
1. Answer the questions posed in the hypothetical scenario given at the beginning of this chapter.
2. A law firm writes an opinion letter for its client in which it indicates that the client is a general partnership.
In fact, some of the members claim to be limited partners and are therefore not subject to full liability.
Does the law firm have a duty to disclose this information to Plaintiff, who is contemplating making
loans to the partnership? Roberts v. Ball, Hunt, Hart & Barerwitz, 57 Cal. App. 3d 104, 128 Cal. Rptr. 901
(1976).
3. An attorney negligently gives erroneous “curbstone advice” to his client. Can he be held liable for mis-
representation? Buttersworth v. Swint, 186 S.E. 77 (Va. 1936).
4. Plaintiff, who is interested in buying a boiler, requests that Defendant inspect the boiler. Defendant
negligently provides Plaintiff with a report that the boiler is in good condition when in fact it is not.
Defendant is aware that his report is to be passed on to the seller, who can be expected to rely on
the report in giving warranties. When the seller does sell the boiler, it proves to be defective, and
the seller suffers pecuniary loss when he incurs liability for breach of warranty. Is Defendant liable for
misrepresentation? Du Rite Laundry v. Washington Electric Co., 263 A.D. 396, 33 N.Y.S.2d 925 (1942).
5. Plaintiff was a manager at a convenience store located in the Navajo Nation. In an interview, he made
certain comments about the store and the ownership that they were insensitive to the local people and
to their employees and failed to provide training about the local culture to their employees. The store
filed suit against the manager for defamation and interference with business relations. Plaintiff then filed
suit against defendant store owners for malicious prosecution and abuse of process. Plaintiff contends
that defendant is a public figure and that the statements at issue involved matters of public concern.
Plaintiff argues that the defamation claims against him were not valid and were in fact, able to be proven
true. There was no proof that plaintiff made the statements with any reckless disregard for the truth.
Plaintiff also argues defendant did not prove any compensable damages from the article. Should plain-
tiff be able to file an abuse of process and malicious prosecution case against the defendant? Did the
defendant here file suit to silence the plaintiff? DeVaney v. Thriftway Marketing Corp., 953 P.2d 277 (New
Mexico 1997).
6. A violin expert tries to sell an instrument purported to be a genuine Stradivarius to a purchaser who is
also a violin expert. Should the seller be liable for his misrepresentation? Banner v. Lyon & Healy Co., 249
A.D. 569, 293 N.Y.S. 236 (1937).
Decide which tort you think would be appropriate to allege in each of the following cases.
7. Defendant purchases a home in a residential area and uses it to operate a funeral home. Williams v.
Montgomery, 186 So. 302 (Miss. 1939).
8. Plaintiff purchased an ice distributing business that included a covenant not to compete by the previous
seller. That seller pursued other buyers and got ice from a different distributor and began selling in the
same territory as the plaintiff. Plaintiff argues that defendants induced the previous seller to breach his
covenant not to compete. Imperial Ice Co. v. Rossier, 112 P.2d 631 (Cal. 1941).
9. The Virginia Department of Social Services (DSS) opened up bidding for its proposal to privatize the two
child support offices. Maximus, Inc. and Lockheed Management Information Systems were the only two
bidders. To evaluate the bids, DSS created a selection panel composed of five state employees. The
panel heard oral testimony, reviewed and scored the proposals, and issued a Notice of Intent to Award
the contract to Maximus. Subsequently, Lockheed filed a formal protest of DSS’s decision to award
the contract to Maximus. In its protest, Lockheed alleged that two members of the evaluation panel
had undisclosed conflicts of interest that compromised the integrity of the evaluation process. State
officials conducted an investigation and canceled the Notice of Intent to Award the contract to Maximus.
Maximus filed an action against Lockheed claiming that Lockheed knew, or had reason to know, that
the allegations in its formal protest were false, that the false allegations were intentionally presented
to create an appearance of impropriety, and that the protest was calculated to wrongfully interfere with
Maximus’ contractual relationship with DSS. Lockheed responded by asserting in part that it filed its
protest pursuant to a statutory right and was therefore protected by privilege. What would you have to
know to decide which company should prevail? Maximus, Inc. v. Lockheed Information Management
Systems, Inc., 493 S.E.2d 375 (Va.1997).
Internet Inquiries
At the federal level, requests for information sometimes require going through the Freedom of Information Act
(FOIA). This act applies to agencies of the executive branch, including cabinet departments, military depart-
ments, government corporations, and independent regulatory agencies. The FOIA does not apply to elected
officials of the federal government (e.g., president, vice president, Congress), the federal courts, the White
House staff, state agencies, schools, or private organizations and businesses.
The FOIA requires federal agencies to make available to the public, records relating to such issues as
consumer product safety, environmental hazards, public health, labor relations, and government spending.
Individuals can also request that they be provided any records that the government has regarding them per-
sonally. Federal agencies can refuse to release certain types of exempted information: trade secrets, defense
and foreign policy secrets, personnel and medical files, confidential financial information, geological informa-
tion, internal agency rules and government memos, and investigative reports prepared for law enforcement
purposes.
If you are not sure which agency has the records you want, go to the library and check the United States
Government Manual (available online at www.access.gpo.gov), or call the local office of your representative
in Congress. The manual has a complete list of all federal agencies, a description of their functions, and the
address of each agency. Your request should be in writing and you should
• reasonably describe the records you want with sufficient specificity that an employee of the agency familiar
with the records can locate them in a reasonable amount of time and without undue effort.
• restrict your request to the records you actually need and want rather than asking for “all the files relating
to ….”
• address your request to a specific agency and send it to the agency’s FOIA officer or the head of the
agency.
• state the request is being formally made under the FOIA.
• provide identifying information such as social security number, date of birth, and address, if requesting
personal records.
• specify the purpose for which the records are requested and your status in requesting these records (this is
done so that the appropriate fees can be assessed).
• mark your envelope “Attention: Freedom of Information Act.”
• keep a copy of the request letter and related correspondence until the request has been finally resolved.
The Department of Justice Office of Information and Privacy provides information regarding access to
public records through electronic reading rooms, FOIA websites, and FOIA updates at www.usdoj.gov. Select
the link titled “FOIA.”
For assistance in writing an FOIA letter to a federal agency, go to www.thefirstamendment.org and
select the “Resources” link. The American Civil Liberties Union provides FOIA request letters at its site, www.
aclu.org. Enter “FOIA request” as your search term. If you want to prepare a draft by simply filling in the blanks
(e.g., name of the agency you are requesting documents from, your name, documents requested, etc.), you
can go to the National Freedom of Information Coalition at www.nfoic.org. This site will do form letters for
both federal and state agencies, provide you with links to state open-meeting and open-records laws, and give
you the names and addresses of individuals and agencies helpful in getting information from a state or federal
agency. Finally, a citizen’s guide to making requests under both the FOIA and the Privacy Act of 1974 is avail-
able at www.tncrimlaw.com. This site provides links to FOIA sites and explains in some detail the provisions of
the FOIA and its exemptions and the Privacy Act.
Go to the preceding websites and then prepare a form letter that you can keep on file in the event you
are asked to prepare an FOIA request in the future.
Watch the movie The Insider, which is based on a true story involving Dr. Jeffrey Wigand, a senior research
chemist for Brown and Williamson, who was asked after he was fired by the company to be interviewed by
Mike Wallace on 60 Minutes. When the tobacco company learned about the interview, it threatened to sue
CBS for interference with contractual relations on the grounds that doing the interview induced Wigand to
breach his confidentiality agreement with the company.
After watching the movie, answer the following questions.

1. Review the case law in your state and determine what Brown and Williamson would have had to
prove to recover for interference with contractual relations.
2. What defenses do you think CBS could have raised?
3. Who do you think would have prevailed if this case had gone to trial?
4. Do you see any way around the confidentiality agreement for Wigand?
Chapter 11
Strict Liability
Chapter Topics
Overview of Strict Liability Product Liability
Strict Liability for Harm Caused by Animals Limitations on Strict Liability
Abnormally Dangerous Activities
Chapter Objectives
• Identify those circumstances in which animal • Describe the defenses that can be raised in
owners are held strictly liable for damages response to a strict liability claim.
caused by their animals.
• Describe abnormally dangerous activities.
I n this high-tech era of powerful but potentially dangerous sources of energy, we are now faced with the
problem of waste disposal. We are just beginning to awaken to the horrendous potential posed by hazard-
ous chemicals and are taking our first faltering steps toward safeguarding future generations. But some in
our society have already begun to experience the repercussions of our ignorance. Suppose a potential client
comes to your supervising attorney and claims they have contracted cancer as a result of the leakage of toxic
chemicals into their home through the water supply. They want to sue the city for approving the construction
of the housing development in which they live. They tell you that 15 years before the land was developed
into a residential area, it was used as a disposal site for chemical wastes. Is the city liable for the residents’
injuries, even if those who allowed the dumping of wastes were, at the time, completely unaware of the
potential medical dangers posed by such wastes?
CHAPTER 11 Strict Liability | 337
Overview of Strict Liability Exhibit 11–1 Strict Liability
In such a case your attorney might choose a theory of Animals • Trespassing

• Wild
strict liability as an alternative to a negligence theory.
Product Liability
Strict liability is applicable even when a defendant is
neither negligent nor has any intent of wrongdoing Abnormally Abnormally Dangerous Acts
(see Exhibit 11–1). It is a particularly useful theory in Dangerous • Crop dusting
situations involving abnormally dangerous activities Activities* • Storage of flammable liquids
like blasting, crop dusting, and digging canals. Injuries (urban areas)
involving defective products (product liability) and • Toxic waste disposal
dangerous wild animals are two other areas in which • Use of poisonous gas
strict liability is imposed. An in-depth discussion of exterminators
product liability is presented in Chapter 12, including • Testing of rocket fuel
further discussion of strict liability, the subject of this • Burning fields
chapter. • Digging canals
In cases involving strict liability, defendants who • Dynamite blasting
engage in particularly dangerous kinds of activities Not Abnormally Dangerous Acts
must pay for any damage that results even if they • Airplane flight (except ground
carry out those activities in the most careful manner damage)
possible. It is simply because the activity they are • Defective electrical wiring
conducting is very dangerous. Liability is imposed • Water damage from burst
dam
even though a defendant is not at fault. This lack
of fault is what distinguishes strict liability from • Driving
negligence. • Defective plumbing
Some courts refer to strict liability as “absolute • Household use of gas, water,
or electricity
liability.” The latter description, however, is some-
what misleading because defenses to strict liabil- * The courts do not agree on what does or does not constitute an abnormally
dangerous activity. The examples given are representative of the majority
ity actions can be raised; therefore, liability is not position but should not be considered exclusive.
absolute. Others refer to strict liability as “liability
without fault.” This term is also a misnomer because
liability without fault exists under an intentional-tort animals trespassed on another’s land. Owners could
basis of liability. Therefore, we use the term strict not escape liability even if they used the utmost
liability throughout this text rather than the alternate care to prevent their animals from escaping. Luckily
terms. for animal owners, the rule applied only to animals
Remember that the key distinction between likely to roam, such as cattle, horses, sheep, and
negligence and strict liability lies in the area of fault. goats, and not to household animals such as dogs
In a strict liability cause of action, a defendant may and cats.
be liable even if they did not intentionally injure the Most American jurisdictions follow the English
plaintiff and in fact adhered to an objective standard rule of strict liability in reference to trespassing
of reasonable care. animals. Historically, the western states, whose eco-
nomic base relied on cattle that were customarily
allowed to graze at large on open range, rejected
Strict Liability for Harm the common law rule. Many of these states have,
however, adopted “fencing in” statutes, which
Caused by Animals provide that an owner is not strictly liable if they
attempt to fence in the animals but is strictly liable if
they do not. Under “fencing out” statutes, property
Trespassing Animals owners who properly fence their land have a strict
Under the English common law, owners of animals liability claim against those whose animals’ trespass
were liable for property damage caused when onto their land.
In the News
General principles regarding the liability of dog owners for dog bites can be found at www.dogbitelaw
.com and www.alllaw.com.
Non-Trespassing Animals the owner is or should be aware. Some courts have

moved away from a strict liability standard to a negli-
One who keeps “dangerous animals” is strictly liable
gence standard when dealing with those who display
for the harm done by those animals. The definition of
wild animals to the public (as in a zoo, for example).
the term depends on whether the animal is consid-
Strict liability is imposed in the case of domestic
ered wild or domesticated. A domesticated animal,
animals when the owner knows or has reason to know
according to the Restatement (Second) of Torts
that the animal has vicious propensities or a tendency
§ 506(2), “is by custom devoted to the service of
to bite. If an animal has unsuccessfully attempted to
mankind.” Under this definition, the courts have
bite someone in the past or in general has a vicious
generally held that bulls and stallions, though often
temperament, the owner will be deemed to have
very dangerous, are domesticated. The apparent
reason to know of the pet’s dangerous tendencies
reasoning is that ownership of animals for pets or
and will be held liable for any damage caused. The
service animals serves a valid social purpose and
oft-repeated phrase, “Every dog is entitled to one
should not be discouraged.
free bite,” is an illusion and should not be relied on
According to the Restatement (Second) of Torts,
to evade liability. The current law appears to hold
people who keep wild animals are strictly liable for
owners liable regardless of their knowledge of the
all damage caused by such animals if the damage
propensity of violence as long as the person injured
results from a “dangerous propensity” typical of that
was not trespassing and did not provoke the animal.
particular species (Restatement [Second] of Torts §
Note, too, that the common law regarding liability
507). Skunks, birds of prey, chimpanzees, and foxes
for dog bites has been changed by statute in many
are examples of animals that are considered wild
states. Furthermore, statutory provisions, such as
as are any animals that are not domesticated and
those requiring dogs to be leashed or muzzled,
whose goal is to be of service to mankind. Liability
may also affect liability. Failure to comply with such
also exists when the damage stems from a dangerous
statutes may render an owner negligent per se.
tendency of the particular animal in question of which

What is the rule in your state regarding liability Under what conditions are dog owners in
for damage caused by trespassing animals? your state strictly liable for damages result-
Does it make a difference if they are domestic ing from their dog biting someone? Does it
or wild animals? matter if the dog was provoked?
Case
Gruber v. YMCA of Greater Indianapolis
34 N.E.3d 264 (Ind. 2015)
VAIDIK, Chief Judge
Background: Parent of camper, who was injured when bars of its pen and grabbed camper’s hand, sued the
a pig—which had never injured anyone or exhibited any summer camp.
dangerous propensities—stuck its head between the
Case | Gruber v. YMCA of Greater Indianapolis (continued)

Facts: An eleven-year-old boy was at Flat Rock River Jake was taken to the emergency room at Major
YMCA camp when a pig—which had never injured any- Hospital in Shelbyville, Indiana. His hand was x-rayed,
one or exhibited any dangerous propensities—stuck its he was prescribed antibiotics, and he was told to follow
head between the bars of its pen and grabbed the boy’s up with his doctor.
hand, causing injuries. The boy and his mother sued Nearly two years later, Jake and his mother (collec-
the camp, and the camp filed a motion for summary tively, “the plaintiffs”) filed a complaint against YMCA of
judgment. The trial court granted summary judgment in Greater Indianapolis, Ruth Tilly YMCA Outdoor Center,
favor of the camp. and Flat Rock River YMCA Resident Camp (collec-
On appeal, the boy and his mother acknowledge the tively, “the YMCA defendants”). They alleged that the
general rule that owners of domestic animals are liable “attack of the pig was the result of the negligence and
only if the owner knows or has reason to know that carelessness of the Defendants” and that as a result
the animal has dangerous propensities. of the attack, Jake “suffered and incurred medical
Nevertheless, they ask us to change the standard expenses, pain and suffering, and other damages[,] all
for liability of owners of domestic animals to that of which may continue in the future.” Id. at 6. They also
of strict liability when the animal is not a cat or alleged that the YMCA defendants “knew or should
dog. Because Indiana Supreme Court precedent is have known that the pig had dangerous propensities
clear that this general rule applies to all domestic and knew or should have known of the pig’s natural
animals—and not just cats and dogs—we decline their propensities.” Id.
invitation to alter the standard. We therefore affirm the The YMCA defendants filed a motion for summary
trial court’s entry of summary judgment in favor of the judgment. In support of their motion, the YMCA
camp. defendants designated the following evidence:
Facts and Procedural History (1) the plaintiffs’ complaint; (2) an affidavit from the pig’s
On April 19, 2011, eleven-year-old Jake Gruber owner, Marcus; and (3) the plaintiffs’ answers to their
was a participant at Flat Rock River YMCA Camp in interrogatories. Id. at 3. The plaintiffs filed a response to
St. Paul, Indiana. Jake’s mother, Jill Sherman, was a the YMCA defendants’ motion for summary judgment
chaperone. Marcus Toidolt, who worked as a naturalist and designated their (1) complaint and (2) interrogatory
at the camp, owned a pig that lived on YMCA’s premises answers.1 Id. at 27. A hearing was held. In September
nine months of the year. Marcus had owned the pig 2014, the trial court entered an extensive order granting
for six years, and the pig had never injured anyone or summary judgment in favor of the YMCA defendants.
exhibited any dangerous propensities. In fact, the pig The order provides, in part:
was regularly allowed to roam freely on YMCA’s prem- [The plaintiffs argue] that a genuine issue of
ises, and there had never been an incident. material fact exists as to whether the animal at issue
On April 19, Marcus took a group of twelve children, is domesticated. However, Indiana Code § 15–17–2–26
including Jake, into the pig’s pen. The pen had three bars, defines a domestic animal as *266 “an animal that is
but the pig could stick its nose through the bars. While not wild,” and specifically includes swine. This Court
inside the pen, Marcus dumped food out of a bucket so finds, and [the plaintiffs] later concede[d] at [the
the children could watch the pig eat and pet it. After the summary-judgment hearing], that the pig at issue is a
pig ate, Marcus led the children out of the pen and locked domesticated animal.
the gate. Some of the children, including Jake, contin- In Forrest v. Gilley, 570 N.E.2d 934, 935 (Ind.
ued to watch the pig from outside the pen while Marcus Ct.App.1991), the Indiana Court of Appeals held that
was still inside the pen with the gate locked. While Jake
was less than an arm’s length away from the pen, the 1. The only items in Appellants’ Appendix are the CCS
pig lunged at Jake, stuck its head between the bars, and the trial court’s order granting summary judgment in
and “grabb[ed]” Jake’s hand. Appellees’ App. p. 32 (the favor of the YMCA defendants. Appellees then filed their
plaintiffs’ complaint). When the pig lunged at Jake, he own appendix in order to include their designation of
was not attempting to feed or pet the pig, and the pig’s evidence and other documents, including the plaintiffs’
feeding bowl was not near him. The pig did not show any response to their motion for summary judgment (which
signs of agitation or aggression on April 19. included the plaintiffs’ designation of evidence).
(continued)

the owner of a domestic animal is not liable for injuries matter of law. Id. (quotation omitted). The burden then
caused by the animal unless the animal had dangerous shifts to the nonmoving party to demonstrate a genuine
propensities known, or which should have been known, issue of material fact. Id. In reviewing the record, we
to the owner.... If an individual animal lacks dangerous construe all reasonable inferences in favor of the non-
propensities, “the rule is simply that the owner of a moving party. Id. “Summary judgment is inappropriate
domestic animal is bound to know the natural pro- when genuine factual issues persist—that is, when
pensities of the particular class of animals to which it the designated evidence ‘support [s] conflicting
belongs.” Id. ... reasonable inferences.’ ” Id. (quoting Williams v.
This Court finds that there is no genuine issue of Tharp, 914 N.E.2d 756, 761 (Ind. 2009)).
material fact as to [the YMCA defendants’] lack of The Indiana Supreme Court addressed a dog owner’s
actual knowledge of the pig’s dangerous propensi- liability for injuries that his mixed-breed sheepdog—
ties. The record shows that [the YMCA defendants] which had displayed no vicious tendencies in the
were unaware of the pig’s dangerous propensities— past—caused to a passerby in Poznanski ex rel.
they had never received any complaints or had any Poznanski v. Horvath, 788 N.E.2d 1255 (Ind. 2003).
previous incidents with the pig at issue. Furthermore, Our Supreme Court set forth the law on the liability of
[the plaintiffs] have failed to present any evidence that owners of domestic animals as follows:
[the YMCA defendants] had actual knowledge of the When wild animals are kept as pets, an owner is liable
dangerous or vicious propensities of the animal. for injuries caused by the animal. This is so even if the
In regard to [the YMCA defendants’] constructive owner had no prior knowledge of the animal’s propensity
knowledge of the pig’s dangerous propensities, [the to cause harm, and even if the owner has exercised the
plaintiffs argue] that [the YMCA defendants] have failed utmost care in preventing harm.
to address the natural propensities of the class of animal In essence, strict liability is imposed on owners of
that the pig belongs to and, therefore, [a] genuine issue of wild animals. Owners of domestic animals may also be
material fact exists as to whether the precautions taken held liable for harm caused by their pet but only if the
were reasonable.... Here, [the plaintiffs have] not only failed owner knows or has reason to know that the animal has
to allege or demonstrate any dangerous propensity on dangerous propensities. Klenberg v. Russell, 125 Ind.
[the] part of the animal, but [they have] also failed to allege 531, 25 N.E. 596, 597 (1890) (“[T]he owners of creatures
or demonstrate that the injuries stemmed from a danger- which, as a species, are harmless and domesticated,
ous propensity common to the breed of swine the pig and are kept for convenience or use, such as dogs ...
belongs to, such as the propensity to bite.... [T]his Court are not liable for injuries willfully committed by them
finds that there is no genuine issue of material fact as to unless he is proved to have had notice of the inclina-
[the YMCA defendants’] lack of constructive knowledge tion of the particular animals complained of to commit
of the pig’s dangerous propensities. such injuries.”). As with wild animals this liability also
Appellants’ App. p. 12–14 (citation omitted). Accordingly, attaches regardless of the amount of care exercised by
the trial court entered summary judgment in favor of the owner. However, unlike with wild animals, when the
the YMCA defendants. owner of a dog has knowledge of its dangerous propen-
The plaintiffs now appeal. sities, “[the] rules of liability are based upon negligence
Discussion and Decision and not strict liability.” ...
The plaintiffs contend that the trial court erred in In certain instances, a cause of action in negligence
entering summary judgment in favor of the YMCA can survive without the owner’s actual knowledge of
defendants. We review an order for summary judg- the animal’s dangerous propensities. Indeed, such
ment de novo, which is the same standard of review knowledge may even be constructive. Nonetheless,
applied by the trial court. Ind. Restorative Dentistry, when an owner does not know of his animal’s dangerous
P.C. v. Laven Ins. Agency, Inc., 27 N.E.3d 260, 264 (Ind. propensities, the rule is not that the jury may infer
2015). The moving party must “affirmatively negate an or impute such knowledge. Rather, “the rule is that
opponent’s claim” by demonstrating that the desig- the owner is bound to know the natural tendencies
nated evidence raises no genuine issue of material fact of the particular class of animals to which [the] dog
and that the moving party is entitled to judgment as a belongs.” If the propensities of the class to which the
(continued)

dog belongs are the kind which one might reasonably shows that Marcus had owned the pig for six years,
expect would cause injury, then the owner must use and the pig had never injured anyone or exhibited any
reasonable care to prevent injuries from occurring. dangerous propensities, including on the day in ques-
Id. at 1259 (first emphasis added, quotations and citation. And the plaintiffs designated no evidence that the
tions omitted). The Court concluded that because there particular breed to which the pig belonged has danger-
was no evidence that the owner had any knowledge that ous propensities.
his dog exhibited dangerous or vicious propensities and Nevertheless, the plaintiffs argue that pigs, although
there was no evidence that the breed to which the dog domestic animals, “can’t be compared to a dog or
belonged exhibited dangerous or vicious propensities, the cat which provide companionship as someone’s pet.”
jury could not infer that the owner knew that his dog was Appellants’ Br. p. 6. As such, they ask us “to impose
dangerous or vicious. Id. at 1260.2 a strict[-]liability standard when the owner of a domes-
Here, the plaintiffs concede that pigs are domestic ticated animal exposes someone to an abnormal
animals and that the general rule is that owners of risk.” Id. at 6. They claim that without “such a standard,
domestic animals are liable for injuries caused by people like [them] would have no recourse for poten-
the animal only if the owner knows or has reason tial serious injuries sustained when they are exposed
to know that the animal has dangerous propen- to an abnormal risk by a domesticated animal.”
sities. See Appellant’s Br. p. 5 (citing Ind.Code § Id. We, however, decline the plaintiffs’ invitation
15–17–2–26 & Forrest v. Gilley, 570 N.E.2d 934 (Ind. to impose a strict-liability standard on owners of
Ct.App.1991), reh’g denied, trans. denied). The trial domestic animals that are not cats or dogs. This is
court found that “[the plaintiffs have] not only failed to because our Supreme Court has made clear that this
allege or demonstrate any dangerous propensity on rule applies to all domestic animals, not just cats and
[the] part of the animal, but [they have] also failed to dogs. See Poznanski, 788 N.E.2d at 1259 (“Owners
allege or demonstrate that the injuries stemmed from of domestic animals may also be held liable for harm
a dangerous propensity common to the breed of swine caused by their pet but only if the owner knows or
the pig belongs to, such as the propensity to bite.” has reason to know that the animal has dangerous
Indeed, the evidence designated at summary judgment propensities.” (emphases added)); see also Einhorn v.
Johnson, 996 N.E.2d 823, 831 (Ind.Ct.App.2013) (not-
ing that horses are domestic animals and that owners
of domestic animals are not liable for injuries caused
2. The plaintiffs cite the Indiana Supreme Court’s by the animal unless the animal had dangerous pro-
opinion in Cook v. Whitsell–Sherman, 796 N.E.2d 271 pensities known, or which should have been known,
(Ind. 2003). However, the issue in that case was the to the owner), reh’g denied, trans. denied. Because
liability of owners whose dogs bite mail carriers and the plaintiffs have put forth no convincing reason
certain other public servants. The issue in Cook was to impose strict liability on owners of domestic
governed by a statute that “was intended to alter th[e] animals that are not cats or dogs, we affirm the trial
common[-]law framework if the victim is a letter carrier” court’s grant of summary judgment in favor of the
by removing the presumption that a dog is harmless YMCA defendants.
unless it acts otherwise. Id. at 275. Affirmed.
Abnormally Dangerous Rylands the defendants hired an engineer and

contractors to plan and construct a reservoir to
Activities supply their mill with water. When the defendants
filled the reservoir, the water broke through into
some abandoned mine shafts and then flooded
Doctrine of Rylands v. Fletcher adjacent mine shafts owned by the plaintiffs. An
The path to strict liability for abnormally dan- arbitrator found that although the defendants
gerous activities was paved in the English case themselves were not guilty of any negligence,
of Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). In the engineer and contractors were negligent in

1. Two-year-old Jessica is bitten by Smokey, a 75-pound German shepherd, when he tries to get away from
her hugging him and she will not let go. She has bites under and over one eye and over her lip. Smokey has
played with other children with no problems but did bite one man who had kicked him on three occasions.
Should Smokey’s owner be held strictly liable for Jessica’s $20,000 in medical care? Why or why not?
2. Jerry was walking in his neighborhood on the sidewalk when Brutus charged after him jumping on him and
biting him in the ear. Jerry sustained substantial injuries. He sued the owner of the dog for strict liability and for
injuries. The owner argued that Brutus had never been violent, never attacked anyone and was simply moving
from the house to the car and therefore was not technically in violation of the leash law. Does the owner have
true lack of any knowledge of dangerous propensities? Should that preclude Jerry from damages? What does
your state say?
their failure to use proper care. The case reached question is whether the risk created is so unusual
the House of Lords, the final appellate tribunal (either because of its magnitude or because of the
in England. The court, in finding for the plaintiff, circumstances surrounding it) to justify strict liability
established the rule that “the person who for his even though the activity was carried out with all
own purposes brings on his lands and collects reasonable care. An example of such an activity is
and keeps there anything likely to do mischief if the transportation of nuclear materials or blasting
it escapes, must keep it in at his peril, and if he with dynamite. This activity necessarily involves a
does not do so, is prima facie answerable for all major risk of harm to others no matter how carefully
the damage which is the natural consequence of it is carried out. (Note: Federal statutes impose a
its escape.” ceiling on liability for any nuclear mishaps.)
The majority of American courts, along with the Be aware that the following examples of activities
Second Restatement, have adopted the rationale of the courts have or have not considered abnormally
Rylands and imposed strict liability in cases involving dangerous are highly fact-specific. In other words,
abnormally dangerous activities. Restatement
(Second) of Torts § 520 suggests consideration of
six factors in determining whether an activity is Exhibit 11–2 Six-Factor Test for Abnormally
abnormally dangerous: Dangerous Activity (Restatement
[Second] of Torts)
• high degree of risk
• risk of serious harm • Is there a high degree of risk of harm to
• cannot be eliminated even by due care person or property?
• not a common activity • Is any harm that results from the activity
• inappropriateness of location likely to be serious?
• social value • Can the risk of harm be eliminated by
exercising reasonable care?
In determining whether strict liability should be
• Is the activity a matter of common usage?
imposed, the courts consider all of these factors
(see Exhibit 11–2). Read Yukon Equipment, Inc. v. • Is the activity inappropriate in reference to
Fireman’s Fund Insurance Co. to see an application the place where it is carried on?
of the six-factor test (although observe that the • Is the value of the activity to the community
court ultimately rejects this test). Any one fac- outweighed by its dangerousness?
tor alone is generally not sufficient to warrant This test is discussed in the strict liability case that
strict liability; however, all of the factors need not follows.
be present to find strict liability. The essential
if the fact pattern had varied slightly in any of these as being either abnormally dangerous or not. Rather,
cases, the court could have arrived at a different con- look at these cases as illustrative of the courts’ reason-
clusion. Therefore, do not categorize certain activities ing in the context of specific fact patterns.
Case
City of Neodesha v. BP Corp. North America, Inc.
287 P.3d 214 (Kansas 2012)
BILES, Justice
Background: City, individually and as class represen- products leaked or spilled onto the ground while the
tative for landowners, filed class action in state court refinery operated, but it claims most refinery-related
against the owners of a former oil refinery, alleging petroleum products that seeped into the ground and
groundwater and subsurface soil contamination caused later spread beyond the former refinery property are
by the now dismantled facility. Owners removed action attributable to an accident in the 1960’s when lightning
to federal court. The United States District Court for struck a storage tank and caused an explosion and fire.
the District of Kansas, Crow, Senior District Judge, 355 The class disputes this. Both the north and south sites
F.Supp.2d 1182, remanded action to state court. On are now considered “closed,” meaning no more reme-
remand, a jury found in owners’ favor. However, in diation activities are planned and site monitoring will
post-trial proceedings, the Wilson District Court, Daniel cease or has already ceased.
D. Creitz, J., decided it had made mistake in submit- After the refinery finished operations in 1970, BP
ting strict liability claim to jury, and it granted city judg- donated most of the property to the City through a
ment as matter of law on its strict liability claim and quitclaim deed, which stated the conveyance was “as
“conditionally” granted city new trial on damages claim is” and acknowledged the refinery and surrounding
if the entry of judgment in city’s favor was affirmed on property were used for gasoline production and stor-
appeal. Owners appealed. age. Most of the grounds are still owned by the City,
Between 1897 and 1970, Standard Oil Company and its with portions reused for industrial development, while
corporate successors, BP Corporation North America, Inc.; other areas are maintained as waste disposal sites or
BP America, Inc.; BP Products North America, are vacant and unused. The City turned part of the site
Inc.; Atlantic Richfield Co.; and BP America Production into an industrial park where class members Neodesha
Co. (collectively BP), owned and operated an oil refin- Plastics and Fiberglass Engineering leased facilities.
ery near Neodesha. During that time, the refinery gener- In 1980, BP met with the Neodesha mayor regarding
ated wastes and by-products, including chemicals and city concerns after a welding spark ignited petroleum
metals *301 such as benzene, toluene, ethyl benzene, waste products that had seeped into a subsurface
xylenes, polyaromatic hydrocarbons, arsenic, chromium, structure that was part of the City’s water treatment
lead, and mercury. BP “has acknowledged its responsibil- facility, causing a fire. The City also expressed appre-
ity to address residual petroleum products attributable to hension about an oily waste disposal pond and
the refinery’s operations” but it has denied liability in this numerous sites of buried waste. BP subsequently
litigation. began study and remediation activities. In 1981, BP
While the refinery was operational, the locations of installed 17 monitoring wells. In 1983, BP installed
its activities included: (1) the north site sludge pond, another 13 monitoring wells and “capped” the north
which was used for waste disposal; (2) the south site site sludge pond with 2 feet of clay. In 1984, BP began
settling basins; (3) the “Tank Site” containing storage a semi-annual well sampling program. And in 1985,
tanks and a pumping station; (4) an “Oil Separator Pond BP consolidated, capped, and installed a gas venting
Site” that received storm water and captured oil from system in the south site settling basins.
refinery drains; and (5) an industrial site that housed In 1990, BP entered into a consent agreement with the
the refinery’s buildings. BP also admits petroleum Kansas Department of Health and Environment (KDHE),
(continued)
Case | City of Neodesha v. BP Corp. North America, Inc. (continued)

the state agency with jurisdiction over hazardous sub- the BP Contamination at the BP Facilities for its own
stance cleanups, in which BP agreed to undertake spe- business purposes”; (2) “allowed the escape and
cific investigative, monitoring, and corrective actions. release of, and failed to confine, the BP Contamination
The consent agreement identifies four classes of pri- from the BP Facilities”; and (3) committed “misconduct
ority pollutants and notes that one of those pollutants, in the transportation, storage and treatment of the BP
benzene, was detected in groundwater samples. In Contamination and its operation of the BP Facilities.”
1991, BP began a remedial investigation to determine The strict liability claim is founded in tort and does not
the presence and extent of groundwater contamination, assert any basis for liability under any statute.
which included installation of 31 additional monitoring Before trial, BP moved for summary judgment
wells. In 2000, BP installed a phase I air sparging on the strict liability claim on two grounds. First, BP
trench along the eastern and southern boundaries of argued the 10-year statute of repose under K.S.A.
the former tank site. It also removed 325 cubic yards of 60–513(b) barred any strict liability claim arising from the
asphalt-like material from areas near the city ballpark. refinery’s operations or resulting contamination because
In 2002, BP implemented a phase II air sparging it had expired on those activities long ago. Second, BP
system that involved extraction wells to remove oil contended the 2-year statute of limitations from K.S.A.
or light nonaqueous phase liquids (LNAPL) (refers 60–513 barred any claim for damages accruing before
to petroleum hydro carbon in its oil phase) from the May 19, 2002. The class disputed both claims. The
groundwater. In 2003, 215 cubic yards of asphalt-like class argued that it was challenging BP’s current con-
material were removed from the industrial site. According duct, not activities barred by the statutes of repose or
to a BP study, these activities removed 30,177 gallons limitations, because BP had assumed “ ‘full respon-
of hydrocarbons, and benzene concentrations at some sibility’ for the current management of the refinery
monitoring wells declined. BP cites this as evidence wastes and [is] currently engaged in that activity.”
that its remediation activities successfully reduced The class also argued that BP was estopped from
contamination. The class disputed the effectiveness of asserting the statutes of limitations and repose
those remediation efforts. defenses because it had assured the class it was
As a part of its case against BP, the class hired protecting the community.
a hydrogeologist, Daniel B. Stephens, to review BP The district court granted BP partial summary
monitoring site data, conduct field investigations, and judgment. The court held that the 10-year statute of
make recommendations regarding further clean-up repose under K.S.A. 60–513(b) *305 barred claims
and remediation activities for the contamination. In his “relating to the discontinued refinery operations.” But
report, Stephens concluded: (1) BP misrepresented the court refused to grant summary judgment as to
and omitted information regarding historical operations whether BP was strictly liable for its “management of
and contamination sources; (2) BP presented biased the remediation project.” The court did not articulate
environmental data that minimized the contamination what activities constituted the “management” exposure
and area that overlies the groundwater contamination; for BP, nor did the court define what was encompassed
(3) groundwater arsenic concentrations exceeded drink- by the “remediation project” at issue. The court also
ing water standards and arsenic was more likely than declined to grant summary judgment based on BP’s
not reaching the Fall and perhaps Verdigris Rivers; statute of limitations defense, because questions of fact
(4) groundwater contamination was migrating away from remained as to whether BP was estopped from asserting
the refinery in multiple directions, continually expand- that defense “regarding any current conduct and
ing the polluted areas; (5) distal dissolved contaminants injuries, but not for refinery operations.”…
that migrated in groundwater into the residential neigh- In August 2007, the 17–week trial began. At the
borhoods had not been contained; and (6) BP failed to close of BP’s evidence in its defense, the class moved
consider commonly accepted and effective remedial for a directed verdict on the strict liability claim,
alternatives in developing its corrective action study… arguing again that groundwater pollution was a per
Only the strict liability claim is before this court. se strict liability offense as a matter of law; that BP had
Initially, the class asserted strict liability because it admitted the groundwater was polluted, the pollution
alleged that BP: (1) “created, transported and stored had spread, and the contamination area had grown;
(continued)

and that BP’s experts conceded the groundwater “The Plaintiff Class must prove that class-wide,
became contaminated after the refinery closed. BP real property suffered physical injury as a result of
disputed this, arguing it admitted only that refinery Defendants’ abnormally dangerous activity.
operations contaminated the groundwater—not that ANALYSIS
its remediation activities had contributed to or failed
to contain the contamination. The district court over- Discussion
ruled the class’ motion, so the strict liability claim was The statute in force when BP sought its interlocutory
submitted to the jury… appeal provided: “When a district judge, in making in a
“A person who engages in an abnormally dangerous civil action an order not otherwise appealable under this
activity is strictly liable for harm to the property of section, is of the opinion that such order involves a con-
another resulting from the activity, although that person trolling question of law as to which there is substantial
exercised the utmost care to prevent the harm. To ground for difference of opinion and that an immediate
establish liability based upon strict liability, the Plaintiff appeal from the order may materially advance the
Class must prove Defendants’ remediation constituted ultimate termination of the litigation, the judge shall
an ‘abnormally dangerous activity’ as it relates to the so state in writing in such order. The court of appeals
Class. may thereupon, in its discretion, permit an appeal to
“Kansas law provides that strict liability applies to be taken from such order, if application is made to it
conduct involving contamination of water resources, within 10 days after the entry of the order under such
because of the importance of clean, safe water. terms and conditions as the supreme court fixes by
“In determining whether Defendants’ remediation is rule.” K.S.A. 60–2102(c)…
an abnormally dangerous activity, the following factors As to the first question, we find little basis for claiming
are considered: that the specific issue certified by the district court is
“(1) Existence of a high degree of risk of some harm inappropriate for interlocutory appeal. It meets each
to the person, land or chattels of others from of the criteria spelled out by statute and caselaw. It is
the activity; purely a question of law, for instance, whether Kansas
recognizes the strict liability test articulated in Williams
“(2) Likelihood that the harm that results from it will be
in water contamination cases. And there appears to
great;
be at least some caselaw conflict, which would reflect
“(3) Inability to eliminate the risk by the exercise of a difference of opinion as to what is the controlling
reasonable care; law. Compare Williams with Koger. Even the district
“(4) Extent to which the activity is not a matter of court changed its mind on this same legal question
common usage; during the proceedings.
“(5) Inappropriateness of the activity to the place And once that decision is put to rest, we would
where it is carried on; and next determine whether the district court’s grant of
judgment as a matter of law was proper. As to this,
“(6) Extent to which the value of the activity to
the district court ruled there were no factual disputes,
the community is outweighed by
but BP argues the contrary and contends those factual
any dangerous attributes.
disputes were resolved in its favor by the jury’s verdict.
“No single factor determines whether an activ- Whether facts are in dispute and, if so, whether those
ity is abnormally dangerous, and you may assign facts were resolved by the jury are appropriate issues
whatever weight you decide is appropriate to each for interlocutory appeal under the circumstances of this
factor. In other words, the Plaintiff Class must prove case. See Brown v. United Methodist Homes for the
that the remediation created a risk that was so Aged, 249 Kan. 124, 126, 815 P.2d 72 (1991) (question
unusual, either because of its magnitude or because of law exists when no evidence is presented on an issue
of the circumstances surrounding it, as to justify or when the evidence is undisputed and the minds of
the imposition of strict liability for the harm that reasonable persons may not draw differing inferences
results from it even though it was carried on with all or arrive at opposing conclusions)…
reasonable care.
(continued)

We hold that the Court of Appeals did not abuse operated a lawful business, and the plaintiff could not
its discretion in granting review of BP’s first issue recover without first establishing negligence. Relying on
because: (1) it involves a controlling question of law; the Rylands doctrine, the Helms court held the refinery
(2) it relates to an issue on which there is ground for a was a nonnatural land use and that the refinery could
substantial dispute; (3) deciding the question materially not continue harming the plaintiff, even if the refinery
advances the litigation’s termination because it will business was lawful. The Helms court stated:
determine whether the case can reach final judgment; “The oil that was treated by the defendant at the
and (4) the class does not dispute that this appeal was refinery was obtained elsewhere, and its operations
timely filed… had no connection with the products of the land or
Was Judgment as a Matter of Law Appropriate? the development of its natural resources. Taking the
The threshold question in this case is whether averments of the plaintiff, it is clear that the quantity
the abnormally dangerous activity test applies to of oil, refuse, fumes, and gases that were thrown upon
the strict liability claims in tort alleging water contam- plaintiff’s land constituted an unreasonable use and a
ination. This is a question of law subject to unlimited nuisance. However useful and lawful the business in
review. See Scott v. Hughes, 294 Kan. 403, Syl. ¶ 4, itself is, the defendant cannot be permitted to carry
275 P.3d 890 (2012). it on in such a way as to cause material injury to the
plaintiff. When the injurious substances were thrown
Does the Abnormally Dangerous Activity Test Apply?
upon plaintiff’s land in the excessive quantities and in
The class argues that a defendant is per se liable for any
the manner set forth in plaintiff’s petition, the defen-
water contamination. The district court ultimately accepted
dant’s use of its property became both unreasonable
that argument in granting a judgment against BP after the
and unlawful.” (Emphasis added.) 102 Kan. at 168–69,
jury returned a verdict in BP’s favor. We disagree with
169 P. 208…
the district court and hold that strict liability claims in tort
Each of these cases, of course, predates Williams, 241
alleging water contamination are governed by the abnor-
Kan. 102, Syl. ¶¶ 8, 9, 734 P.2d 1113, in which we
mally dangerous activity test from the Restatement
adopted the abnormally dangerous activity doctrine
(Second) of Torts §§ 519 and 520. The development of
from the Restatement (Second) of Torts §§ 519 and 520.
our strict liability caselaw leads us quite naturally to
But § 519, which articulates the test imposing strict lia-
this conclusion, despite some language to the contrary
bility for abnormally dangerous activities, is widely rec-
in Koger.
ognized as descending from Rylands. See Prosser
Kansas courts have recognized strict liability theory
and Keeton, Law of Torts § 78, at pp. 545–55;
since the late 1800s. See, e.g., K.C. St. J. & C.B.
Shapo, Responsibility for Injuries: Some Sketches, 100
Rld. Co. v. Simpson, 30 Kan. 645, Syl. ¶ 1, 2 P. 821
Nw. U.L.Rev. 481, 486 (2006). So, it is not entirely certain
(1883) (common carrier may contract away strict lia-
that the strict liability caselaw predating Williams treated
bility imposed by common law). And from that time
water contamination differently as the class now argues
forward, our court’s analysis has kept pace with
and the district court held. The real question seems
developments in this area of the law. Modern courts
to be whether Williams meant to “exempt” the type of
define strict liability as liability “imposed on an actor
water contamination case we have here from the abnor-
apart from either (1) an intent to interfere with a legally
mally dangerous activity strict liability test it adopted,
protected interest without a legal justification for doing
as argued by plaintiffs and suggested by the Court of
so, or (2) a breach of a duty to exercise reasonable
Appeals in Koger.
care (i.e., actionable negligence).” Williams v. Amoco
In Williams, the plaintiff landowners claimed natural
Production Co., 241 Kan. 102, Syl. ¶ 7, 734 P.2d 1113
gas from defendants’ gas wells entered their irrigation
(1987)…
water derived primarily from the aquifers, slowing the
In Helms, we addressed a nuisance action against
pumping system, and damaging their crops. The court
a neighboring oil refinery in which the plaintiff alleged
specifically defined the issue regarding strict liabil-
damages caused by oil and poisonous substances that
ity to be “whether strict liability applies to the escape
flowed onto the neighboring land, damaging the land
of natural gas from Amoco’s natural gas well into
and injuring some cows. The defendant argued that it
(continued)

underground water formations and subsequently into been argued that Kansas continues to preserve other
[plaintiff landowners’] irrigation water.” 241 Kan. at 112, forms of strict liability
734 P.2d 1113. And the Williams court acknowledged In determining whether an activity may be deter-
that the strict liability doctrine for abnormally dan- mined abnormally dangerous, the Restatement (Sec-
gerous activities derived from Rylands, which was ond) of Torts § 520 sets forth the following factors:
initially adopted by this court in Helms and applied (a) existence of a high degree of risk of some harm to
in Atkinson, Klassen, and Berry—all water contamina- the person, land, or chattels of others; (b) likelihood
tion cases, as mentioned above. 241 Kan. at 113–14, that the harm that results from it will be great;
734 P.2d 1113. (c) inability to eliminate the risk by the exercise of rea-
The Williams court chose to expressly adopt sonable care; (d) extent to which the activity is not
the abnormally dangerous activity doctrine articulated a matter of common usage; (e) inappropriateness
in §§ 519 and 520 of Restatement (Second) of Torts and of the activity to the place where it is carried on;
“utilize its provisions to aid in determining whether natural and (f) extent to which its value to the community is
gas is an abnormally dangerous substance under the outweighed by its dangerous attributes.
circumstances of the case.” (Emphasis added.) 241 Kan. The progression of our caselaw cannot be
at 115, 734 P.2d 1113. And after applying those provi- ignored by attempting—as the class does—to rely
sions, the court determined that drilling and natural gas on Gilmore and other early water contamination
well operation were not abnormally dangerous activities. cases that predate Williams to create a second
In addition, the court held that the drilling and operation form of strict liability apart from the test adopted
of natural gas wells was not a nonnatural use of the land, in Williams. By 1917, Kansas clearly embraced
as discussed in the Rylands line of cases. 241 Kan. at the Rylands doctrine, which was the precursor to the
115, 734 P.2d 1113. modern concept of the abnormally dangerous activ-
Of importance to this case, Williams noted in its appli- ity doctrine in the Restatement §§ 519 and 520. By
cation of the abnormally dangerous activity doctrine from 1987, this court in Williams adopted that concept
the Restatement §§ 519 and 520 the contrast the court in the form of the Restatement’s abnormally dan-
saw between the escape of natural gas and Berry’s salt gerous activity test. That adoption was reaffirmed
water contamination. 241 Kan. at 115–16, 734 P.2d in Falls v. Scott, 249 Kan. 54, 60–61, 815 P.2d 1104
1113. The Williams court stated: (1991). The district court’s order failed to recog-
“Unlike the salt water which escaped from the nize this progression, in part, because of the dis-
defendant’s well in Berry, natural gas is not a ‘harmful traction created by the dicta in Koger. We hold
agent’ once it is raised to the surface of the earth. Nor that the class’ strict liability claims in tort alleging
does natural gas ruin drinking water, destroy vegeta- water contamination are governed by the Restate-
tion, or injure livestock. Moreover, natural gas is not a ment’s abnormally dangerous activity test. Language
substance which is known to be ‘mischievous’ if it gets to the contrary in Koger is disapproved…
on the property of others.” 241 Kan. at 116, 734 P.2d
The Conditional Grant of a New Trial
1113.
The district court held a new trial was proper on the
This language may have been what led the
same grounds that it entered judgment as a matter
Koger panel to perceive some intent to exclude water
of law, concluding it erred by instructing the jury to
pollution from the scope of the Restatement’s abnor-
determine liability. BP argues the district court erred
mally dangerous activity test. But when taken in
by conditionally granting a new trial as a matter of
context, the reference to Berry is plainly part of
law because it lacked the authority to enter a condi-
the Williams court’s discussion of the Restatement’s
tional new trial order. But given our decision that the
test as a means of describing circumstances that might
jury verdict should not be disturbed in this case, further
be more likely to be considered an abnormally danger-
consideration of this issue is moot.
ous activity, in contrast to the natural gas well drilling and
Reversed and remanded with directions to the
operation at issue in Williams. And because Williams did
district court that the jury verdict be reinstated, and
not explicitly define all instances in which the Restate-
final judgment entered for the defendants.
ment’s test now governs strict liability in Kansas, it has

1. Why was suit brought in this case?
2. Why was the class action suit brought?
3. Who are the plaintiffs and what are they claiming?
4. Why were the claimants arguing that the Restatement test of abnormally dangerous activities should not
apply here?
5. Was statute of limitations an issue in this case?
6. Did the court use the Restatement test or another test for the contamination?
7. Should there be two separate tests for water contamination? Why or why not?
8. What was the holding of the case? Do you agree?
Examples of Activities Some Courts Poisonous Gases

Have Considered Abnormally A tenant in a low-income apartment died from inhaling
carbon monoxide. It was found that the cause of the
Dangerous carbon monoxide leak was from a faulty furnace and
the tenant’s estate is now suing the City Housing
Crop Dusting
Authority for wrongful death under a strict liability
The plaintiffs were organic farmers who used no claim for improperly maintaining the heating flue. As to
non-organic fertilizers, insecticides, or herbicides the strict liability claim, plaintiff argues that defendant
in their farming; they sold their produce to organic is strictly liable because (1) it violated the implied
food buyers. The defendant, a crop duster, while warranties of habitability and fitness for a particular
spraying land adjoining the plaintiffs’ land, during purpose; and (2) the maintenance of the gas heater
one spraying pass began spraying while over was an ultrahazardous activity. This argument is
the plaintiffs’ property. The residue rendered the without merit. A landlord’s liability in this state for
plaintiffs’ produce unfit to sell to buyers of organic breach of warranty to his tenant is not governed by the
food. The court, considering each of the six doctrine of strict liability, but by the Residential Rental
factors set forth in the Restatement (Second), held Agreements Act, violations of which are but evidence
that the defendant was strictly liable for the dam- of negligence, as heretofore noted. Nor is heating
age caused by their aerial spraying. The court an apartment house or other dwelling with gas, an
emphasized that the risk of harm was accentu- activity safely engaged in by millions for generations,
ated by the fact that the drift of chemicals in aerial an ultrahazardous activity such as blasting with high
spraying is particularly unpredictable. The court explosives, for which the owner is strictly liable without
also noted that the likelihood that harm would regard to fault. (Jackson v. Housing Authority of City of
result was dependent upon what adjoining prop- High Point, 326 S.E.2d 295 [N.Carolina 1985].)
erty owners did with their land. In balancing the Other activities the courts have held subject to
risk of harm versus the utility of the activity, the strict liability include the following:
court concluded that an equitable balancing of
• storage of flammable liquids in urban areas
social interests could be attained only if the defen-
• disposal of hazardous waste
dants were made to pay for the consequences of
their acts (Langan v. Valicopters, Inc., 567 P.2d 218 • blasting with dynamite
[Wash. 1977]). • testing of rocket fuel
Examples of Activities Some Courts irrigation canal was abnormally dangerous conduct
that caused the roots of the tree to weaken. The
Have Considered Not Abnormally court held that the defendant’s acts were not abnor-
Dangerous mally dangerous because building an irrigation canal
was not an uncommon activity in a rural area and did
Airline Crash not involve an abnormally high degree of risk (Stroda
An airline crash resulted in fire damage to a nearby v. State Highway Commission, 539 P.2d 1147 [Or. Ct.
apartment building. The court held for the defen- App. 1975]).
dant after concluding that flying is not an abnormally Other activities that the courts have concluded
dangerous activity and that there was no intent to are not abnormally dangerous include:
crash and no control over the plane after the midair • a defective lawn sprinkler that resulted in an
collision preceding the crash (Wood v. United Air automobile crash.
Lines, Inc., 223 N.Y.S.2d 692, aff’d, 226 N.Y.S.2d • defective plumbing that caused damage to a
1022, appeal dismissed, 230 N.Y.S. 207 [1961]). plaintiff’s lower floor apartment.
In the early days of commercial aviation, airlines
• defective electric wiring that resulted in prop-
were held to a strict liability standard. Modern
erty damage.
safety records no longer warrant classifying flying
as an abnormally dangerous activity, and most • A cracked pipe that caused water damage and
courts have retreated to a negligence standard in leakage onto property.
this area. In many states, strict liability continues to The courts do not agree as to what does or does
apply to ground damage caused by an airline crash, not constitute an abnormally dangerous activity.
although an increasing number of states appear to Public policy appears to influence that determina-
be abandoning that position. tion; an overview of the cases in several jurisdictions
indicates that courts are more likely to classify an
Irrigation Dam activity as abnormally dangerous if the activity occurs
A saboteur ruptured the defendant’s irrigation dam, in a highly populated area and less likely to do so
causing damage to the plaintiff’s property. The if the activity occurs in an isolated area. Courts are
appellate court held that reservoir owners are not more likely, for example, to hold strictly liable those
absolutely liable for damage to the property of oth- who store flammable liquids or explosives in densely
ers caused by escaping waters if the breach is caused populated areas than they are those who store these
by an “act of God,” a public enemy, or the malicious materials in rural areas. By the same token, courts
act of a third person. The court noted that in a semi- appear reluctant to classify the household use of
arid climate, an irrigation reservoir does not qualify gas, water, or electricity as an abnormally dangerous
as an uncommon usage or an ultrahazardous activity activity.
(Wheatland Irrigation District v. McGuire, 537 P.2d
1128, reh’g granted in part, 552 P.2d 1115, reh’g,
562 P.2d 287 [Wyo. 1975]).
Product Liability
Falling Tree The rationale underlying strict liability in the area
The plaintiff, a motorist, was injured when his of product liability is that it is easier for the defen-
automobile was struck by a falling tree. The plain- dant to bear the risk of loss than for the plaintiff.
tiff alleged that the defendant’s construction of an Advocates of strict liability reason that merchants
In the News
Links to numerous sites providing information about specific toxic tort issues, such as lead poisoning,
asbestos, fen-phen, industrial solvents, and tobacco are available. Enter “toxic torts” as your search term.

1. A hotel guest is burned while watching a fire-eating act. He sues the hotel owner and the travel service
that had arranged the “mystery tour” on the basis of strict liability, claiming that the act was an abnormally
dangerous activity. Should he be allowed to recover?
2. Mr. Warner is seriously injured when the truck in which he is a passenger is struck by a locomotive. He
sues the railway on the basis of strict liability, arguing that the operation of a railway is an abnormally
dangerous activity. Should he be able to recover on that basis?
3. The Tenneco Corporation operates a natural gas pipeline that includes 16,000 miles of pipe extending
from Texas to New England. Compressor stations, which are necessary to compress and push the gas,
are located at intervals along the pipeline. Following an air line explosion at compressor station 106,
caused by the use of lubricants that lacked fire retardants, Tenneco began using a fire-retardant lubricant
called Pydraul AC, which contains a polychlorinated biphenyl (PCB) called Aroclor 1254. In the late 1960s
or early 1970s, Tenneco discontinued the use of Pydraul AC in favor of another non-PCB-containing
lubricant. The use of PCBs was banned in 1976 by the Toxic Substances Control Act. Tenneco alleges it
only recently discovered that PCBs were dumped directly onto the ground surrounding station 106 or into
the station’s drainage system.
The Fletchers own a farm adjacent to station 106. PCBs have been detected in the soil of their
property, in the water that drains onto their property, in their beef cattle, and in the blood of some mem-
bers of the Fletcher family. Tenneco admits that its use of Pydraul AC is a source of the Fletchers’ PCB
contamination.
Should Tenneco be held strictly liable for the Fletchers’ injuries, even though it was unaware of the dan-
gerousness of PCBs at the time it installed the compressor stations? Are there other torts the Fletchers might
rely on to recover?
4. Don is injured from riding an electric scooter he rented from the city. The scooter had not been properly
maintained and had some exposed wiring. Should the city be liable for strict liability for Don’s injuries?
5. A service station owner sues the oil company for damage resulting from the leakage of gasoline from
underground storage tanks. The tanks are in a state of preventable disrepair at the time of the leakage. Is
the storage and removal of gasoline in underground storage tanks an abnormally dangerous activity for
which the oil company should be strictly liable?
and manufacturers have the ability to internalize the Limitations on Strict

costs of accidental losses and can distribute such
losses among the consumers who purchase their Liability
products. Should an injured plaintiff have to prove
A defendant can raise either of two defenses in
every element of causation (intent) or negligence?
a strict liability case. First, a defendant can argue
Another reason given for imposing strict liability
lack of proximate cause, i.e., that the damage that
is that product safety is better promoted by a strict
occurred was not the result of the kind of risk that
liability theory than by traditional negligence theory.
made the activity abnormally dangerous. Second,
Once courts render decisions imposing strict liability
a defendant can argue that a plaintiff who has
on defendants even though they were not negligent,
“assumed the risk” should be barred from recovery.
defendants arguably have a strong incentive to
prevent the occurrence of future harm. Preventing
future harm is a primary goal for those who advocate Proximate Cause
strict liability. This theory of liability is discussed at A defendant is strictly liable only for damages that
length in Chapter 12. result from the kind of risk that made the activity
abnormally dangerous. The Restatement (Second) not protect against “harms incident to the plaintiff’s
of Torts illustrates this point using an example of a extraordinary and unusual use of land.”
pedestrian run over by a truck transporting dyna- Some courts will also relieve defendants of liability
mite. Although transporting dynamite is an abnor- if the harm occurred in an unforeseeable manner.
mally dangerous activity, the plaintiff will not be able An “act of God,” for example, is often enough to
to sue on the basis of strict liability because the risk relieve a defendant of strict liability. Although the
of hitting pedestrians is not one of the things that Restatement (Second) of Torts rejects the “act of
make such transportation abnormally dangerous. God” exception, many courts have been reluctant
A related rule is that a defendant will not be to impose liability when the harm that occurred was
strictly liable if the harm occurred only because the clearly out of the control of the defendant. Courts
plaintiff was conducting an “abnormally sensitive” have refused to impose strict liability, for example,
activity. The case commonly used to illustrate this when extraordinary rainfall washed out a dam, when
point is one in which the plaintiff’s female minks a plane crash caused properly stored chemicals to
killed their young as a result of being frightened by leak, or when a hurricane caused water to overflow
the defendant’s blasting operation being conducted from a hydroelectric plant, resulting in flood damage.
more than two miles from the plaintiff’s mink ranch Although the courts are not uniform in where they
(Foster v. Preston Mills Co., 268 P.2d 645 [Wash. draw the line on strict liability, most courts impose
1954]). The court reasoned that blasting operations liability for a narrower range of harm in cases involving
are unusually dangerous because of “the risk that strict liability than in cases involving negligence. That
property or persons may be damaged or injured is, a court is more likely to find proximate cause in a
by coming into direct contact with flying debris, negligence case than in a strict liability case. Likewise, a
or by being directly affected by vibrations of the court is more likely to deny liability if there is an unfore-
earth or concussions of the air.” Here, because the seen, intervening cause in a strict liability case than in
minks were harmed only because of their “exceed- a negligence case. This willingness to curtail liability in
ingly nervous disposition,” the court held that the strict liability cases is most likely due to the fact that the
defendant was not strictly liable. Strict liability does defendant is without fault.

1. The owner of a food store sues an electric cooperative for a loss of food and equipment suffered as a
result of a power outage. An expert for the defendant testifies that the power outage was due to the failure
of an electrical transformer, which was caused by an excessive load, lightning, or an internal problem. In
the expert’s opinion, the most likely cause was lightning. The food store owner sues under a theory of
strict liability. Are they likely to recover?
2. Kramer, a forklift driver, brings a strict liability action against a forklift manufacturer after they are injured
in an accident involving the forklift. At the time of the accident, Kramer failed to look in the direction of
travel and to keep their foot inside the operator’s compartment (contrary to written warnings). Both of
these actions may have contributed to the accident. The forklift is defective in that it lacks a guard on the
operator’s compartment; this defect makes the forklift dangerous. What defenses might the forklift manu-
facturer raise? Are these defenses likely to be successful?
3. Martin accepts a job hauling flammable liquids. Because of the danger involved he is paid more than for
hauling other types of loads. He is not aware that the truck he is using to haul the liquids has a hairline
crack in the engine. He is involved in a two-vehicle crash and is killed. Can his estate recover on the basis
of strict liability?
4. Lynn tries to pass a truck on a narrow road. The truck is clearly marked “Danger, Dynamite,” but Lynne,
intent on passing the truck, fails to read the sign. She negligently runs into the truck and is killed in the
ensuing explosion. Will her estate be barred from recovering if a suit is filed on the basis of strict liability?
Assumption of Risk contributory negligence usually will not bar a plaintiff

from recovery. In the preceding example, if the driver
A plaintiff who knowingly, voluntarily, and either rea-
had been merely inattentive and had missed the warn-
sonably or unreasonably subjects themself to danger is
ing signs, this contributory negligence would not have
barred from recovering on the basis of strict liability. For
barred them from recovery. Even though the driver in
example, a plaintiff who insists on driving through an
that situation did not discover a risk they should have
area where blasting is being done, after seeing warn-
discovered, full responsibility would lie with the party
ing signs and being detained by a flagman, assumes
who created the abnormal risk (Restatement [Second]
the risk if they are injured by the blasting (Restatement
of Torts § 524, cmt. a).
[Second] of Torts § 523, illus. 2). Note, however, that
Summary
Strict liability is a cause of action that can be used that cannot be eliminated with due care. Further-
in cases involving abnormally dangerous activities, more, the activity must not be a matter of common
dangerous animals, and product liability. A plaintiff usage, must be inappropriate to the place where it
can recover damages even if the defendant acted is carried out, and its value to the community must
without fault. The rationale underlying strict liability be outweighed by its dangerous attributes. Crop
is that persons who engage in unusually dangerous dusting, blasting, and the storage of flammable
activities must be responsible for any damages liquids are all examples of abnormally dangerous
resulting from those activities. activities. Public policy concerns appear to affect the
Animal owners who are or should be aware courts’ classification of activities as being abnormally
of the vicious propensities of their domesticated dangerous.
pets are strictly liable for damages caused by those A defendant can be absolved of liability if the
pets. Under the common law, owners were liable for plaintiff assumes the risk by voluntarily and knowingly
property damage created by trespassing dangerous exposing themself to the danger created by the
animals if those animals were likely to roam. This rule defendant. If proximate cause is lacking, in that the
was modified by the “fencing in” and “fencing out” damage that occurred did not result from the kind of
statutes adopted by many western states. risk making the activity abnormally dangerous, the
Abnormally dangerous activities are those activ- defendant is not liable.
ities involving a high degree of risk of serious harm
Key Terms
abnormally dangerous activity strict liability
Activity for which a defendant is strictly liable if Liability imposed without a showing of intent or
someone is injured; characterized as an activity negligence
having a high degree of risk of serious harm that
cannot be eliminated with due care and whose
value is outweighed by its dangerous attributes
Review Questions
1. In what types of cases is strict liability an 4. What do the “fencing in” and “fencing out”
appropriate theory of recovery? statutes provide?
2. Is strict liability synonymous with absolute 5. Under what conditions are animal owners strictly
liability or liability without fault? liable for damage caused by non-trespassing
animals?
3. What is the general rule regarding liability for
damage caused by trespassing animals?
6. What are the six factors considered in accordance 9. Does the population of an area where the
with the Restatement to determine if a particular dangerous activity is taking place affect a
activity is abnormally dangerous? defendant’s liability in a strict liability case?
7. Give examples of two activities that courts 10. What is the rationale underlying strict liability
have classified as abnormally dangerous and for defective products?
explain why they were considered to be so.
11. What are the possible defenses that can be
8. Give examples of two activities that courts have raised in response to a strict liability claim?
classified as not being abnormally dangerous
and explain why they were not considered to
be so.
Practice Exam
True-False
1. Strict liability is synonymous with absolute 9. The rationale for the decision in Rylands v.
liability. Fletcher has been adopted by the majority of
American courts and the Restatement (Second)
2. Strict liability is applicable to defendants who of Torts.
carry out their activities with the utmost of care.
10. Under the six factor Restatement test,
3. With strict liability, a defendant can be found one factor alone can be sufficient for strict
liable even if they adhered to an objective liability.
standard of care.
11. Courts hold manufacturers of defective
4. There is no intent needed for a strict liability case. products strictly liable because they believe
5. Under the English common law, which has that manufacturers can internalize the costs of
been adopted in all states, owners of animals accidental losses.
were strictly liable for property damage caused 12. A defendant is not strictly liable for harm
by their animals when they trespassed on that occurs as a result of a risk that is not
another’s land. the kind of risk that makes the activity
6. Bulls and stallions are considered domesti- dangerous.
cated even though they are often dangerous. 13. A defendant is strictly liable even if it is
7. An owner of a chimpanzee be strictly liable for only because the plaintiff is conducting an
injuries to another. abnormally sensitive activity.
8. Dog owners are strictly liable for damage 14. Courts are more likely to find proximate
caused when their dog bites someone if they cause in a strict liability case than in a negli-
know or have reason to know that the dog gence case and to deny liability if there is an
has vicious propensities; however, under the unforeseen, intervening cause in a negligence
law of most states, dogs are allowed one case than in a strict liability case.
“free bite.”
Fill-in-the-Blank
1. A defendant can be ____________ 3. The owner of a(n) ____________ animal is
____________even though they have no intent strictly liable for any damage resulting from a
of wrongdoing and are not negligent. dangerous propensity typical of that particular
species.
2. Under ____________ ____________ statutes,
owners of animals are not strictly liable for prop- 4. The Restatement has adopted strict liability in
erty damage caused by their trespassing animals cases involving abnormally dangerous activities
as long as they attempt to fence the animals and uses ________ factors to determine
in, whereas under ____________ ____________ dangerousness.
statutes, property owners who fence in their land
have a strict liability claim against those whose
animals’ trespass on their land.
Multiple-Choice
1. In deciding whether an activity is abnormally 3. The activity a court is least likely to characterize
dangerous, courts consider whether the activity as abnormally dangerous is
a. is a matter of common usage. a. crop dusting.
b. creates a high degree of risk of harm to b. storage of flammable liquids.
others. c. an airline flight.
c. creates a risk of harm that could be d. all of the above.
eliminated by due care.
d. all of the above. 4. Which of the following situations or activities is a
court likely to find to be abnormally dangerous?
2. In deciding whether an activity is abnormally a. Damage caused by escaping waters from an
dangerous, irrigation dam
a. courts consider the value of the activity to b. Testing of rocket fuel
the community. c. Defective plumbing or electrical wiring
b. courts generally ignore the appropriateness d. None of the above
of the activity for the place in which it is
being carried out. 5. A defendant sued for strict liability can raise
c. a court is unlikely to conclude that an the defense of
activity is abnormally dangerous unless a. assumption of risk.
all six factors are present. b. proximate cause.
d. a court is likely to conclude that an activity c. contributory negligence.
is abnormally dangerous even if only one d. all of the above.
factor is present.
Practice Pointers
Evidence Collection and Preservation
Litigation in strict liability cases, as with negligence, is often fact-intensive—and though attorneys may be the
masters of the law, legal assistants are the masters of the facts. Therefore, from the inception of a lawsuit until its
resolution, a legal assistant can be invaluable to an attorney in performing factual research. Factual research involves
interaction with such entities as governmental agencies, courts, corporations, fact witnesses, expert witnesses, other
law firms, and computer database resources to obtain documentary evidence and witness statements.
In product liability cases, for example, product information and research data is essential and can be
obtained from the governing organization for that product. The United States Patent Office, www.uspto.gov/,
is also an excellent source of documentary evidence. Patents usually contain detailed diagrams along with
explanations of how the product works. Patents can be located using the patent number, which usually appears
in the manufacturer’s literature. Advertisements should also be consulted to determine claims made about the
product, and the original product should be obtained along with any instructions, warranties, and warnings.
Other examples of documents that may be helpful in a case include telephone records (which can be
subpoenaed) and records produced by city, county, and state street and highway departments. The latter show
road conditions and construction projects, road maintenance, traffic signal sequence and pedestrian light
timing, and, in some cases, histories of traffic accidents and traffic impact studies that record vehicle counts
at a particular location. Before attempting to secure documents relevant to a case, you must determine the
procedures and fees involved in obtaining records from a particular agency.
Witness Statements
Having interviewed a witness, you may decide that you want to take their statement. Several means can be used to
do that. You may, with the permission of the witness, tape-record their statement. Alternatively, you may ask them
to write out their statement, although it is rare that individuals do an adequate job. Frequently, investigators write
out the person’s statement and have the witness sign it. The obvious drawback to this procedure is that the witness
can later deny having made the statement or can say they signed it without being given an opportunity to read it.
In such cases the statement may be inadmissible, and the investigator may be forced to take the stand to testify as
to the witness’s statement. Putting the statement in the words of the witness makes it more difficult for them later to
deny having made the statement. In addition to having the witness sign the statement, have them initial each page,
as well as sign a statement attesting to the truth and accuracy of the foregoing statement.
Although expensive, another alternative is the use of a court reporter. This method virtually precludes the
witness from denying that they made the statement, but if they do, the court reporter, who is a disinterested
third party, can be called to testify to the truth.
Statements should be as specific as possible. Detailed, specific information rather than abstract general-
izations are the goal. Be sure to get the witness’s actual observations and not their opinions, because opinions
of lay witnesses are generally not admissible.
Witness statements can also be made from recorded telephone statements. When taking a statement
over the telephone, identify yourself, the purpose of the phone call, the name of the person being interviewed,
the date and time of the call, the telephone number of each party, and the fact that the conversation is being
recorded and that the witness gave permission to record the statement. The witness should then be asked
to give their full name, date of birth, address, driver’s license number, and Social Security number. Having
all of this information facilitates location of the witness two or three years later if the case ultimately goes to
trial. This same identifying information should be obtained when recording a statement in person. During the
conversation, be careful to avoid making extraneous comments or speaking while the witness is speaking. After
the statement has been recorded, the tape should be labeled with the case name, witness name, and date of
interview and should be transcribed as soon as possible after the interview.
If a witness is unwilling to be recorded or to sign an affirmative statement, they may be willing to sign a
written “negative” statement. Such a statement denies any knowledge on the part of the witness (e.g., I did
not see anything happen at location X at time Y). Having this statement in writing precludes the witness from
coming back at a later date with new recollections.
Photographs
Photographs are extremely helpful in relating a story to a jury. Careful attention must be given to the
photographic process. Keep in mind that the purpose of photographing evidence is evidentiary, not aesthetic.
Therefore, black-and-white film rather than color film should be used in certain instances, because black-and-
white produces sharper details. Always try to fill the frame as much as possible, blocking out any distracting
background. Lighting is especially crucial. When photographing shoe prints or tire impressions, oblique
(low-angle) lighting is essential to bring out the unique characteristics of the evidence.
Also, make sure that the photographs accurately reflect the scene as it occurred. Distortions are easily
created through the use of photography, so the attorneys who cross-examine you will be interested in finding
out the precise manner in which you took each photograph. To help jog your memory, record details, such
as camera speed, lighting conditions, and camera location for each photograph. Never alter any evidence in
photographing it; such alterations will render the photograph inadmissible.
Sometimes a series of photographs will be necessary. For example, if the plaintiff has been bruised, the
discoloration will not appear for a while, and the bruises will have to be photographed over time. Accident scenes
should also be photographed in a series of shots, re-creating the scene from the viewpoint of the drivers. Begin
shooting from the direction of your client’s vehicle about 500 feet from the point of impact and move progressively
closer to the point of impact. Repeat this sequence from the viewpoint of the other driver. Take these photographs
at the eye level of the driver so that they represent the scene from the driver’s vantage point.
Remember that a photograph is indeed “worth a thousand words.” Never skimp on equipment to save
a little money. Photograph every square inch of an accident scene from every conceivable angle. Take several
photographs of damaged areas of vehicles, including less visible damages such as scratches or paint scrapings.
A piece of evidence that may at the time seem trivial to you may be the very evidence upon which the whole
case hinges at trial. Taking photographs in the investigative process is an exacting science. If possible, you
should consider taking courses or at least reading extensively in this area to enhance your expertise.
Aerial photographs can be helpful in orienting jurors to the conditions existing at a particular location,
especially when presenting accident cases involving freeways, complicated intersections, or remote areas.
Such photographs can often be obtained from the highway department, the United States Department of
Agriculture, or the United States Army Corps of Engineers. Private companies also do aerial photographs,
and they are helpful in having photographs enlarged to scale.
In this era of television and movies, jurors are accustomed to seeing moving visual displays and often
benefit from seeing videos. A video of how a product is made, how it works, and what it does, for example, can
help focus jurors on key factual issues in a product liability case. Videos should be prepared professionally and
should be done with a clear sense of purpose and direction.
Tort Teasers
1. Remembering the hypothetical scenario presented at the beginning of the chapter, what arguments
would you make if you wanted to allege that those who dispose of hazardous wastes, such as toxic
chemicals, are strictly liable for the consequences of their dumping? Analogize to the cases in this
chapter, arguing that your case is most like those cases used to illustrate abnormally dangerous
activities and unlike those cases used to illustrate activities that are not abnormally dangerous.
2. Plaintiff, while employed by defendants to look after their children, is startled by defendants’ pet
bird when it alights on her face. In trying to avoid the bird she steps back, falls, and fractures her hip.
Defendants often let the bird out of its cage and do not lock the cage. Should defendants be held strictly
liable? Neagle v. Morgan, 277 N.E.2d 483 (Mass. 1971).
3. Plaintiff boards his mare in a pasture with other horses. One day while trying to feed his mare, Plaintiff leads the
mare away from the other horses in the pasture. Defendant’s colt approaches him in a menacing manner and
Plaintiff, who is aware of the colt’s vicious propensities, drives the colt away and returns to feeding his mare.
The colt waits and then stealthily comes up behind Plaintiff and kicks him in the behind. Do you think this is a
case of strict liability? What defenses might be raised and why? Sandy v. Bushey, 128 A. 513 (Me. 1925).
4. The court’s synopsis of the facts in this particular case certainly bears repeating. “On September 14, 1907,
the plaintiff was the owner of a thoroughbred Holstein-Friesian heifer, which was born on January 9, 1906,
and had been thereafter duly christened ‘Martha Pietertje Pauline.’ The name is neither euphonious nor
musical, but there is not much in a name anyway. Notwithstanding any handicap she may have had in the
way of a cognomen, Martha Pietertje Pauline was a genuine ‘highbrow,’ having a pedigree as long and at
least as well authenticated as that of the ordinary scion of effete European nobility who breaks into this land
of democracy and equality and offers his title to the highest bidder at the matrimonial bargaining counter.
The defendant was the owner of a bull about one year old, lowly born and nameless as far as the record
discloses. This plebeian, having aspirations beyond his humble station in life, wandered beyond the con-
fines of his own pastures, and sought the society of the adolescent and unsophisticated Martha, contrary
to the provisions of Sec. 1482, . . . As a result of this somewhat morganatic mésalliance, a calf was born
July 5, 1908.” What would a court consider in deciding whether Defendant should be held strictly liable for
Plaintiff’s damages? Kopplin v. Quade, 130 N.W. 511 (Wis. 1911).
5. Plaintiff who worked for a construction company was injured when entering a property after falling in a fence
post hole. Plaintiff sued property owner for damages and argued that defendant property owner was neg-
ligent and liable for not marking the holes. The area where plaintiff was walking, and working was partially
overgrown with weeds. Plaintiff knew that fence posts were being removed before he began working on the
property. Should the defendant be liable for plaintiff’s injuries? Should this be strict liability or negligence?
What if the court found the plaintiff was working in an area where he should have known there would be obsta-
cles. Would this be a defense for the defendant? Stewart v. Sam Wallace Indus. Co., 409 So.2d 335 (La. 1981).
6. Defendants’ gasoline trailer breaks away from the truck towing it, leaves the highway, and falls onto a
road below. Thousands of gallons of gasoline spill onto the road, and a motorist driving across the road
is killed when the gas explodes, and his car is engulfed in flames. Plaintiff brings a wrongful-death action
against Defendants, one of whom is the owner of the truck and the other of whom is the driver. Do you
think strict liability should be imposed? Siegler v. Kuhlman, 502 P.2d 1181 (Wash. 1973).
7. Gerald is injured by a stray bullet that is fired by a group of target shooters who are practicing at a
nearby firing range. Is the firing range strictly liable for Gerald’s damages? Miller v. Civil Constructors,
Inc., 651 N.E.2d 239 (Ill. App. 1995).
Internet Inquiries
Virtual Gumshoe (www.virtualgumshoe.com), formerly Webgator, is an outstanding source of online investi-
gative resources for anyone conducting a civil or criminal investigation. At this one site, you can link directly
to statutes in any state, to federal and state records, genealogy sites, reverse phone searches, flight tracking,
historical weather data, newspapers, property records, court records, libraries, government directories—and
more! The scope of this site is virtually overwhelming, and it is updated on a regular basis.
Suppose Jack Major, one of your firm’s clients, owns a Rottweiler dog by the name of Misty, who recently
bit a door-to-door salesman who came to their home. Jack is concerned that he will be sued and has come
to your firm for legal advice. Jack assures you that Misty is generally a good-natured animal and that she
has never bitten anyone before. Jack observed the salesman behaving in what he perceived as a threaten-
ing manner toward Misty and believes the salesman provoked her into biting him.
To discourage trespassing on his property, Jack has posted several warning signs indicating that a guard
dog is on the premises. He admits that Misty is not much of a guard dog and that he has never encouraged her
to be aggressive but believes that her imposing presence would intimidate most would-be trespassers. Your
supervising attorney asks you to do some preliminary research to answer the following questions.
1. What statutes in your state relate to dog bites, and what do they provide?
2. Under what conditions is a dog owner strictly liable for injuries caused by his dog biting someone?
3. What can Jack argue, and what evidence will he need to present in his defense if he is sued on the basis
of strict liability?
4. If the dog was inside the house and not in the yard, does that make a difference?
Chapter 12
Product Liability
Chapter Topics
Overview of Product Liability Defenses
Theories of Recovery Preemption
Types of Losses Class Actions
Types of Defects
Chapter Objectives
After completing the chapter, you should be able to • Identify the characteristics of express and implied
• Differentiate among negligence, warranty, and warranties.
strict liability causes of action. • Explain the rationale behind strict liability.
• Appreciate the importance of classifying losses as • Outline the elements of a strict liability claim.
personal injury losses, property damage, or eco- • Identify the defenses that can be raised in neg-
nomic losses. ligence, strict liability, and warranty causes of
• Identify characteristics and examples of manufactur- action.
ing defects, design defects, and defective warnings. • Explain what a class action is, what its benefits
• Recognize when it is appropriate to sue on the are, and the requirements of its certification.
basis of negligence, strict liability, and breach of
warranty.
H aving waited several years to have children, Tom and Susan go to a fertility specialist to discuss options for
conception. Tom has a history of a congenital genetic heart defect and is worried that using his sperm will
result in a greater chance of their child having the life-threatening condition. They decide that perhaps using
donor sperm may decrease the odds since the sperm is screened ahead of time. After running several tests, the
fertility doctor agrees to impregnate Susan with donor sperm using artificial insemination. Based on a list that
Tom and Susan prepare as to the traits they wish their child to have, the doctor selects a specific anonymous
donor. Susan becomes pregnant as a result of the artificial insemination and delivers a baby boy. Unfortunately,
when the child is young, it is discovered that he has a serious congenital birth defect (not a heart defect). Tom
and Susan sue the doctor and the sperm bank for the harm caused to their child.
Are the doctor and the sperm bank negligent in supplying a defective product, i.e., sperm that contains
faulty genetic coding? Can it be proven that this birth defect is genetic and not a random defect? Did the
CHAPTER 12 Product Liability | 359
doctor or the sperm bank breach any implied warranties? Should they be held strictly liable for the injuries sus-
tained by the child? If a waiver was signed by Tom and Susan before doing the artificial insemination, does that
have a bearing on the lawsuit? Can the child as well as the parents sue for his damages? What defenses can the
doctor and the sperm bank raise?
Overview of Product Additionally, a manufacturer that uses defective

components prepared by others may be liable if it
Liability did not take reasonable care to obtain them from
a reliable source or did not make a reasonable
Product liability refers to the liability of a manu-
inspection of the components before incorporat-
facturer, seller, or other supplier of a chattel which,
ing them. Thus, an automobile manufacturer who
because of a defect, causes injury to a consumer, a
assembles a chassis using components prepared by
user, or in some cases a bystander.
other manufacturers is liable for any malfunctions
that result from a defect in the component parts
if the manufacturer does not make a reasonable
Theories of Recovery inspection of those components before incorporat-
ing them.
Liability can be based on any of three theories of
recovery: (1) negligence, (2) warranty, or (3) strict
Retailers
liability.
A manufacturer is liable if a retailer fails to make an
inspection that it is under an obligation to make. If,
Negligence however, the retailer learns of the defect, either by
Anyone who negligently manufactures a product is inspection or through some other means, and fails
liable for any personal injuries proximately caused by to warn the customer, many courts have found the
their negligence. A manufacturer may be negligent chain of causation to be broken and have absolved
(1) if a product is deemed dangerous from a design the manufacturer of any liability.
defect making it unreasonably dangerous, (2) for a Retailers as well as manufacturers may be found
manufacturing defect from a flaw in the production negligent, but suits against retailers on the basis
of a product, or (3) from failure to warn consumers of of negligence are often unsuccessful. The sale of a
dangers or a defect in instructions. negligently manufactured or designed product is
not enough by itself to show negligence. Generally,
Users and Makers of Component Parts a retailer has no duty to inspect goods unless it has
The component part defense states that if a compo- reason to believe they may be dangerous, because
nent part is not defective or if the component part even if it did inspect, it would have no chance of
manufacturer has no involvement in the integration finding the defect. A retailer selling microwave
of the part into the final project, there will be no lia- ovens, for example, has no duty to break open the
bility. The idea behind this is that component suppli- boxes in which the ovens are packaged to inspect
ers and manufacturers should not have to ensure the the ovens.
complete safety of their products as they are used in A majority of courts have, however, imposed
other companies’ finished products. There is no way a duty to make at least a superficial examination,
for a component parts manufacturer to determine especially when the retailer is a car dealer. The con-
every product and use available for their part in a sequences of a defect in a car are likely to be severe,
finished product. The manufacturers of the finished and the retailer is much more able than the buyer
product are much better equipped to determine to discover any defects. If a retailer knows or should
the specific uses for the final product. The compo- know that a product is unreasonably dangerous, it
nent parts manufacturer will be responsible if they is negligent if it does not at least warn customers.
contributed directly to the harm or if the component Generally, plaintiffs suing retailers opt for warranty or
parts defective design has a direct causation to the strict liability theories for reasons we will discuss later
plaintiff’s injuries. in this chapter.
Lessors, Real Estate Agents, and Sellers of Warranty

Services
Combination of Tort and Contract Law
Lessors of goods may also be liable in negligence
A cause of action based on breach of warranty is a
for failing to discover defects in products or leasing
hybrid one, containing characteristics of both tort
products that may be defective. Rental car compa-
and contract law. Originally the action was deemed a
nies that lease defective cars, for example, may be
form of misrepresentation and was therefore consid-
found negligent. The sellers of real estate as well
ered a tort. But because most warranties arose under
as suppliers of services (e.g., the providers of blood
the common law in situations involving a contract
transfusions) may also be found negligent in certain
of sale, contract law was also applicable. Today this
cases.
amalgamated form of law is made even more confus-
ing by the efforts of the Uniform Commercial Code
Privity
(UCC) to deal with warranties on a statutory basis.
Formerly, a plaintiff in a negligence action was Pay particular attention to the fact that the public
required to contract directly with the defendant. policy justifications underlying tort law and contract
This so-called privity requirement was abolished law are quite different. Tort remedies are designed
in MacPherson v. Buick Motor Co., 111 N.E. 1050 to protect the public from dangerous products. The
(N.Y. 1916), allowing a plaintiff who buys a product purpose of strict liability is to protect consumers and
from a retailer and not directly from the defendant allocate the risk to manufacturers, who are better
manufacturer to recover. Therefore, a plaintiff can able than consumers to bear the risk of loss. Contract
sue the manufacturer, the retailer, or the lessor of remedies, in contrast, are designed to compensate
a product. Users of products who do not purchase parties for the loss of the benefit of their bargain.
the products can also recover under a negligence Under the UCC the free flow of commerce is encour-
theory if they are “reasonably foreseeable” plain- aged (see UCC § 1–102, Official Comment 2), and
tiffs. (See Palsgraf in Chapter 6 for a discussion of commercial parties of equal bargaining power are
foreseeability.) allowed to allocate the risk of loss between them-
selves. A party to a commercial contract may, for
Damages in Negligence Cases example, choose to forgo a remedy in exchange for
Although plaintiffs generally seek to recover dam- a lower purchase price. Presumably, merchants are
ages resulting from personal injuries, they can also better able to protect themselves from economic
recover for property damage. Suppose a defen- loss than are consumers.
dant fails to use due care in manufacturing a tele- In deciding whether to apply contract law or
vision set, and the defect in the electrical wiring in tort law, a court must consider the nature of the
the television causes it to catch fire and burn down defect in the product and the type of loss for which
the plaintiff’s house. The plaintiff can recover for the the plaintiff seeks compensation. In a tort claim, for
resulting property damage. example, the plaintiff might allege that they have
Plaintiffs in negligence actions generally have been exposed by means of a hazardous product
a hard time recovering for pure economic loss. to an unreasonable risk of injury. In a contract case,
Breach of warranty, rather than negligence, is the however, they would allege that the product failed
preferred theory for use in recovering for eco- to perform in accordance with the expectations
nomic damages. Also, the distinction between one would have for a product of a particular quality
property damage and economic loss is not always and fit for ordinary use. Tort law, then, is reserved
clear. Is the destruction of the plaintiff’s property for defects that result in an unreasonably danger-
or of the product itself considered property dam- ous product. Contract remedies are more appropri-
age or economic loss? Similarly, does the fact that ate when the defect involves only the quality of the
the product no longer works or is now worthless product and presents no unreasonable danger to
because of the defect constitute property damage persons or property.
or economic loss? Consult the case law in your The type of loss—personal injury, property dam-
state to see how the courts in your jurisdiction age, or economic loss—also determines whether the
have resolved these issues. plaintiff will select a contract or tort claim. Although
a majority of jurisdictions restrict contract liability to Local Links

recovery for commercial or economic loss and restrict
tort liability to recovery for damage to persons or prop- Do the courts in your state restrict contract
erty, this distinction has been challenged by several liability to recovery for economic loss and
modern courts. Some, such as the Arizona courts, have tort liability to recovery for damage to prop-
reasoned that if the plaintiff’s only loss is an economic erty and persons?
one, the parties are best left to their commercial reme-
dies. If the plaintiff’s economic loss is accompanied by
some physical damage to a person or other property,
drug and ultimately died from his addiction (Crocker v.
the party’s interests are best protected via tort liability.
Winthrop Laboratories, 514 S.W.2d 429 [Tex. 1974]).
Consult the case law in your state to determine how
The court discounted the reasonableness of the
the courts in your jurisdiction have analyzed this issue.
company’s belief in the nonaddictiveness of the drug. It
focused on the falsity of the company’s representations
Express Warranty
and the disastrous results of the physician’s misplaced
There are two types of warranties: express and reliance on such representations.
implied. With an express warranty a seller expressly Plaintiffs may recover for breach of express war-
represents that the goods possess certain qualities. ranty even when they are not in privity with the seller,
A description of a windshield by a manufacturer as in that they did not purchase directly from the seller.
being “shatterproof” is an example of an express According to some courts, a plaintiff who is a user
warranty. If the purchaser can later show that the and not a purchaser of a product must show that they
product does not possess such qualities (if, for are a member of the general class of the public that
example, the windshield shatters after being hit by the manufacturer expected or should have expected
a stone), they may sue for breach of warranty. An to be reached by the warranty. In many cases express
express warranty may be made in one of three ways: warranties, such as the warranty of shatterproofness,
• as an “affirmation of fact or promise” regarding would be considered to be addressed to the pub-
the goods, or lic at large. Therefore, a remote buyer, user, or even
bystander would probably be held to be part of the
• a description of the goods, or
general class to which the warranty was addressed.
• by use of a sample or model of the goods
(UCC § 2–313). What May Be Recovered?
A seller might describe goods as being water- A plaintiff whose damages are solely economic, such
resistant, for example, or might use a model to as lost profits, can recover the difference between
demonstrate how the product works, thus suggest- what the product would have been worth had it been
ing to consumers that the product they buy is similar as it was warranted and what it was in fact worth with
in nature. its defect (UCC § 2–714[2]).
Who May Recover? In a sense, breach of express The buyer can also recover for incidental and
warranty is a type of strict liability claim. The plaintiff consequential damages (UCC § 2–715). As in the
need not show that they believed the seller’s case of negligence, plaintiffs can certainly recover
representations to be true nor, in most cases, that they for property damage and personal injuries resulting
were even aware of the express warranty. All the plaintiff from the defective product.
needs to show is that the representation was in fact
false. A drug company that produced a drug it believed Implied Warranty
to be nonaddictive and that it advertised as such was A seller also makes an implied warranty by virtue of
found liable when a consumer became addicted to the offering a product for sale. The two most common
In the News
Links to product liability litigation suits can be found by going to www.dockets.justia.com and select-
ing your state.
types of implied warranties are the warranty of mer- Local Links

chantability and the warranty of fitness for a particu-
lar purpose. • Have the courts in your state adopted a
A warranty of merchantability is implied in a “sealed container” doctrine?
contract for the sale of goods if the seller is a merchant • Does an implied “warranty of habitability”
in the regular business of selling the kind of goods in exist in your state?
question. According to UCC § 2–314, for goods to be • Does an implied warranty for sellers of
merchantable they must (among other things), used goods exist in your state?
• be “fit for the ordinary purposes for which such

goods are used,”
• be “within the variations permitted by the
What Can Be Recovered?
agreement, of even kind, quality, and quantity A direct purchaser, i.e., one who buys directly from
within each unit and among all units involved,” the defendant, can certainly recover on the basis of
• be “adequately contained, packaged, and breach of implied warranty for personal injury and
labeled as the agreement may require,” and property damage resulting from the product, and
also for solely economic damages such as lost prof-
• “conform to the promises or affirmations of fact
its. As with express warranties, a direct purchaser
made on the container or label, if any.”
can recover the difference between what the prod-
The courts have consistently held that retailers uct would have been worth had it been as warranted
impliedly warrant the merchantability of their prod- and what it is worth with its defect. The direct buyer
ucts. A few courts, however, have created what is can also recover for incidental and consequential
known as the “sealed container” doctrine, which damages.
absolves liability for retailers who sell sealed contain- A purchaser can recover for personal injury on
ers. Under the UCC, the merchantability warranty is the basis of implied warranty even though they
also applicable to the sale of food or drink. The code bought the product from a dealer and not the defen-
does not apply, however, to services and to real dant manufacturer. Some states allow such remote
estate transactions, although some courts have cre- purchasers to recover for property damage alone on
atively applied warranty theory to such transactions. the basis of breach of implied warranty. A remote
Some courts, for example, have utilized an “implied purchaser, however, probably would not be able to
warranty of habitability” in finding liability on the part recover for purely economic damages, such as lost
of builders of homes when purchasers of the homes profits. According to the majority position, a nonpriv-
suffered injuries. The courts are in disagreement as ity plaintiff should instead sue the immediate seller
to whether an implied warranty of merchantability for economic damages resulting from a breach of an
exists for sellers dealing in used goods. implied warranty. Many states permit a nonpurchaser
An implied warranty of fitness for a particular (user), such as an employee of a purchaser, whose
purpose is created when a seller who knows that a use of the product was foreseeable, to recover for
buyer wants goods for a particular (noncustomary) personal injuries from the manufacturer or others in
purpose makes a recommendation on which the the distributive chain.
buyer relies (UCC § 2–315). Suppose, for example, There is a great deal of variation among states
a consumer asks advice from a salesman at the hard- regarding privity requirements in reference to
ware store regarding what type of lumber they should implied warranties. The UCC itself suggests three
purchase for a particular construction project. If the alternatives for dealing with privity requirements.
type of lumber they purchase turns out to be unsuit- Therefore, it is important that you check the case law
able for such use, the consumer can sue the hard- and statutes in your state pertaining to recovery by
ware store on the basis of breach of implied warranty. remote purchasers and nonpurchasers.
In the News
Information on consumer warranties is available at www.consumer.ftc.gov.
Who Can Be Held Liable? Local Links

Breach of warranty actions can be brought against Does your state have a privity requirement
manufacturers, retail dealers (sellers), and compo- for implied warranties?
nent manufacturers and suppliers (those who man-
ufacture components that are incorporated into a
larger product). Considerable controversy exists as
to whether warranty liability can be imposed on the buyer can also recover for incidental and conse-
sellers of used goods, but by analogizing to the UCC, quential damages. Since contract law requires priv-
the courts do allow recovery on the basis of implied ity, if there is not direct privity between the plaintiff
warranty in cases involving lessors of goods, sellers and defendant, the best option may be strict liability.
of real estate, and sellers of services. A second-hand On the flip side, under the UCC a remote purchaser
seller may be liable under warranty liability, but the who has suffered only economic harm may recover
“fit for normal use” may be of a lower standard than on the basis of breach of express warranty, whereas
a new product. they would be precluded from doing so on the basis
of strict liability or negligence. Furthermore, in many
states the statute of limitations used in warranty
Comparison with Strict Liability
actions is the contract statute of limitations, which
Claims is typically longer than the tort statute of limitations
Many plaintiffs opt for strict liability over warranty used in strict liability claims.
claims because strict liability is easier to prove than
breach of warranty and in many respects is virtu- Strict Liability
ally identical to warranty claims. Breach of warranty
cases are based in contract while strict liability is
Rationale Justifying Strict Liability
based in tort. In a few instances, the plaintiff may Strict liability theories now constitute the primary
have an advantage in suing on a warranty theory. A basis for liability for manufacturers of products.
plaintiff who is the direct purchaser and whose dam- Three basic reasons are given to support the prem-
ages are solely economic will likely sue for breach of ise that manufacturers should be held strictly liable
warranty rather than for strict liability or negligence for defects in their products. Foremost is the idea
because of the generosity of the UCC in provid- that sellers of defective products, rather than con-
ing for damages. Remember that under the UCC, sumers, should bear the cost of compensating tort
whether a warranty is express or implied, a direct victims for the injuries they sustain from defective
purchaser can recover the difference between what products. Proponents argue that manufacturers are
the product would have been worth had it been as in a better economic position than consumers to
warranted and what it is worth with its defect. The bear such costs.

1. Elite Professionals, Inc., a trucking company, sues Carrier Corporation for damages arising out of a
truck refrigeration unit malfunction that resulted in the spoilage of a cargo of meat. Elite had bought
the unit from Carrier. The incident giving rise to Elite’s claim occurs when Elite is transporting a
23-ton load of frozen hog sides from Vermont to California. The first evidence of a refrigeration prob-
lem is discovered by the driver when he stops in New Mexico to check out the truck. The “T-ticker”
gauge on the outside of the refrigeration unit shows that the temperature inside the reefer is three
to five degrees above zero (the temperature must be maintained at 0 degrees to preserve the meat).
The driver turns the temperature control down and telephones Elite’s headquarters to report the
situation to Elite’s president, who tells the driver to proceed and call back later. A few hours later
the driver reports that the temperature has risen to 20 degrees. The president instructs the driver
to continue, thinking this to be the most expedient decision and hoping that making a direct run to
California will result in getting the cargo transported more quickly than getting assistance at a Carrier
service facility. Unfortunately, when the refrigerator is opened the next morning, the temperature has
risen to 60 degrees and the hog sides have spoiled. The truck is immediately taken to Carrier, whose
mechanics identify and replace a defective solenoid coil.
The printed warranty and disclaimer that Elite received upon purchasing the refrigeration unit reads
in part:
MANUFACTURER’S WARRANTY TRUCK/
TRAILER REFRIGERATION UNITS
Carrier … through its dealer organization shall, at their facility, during normal working hours, repair or replace
with a new or remanufactured part, any parts or components of the [refrigeration unit] … which … malfunc-
tion as a result of defects in material or workmanship… .
THE FOREGOING OBLIGATION IS EXPRESSLY GIVEN IN LIEU OF ANY OTHER WARRANTIES, EXPRESSED
OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR PARTICU-
LAR PURPOSE, WHICH EXCEEDS THE RESPONSIBILITIES SET FORTH HEREIN.
LIMITATION OF LIABILITY
Carrier … expressly disclaims and denies all liability for SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES or losses of a commercial nature arising out of a malfunctioning product or its parts or com-
ponents thereof, as a result of defects in material or workmanship. THE OWNER’s SOLE AND EXCLUSIVE
REMEDY AND [CARRIER’s] SOLE AND EXCLUSIVE LIABILITY SHALL BE LIMITED TO THE REPAIR OR
REPLACEMENT OF PARTS OR COMPONENTS CONTAINED IN THE [REFRIGERATION UNIT] … WHICH …
MALFUNCTION AS A RESULT OF DEFECTS IN MATERIAL OR WORKMANSHIP IN ACCORDANCE WITH
THE APPLICABLE PROVISIONS AND LIMITATIONS STATED ABOVE.
Carrier argues that by replacing the defective solenoid coil it has satisfied its “repair or replace” obligation
under the warranty. Elite responds that the remedy provided in the warranty failed and that under the
UCC if “circumstances cause an exclusive or limited remedy to fail of its essential purpose, remedy may
be had as provided in [the Uniform Commercial Code].”
a. Is the warranty at issue express or implied?
b. Did Carrier satisfy the requirements of the warranty?
2. Women whose mothers took DES (diethylstilbestrol) to prevent miscarriages are suing the manufacturers
of the drug for injuries they have suffered. On what grounds might they sue under a theory of warranty?
3. A widower files a product liability action against multiple tobacco companies on the grounds that state-
ments made by the companies about smoking and health were express warranties. These statements
were made in a 1954 report entitled “Frank Statement to the Public by the Makers of Cigarettes” and “A
Statement About Tobacco and Health.”
Do you think representations by tobacco companies that cigarettes are safe to use constitute express
warranties as to their safety? Does the fact that the plaintiff cannot show that his wife actually read these
reports necessarily preclude his claim? Does the statute of limitations matter in this case as to when the
widow brings the lawsuit?
Second, some feel that sellers should be made from pinpointing the act of negligence responsi-
to internalize the cost of any injuries their products ble for their injuries. When some of the evidentiary
inflict, forcing them to incorporate the cost of liability obstacles to recovery found under negligence analy-
into the product itself and thereby raising the market sis are removed, more consumers are able to recover
price of the product. The reasoning is that consumers, under a strict liability theory and manufacturers are
when faced with the higher costs of such products, deterred from producing unsafe products.
will purchase cheaper and presumably safer products. Many courts and commentators refute these argu-
The third argument is that the sophistication of ments, however. Some have pointed out that empiri-
modern products precludes the average consumer cal evidence of strict liability’s effect on product safety
is lacking. Some feel that the pendulum has swung too a. the seller has exercised all possible
far in favor of consumer protection and should reach care in the preparation and sale of their
a more moderate position, so that manufacturers will product, and
not be unduly hampered in their efforts to meet con- b. the user or consumer has not bought
sumer demands and new product development. the product from or entered into any
contractual relation with the seller.
Section 402A of the Restatement
Under § 402A, as interpreted by most courts,
One of the first decisions dealing with strict liability the plaintiff must prove five elements.
was rendered by Justice Traynor, who was disen-
chanted with the warranty theory. In Greenman v. • A product was sold.
Yuba Power Products, Inc., 377 P.2d 897 (Cal. 1963), • The product was defective.
Justice Traynor held that the plaintiff’s failure to give • The defective product was the cause in fact and
timely notice of breach of warranty to the defen- proximate cause of the plaintiff’s injuries.
dant, as required by California law, did not bar his
• The defect existed at the time the product left
recovery, because the defendant was strictly liable.
the defendant’s hands.
(In Greenman the plaintiff was injured by a piece
of wood that flew off a lathe he was using.) Traynor • The item was manufactured or sold by the
noted that “a manufacturer is strictly liable in tort defendant.
when an article he places on the market, knowing Unlike the plaintiff proving negligence, the plain-
that it is to be used without inspection for defects, tiff who has opted for a strict liability claim need not
proves to have a defect which causes injury to a prove that the manufacturer or seller failed to use
human being.” Traynor reasoned that manufacturers due care. In other words, the defendant in a strict
who put defective products on the market should liability case is liable even if they were not at fault
bear the cost of injuries resulting from such defec- (see Exhibit 12–1).
tive products rather than the injured parties who,
he believed, were powerless to protect themselves.
Consumers, he concluded, were better protected Sale of a Product
under a strict liability theory than under a warranty Section 402A applies only to the sale of products
theory. and not to the provision of services. A typical sale of
Traynor’s opinion laid the foundation for § 402A a carpet, for example, involves a sales-service transac-
of the Restatement (Second) of Torts, which has tion. The actual sale of the carpet involves the sale of
been adopted by the majority of American jurisdic- a product, but the installation involves a service. The
tions. Section 402A reads as follows: seller need not be engaged solely in the business of
selling products. The owner of a theater who sells pop-
Section 402A. Special liability of seller of prod-
corn and candy to patrons is engaged in the sale of
uct for physical harm to user or consumer.
products even though the sales are incidental to his pri-
1. One who sells any product in a defective mary business (Restatement [Second] of Torts § 402A,
condition unreasonably dangerous to the cmt. f). In one case a patient sued the surgeon who
user or consumer or to their property is had implanted his mandibular prosthesis, which later
subject to liability for physical harm thereby was found to be defective. The court refused to hold
caused to the ultimate user or consumer, or the doctor strictly liable because it found that the doc-
to their property, if tor was not a “seller” of a product. Refusing to analo-
a. the seller is engaged in the business of gize to the movie theater example in the Restatement,
selling such a product, and the court explained that although the “implant was
incidental to the surgical procedure … it was a neces-
b. it is expected to and does reach the
sary adjunct to the treatment administered, as were the
user or consumer without substantial
scalpel used to make the incision, and any other mate-
change in the condition in which it is
rial objects involved in performing the operation, all of
sold.
which fulfill a particular role in provision of medical ser-
2. The rule stated in subsection (1) applies vice, the primary activity” (Cafazzo v. Central Medical
although Health Services, 668 A.2d 521 [Pa. 1995]).
Exhibit 12–1 Elements of Strict Liability Claim
• Was a product sold (as opposed to a service)?

• Was the product defective (in a “defective condition unreasonably dangerous”)?
• Was the defective product the proximate cause and cause in fact of the plaintiff’s injuries?
• Did the defect exist at the time the product left the defendant’s hands?
• Was the product manufactured or sold by the defendant?
This sales-service dichotomy also used to be a courts look at the acts of a reasonable defendant,
point of contention, for example, in the so-called bad using what is commonly referred to as the risk-utility
blood cases in which the plaintiffs contract a disease test. Under this test, the court imputes knowledge of
after receiving contaminated blood in the form of a defective condition of the product to the defendant.
transfusions. The question is whether a transfusion The core inquiry is whether a reasonable person would
involves the sale of a product (blood) or is part of conclude that the perceived risks created by the design
the package of services provided by a hospital and and marketing of the product outweigh the benefits.
is therefore not a sale but a service. (The same issue Would the defendant, as a reasonable person, have
arises in the context of warranty cases, because the put the product into the stream of commerce if they
UCC applies only to goods sold and not to services had knowledge of its defective condition? This test
rendered.) Now, most states have statutes protecting was used in Mikolajczyk v. Ford Motor Co., 870 N.E.2d
blood banks from being held strictly liable for “bad 885 (Ill. App. 2007), to determine whether Ford Motor
blood,” so this issue is moot in most instances. Company’s design of the Escort’s seat was defective.
A defective condition unreasonably dangerous
can arise not only from the characteristics of the
Defective Conditions product itself but also from foreign objects con-
What constitutes a defective condition for purposes tained in the product, from decay or deterioration
of strict liability? In most strict liability cases the courts before sale, or from the way in which the product
focus on whether the product is in “a defective condi- was prepared or packaged. A carbonated bever-
tion unreasonably dangerous.” According to Restate- age that is bottled under excessive pressure and
ment (Second) of Torts § 402A, cmt. i, a product is explodes upon being opened, a food product that
in a defective condition unreasonably dangerous if it contains shards of metal, or a beverage that con-
is “dangerous to an extent beyond that which would tains bits of glass, is in a defective condition unrea-
be contemplated by the ordinary consumer who pur- sonably dangerous.
chases it, with the ordinary knowledge common to
the community as to its characteristics.” Good whis-
key, therefore, is not considered unreasonably dan-
Unavoidably Unsafe Products
gerous merely because some people will become Unavoidably unsafe products are those products
drunk and injure themselves. Bad whiskey containing that are incapable of being made safe for their
a dangerous amount of isopropyl alcohol, however, intended and ordinary use. If the benefits of such
is considered in a defective condition unreasonably products outweigh their risks, the courts will not
dangerous. The phrase defective condition unrea- hold their manufacturers strictly liable for harm com-
sonably dangerous is a legal term and so the words ing to the consumers. Experimental drugs exemplify
“defective condition” should not be separated from unavoidably unsafe products. Their absolute safety
the words “unreasonably dangerous.” cannot be assured because of insufficient research
Some courts look at the acts of a reasonable con- data and lack of medical experience. Those who sell
sumer, using the consumer-expectation test, to deter- these drugs are not held strictly liable for any untow-
mine whether a product is in a defective condition ard consequences resulting from their use as long as
when used according to a reasonable consumer. Other they prepare and market the drugs properly and give
adequate warnings to consumers (§ 402A, cmt. k). liability cause of action than in a negligence case.
Note, however, that if a manufacturer is negligent Generally, if the act was reasonably foreseeable, it
in failing to make adequate tests before selling the will not be considered a superseding act. If the act
drugs, a plaintiff can recover for negligence. was unforeseeable but caused the same type of
Many courts have classified blood as an harm that made the product dangerous, then once
unavoidably unsafe product. The burden is on the again the act will not be considered superseding.
defendant in these cases to prove that the product is Unique causation problems have been raised
unavoidably unsafe. Additionally, many states have in the diethylstilbestrol (DES) litigation. In one of
precluded by “blood shield statutes” strict liability the first DES cases, Sindell v. Abbott Laboratories,
suits by those receiving tainted blood. In one case 26 Cal.3d 588, 607 P.2d 924, cert. denied, 101 S.Ct.
in which the plaintiff contracted serum hepatitis as a 285 (1980), the plaintiff was unable to identify the
result of receiving a blood transfusion, the court held specific manufacturer responsible for making the
that neither the hospital nor the blood bank was DES taken by her mother while the plaintiff was in
strictly liable (Bourque v. Louisiana Health System utero. Sympathizing with the plaintiff’s plight, the
Corp., 956 So.2d 60 [La.App.2007]). No technology court determined that because the plaintiff had sued
existed at the time to determine whether a partic- five of the manufacturers of DES, whom she asserted
ular specimen was infected with hepatitis, even produced 90 percent of the DES marketed, the bur-
though blood banks were aware that a percentage den of proof shifted to the defendants to demon-
of all specimens would be infected with hepatitis. strate that they could not have supplied the DES that
The court concluded “in 1975, the risk of contract- caused the plaintiff’s injuries. Furthermore, the court
ing Hepatitis C from blood transfusion was unavoid- reasoned that each defendant that failed to make
ably unsafe.” The court rejected what it called the such a showing would be held liable for the propor-
plaintiff’s last-ditch argument that the blood was tion of the judgment represented by its share of the
not properly prepared, and they were not properly DES market. This market share liability theory follows
warned, reasoning that “one cannot properly pre- public policy and holds defendants liable for plain-
pare or market, nor properly warn against something tiff’s injury in the absence of proof that only one of
that is unknown.” them manufactured and supplied the drug responsi-
Plaintiffs generally cannot introduce evidence ble for the damage. Each defendant manufacturer’s
that the defendant redesigned the product to make liability would be approximately equivalent to the
it safer. Such evidence is, however, admissible for injuries caused by the DES that they manufactured.
the limited purpose of rebutting the defendant’s The theory of alternate liability (see Chapter 6 for
argument that the product is unavoidably unsafe further discussion), adopted by Restatement (Second)
because of the extreme cost involved in removing of Torts § 433B(3), preceded the market-share liabil-
the defect. ity theory of Sindell. It has been used by at least one
AIDS victim (a hemophiliac), who could not identify
the manufacturer that made the blood product from
Causation which he contracted AIDS (Poole v. Alpha Therapeu-
The plaintiff must also show that the product was tic Corp., 696 F.Supp. 351 [N.D. Ill. 1988]). Under this
the cause in fact and proximate cause of their inju- theory, if two or more persons have committed a tor-
ries. Suppose, for example, that the plaintiff eats a tious act and it can be proven that the harm done
food product manufactured by the defendant and to the plaintiff was done by only one of them, but
becomes ill several hours later. They must establish there is uncertainty as to which one did the harm,
that it was the defendant’s product and not some the burden is on each defendant to prove that they
other factor that caused their illness. did not cause the harm. Any defendant that cannot
Frequently, defendants will argue that interven- prove their actions did not cause the plaintiff’s inju-
ing events were the proximate cause of the plaintiff’s ries will be found liable. In Poole, once the plaintiff
injuries or that other factors were the sole cause in was able to identify all of the defendants that could
fact of the accident. Remember from our discus- possibly have caused him to contract AIDS, the bur-
sion on strict liability in Chapter 11 that the courts den of proof shifted to the defendants to prove that
are more likely to find a superseding cause in a strict they were not responsible for the plaintiff’s injuries.
When Defect Existed plaintiff can show that the defect existed at the time
the component left the manufacturer’s shop. Many
Finally, the plaintiff must show that the defect existed
courts have been willing to impose strict liability on
at the time the product left the hands of the defen-
lessors of defective goods (when the lessor is in the
dant manufacturer. If it is just as likely that the defect
business of leasing) as well as sellers of real estate
developed while the product was in the hands of an
and sellers of services. Those who sell used goods,
intermediate dealer, the plaintiff cannot sustain their
however, generally are not held to a standard of strict
burden of proof against the manufacturer. Proof of this
liability unless the plaintiff can show that the defects
is exacerbated in cases in which the product passed
were created or caused by the seller.
through several intermediaries before it was used by
the plaintiff. This can occur when there is a manufac- Who May Be a Plaintiff?
turer, distributor, shipper, receiver, and retailer. Most
Strict liability allows recovery for anyone who is the
courts, however, are fairly liberal in allowing the plain-
“ultimate user or consumer.” Consumers include
tiff to at least get to the jury on this issue.
those who prepare a product for consumption (such
Strictly speaking, res ipsa loquitur is not applica-
as the spouse who opens a bottle of beer for their
ble in a strict liability case, but some of the inferences
partner to drink), those who passively enjoy the ben-
made under that doctrine are applicable. The fact
efit of a product (such as passengers in an airplane),
that a product malfunctioned and no one else tam-
and those who use the product for the purpose of
pered with it may give rise to a permissible inference
doing work on it (such as a serviceperson making
that the product was defective and that the defect
repairs on an automobile or appliance) (Restatement
existed when it left the hands of the defendant. The
[Second] of Torts § 402A, cmt. l).
principles of res ipsa loquitur were successfully used
Many courts have been willing to extend strict
in one strict liability case in which a ladder that was
liability protection to bystanders whose presence
properly used by an experienced homeowner crum-
was reasonably foreseeable. One court reasoned that
pled and plaintiff broke and fractured his hip and
bystanders are entitled to greater protection than con-
thigh. The court stated that allowing the doctrine of
sumers or users because they do not have the same
res ipsa loquitur here was common sense. A new lad-
opportunity to inspect products for defects that con-
der failed under normal conditions during its second
sumers and users do (Elmore v. American Motors
use and on only on its third step. This case had an
Corp., 451 P.2d 84 [Cal. 1969]). But the courts have
unusual character, and the court allowed the doctrine
struggled with where to draw the line in reference to
to be used. The burden then shifted to the defendant
the protection of bystanders. Strict liability has some-
to prove they did not cause the injury by a manufac-
times been allowed for bystanders who are directly
turing defect. There was sufficient evidence in this
injured by unreasonably dangerous products they
case to prove that the ladder was used properly and
neither consumer nor use. A respiratory therapist who
that the defect caused the plaintiff’s injuries (Williams
witnessed a ventilator patient suffocate and die from
v. Emerson Elec. Co., 908 F.Supp. 395 [La. 1995]).
a defective design of an attached humidifier part, was
not allowed to recover for emotional distress under
Who May Be a Defendant? strict liability as a bystander. Many cases have allowed
Strict liability applies to anyone in the business of plaintiffs who were not “ultimate users and consum-
selling goods, whether or not they are the manufac- ers” to sue under strict product liability in certain
turer. A retail dealer in the business of selling goods circumstances. (A pedestrian who is struck by a vehi-
is therefore strictly liable for the sale of any defective cle with defective steering, but generally not if there
goods even if the sale is not a predominant part of are no actual injuries.) Manufacturers and sellers are
the business. An owner of a movie theater, for exam- strictly liable to bystanders for usual and foreseeable
ple, is strictly liable for any defective popcorn or can- consequences of risks presented by defects in their
dies they sell even though such sales are presumably products. In this case, the plaintiff did not suffer direct
a by-product of their main business. In contrast, a pri- injury from the defective product. She only claims
vate individual who sells their furniture on a sporadic emotional distress. (Straub v. Fisher and Paykel Health
basis is not strictly liable, because they are not in the Care, 990 P.2d 384 [Utah 1999].) The Straub court
business of furniture selling. Component manufactur- found that the emotional distress caused by the defect
ers are usually held to a standard of strict liability if the in the humidifier part was not an anticipated event and
the defendant could not have foreseen such things to product is, logically enough, referred to as personal
ensue. injury, whereas physical injury to property is referred
The extension of strict liability to bystanders to as property damage. Economic loss is defined as
includes businesses. For example, one court ruled a diminution in the value of the product and includes
that the owner of a water company could bring such items as the cost of repairs, the cost of replace-
a strict liability action against a gasoline refiner ment, and the loss of profits.
despite the fact that the water company was not the For example, if a computer in a car malfunctions,
ultimate user or consumer of gasoline. The water resulting in an explosion and ensuing fire, any damage
company claimed damages for leakage of additive to the car is classified as property damage, whereas
methyl tertiary butyl (MTBE) from the gas station into any injuries to the driver of the car are considered per-
the bystander plaintiff’s water system. The court rea- sonal injuries. If the computer malfunction results in the
soned that the leak occurred from a foreseeable use driver of the car being late for work and thereby losing
of gasoline such as “storing it at a gas station, trans- his job, such loss is deemed an economic loss.
ferring it through gas pumps into a vehicle and stor- Most courts do not allow recovery under a
ing it in a vehicle’s tank before it is burned as fuel,” strict liability theory for purely economic loss in the
Nelson v. Superior Court, 50 Cal.Rptr.3d 684 (2006). absence of personal injury or property damage.
However, the method for categorizing a loss as
Damages either economic loss or property damage varies tre-
Plaintiffs suing under a strict liability cause of action mendously among the states. Some courts consider
may recover for property damage as well as damages damage to the product itself as property damage;
resulting from personal injuries. Lost profits and other others consider such damage economic loss. If the
intangible economic harm are generally not recover- property is a piece of equipment that brings you rev-
able under a strict liability theory unless the plaintiff can enue, is it economic loss or property damage? If the
show that they also suffered injury or property damage. computer malfunction mentioned earlier results in
A prime example of a case in which the court damage only to the computer and not to any other
classified the plaintiff’s losses as economic and part of the car, the question is whether that consti-
therefore unrecoverable involved the purchase of tutes property damage or economic loss. A claim
property that was contaminated by lead paint. The classified as an economic loss in one state (and
homeowners argued that damages consisted of therefore not recoverable) may be classified as prop-
paying for an abatement program to identify and erty damage (and therefore recoverable) in another
remove the lead paint. They also sought expenses state. Because the classification of economic loss is
to inspect and test for lead and to demolish and an unsettled area of the law, you should consult the
refurbish their property (County of Santa Clara v. case law in your state when dealing with damages of
Atlantic Richfield Co., 40 Cal.Rptr.3d 313 [2006]). an economic nature.
The court rejected the plaintiff’s arguments, holding
that recovery in strict liability is limited to physical
harm to person or property. Lead contamination did
not constitute such harm. Types of Defects
Most product liability causes of action involve prod-
ucts that are defective in some way. The three major
Types of Losses defects plaintiffs typically allege are (1) manufac-
turing defects, (2) design defects, and (3) defective
Defective products can cause three types of losses: warnings or marketing defect (see Exhibit 12–3). A
personal injury, property damage, and economic manufacturing defect results from a deviation in
loss. Injury to a person resulting from a defective the manufacturing process that causes the item that
In the News
A variety of useful websites for legal assistants doing work in the product liability area is available in the
“Resources” section at www.paralegals.org.

1. If someone experiences serious and damaging consequences from being injected with a shingles vac-
cine, is the manufacturer strictly liable?
2. The parents of a child injured in a roller-coaster accident bring a strict liability action against the amuse-
ment park owner. They allege that the coaster was defective because it inadequately absorbed the energy
of steep declines and inadequately protected the rider’s neck during the twists and turns of the ride. The
owner claims he was providing a service and therefore could not be subject to a strict liability claim. Do
you think strict liability is an appropriate theory of recovery? What public policy reasons support a strict
liability claim? If strict liability is not allowed, what other possibility does the plaintiff have for recovery?
3. The parents of a child bring a strict liability suit against the manufacturer of Bic lighters after their child
is seriously injured as a result of a fire ignited with the lighter by an older child. The parents argue that
the lighter was defective because it was not designed to be “childproof.” The manufacturer argues that
it should not be held strictly liable because children were not the intended users of the lighter and that a
product is defective only if it is unreasonably dangerous to its intended users. The parents claim that Bic
designed a lighter unreasonably dangerous to foreseeable users, to whom the lighters were attractive,
and by whom they were easily lit. They are prepared to introduce evidence that thousands of children
have been killed or seriously injured in childplay fires in the past 20 years. Based on this evidence they
argue that Bic knew or should have known that a safer, child-resistant lighter design was feasible and
should have been employed.
Which side do you think has the better argument? Should the manufacturer be held liable under a
theory of negligence even if it is not strictly liable? What about allowing in evidence of safer childproof
models of lighters since the accident?
4. The parents of a child who chokes to death on a toy building block sue the manufacturer and retailer for
strict liability. The manufacturer argues that because the child was 14 months old and that the box con-
taining the blocks indicated that the blocks were for “Ages 1½–5,” the child was not an intended user.
Based on the results in the case in question 3, do you think the strict liability claim is likely to stand? If
not, are there other possibilities for recovery?
5. The maker of Redux, a diet drug, was sued under the theory of strict liability for patients who suffered
debilitating long-term effects many years after ingesting the drug. The plaintiffs argue that the drug itself
is in a “defective condition unreasonably dangerous.” If there is no manufacturing defect in the manufac-
turing of the drug and there are labels of possible side effects, does the risk-utility test stand? What about
under a consumer-expectation standard? Are there public policy reasons for not allowing strict liability
standards to prescription drugs like Redux?
6. What considerations should a plaintiff make when deciding what theory of recovery to rely upon in a
product liability case? Use Exhibit 12–2 to help you decide when you should sue under a theory of
a. strict liability
b. warranty
c. negligence
injures the plaintiff to be different from others man- a defective design. Defective warning or marketing
ufactured by the defendant. Not all products are defect cases involve a failure to give adequate warn-
affected under this defect. In a design defect case, ings or proper instructions for use.
all products manufactured by the defendant are The definition of defective lies at the core of all
the same but possess a feature that makes them all product liability cases, so we will examine the three
unreasonably dangerous; thus, the defect arises from categories of defects in some detail.
Exhibit 12–2 Considerations for Theories of Recovery
Who Can Sue?

Negligence Direct purchaser
Remote purchaser
User (if reasonably foreseeable)
Express Warranty Direct purchaser
Remote purchaser
User (if member of general class expected to be reached by warranty)
Implied Warranty Direct purchaser
Remote purchaser
User (some courts)
Strict Liability Direct purchaser
Remote purchaser
User
Bystanders (some courts)
Who Can Be Sued?
Negligence Manufacturer
User or manufacturer of component part
Retailer (difficult to prove)
Lessor
Seller of real estate
Supplier of service
Express Warranty Manufacturer
Retailer
Lessor
Supplier of service
Implied Warranty Manufacturer
Retailer (except for sealed containers [in some courts])
Lessor
Seller of real estate (in some courts)
Seller of service (in some courts)
Strict Liability Manufacturer
Retailer
Lessor
Supplier of service
What Can Plaintiff Recover?
Negligence Personal injuries
Property damage
Economic loss (although pure economic loss is difficult to recover)
Express Warranty Personal injuries
Property damage
Pure economic loss
Incidental and consequential damages
Implied Warranty Personal injuries
Property damage
Pure economic loss
Incidental and consequential damages (direct purchaser only)
Strict Liability Personal injuries
Property damage
Economic loss if accompanied by personal injury or property damage
(continued)
Local Links right and into a wall, resulting in her injury. The court
held that Mrs. Henningsen could recover from Chrysler
How do the courts in your state distinguish for breach of implied warranty of merchantability. As in
between economic losses and property MacPherson, the defect was peculiar to this particular
damage? car and was not inherent in the design of the car, so a
manufacturing defect was present.
Manufacturing defects are not restricted to man-
made products. They can also be found in food that
Manufacturing Defects is improperly produced, processed, or stored. A
manufacturer or retailer, for example, can be found
A classic example of a manufacturing defect is found
liable for a manufacturing defect if a consumer con-
in the landmark case of MacPherson v. Buick Motor
tracts botulism as a result of purchasing a can of
Co., 111 N.E. 1050 (N.Y. 1916). Buick Motor Com-
improperly stored food or if a rodent is found in a
pany made a car that it sold to a retail dealer, who
package or can of food.
in turn sold it to the plaintiff. One of the wheels was
made of defective wood and its spokes crumbled
into fragments, causing injury to the plaintiff when Design Defects
the car suddenly collapsed. The defendant manufac- The key issue in a design defect case is whether the
turer was found liable even though it had not man- defendant chose a design that posed an unreason-
ufactured the wheel. The court reasoned that the able danger to the plaintiff in light of the availability
manufacturer could have discovered this defect by of some other design. For instance, a saw that con-
reasonable inspection and that its failure to do so tains no guards or shields to protect the operator of
constituted a breach of its duty of care. Notice that the machine might be found defective if the manu-
what was at issue here was the faulty construction of facturer, with little cost or inconvenience, could have
one of the wheels and not the design of the wheel. created a design that had a shield or guard.
Whereas MacPherson was based on a theory Design defect claims can be cast in terms of a
of negligence, the famous case of Henningsen v. negligence or strict liability standard. The key issue
Bloomfield Motors, Inc., 161 A.2d 69 (N.J. 1960), in a negligence case is the reasonableness of the
was based on a breach of warranty. In Henningsen, manufacturer in placing the product on the mar-
defendant Chrysler Corporation produced a car ket. Is the product an essential item? Is it likely to
with a defective steering mechanism. One of its cause injury and is any such injury likely to be seri-
dealers, defendant Bloomfield Motors, sold the car ous? These questions are representative of the types
to Mr. Henningsen, who gave it to his wife. While of questions a court will contemplate in determin-
Mrs. Henningsen was driving the car the steering ing whether a manufacturer acted in a reasonable
mechanism failed, causing the car to veer sharply to the manner.

1. Review “Putting It into Practice” exercise 12:1 in this chapter, which refers to the litigation between Elite
and Carrier. What kind of damages is Elite seeking if it wants to recover for the loss of the meat in accor-
dance with the preincident value of the meat?
2. A commercial chicken and egg producer loses more than 140,000 chickens who suffocate when a power
failure interrupts the power supply to the ventilation system in the chicken houses. Is the loss of the
chickens an economic loss? Is it a property loss/damage?
3. A boat owner’s boat sinks while docked in the marina. There is no other damage except the boat itself.
Plaintiff sues the boat manufacturer under tort liability for economic losses incurred. The UCC provides
for remedies under normal contract law and there is no direct economic loss incurred from the boat sink-
ing. Will the court allow the plaintiff to recover for economic losses under tort law? What other remedies
does the plaintiff have?
The key issue in a strict liability case is the con- Structural Defects
sumer’s expectations, i.e., whether the product per- A structural defect exists when the defendant’s
formed as safely as an ordinary consumer would choice of materials results in a structural weakness,
expect. A court will consider how much the con- causing the product to be dangerous. A bed that
sumer paid for the product in determining what the collapses when anyone of more than average
reasonable expectations should be. Use by the con- weight sleeps on it might, for example, be struc-
sumer extends to any reasonably foreseeable use turally defective. Defendants are not, however,
even if it is not the use intended by the manufac- obliged to provide the most durable design. Nor
turer. Whether phrased in negligence or strict liabil- are they expected to make products that last for-
ity terms, the key element in a design defect case is ever. Their only obligation is to make products that
whether the defendant chose a design that posed are reasonably safe.
an unreasonable danger to the plaintiff in light of the
availability of affordable, safer alternative designs. Safety Features
Defendants will often raise the “state-of-the-
In determining whether a safety feature must be
art” defense, in which they argue that the level
installed, one must consider the expense of instal-
of technology existing at the time they made the
lation of the feature in comparison with the cost of
product precluded them from utilizing a safer
the product and the magnitude of the danger that
design. Although courts generally allow such a
exists without such a safety feature. If the expense is
defense, defendants relying on this argument
relatively minimal, any design not incorporating the
will not necessarily be absolved of liability. A jury
safety feature is likely to be considered defective.
could conclude, for example, that even though no
Defendants often claim that their product is as
reasonable alternative design existed at the time,
safe as that of the competition. Although often suc-
the risk created by producing such an item out-
cessful, such a defense is unpersuasive in situations
weighed its utility.
in which the entire industry has been negligent in
In defective-design cases the plaintiff will fre-
the installation of safety devices.
quently try to bring out the fact that the defendant
A defendant may also argue that the danger was
redesigned the product to make it safer after the
so obvious that the plaintiff could have protected
plaintiff received injuries. Such evidence is generally
themself even in the absence of any safety device.
inadmissible to prove defectiveness. The rationale
Even though the obviousness of the danger is con-
underlying this rule is that the admission of this evi-
sidered when determining the degree of dangerous-
dence would inhibit manufacturers from redesigning
ness, most courts will not automatically dismiss the
products to make them safer.
need for protective devices just because the defect
If the plaintiff does recommend an alternative
is obvious. A manufacturer could, for example, be
design, the burden rests on them to show that the
found liable for failing to provide protective guard
alternative is practicable. Plaintiffs must, in other
rails for a machine even though the potential danger
words, conduct a type of cost-benefit analysis in
inherent in getting too close to the machine might
which they produce evidence that their alternative
be patently obvious.
design is an economically viable one.
Any design defect alleged by a plaintiff must fall
into one of three categories: (1) structural defect; Foreseeable Misuse
(2) absence of safety features; or (3) misuse of One of the most common design defect arguments
product. is that the product, though not dangerous when
Exhibit 12–3 What Is a Defect?
Manufacturing Defect Results from deviation in manufacturing process

Design Defect Feature in design of product is unreasonably dangerous
Structural
Safety feature
Misuse of product
Defective Warning Failure to give adequate warnings or instructions
used in the manner intended by the manufacturer, airbags. Because automobile manufacturers have a
becomes dangerous when put to some other use. If duty to build reasonably safe cars based on state-
such misuse is reasonably foreseeable by the manu- of-the-art technology and feasibility considerations,
facturer, most courts will require the manufacturer to the question exists as to whether manufacturers who
employ reasonable design precautions to protect the have failed to install airbags have fully complied
plaintiff from the danger resulting from that misuse. with that duty. The controversy centers around the
The most common foreseeable-misuse cases question of whether airbags are necessary to make
center around the production of “crashworthy” a car reasonably safe in case of an accident. Airbag
vehicles. Plaintiffs reason that manufacturers should proponents argue that airbag systems are within
protect vehicle occupants involved in “second col- the realm of state-of-the-art protection; automobile
lisions,” the collisions that occur inside the vehicle manufacturers assert that airbags have not been
following the initial accident. Most modern courts proven to be reliable and might even be poten-
have found that secondary collisions are clearly fore- tially hazardous to car occupants (as evidenced by
seeable and that manufacturers have an obligation improperly deployed airbags that have caused acci-
to take reasonable precautions to make their cars dents). Consumer advocates and representatives of
reasonably safe in the event of an accident. the automobile industry also clash over the potential
Another example involved a plaintiff who was cost of airbag systems as well as the public’s desire
injured while standing on a kitchen table to ham- to have such systems.
mer something on the wall. Plaintiff argued defective To prevail at trial, a plaintiff must prove that the
design of the kitchen table caused the injuries. Stand- manufacturer’s failure to install airbags rendered the
ing on a table to use a hammer was not an intended vehicle’s design defective. They prove this by show-
or foreseeable use of a kitchen table and manufac- ing that (1) an alternative, safer design (a design with
turer would have no obligation to take precautions airbags) was practicable and existed at the time of
against such use. A blanket disclaimer is usually the accident; (2) the plaintiff’s injuries would not have
included in product instructions to use as intended. been as severe if the manufacturer had installed air-
Turner v. General Motors Corp., 514 S.W.2d bags; and (3) the extent of the enhanced injuries is
497 (Tex. Civ. App. 1974), dealt with an issue of first attributable to the lack of airbags.
impression: could a manufacturer and retailer be Airbag cases are not easy to win. Besides hav-
strictly liable for a defective design that enhanced ing to establish that a vehicle without an airbag is
plaintiff’s injuries but did not cause them? Find and defective or unreasonably dangerous, plaintiffs have
read the Turner decision with your search engine or to show the technological and economic feasibility
on www.justia.com/cases, then answer the ques- of airbags at the time the vehicle was manufactured.
tions in “Putting It into Practice 12:4.” With earlier models this may be a difficult burden to
Turner v. General Motors Corp. contains an inter- bear. Furthermore, most jurisdictions require proof
esting analysis of the doctrine of crashworthiness. that the design defect enhanced the plaintiff’s inju-
Note the court’s conclusion that automobile manu- ries, a rule that in effect shifts the burden of proof to
facturers have an obligation to make cars reasonably the defendant to prove which portion of the injuries
safe in a collision. In arriving at this conclusion, the was due to the absence of the airbag. In a few states,
court advocates the use of a balancing test in which however, plaintiffs must distinguish the injuries that
the gravity and likelihood of harm resulting from a would have occurred despite an airbag from those
particular design are weighed against the burden than an airbag would have prevented. Finally, manu-
of precautions necessary to avoid the harm. It is facturers can avail themselves of certain fact-specific
noteworthy that the Turner court found the General defenses. They can argue, for example, that a plain-
Motors car to be unreasonably unsafe even though tiff’s failure to wear a lap belt or shoulder harness
no American car had ever been manufactured with constituted contributory or comparative negligence.
the roll bar recommended by the design engineer. What about newer technology such as back-up cam-
Clearly, industry custom itself may be found to be eras, lane departure warnings, blind-spot warnings,
negligent. parking assist, etc.? Are manufacturers of all these
The issue of crashworthiness has also arisen in safety features liable for injuries caused by them or
the relatively new area of litigation surrounding are they not necessary and reliable?

1. What is the question in this case?
2. What is the alleged defect in the Impala’s design?
3. What is the Evans-Larsen controversy?
4. Can the analysis regarding crashworthiness in the context of negligence be applied in the context of strict
liability?
5. Does foreseeability alone define a manufacturer’s duty? Does a manufacturer have a duty to design a
crash-proof car?
6. Is the rule of Larsen grounded on foreseeabilty? If not, what is it grounded on?
7. What is the issue in a crashworthiness inquiry?
8. Is a manufacturer strictly liable for a design that produces injuries even if it does not cause accidents?
9. How was the idea of the manufacturer’s practice being of industry-wide acceptance used in the court’s
decision?
10. Can the average consumer be expected to anticipate that the roof of a car will maintain its structural
integrity in a rollover accident?
11. What reasons do the courts that have adopted Evans give for leaving the safety standards up to
Congress?
12. At the time of this decision, had any mass-produced automobiles been manufactured with a roll bar or
roll cage?
In the News
Links to articles on litigation involving vehicle crashworthiness, defective tires, and food defects can be
found by using each of them as search terms.
Defective Warnings led manufacturers to use any means necessary to

The absence of a warning regarding the possi- protect themselves against lawsuits.
ble dangers of a product may also lay the ground- In cases involving the manufacture of drugs,
work for a defective product claim. A seller may courts look at whether the warnings clearly convey
be required to give directions or warnings on a the nature, gravity, and likelihood of the known or
container to keep the product from being deemed knowable risks of the drugs. An advertising or pub-
unreasonably dangerous or from any unforeseen licity campaign for a drug, however, may dilute the
danger. In determining what warnings or instructions warning to the point that it becomes inadequate. For
will suffice, a court looks at the likely number and example, a warning that a drug for heartburn could
severity of accidents that could be avoided by hav- cause adverse cardiac effects was diluted by other
ing a warning or instruction. The court then weighs marketing materials in which Defendants touted the
these factors against the difficulty of providing such drug’s efficacy (Smith v. Johnson and Johnson Co.,
warnings or instructions. Sometimes these warning 800 N.Y. S.2d 357 [2004]).
labels may seem silly, but manufacturers are willing If the defendant can show that it neither knew
to protect themselves against frivolous lawsuits. It nor should have known of the danger at the time of
may seem silly to put a “do not remove” tag on a the sale of the product, most courts have held that
mattress, a “do not eat” warning on Apple computer the defendant has no duty to warn. Manufacturers
products, or a “may cause drowsiness” warning on a are not to be the insurers of their products. So, if a
sleeping pill, but numerous frivolous lawsuits have drug manufacturer can show that it had subjected a
drug to reasonable testing procedures and did not If the plaintiff’s negligence is due to their mis-
discover any adverse side effects, it would escape use or abnormal use of the product, many courts will
liability for injuries to consumers resulting from analyze the warranty action as involving a proximate
long-term side effects not known to either the man- cause or duty problem rather than as involving an
ufacturer or researchers at the time the drug was affirmative defense. If a plaintiff, for example, bangs
produced. In some rare cases, however, such as a bottle on a counter to open it and is injured, a
those involving asbestos, the defense of ignorance court might hold that the defendant had no duty to
has failed. The courts have held asbestos manufac- produce a bottle that could withstand unreasonable
turers liable even if they were unaware of the danger, handling or, alternatively, that the makeup of the
essentially holding them to a strict liability standard. bottle was not the proximate cause of the plaintiff’s
Obviousness of danger is a factor that is consid- injuries. The only real significance in this difference
ered in determining the defendant’s obligation to warn. in analysis lies in the burden of proof. If the court
But obviousness of danger alone does not preclude a uses a duty or proximate-cause analysis, then the
duty to warn. Indeed, a product may be so dangerous burden of proof lies with the plaintiff. If, however,
that it should not be marketed at all. A light fixture with the court treats the misuse as an affirmative defense,
exposed (noninsulated) wiring, for example, is danger- then the burden of proving that misuse lies with the
ous with or without a warning attached advising con- defendant.
sumers of the danger. In such a case giving a warning In addition to contributory negligence, assump-
would not protect the defendant from liability. tion of risk is also generally a valid defense in war-
The manufacturer may have a postsale duty to ranty actions.
warn if it discovers that a product is hazardous after it is
sold. Manufacturers that receive complaints of injuries Disclaimers
or adverse reactions to their products have been found Under the UCC a seller can disclaim both implied
liable for failure to warn consumers of the potential and express warranties. To disclaim a warranty of
for injury or adverse reactions (Patton v. Hutchinson merchantability, the UCC requires that the seller
Wil-rish Mfg. Co., 861 P.2d 1299 [Kan. 1993]). use language that is conspicuous and that spe-
cifically mentions merchantability (UCC § 2–316).
Alternatively, an implied warranty of merchant-
Defenses ability is disclaimed if the product is sold “as is”
or if the buyer has an opportunity to examine the
Negligence goods but refuses to do so. Federal law (under
the Magnuson-Moss Federal Trade Commission
The plaintiff’s contributory negligence, comparative Improvement Act, 15 U.S.C. § 2301 et seq.) pre-
negligence, and assumption of risk are defenses to cludes any manufacturer that provides a con-
product liability claims based on a theory of negli- sumer with a written warranty from disclaiming any
gence (see Exhibit 12–4). For a complete discussion implied warranty. Any written warranty provided by
of those defenses, see Chapter 8. a manufacturer must therefore include the implied
warranty of merchantability.
Warranty
The rules pertaining to contributory negligence are Limitations of Remedies
generally applicable to cases involving warranty Sellers sometimes try to limit the remedies avail-
claims. If a buyer discovers that a good is defec- able to plaintiffs for breach of implied warran-
tive and uses it anyway, their action rather than the ties by providing that they (sellers) will not be
breach of warranty may be considered the proximate liable for consequential damages. “[L]imitation
cause of the injuries. The buyer’s unreasonable fail- of consequential damages for injury to the per-
ure to examine goods before using them may also son in the case of consumer goods is prima facie
constitute a defense to a breach-of-warranty claim. unconscionable” (UCC § 2–719[3]). Therefore,
The courts tend to be more lenient, however, with provisions limiting the seller’s liability to repair,
consumers than with merchants in terms of the obli- or replacement of goods, will not be enforced in
gation to examine goods. cases involving personal injuries resulting from

1. A man commits suicide shortly after he begins taking Paxil, a prescription anti-depressant. His estate
sues the drug manufacturer.
a. Under what theories of recovery might the estate sue?
b. What types of defects might the estate claim?
c. Should the question of defect be analyzed using a reasonable-consumer-expectation or a
reasonable-doctor-expectation standard?
d. Given the social policy questions at stake, do you think the manufacturer should be held strictly liable?
How would you use the Learned Hand formula to answer this question?
2. Review the facts in question 4 of “Putting It into Practice 12:2.” What defense might the manufacturer
raise in response to a defective warning claim? What about a design defect claim?
3. Wilma sues the manufacturer of Halcion for the injuries she has sustained as a result of having been pre-
scribed this drug between 1987 and 1992. Her claim includes an allegation that the manufacturer failed to
“warn of the dangerous propensities of Halcion.” If the same court that heard the DES case described in
question 5 of “Putting It into Practice 12:5” hears this case, do you think Wilma will be allowed to recover?
4. The estate of a man who is alleged to have died as a result of being exposed to an herbicide sues the
manufacturer of the herbicide. If the manufacturer were unaware of the potential dangers of the herbicide,
what defense might it raise to avoid being held strictly liable? What would the manufacturer have to prove
to show they were unaware of the dangers?
5. The parents of children injured by blasting caps bring an action against several explosives’ manufacturers
and their trade association. The manufacturers argue that under the “intended use” doctrine, they had a
duty to exercise reasonable care only toward “those who use [the product] for a purpose for which the
manufacturer should expect it to be used and … those whom [the manufacturer] should expect to be
endangered by its probable use.” How might the plaintiffs rebut this argument? Is it reasonable and fore-
seeable for children to be around the blasting caps?
6. A widower sues a tobacco company after his wife dies from a cigarette-induced illness. He alleges a
design defect and introduces a report issued by the Surgeon General of the United States that concludes
that smoking lower-yield cigarettes seems to reduce the risk of lung cancer. This report was issued more
than 10 years after his wife had quit smoking. What additional evidence will the plaintiff have to muster
to rebut a defense motion for summary judgment? What if there is evidence the wife did not read the
warnings?
Exhibit 12–4 Defenses in Product Liability Claims
Negligence Warranty Strict Liability

• Contributory negligence • Contributory negligence • Contributory negligence (only if
• Comparative negligence • Comparative negligence plaintiff misused product or used it
in abnormal fashion)
• Assumption of risk • Assumption of risk
• Comparative negligence (subject to
• Statute of limitations/Statute of • Disclaimer of warranty
much controversy)
repose • Limitation of remedies
• Assumption of risk
• Failure to discover breach in
reasonable time
• Statute of limitations/Statute of
repose
• Statute of limitations/Statute of
repose
defects in products designed for personal use. The Uniform Comparative Fault Act suggests that the
Limitation of damages is not unconscionable, plaintiff’s strict liability recovery should be reduced in
however, when the loss is commercial, i.e., involv- proportion to the degree of fault.
ing intangible economic loss (UCC § 2–719[3]). Assumption of risk is basically treated in the
same fashion in strict liability cases as it is in negli-
Time Limits gence cases. A plaintiff who discovers a defect and
A seller can also argue that a buyer must “within a voluntarily and unreasonably proceeds to use the
reasonable time after they discover or should have product is barred from recovery.
discovered any breach” notify the seller of the
breach (UCC § 2–607[3]). Courts frequently refuse to Statute of Limitations
enforce this requirement when the plaintiff is not in A defendant must look at the plaintiff’s pleadings
privity with the defendant. to determine the appropriate statute of limitations.
The general tort statutes, which are usually rela-
Strict Liability tively short, are applicable to negligence claims. The
A plaintiff’s contributory negligence is not a defense UCC’s statute of limitations (§ 2–725) usually applies
to a strict liability claim if the plaintiff fails to discover to breach-of-warranty actions and gives the plaintiff
the defect or to guard against the possibility of its four years from the time of sale of the product in
existence. A valid defense may exist, however, if the which to sue. In strict liability cases the courts are in
plaintiff misuses the product or uses it in an abnor- disagreement as to whether the UCC or the general
mal fashion. Examples of the misuse or abnormal use tort statutes are applicable.
of a product include knocking a bottled beverage Some states have adopted statutes of repose,
against a radiator to remove the cap and overeating which provide a fixed period of time from the date
a product to the point of becoming ill (Restatement of the original sale during which a product liability
[Second] of Torts § 402A, cmt. h). However, if the suit can be brought. Unlike a statute of limitations,
abuse or misuse is reasonably foreseeable, the man- which begins to run at the time of injury, a stat-
ufacturer has a duty to anticipate such misuse and ute of repose begins to run at the date of sale.
to make the product safe against it. Drivers inadver- Consequently, some product liability suits may
tently trying to start their vehicles from the “drive” be barred by a statute of repose before the injury
position and people using a hairdryer in the shower even occurs. Victims of DES or AIDS, whose inju-
may both be foreseeable. In those cases, manufac- ries become apparent years after the initial expo-
turers would have a duty to protect consumers from sure, will often be precluded from filing suit if a
the consequences of their negligence. As discussed statute of repose exists. Because the majority of
in the section on defenses to warranty actions, cases bodily injuries occur within five years of purchase,
of misuse or abnormal use can be phrased in terms however, statutes of repose have little effect on
of a duty or proximate cause analysis rather than as most claims.
an affirmative defense.
Suppose the manufacturing defect is not the
sole proximate cause of the plaintiff’s injuries, but,
in fact, the plaintiff’s own negligence is an addi-
Preemption
tional proximate cause. The plaintiff can still recover A state common law tort action cannot be brought
if they can show that the acts were not so unfore- if a federal statute expressly or impliedly preempts
seeable that they should be considered supersed- (prohibits) such an action. The roots of the federal
ing acts. preemption doctrine can be traced back to the fram-
In comparative-negligence jurisdictions, consider- ers of the Constitution, who foresaw the potential for
able controversy exists as to whether a plaintiff suing conflict between the two separate lawmaking bodies
on the basis of strict liability should have recovery of federal and state government. They addressed
reduced in proportion to their own negligence. Some this problem by mandating within the Constitu-
courts have construed their comparative-negligence tion that the laws of the United States “shall be the
statutes so as to find them applicable to strict liabil- Supreme Law of the Land.” Preemption, however,
ity situations, in effect reducing the plaintiff’s recovery. goes beyond the concept of supremacy. Under the
supremacy doctrine, states are free to act as long as safer alternative design and because the dangers of
their laws do not conflict with federal law; under the cigarettes outweighed their social value; the manu-
rules of preemption, states lose their power to act at facturers failed to provide adequate warnings of the
all, regardless of any conflict with federal law. health consequences of smoking; the manufacturers
Federal preemption of state law can either expressly warranted that smoking did not present any
be express or implied. Under express preemp- significant health risk (express warranty); the manufac-
tion Congress explicitly states the extent to which turers tried to neutralize the warning labels through
its enactments preempt state law. To illustrate, the their advertising (fraudulent misrepresentation); and
Public Health Cigarette Smoking Act (15 U.S.C. §§ the manufacturers conspired to deprive the public of
1331–1340) specifically states “[n]o statement relat- medical and scientific data (conspiracy to defraud).
ing to smoking and health, other than the state- The manufacturers claimed, among other things,
ment required by [the act] … shall be required on that the Federal Cigarette Labeling and Advertis-
any cigarette package [or on advertising of labeled ing Act (1965) and its successor, the Public Health
cigarettes].” In Cipollone v. Liggett, 112 S.Ct. 2608 Cigarette Smoking Act of 1969, protected them from
(1992) (a suit against cigarette manufacturers based any liability based on their conduct after 1965. The
on design defect, failure to warn, express warranty, district court ruled that the statutes did not preempt
fraud, and conspiracy to defraud claims), the U.S. common law actions. The court of appeals reversed,
Supreme Court held that this preemption clause pre- the U.S. Supreme Court denied a petition for certio-
empted state law claims based on failure to warn, rari, and the case was remanded to the district court
but not claims based on breach of warranty, product for trial. Complying with the court of appeals’ man-
liability, or intentional fraud, because Congress had date, the district court held that the failure-to-warn,
expressly limited the scope of preemption. express-warranty, fraudulent-misrepresentation, and
Implied preemption can occur in one of two conspiracy-to-defraud claims were barred to the
ways—field preemption or conflict preemption. extent that they relied on the manufacturers’ adver-
Field preemption occurs when a statute is in a field tising, promotional, and public relations activities
that Congress intended the federal government to after January 1, 1966 (the effective date of the 1965
occupy exclusively. In Cipollone, for example, a plu- act). The court also ruled that the design-defect
rality of the Supreme Court reasoned that because claims were not preempted by federal law but were
Congress had expressly preempted failure-to-warn barred on other grounds. Following a four-month
claims against cigarette manufacturers, preemption trial, the jury rejected the misrepresentation and con-
could not be implied with respect to the breach-of- spiracy claims, but found that Liggett had breached
warranty or fraud claims. In a later decision (Myrick v. its duty to warn in its express warranties before 1966.
Freightliner, 115 S.Ct. 1483 [1995]), the Court clari- It found, however, that Rose Cipollone had “‘volun-
fied that express preemption did not necessarily fore- tarily and unreasonably encounter[ed] a known dan-
close the possibility of implied preemption, although ger by smoking cigarettes’” and that 80 percent of
it did support an inference of implied preemption. the responsibility for her injuries was attributable to
Under conflict preemption a state law is pre- her. The jury awarded $400,000 to Rose Cipollone’s
empted to the extent that it actually conflicts with husband for losses attributed to the manufacturers’
federal law. Such a conflict may arise when compli- breach of warranty but awarded no damages to her
ance with both state and federal law is impossible or estate. On cross-appeals from the final judgment, the
when the purpose and objectives of Congress would court of appeals affirmed the district court’s preemp-
be blocked by the state law. tion rulings but remanded for a new trial on other
To understand the impact of preemption on issues. The preemption issue was then taken before
product liability cases, consider Cipollone, the the U.S. Supreme Court, whereupon the Court ruled
much-publicized case involving a suit against the that Congress had intended to preempt the failure-
tobacco industry. Cipollone was initiated by Rose to-warn claims but not the other claims.
Cipollone and her husband against three cigarette The Court’s rulings in Cipollone muddied the
manufacturers; they both died during the course of waters concerning preemption, creating a patch-
this protracted litigation and her son then represented work of rulings among the lower courts. One area
their estate. Their suit alleged the following: cigarettes that has been affected by the uncertainty about
are defective because manufacturers failed to use a preemption is airbag litigation. In a typical airbag
case, the automaker alleges that the National Traffic can argue the merits of their cases, car manufactur-
and Motor Safety Act of 1966 preempts the plain- ers have frequently resorted to this defense.
tiff’s claim because the vehicle complies with Fed- A clear application of Cipollone has eluded the
eral Motor Vehicle Safety Standard Act (Standard lower courts, even after the Supreme Court tried to
208), which covers occupant crash protection. The clarify its Cipollone holding by revisiting the pre-
defendant specifies that between 1973 and 1986, emption issue (see Myrick v. Freightliner, 115S. Ct.
Standard 208 gave a manufacturer three options for 1483 [1995]). Therefore, predicting how a court will
protecting front-seat automobile occupants, and that resolve preemptive issues in the context of airbag
compliance with any one satisfied the federal stan- cases or any other kind of product liability claim has
dard. In accordance with this standard, the manufac- become increasingly difficult. An in-depth discussion
turer chose to install manual seat belts rather than of preemption goes beyond the scope of this text,
airbags. Defense contends that imposing liability for but the foregoing analysis, albeit superficial, reveals
failure to select one particular option undermines the pitfalls that preemption poses for plaintiffs in the
the legislative purpose of providing manufacturers realm of product liability.
the flexibility to choose among alternatives. The
counterargument to this position is that the Safety
Act expressly preserves common law tort claims, by
virtue of a savings clause in the act stating, Class Actions
Compliance with any Federal motor vehicle
When a large number of people are injured as a
safety standard issued under this subchapter
result of a widely distributed product (examples
does not exempt any person from liability under
include asbestos, tobacco, tainted baby powder,
common law.
the weight-reduction drug fen-phen, and Monsanto
Prior to Cipollone, courts that were inclined to weed killer), they may opt to bring one class action
find preemption relied on the concept of conflict suit rather than many individual suits. A class action is
preemption by finding that a tort claim was in conflict a suit in which representative members of a class sue
with the Safety Act. The courts began their analysis on behalf of other members of the class. The repre-
by acknowledging that the savings clause explicitly sentative parties act on behalf of everyone that was
preserved liability under the common law and that injured, eliminating the need for each one of those
the preemption clause was silent on the issue (hence to file an individual suit or be personally involved
no express preemption). The courts then found a and present in the courtroom process. Class actions
conflict between the options of Standard 208 and prevent the court system from being overwhelmed
the implications of a common law judgment for the by a myriad of similar suits. They also allow indi-
plaintiff. Upon finding a conflict, the courts ruled viduals to be represented whose minimal recovery
that common law actions were impliedly preempted might have otherwise precluded them from finding
because state common law cannot prevent the exer- an attorney. Attorneys who cannot justify accepting
cise of a federally granted option. Because the pre- individual personal injury claims usually find class
emption defense eliminates cases before plaintiffs actions worth their expenditure of time and effort.
In the News
Read Cipollone by going online and entering “Cipollone v. Liggett” as your search term or searching
“failure to warn in product liability.”
In the News
Deposition testimony of senior research scientist Dr. Jeffrey Wigand, whose story of courage in the face
of intimidation by a major tobacco company is told in the movie, The Insider, can be found by using
“Jeffrey S. Wigand deposition” as your search term. His testimony revealed the extent to which the tobacco
industry not only knew of the addictive nature of nicotine but strove to enhance its addictive qualities.

1. Your firm represents a manufacturer of sparkler fireworks. This manufacturer is one of five manufacturers
being sued by parents of children who were injured in sparkler accidents. The sparklers contained no
warning labels and could easily be misused by children. The plaintiffs are unable to prove which manu-
facturer made the sparklers that injured their children. They allege, however, that their children’s injuries
stemmed from the manufacturers’ failure to warn and failure to design fireworks that were less easily
misused by children. They further allege that the manufacturers had actual knowledge of how frequently
children were injured by sparker. What defenses should your firm suggest the manufacturer raise? Should
evidence of warnings on the fireworks since these accidents be allowed in court?
2. The parent of a teenager who was killed while using a table saw sues the manufacturer on the basis of
strict liability. What defenses might the manufacturer consider raising? If there was evidence of misuse by
the deceased, should that be allowed in court?
3. Consider the facts in question 1 of “Putting It into Practice 12:1,” involving the dispute between Elite and
Carrier. What defenses might Carrier raise?
4. Joseph brings a product liability action against cigarette manufacturers, which move for summary judg-
ment based on the statute of limitations. Joseph began smoking when he was 13 or 15; he began expe-
riencing breathing problems and a chronic cough in the early 1970s; his condition deteriorated through
the 1980s; he was diagnosed with chronic obstructive pulmonary disease (COPD) in 1988. During this
time, physicians repeatedly warned Joseph of the dangers of smoking, and when he was diagnosed with
COPD, his doctors told him that his illness was caused by smoking. Joseph filed his action in July 1995.
Joseph contends that his cause of action accrued when he discovered or should have discovered the
“wrongful conduct” of the tobacco companies, such as their denial of the addictive nature of nicotine
despite their internal research that proved otherwise and their manipulation of nicotine levels in cigarettes
to increase their addictiveness. His complaint is based on strict liability, negligence, failure to warn, and
defendants’ willful misrepresentation of the true nature of the health risks associated with cigarette use.
When do you think his cause of action accrued? Joseph argues that his injury includes not only
his COPD but also his addiction and that his addiction is due to the misconduct of the defendants in
enhancing the addictive effects of nicotine. He maintains that his claim did not accrue until he knew the
true cause of his addiction and that he could not have known that until November 1995, when a former
tobacco research chief “let the cat out of the bag” while being deposed in another case. Are you per-
suaded by this argument?
5. The Federal Insecticide, Fungicide and Rodenticide Act (7 U.S.C. §§ 136–136y) expressly bars state
labeling requirements additional to federal requirements. What defense can a manufacturer that complies
with the federal regulations set forth in this act raise if sued by a consumer for improper labeling?
Before a class action can be brought, a court claimants it would be impractical to join them in one
must provide certification of a class, allowing one action as plaintiffs, (4) that the proposed representa-
or more members of the class to serve as represen- tive party will fairly and adequately represent every
tatives for the other members of the class. Certifi- member of the class, and (5) that adequate notice
cation requirements are usually stringent, requiring will be given to all potential members of the class
proof (1) that there is a common issue of law or fact (usually done by placing ads in newspapers and
among members of the class, (2) that the claims and establishing websites).
defenses alleged by the proposed representative are In recent years class actions have been brought
typical of the claims and defenses of the other mem- successfully against tobacco companies, who for
bers of the class, (3) that there are so many potential years previously had thwarted efforts by smokers
to sue them. In 1996, Liggett settled a class action referred to as fen-phen), both of which have been
brought in the Alabama courts on behalf of a associated with a number of medical problems,
nationwide class of smokers. Liggett conceded that including heart valve damage and pulmonary
nicotine is addictive and that certain health prob- hypertension. As a result of a Mayo Clinic 1997 report
lems are associated with smoking. It also agreed to that 30 percent of users experienced some kind
cooperate in lawsuits filed against other tobacco of heart valve problem, the manufacturer agreed,
companies. The following year, 40 states and under pressure from the FDA, to take Pondimin
tobacco companies reached a settlement requir- (fenfluramine) and Redux (dexfenfluramine) off the
ing that the companies would pay $368.5 billion to market (phentermine was not removed). In December
cover the cost of Medicare claims for treating smok- of 1997, all federal lawsuits were transferred to the
ers who had become ill. Although the settlement district court for the Eastern District of Pennsylvania.
fell apart because Congress failed to act, the pro- Plaintiffs’ counsel selected by the judge spent
visions of the settlement were astonishing. Among two years gathering and reviewing documents,
other things, the tobacco companies agreed to give conducting depositions of senior executives of the
the Food and Drug Administration (FDA) expanded manufacturers, and preparing their clients’ cases
authority to regulate nicotine levels in cigarettes, to for trial. In 2002, final approval of a landmark $3.75
stop all outdoor advertising, and to be subject to billion settlement was given in relationship only to
severe surcharges if the number of underage smok- fen-phen users who had experienced heart valve
ers did not decline dramatically in the next decade. disease, not to those with pulmonary hypertension. A
Subsequently, several states pursued actions on trust fund was established, and as of June 2002, the
their own against the tobacco companies and trust has paid out more than $900 million to former
reached settlements. In 1998, 44 states reached Redux and Pondimin users. Subsequently, Wyeth
a settlement requiring payment of $206 billion agreed to contribute an additional $1.4 billion to pay
over 25 years for smoking-related healthcare costs users’ claims.
that the states had paid out for smoking-related Claimants who took Pondimin or Redux for more
diseases. Because the claimants in this case were than 60 days could recover their prescription costs
the states, class actions or individual suits brought and, if they had an echocardiogram that shows a suf-
on behalf of smokers were not precluded. Recently ficiently high level of heart valve regurgitation, could
a Florida jury returned a punitive-damages award recover either $6,000 in cash or $10,000 worth of
of $144 billion in a class action against five of the additional medical care. Those who had taken either
largest tobacco manufacturers. In 2001, a jury of these drugs for less than 60 days could recover
rendered a landmark $3 billion punitive-damages lesser amounts of money. Any claimant who suffered
award against Philip Morris on behalf of an individ- from serious heart disease could qualify for addi-
ual smoker. Although the punitive damages were tional benefits, up to $1,485,000.
reduced to $100 million by the trial judge, and the More recently there was a settlement by Johnson
award is being appealed by the defendant, this and Johnson for thousands of lawsuits against them
trend bespeaks a grim future for tobacco manufac- stating that its talc products contained carcinogens and
turers, who once appeared invincible. could cause ovarian cancer. The company denied any
A class action suit was also filed against American knowledge of any defect in their product, but there has
Home Products (now Wyeth), manufacturer of the been evidence of reports that they knew for decades
diet drugs fenfluramine and phentermine (commonly that there were traces of asbestos in their talc products.
Summary
Product liability cases can be based on theories of defects include structural defects, absence of safety
negligence, breach of warranty, or strict liability. All features, and misuse of a product if the misuse is
three types of actions involve products in a defective reasonably foreseeable.
condition, which can involve manufacturing defects, Plaintiffs recovering on the basis of negligence
design defects, or defective warnings. Design can sue the manufacturer, retailer, or lessor of a
product whose defect was the proximate cause of can be disclaimed under the UCC, and sellers can
their injuries. They can recover for personal injuries limit the remedies available in the event of a breach.
and property damage but will have difficulty recov- Contributory negligence is not a defense in a strict
ering for pure economic loss. liability case unless the plaintiff abused the prod-
Warranty actions, which are a hybrid of contract uct in an unforeseeable way. Assumption of risk is
and tort law, can be based on breach of an express or generally a defense to strict liability. Plaintiffs must
implied warranty. The most common implied warran- determine the appropriate statute of limitations
ties are warranties of merchantability and warranties for their type of claim and must consider any stat-
of fitness for a particular purpose. A plaintiff who is ute of repose when filing claims. Some claims are
a direct purchaser will, because of the generosity of preempted (expressly or impliedly) by actions of
the UCC, likely opt for a warranty theory over a negli- Congress.
gence or strict liability theory if the damages are solely Class actions allow representative parties to
economic. Privity requirements, which vary from state act on behalf of every party that was injured, elim-
to state, dictate who may and may not be sued. inating the need for each one to file an individual
Strict liability is the most commonly used cause suit or be personally involved in the courtroom
of action in product liability cases. Plaintiffs must process. Not only do class actions prevent the
prove that the product was in a “defective condition court system from being overwhelmed, but they
unreasonably dangerous,” that the defect was the also allow individuals to be represented who might
cause in fact and proximate cause of the plaintiff’s have otherwise been denied. To certify a class, a
injuries, that the defect existed at the time the prod- court must find that there is a common issue of law
uct left the defendant’s hands, and that the product or fact among members of the class, that the rep-
was manufactured or sold by the defendant. Strict resentatives’ claims and defenses are typical of the
liability extends to the ultimate user or consumer claims and defenses of the other members of the
of a product, including, for many courts, bystanders class, that there are so many potential claimants it
whose presence was reasonably foreseeable. Anyone would be impractical to join them in one action,
in the business of selling goods, including manufac- that the proposed representative party will fairly
turers, retailers, and lessors, can be held strictly liable and adequately represent every member of the
for the defective products they pass on to others. class, and that adequate notice will be given to all
Contributory and comparative negligence and potential members of the class. Class action suits
assumption of risk are defenses to negligence and that have made the news lately are those involving
warranty claims. With certain restrictions, warranties the stockbrokers and financial institutions.
Key Terms
certification of a class economic loss
Court’s agreement to allow one or more mem- Diminution in the value of a product
bers of the class to serve as representatives for express warranty
the other members of the class Express representation by a seller that a product
class action possesses certain qualities
Suit in which representative members of a class implied warranty
sue on behalf of other members of the class Representations as to a product’s qualities
defective warning that are implied by virtue of the product being
Defect arising out of a manufacturer’s failure to offered for sale
give adequate warnings or directions for use; in manufacturing defect
other words, it is the warning that is defective Defect arising out of a deviation in the manufac-
rather than the product turing process
design defect preempts
Defect arising out of a manufacturer’s use of an Prohibits a state tort law claim due to a federal
unreasonably dangerous design enactment
privity statutes of repose

Requirement that the plaintiff must contract Statutes of limitations in reference to sale of
directly with the defendant in order to recover products
for losses unavoidably unsafe products
product liability Products incapable of being made safe for their
The liability of a manufacturer, seller, or other ordinary and intended use
supplier of a chattel which, because of a defect, warranty of fitness for a particular purpose
causes injury to a consumer, a user, or in some Implied warranty that goods are suitable to be
cases a bystander; liability can be based on any used for a particular (noncustomary) purpose
of three theories of recovery: (1) negligence, (2) warranty of merchantability
warranty, or (3) strict liability Implied warranty that goods are fit for the ordi-
nary purpose for which they are used
Review Questions
1. Under what circumstances can the following be 9. What is an example of an express warranty?
found negligent when a plaintiff is injured by a
defective product? 10. When is it to a plaintiff’s advantage to sue on
the basis of strict liability, and when is it to her
a. manufacturer advantage to sue on the basis of breach of
b. maker of component part warranty?
c. user of component part
d. retailer 11. What is the justification for strict liability in
product liability cases? Why are some courts
2. Can lessors, real estate agents, and provid- critical of strict liability?
ers of service be found liable on the basis of
negligence? 12. What does section 402A of the Restatement
provide, and how did it evolve?
3. What is privity, and what is its status today?
13. Does section 402A of the Restatement apply to
4. What damages can be recovered in a product sales and services?
liability case based on negligence?
14. What must be proved in a strict liability defec-
5. What are the differences between tort reme- tive condition case?
dies and contract remedies based on a breach-
of-warranty claim? a. What is the difference between a
consumer-expectation test and a risk-utility
6. What is an express warranty, and how is it test?
created? b. What is an unavoidably unsafe product?
a. Who may recover on the basis of breach of c. What unique causation problems exist with
express warranty? strict liability, and how have the courts dealt
b. What can be recovered? with these problems?
d. Is res ipsa loquitur applicable to strict liabil-
7. If the only loss is economic, should the plaintiff ity cases?
seek a claim under tort law or contract law? e. Who can be sued on the basis of strict
liability?
8. What is the difference between an implied f. Who can sue on the basis of strict liability?
warranty of merchantability and a warranty of g. What can be recovered in a strict liability
fitness for a particular purpose? case?
a. What can be recovered when suing on the
basis of breach of an implied warranty? 15. What is the theory of alternate liability?
b. Who can be held liable? 16. How does a manufacturing defect differ from a
c. What is the “sealed container” doctrine? design defect?
17. What are the three types of design defects? 20. What is foreseeable misuse?
a. How does a design-defect case brought 21. What defenses can be raised in a strict liability
on the basis of negligence differ from one case?
brought on the basis of strict liability?
b. What is a state-of-the-art defense? 22. What issues arise in the context of statutes of
c. Why is a plaintiff not allowed to introduce limitations and statutes of repose in product
evidence that a defendant redesigned a liability cases?
product after the plaintiff was injured?
d. Give an example of a structural defect. 23. What is preemption, and how did it arise?
e. What determines whether a safety feature a. What is the difference between implied and
must be installed? express preemption?
f. Give an example of a foreseeable-misuse b. What is the difference between field pre-
case and explain why the manufacturer emption and conflict preemption?
would be liable even though the plaintiff c. Why has preemption been such a significant
misused the product. issue in tobacco and airbag cases?
g. What must a plaintiff prove in an airbag case,
and why are such cases difficult to prove? 24. What is a class action, and what are its
h. Under what conditions will a manufacturer’s advantages?
warnings be considered defective? 25. What must be shown before a court will agree
18. What damages may be sought in a strict liabil- to certify a class action?
ity case?
19. What defenses can be raised in a warranty case?

a. How can a defendant disclaim a warranty?
b. Can a seller limit his consequential
remedies?
Practice Exam
True-False
1. Retailers have no duty to inspect goods unless 6. The distinction between property damage and
they believe they may be dangerous. economic loss is not always clear.
2. Retailers have no duty to make superficial 7. Most courts restrict contract recovery to eco-
inspection of cars they sell. nomic losses and tort recovery to damages to
property or persons.
3. Suppliers of services can be found negligent,
but sellers of real estate cannot. 8. A description of a windshield as being “shat-
terproof” allows a plaintiff to recover if the
4. A plaintiff injured by a product may sue the windshield shatters after being hit by a rock.
person they bought the product from.
9. A person may recover for breach of express
5. Plaintiffs in negligence actions cannot recover warranty even without privity with the seller.
if they are only users of a product but did not
purchase it.
10. Courts uniformly agree that implied warranties 23. A person who sells items at a yard sale can be
of merchantability apply to sales of food and strictly liable for injuries caused from the sale.
drink, services, and real estate transactions.
24. In a design-defect case the question is whether
11. Those who argue that manufacturers should the defendant chose a design that posed an
be strictly liable for damages resulting from unreasonable danger to the plaintiff.
the sale of their products justify their position
on the basis that the modern sophistication of 25. In a design-defect case the availability of other
products precludes consumers from being able designs is not considered.
to pinpoint the acts of negligence responsible 26. Manufacturers are obligated to use the most
for their injuries. durable design possible.
12. An argument against strict liability is that man- 27. In determining whether a safety feature must
ufacturers are unduly hampered in trying to be installed, courts consider the cost of the
meet consumer demands by the threat of strict product and the magnitude of the danger with-
liability suits. out the safety feature.
13. Plaintiff in strict liability cases do not need to 28. A state of the art defense is a full release of lia-
prove failure of due care. bility for strict liability.
14. If a plaintiff contracts a disease as a result of 29. An industry as a whole may be determined to
receiving a blood transfusion, the question that be negligent.
a court must answer is whether the provision of
blood involves the sale of a service or product. 30. If a plaintiff misuses a product, most courts will
not allow the plaintiff to recover.
15. In most cases plaintiffs are allowed to intro-
duce evidence of a defendant’s redesign of a 31. In Turner v. General Motors Corp. the court
product. found General Motors not liable because no
car manufacturer at that time had ever made a
16. The plaintiff must prove cause in fact and prox- car with a roll bar.
imate cause in a strict liability case.
32. An adequate warning of a drug must convey
17. In Sindell v. Abbott Laboratories the court held the nature, gravity, and likelihood of the risks
that each defendant that could not prove it did involved in taking the drug.
not supply DES to the manufacturers was liable
for a proportion of the judgment representing 33. An advertising campaign for a drug can
its share of the market. dilute a warning to the extent it becomes
inadequate.
18. The alternate theory of liability allows a defen-
dant to be found liable if they cannot prove 34. Manufacturers have a duty to warn even if they
that they did not cause the plaintiff’s injuries. neither knew nor should have known of the
dangers of the sale of the product at the time
19. Strict liability is applicable to private individuals it was sold.
who sell defective goods and to sellers of used
goods. 35. Obviousness of danger precludes an obligation
to warn.
20. Plaintiffs suing on the basis of strict liability can
always recover for purely economic losses. 36. In a warranty action, defendants can claim that
the plaintiff knew the product was defective
21. Some courts have allowed bystanders to and used it anyway.
recover under strict liability.
37. A seller cannot disclaim an express warranty.
22. Economic loss includes damage to a product.
38. An implied warranty of merchantability can be 47. The federal preemption doctrine allows states
disclaimed if the buyer has an opportunity to to act as they please as long as they do not
examine the goods and refuses to do so. conflict with federal law.
39. Under federal law, manufacturers who provide 48. In Cipollone the plaintiff sued three tobacco
a written warranty can still disclaim any implied companies on the basis of breach of express
warranties. warranty, defective design, and failure to warn.
40. A seller cannot limit their consequential dam- 49. Cipollone muddied the waters for the lower
ages when personal injuries result from a courts with regard to preemption.
defective product.
50. Certification of a class means that every plain-
41. A buyer has an unlimited time in which they tiff must be present at court to recover.
can notify a seller of a breach of warranty.
51. In airbag cases manufacturers often con-
42. A plaintiff under assumption of risk in a strict tend that allowing a lawsuit conflicts with the
liability case is barred from recovery. National Traffic and Motor Safety Act of 1966,
which gave manufacturers three options in
43. It is a valid defense to a strict liability claim choosing how to protect front-seat occupants.
that the plaintiff misused the product or used
it in an abnormal fashion unless the misuse or 52. Before a class action can be certified, the party
abuse was reasonably foreseeable. requesting certification must prove that ade-
quate notice will be given to all potential mem-
44. UCC statutes of limitations are shorter than bers of the class.
general tort statutes of limitations.
53. Class actions have been allowed in cases
45. UCC statutes of limitations apply to warranty involving such drugs as fen-phen but disal-
actions. lowed in tobacco cases.
46. Statutes of repose begin to run at the time of
injury.
Matching
GROUP 1
________ 1. Requires direct contact between plaintiff and defendant a. express warranty
________ 2. Protects public from dangerous products b. implied warranty
________ 3. Compensates parties for loss of benefit of bargain c. contract remedies
________ 4. Description of windshield as shatterproof d. tort remedies
________ 5. Warranty of merchantability e. privity
GROUP 2
________ 1. Defect that causes product to injure plaintiff is missing in a. foreseeable misuse
other such products manufactured by defendant
2. Defect in a feature that makes product unreasonably b. economic loss

dangerous
________ 3. Lack of adequate instructions c. design defect
________ 4. Diminution in value of product d. manufacturing defect
________ 5. Crashworthy vehicle e. defective warning misuse
GROUP 3
________ 1. Statute that blocks purpose and objectives of Congress a. conflict preemption
2. Statutes that make it impossible to obey both federal and b. field preemption
state laws
________ 3. Statute that is in area under Congress’s exclusive control c. implied preemption
________ 4. Representatives act on behalf of others d. certification
________ 5. Requires common issue of law or fact e. class action
Fill-in-the-Blank
1. For goods to be ____________ they must be fit 7. In defective warning cases courts consider the
for the ordinary purpose for which such goods ____________ and ____________ of accidents
are used. likely to occur without adequate warnings or
instructions.
2. The ____________ ____________ doctrine
absolves retailers of liability when a sealed con- 8. An implied warranty of merchantability can be
tainer is involved. disclaimed by selling the product ____________
____________.
3. One of the arguments supporting
____________ ____________ is that manufac- 9. ____________ ____________ ____________ pro-
turers should be forced to internalize the vide a fixed period of time in which a product
cost of injuries their products inflict, which liability suit can be brought.
they can do by raising the market price of
the product. 10. The federal ____________ doctrine can be
traced back to the framers of the Constitution,
4. Courts will not hold manufacturers of exper- who foresaw potential conflicts between the
imental drugs strictly liable because they are federal and state legislatures.
____________ ____________.
11. “No statement related to smoking and
5. A(n) ____________ ____________ ____________ health, other than the one required by this
____________ defense is a defense that argues act, shall be required on any cigarette pack-
that the level of technology available at the age” is an example of a(n) ____________
time the product was made precluded a safer preemption.
design.
6. A(n) ____________ defect occurs when a defen-

dant chooses materials that result in the prod-
uct having a structural weakness that makes it
dangerous.
Multiple-Choice
1. A manufacturer c. using a sample or model of the good in
a. can be found negligent in its failure to advertising.
inspect or test its finished product but not d. all of the above.
for its failure to package and ship its prod- 6. Bystanders probably cannot recover
ucts in a reasonably safe manner.
b. who uses component parts is exempt from a. in an express-warranty case even if they can
negligence for failure to use reasonable show they were a member of the general
care in obtaining them. class of public that the manufacturer knew
c. is always liable for a retailer’s failure to con- or should have known would have been
duct an inspection it is obligated to make. reached by the warranty.
d. none of the above. b. in strict liability cases.
c. in implied-warranty cases.
2. Plaintiffs in negligence actions d. all of the above.
a. cannot recover if they are only users of a 7. For goods to be merchantable they must be
product but did not purchase it.
b. can recover from the manufacturer even if a. fit for the ordinary purposes for which such
they bought the product from a retailer. goods are used.
c. can always recover for property damage b. be adequately contained, packaged, and
and pure economic loss. labeled as the agreement may require and
d. all of the above. conform to the promises of face made on
the label.
3. In warranty causes of action, c. be within the variations permitted by the
a. aspects of both contract and tort remedies agreement.
are involved. d. all of the above.
b. a contract remedy is more appropriate when 8. A seller must know that the buyer wants to buy
the defect in the product involves only the a good for a particular purpose and must make
quality of the product. a recommendation to the buyer that the buyer
c. a tort remedy is more appropriate when the relies on to create
product is hazardous.
d. all of the above. a. an express warranty.
b. an implied warranty of merchantability.
4. In an express-warranty case, a plaintiff c. an implied warranty of fitness for a particu-
a. may not be able to recover unless she can lar purpose.
show that she is not only a user but also d. none of the above.
a member of the general class of public 9. A direct purchaser suing based on an implied
that the manufacturer knew or should have warranty can recover for
known would have been reached by the
warranty. a. property damage and personal injury.
b. must show that she believed the seller’s b. incidental and consequential damages.
representations. c. the difference between what the product
c. can recover for property damage and per- would have been worth had it been as war-
sonal injuries but not consequential and ranted and what it is worth with the defect.
incidental damages. d. all of the above.
d. all of the above. 10. Breach-of-implied-warranty actions
5. An express warranty can be made by a. do not allow nonpurchasers to recover
a. describing the good being warranted. anything.
b. affirming a fact or promise relating to the b. can be brought against sellers of services
good. and real estate.
c. always allow remote purchasers to recover c. the manufacturer can be negligent in failing
for pure economic loss. to perform adequate tests before selling the
d. all of the above. drugs.
11. A warranty cause of action
a. is easier to prove than strict liability. 16. In strict liability cases
b. offers more generous damages to those a. courts are fairly liberal about letting plain-
whose damages are solely economic than a tiffs pose the question to the jury on the
strict liability cause of action does. issue of whether a defect existed at the time
c. uses a tort statute of limitations. it left the manufacturer.
d. all of the above. b. the principles of res ipsa loquitur are
inapplicable.
12. The provisions of section 402A of the c. consumers cannot sue if they have been
Restatement injured while repairing or passively enjoying
a. have been adopted by very few courts. a product.
b. apply only to the sale of services. d. all of the above.
c. can be traced back to Judge Traynor’s deci-
sion in Greenman v. Yuba Products. 17. Strict liability allows recovery for
d. all of the above. a. anyone who is the ultimate user or consumer.
b. only the person who purchased the product.
13. In strict liability cases c. only the person who used the product.
a. the courts focus on whether the product d. only the person who was injured by the
is in a defective condition or unreasonably product.
dangerous.
b. use both the consumer-expectation and 18. Economic loss includes
risk-utility test. a. the cost of repairs.
c. a product may be considered defective if it b. the cost of replacement.
contains foreign objects. c. lost profits.
14. In a strict liability case 19. The key issue in a design-defect case based on
a. a plaintiff is not required to prove cause in a strict liability standard
fact or proximate cause. a. is the reasonableness of the manufacturer in
b. an act will not be considered a superseding placing the product on the market.
cause of the plaintiff’s injury if the act was b. the expectations of the consumer.
foreseeable. c. whether the plaintiff used the product in a
c. an act will be considered a superseding way not intended by the manufacturer.
cause of the plaintiff’s injury if the act d. all of the above.
was unforeseeable even if it caused the
same type of harm that made the product 20. In airbag cases
dangerous. a. the question is whether airbags are neces-
d. all of the above. sary to make cars safe in the event of an
accident.
15. For unavoidably unsafe drug products b. consumer advocates and representatives of
a. if the benefits of such unsafe products out- the auto manufacturers clash over the reli-
weigh their risks the courts won’t hold the ability and safety of airbags.
manufacturers strictly liable. c. the plaintiff must prove that the lack of air-
b. their absolute safety must be assured in bags enhanced the severity and extent of
their manufacture. the plaintiff’s injuries.
21. If a plaintiff injures himself while misusing a 24. A statute of repose

hammer, a court could a. is a set period of time in which to bring a
a. conclude that the manufacturer had no duty lawsuit based on the UCC.
to produce a hammer that could withstand b. a fixed period of time from the date of origi-
this type of misuse. nal sale in which to bring a lawsuit.
b. conclude that the plaintiff’s actions were the c. A set period of time to bring a lawsuit which
proximate cause of his injuries. starts with the date of injury.
c. require that the defendant raise the plain- d. none of the above.
tiff’s misuse of the hammer as an affirmative
defense. 25. A class action suit prevents
d. all of the above. a. the court system from being overloaded.
b. some individual members from representing
22. Which of the following is not a foreseeable other members of the same class.
misuse? c. plaintiffs with minimal recovery from being
a. Using a drill to open a jar of pickles able to sue.
b. Hitting a lid to open it d. all of the above.
c. Using superglue to fix a wound
d. Standing on a chair to reach something in a
cabinet
23. Assumption of risk is a defense in a

a. warranty action.
b. strict liability action.
c. negligence action.
Practice Pointers
Expert witnesses are an integral part of product liability suits because such suits are often complex and techni-
cal. At trial, experts can offer their opinions on relevant issues (e.g., the defectiveness of the product, testing
of the product, the level of injuries, etc.) and can educate jurors on technical matters. Before trial they are even
more invaluable, for they can
• investigate facts, including
• review medical and accident records.
• inspect the product.
• review records relating to the product’s design or warnings.
• analyze literature relating to injuries sustained using the product.
• research industry standards.
• conduct experiments.
• review the testing of a product.
• determine and evaluate alternate theories of defect or defenses.
• identify sources of facts, experts, and references.
• assist in preparation of and response to discovery.
• review documents produced by the opponent.
• assist in preparing for their own depositions as well as the depositions of witnesses called by the opposition.
• attend depositions of opposing experts.
• assist in attacking the credentials and methodology of the opposition’s experts.

• provide the factual basis for motions for summary judgment and motions to dismiss.
• assist in preparing for cross-examination of the opposition’s experts at trial.
• assist in cross-examination of the opposition’s experts at trial.
• assist in preparing demonstrative evidence to be used at trial.
Legal assistants can help attorneys select and prepare experts. First, they can help the attorney iden-
tify a potential pool of experts by consulting trade journals, university rosters, client recommendations and
recommendations from others in the profession or industry, and computer databases. The legal assistant can
then review résumés and/or curricula vitae of candidates and weed out those who are unable to address the
relevant issues. From this preliminary research, the legal assistant can recommend a list of potential candidates.
The legal assistant can also locate articles, case law, testimony from other lawsuits dealing with similar issues,
and information about the opposition’s expert witnesses. Once the expert has been retained, the legal assistant can
compile relevant case materials on which the expert witness will base his or her opinion. Legal assistants can also
help prepare the experts for their own depositions as well as for depositions of the opposition’s expert witnesses.
The legal assistant should prepare a witness file in advance of trial. This file contains everything neces-
sary to prepare the witness for testimony and to guide the attorney in examining the witness at trial. It should
include the trial subpoena, deposition transcript and summary, attorney notes and memoranda of interviews,
signed statements or affidavits, transcripts of deposition or trial testimony taken in other cases, and a memo-
randum that identifies the objectives of the examination and that arranges the areas within that examination in
a logical sequence. This memorandum gives the attorney a starting point from which to prepare her examina-
tion of a witness and for them to prepare the witness for cross-examination by opposing counsel. An outline
format enables the attorney to quickly read and grasp the key components of the examination.
To prepare the witness file, you need to outline the areas of inquiry during examination of the witness
and attach the documents that are relevant to those areas. The headings of this outline should be succinct
and should indicate the subjects and objectives of examination. Under each heading, list the subparts in their
appropriate sequence and identify the exhibits (in sequence) by exhibit number and a brief description. High-
light critical passages in the documents, indicate the admissions and acknowledgments expected to be elicited
on examination, and write a succinct description of the importance of the witness’s statement. At the top of the
page, identify the event to which the document relates or show the relationship between the document and
preceding or subsequent exhibits. When preparing a file for a witness who is to be cross-examined include, for
impeachment purposes, extracts from the witness’s prior testimony.
Tort Teasers
What type of defect would you argue exists in each of the following cases?
1. Plaintiff, a 26-year-old woman, is given a prescription for oral contraceptives by her physician. The pill
dispenser she receives is labeled with the warning “Oral contraceptives are powerful and effective drugs
which can cause side effects in some users and should not be used at all by some women,” and that
“[t]he most serious known side effect is abnormal blood clotting which can be fatal.” The warning
also refers Plaintiff to a booklet that contains detailed information about the medication, including the
increased risk to vital organs. The booklet specifically notes the possibility of the brain being damaged
by abnormal blood clotting. The word “stroke” does not appear on the dispenser warning or in the
booklet. Three years after commencing use of the pills, Plaintiff suffers a disabling stroke. MacDonald v.
Ortho Pharmaceutical Corp., 475 N.E.2d 65 (Mass. 1985).
2. Plaintiff passenger suffered an injury to her right eye as the result of the deployment of an airbag during
an accident. Plaintiff alleged that the airbag erroneously deployed in a low-speed collision with excessive
and dangerous force. Gonzalez v. Autoliv ASP Inc., 154 Cal.App.4 780 (Cal.App. 2007).
3. Plaintiff was injured when he dove into an above ground swimming pool. Plaintiff alleges that the liner
was overly slippery and should be a part of the evidence allowed in the product liability case to deter-
mine liability. O’Brien v. Muskin Corp., 463 A.2d 298 (N.J. 1983).
In each of the following cases, which of the three theories of recovery (negligence, breach of warranty,
or strict liability) would you use as a basis for recovery and why?
4. The District of Colombia and nine individuals who were wounded or represent decedents shot and
killed by persons unlawfully using firearms filed suit against the manufacturer and distributor of firearms.
Plaintiffs allege that Defendants have distributed firearms without adequate self-regulation to increase
sales, while supplying the unlawful flow of firearms into the district. District of Colombia v. Beretta,
U.S.A., Corp. 872 A.2d 633 (D.C. 2005).
5. After selling a plastic molding press to Company A, a manufacturer learns that the press has a dangerous
tendency to crush the hands of people using it and that it violates state safety laws. When Company A sells
the machine to Company B, the manufacturer learns of this transaction through repair records and offers
Company B a safety device for the machine for $500. Company B declines this offer, and Plaintiff, one of its
employees, gets her hand crushed. Balido v. Improved Machinery, Inc., 105 Cal.Rptr. 890 (Ct.App. 1973).
6. Farmers who fed calves a non-medicated milk substitute filed a lawsuit against the manufacturer and
distributor of milk substitute. The farmers alleged that the milk substitute damaged the calves’ immune
systems, resulting in poor growth and higher mortality.
What would you argue as the defendant in the following cases? How would you, as the plaintiff, respond
to the defendant’s arguments?
7. Plaintiff buys a car with a defective seat belt from Defendant. When Plaintiff brings the car back for a new
belt, Defendant tells him that nothing can be done until a new one is received from the factory. While
waiting for the new belt, Plaintiff drives without a belt and is involved in an accident. Devaney v. Sarno,
311 A.2d 208 (N.J. 1973).
8. A strict liability claim is brought against the manufacturer of the Opel automobile on behalf of a driver
who is killed as a result of an alleged defect in the door latch. The evidence shows that the driver was not
using a shoulder harness, did not lock the door, and was intoxicated at the time of the accident. Daly v.
General Motors Corp., 575 P.2d 1172 (Cal. 1978).
9. Plaintiff alleges she developed a debilitating and incurable neurological condition due to consumption
of a generic prescription drug. Plaintiff filed a lawsuit against the manufacturer and several of its generic
manufacturer competitors, asserting that the manufacturer’s product warnings failed to warn consumers
of the long-term use of the drug. Conte v. Wyeth, Inc., 85 Cal.Rptr.3d 299 (2008).
10. Recall the hypothetical problem posed at the beginning of this chapter, and answer these questions:
a. Which of the three theories of recovery would you use if you decided to sue the doctor and the sperm
bank? What would be the reasoning underlying your choice?
b. What damages would you seek?
c. Outline the elements you would have to prove if you decided to sue on the basis of negligence. Then
do the same for warranty and strict liability.
d. Develop a list of questions you would want to ask your potential clients, Tom and Susan, at the initial
interview.
e. Draft some interrogatories that you would want to submit to the sperm bank.
f. Compile a list of questions you would want to submit to a doctor you are thinking about using as an
expert witness.
g. Prepare a list of the documents and correspondence you would want to request during discovery from
Dr. Payne and the sperm bank.
Internet Inquiries
Expert witnesses have become an essential part of today’s litigation practice. They are used as both consul-
tants to assist attorneys in preparing for trial and as witnesses at the trial itself. Although the actual selection of
experts is the responsibility of the attorney, paralegals are often given the task of finding potential experts for
the attorney to interview.
Organizations like the American Association for Justice (AAJ) (www.atlanet.org), which is an organization
for plaintiffs’ attorneys, and the Defense Research Institute (DRI) (www.dri.org/), which is an organization for
defense counsel, maintain lists of experts. Additionally, they provide links to state and local organizations that
are also able to identify experts. One of the most well-known private companies that facilitates the location of
experts is Technical Advisory Service for Attorneys (better known as TASA—www.tasanet.com). TASA charges
a fee for finding an appropriate expert.
Internet resources abound for finding expert testimony. Some of these sites provide free access to experts
while others require a fee. One way to find recommended sites is to go to the web page for your local bar asso-
ciation. On this page you can usually find law-related links that will take you to any number of sites for expert
witnesses. The National Federation of Paralegal Associations (NFPA) also has a link to directories for experts on
its web page (www.paralegals.org).
1. Use the Internet to find experts in your area in reference to school violence. You will want to focus on
the topic of psychology, being especially alert for psychologists who specialize in the areas that relate to
violence in the schools. First go to the web page for your local bar association and look for links to sites
for finding expert witnesses. Now visit at least five different links and look for experts in reference to vio-
lence in schools. Then answer the following questions:
a. For which sites did you find the names and contact information for experts on school violence?
b. For which sites did you have to pay or have a password to get the names of experts on school violence?
c. For which sites were you able to link to a web page for the experts in whom you were interested?
d. After reviewing these sites, write down the names and web addresses of the ones you think would
be most helpful in finding expert witnesses. After the name of each site, write a brief summary of the
information available on that site.
2. Go to the web page for NOCALL (Northern-Association of California Law Libraries) at www.nocall.org/
and select “Internet Resources,” then “Expert Witnesses.” Go to at least three of the links listed. Find
the names of three experts in school violence that are available in your state or in a nearby state. Sum-
marize the information you are able to gather about each of these experts.
Your firm has a client, Ken, who purchased an Arabian stallion from Ellie Arabians. His intent was to use
the stallion to enhance his breeding program, but in the first year that he used the stallion, only one of
the mares “settled” (got pregnant) and in the second only two of ten mares settled. Ken had the stal-
lion’s sperm analyzed and discovered that it has an abnormally low sperm count. In essence, the stal-
lion is not fit for breeding purposes. Ken wants to sue Ellie Arabians and recover his losses.
1. What theories of recovery do you think should be used, and why? What research will need to be done to
answer this question?
2. What kind of defect do you think should be alleged?
3. What are the damages in this case?
4. What defenses do you anticipate Ellie Arabians will raise?

Chapter 13
Defamation and Related Torts

Chapter Topics
Libel versus Slander Defamation on the Web
What Is a Defamatory Statement? Invasion of Privacy
Privileges Injurious Falsehood
Chapter Objectives
• Distinguish between libel and slander. • Distinguish among the four torts that are consid-
• Identify the elements of defamation and the ered an invasion of privacy and identify the ele-
damages that can be recovered. ments of each.
• Recognize the importance of distinguishing • Identify the tort of injurious falsehood and distin-
between private and public figures. guish between slander of title and trade libel.
• Distinguish between absolute and qualified privi-

leges of defendants.
T he headlines of the National Sun Times proclaim that the current evening newscaster of channel XYZ
was seen swimming with her children at the home of a well-known gentleman whose wife was currently
“missing.” Photos of the newscaster and her small children in the pool were published as was the article which
depicted her as being “in too deep” and possibly sinking her career for being present at the home. What
would the newscaster have to show if she wanted to claim libel? Suppose that stories of her activities at the
home circulate around the studio but are never published or aired. Will she have any more difficulty proving
slander than she will proving libel? Let us consider the elements of defamation and the distinction between
libel and slander as we attempt to answer these questions.
Libel versus Slander the courts’ struggle to balance freedom of expres-

sion against protection of the individual’s reputation.
Defamation, which is defined as an invasion of the Before the key case in this area, New York Times Co.
reputation of a person or group resulting from libel v. Sullivan, 376 U.S. 254 (1964), the U.S. Supreme
or slander (as defined in the following pages), is a Court had held that defamatory statements were
complex tort. Some of its complexity stems from outside the protection of the First Amendment and
that defamation was primarily a matter of state law. Keep in mind, however, that no matter how
In limiting states’ power to establish their own def- much controversy exists around this area of the
amation laws, New York Times dramatically shifted law, defamation is extremely difficult to prove and
the course of defamation law and, in the opinion of does not warrant litigation unless the damages
some critics, struck a balance that gives too much are substantial. Few cases are actually litigated,
latitude to media defendants. and of those that are, especially those against
The New York Times court considered the case media defendants, many are unsuccessful. In fact,
against the background of “a profound national the number of libel suits involving the media has
commitment to the principle that debate on public declined in recent years, and the rate of defense
issues should be uninhibited, robust, and wide-open, wins at trial has risen since 1990. (According to the
and that it may well include vehement, caustic, and Libel Defense Resource Center Bulletin, Jan. 2014,
sometimes unpleasantly sharp attacks on govern- media defendants lost 58.5 percent of trials over
ment and public officials.” They also found that the a 34-year period from 1980 through 2013. Media
interest of the public outweighed the interest of any defendants did better after post-trial motions and
other individuals and that the protection of the pub- appeals, eventually paying damages in only 44.2
lic requires not merely discussion, but information. percent of those cases.) Although the media are
Consequently, the Court created a federal rule that concerned about what they perceive as the chilling
required public officials to prove that defamatory effects of defamation reform, because they contend
statements made relating to their official conduct such reform will result in less aggressive reporting
were made with actual malice—reckless disregard and the avoidance of controversial topics, the aver-
for the truth or with knowledge that the statement is age American is unlikely to ever be involved in a
false. (Actual malice is discussed in-depth later on in defamation suit.
this chapter.) Under the common-law plaintiffs could Defamation encompasses the two related torts
essentially prove defamation if they could show that of libel and slander (see Exhibit 13–1). Libel refers
the defendant’s statements were false. The Court’s to written defamatory statements; slander refers
concern was that such a “rule compelling the critic to oral statements. Libel encompasses communi-
of official conduct to guarantee the truth of all their cations occurring in “physical form” (according to
factual assertions—and to do so in face of libel many modern courts and the Restatement [Second]).
judgments virtually unlimited in amount—leads to Under this definition defamatory statements are
‘self-censorship.’” statements published in print, writing, or broadcast
Today the key features that shape defama- on radio, television, or film. Therefore, statements
tion law are the status of the plaintiff (public offi- on recordings of television broadcasts and computer
cial or public figure versus private individual) and tapes are considered libel rather than slander. Spo-
the subject matter of the statement (public issue ken words that are intended to be written down,
versus private). These features determine which such as words dictated to a stenographer, are also
standard of proof a plaintiff must meet to recover categorized as libel. A radio or television program
damages. that originates from a written script is considered
Exhibit 13–1 Libel versus Slander
Libel Slander
• Statements are written (including records, computer • Statements are oral.
tapes, dictation by stenographer). • Must prove special harm unless slander per se.
• No need to prove special harm. • Presumed damages not awarded.
• Presumed damages awarded if
(a) actual malice is shown in matter of public
concern or
(b) matter is a private concern, even if no actual
malice is shown.
CHAPTER 13 Defamation and Related Torts | 397
libel, but the courts do not agree about how to clas- either knows the falsity of their statement or acts
sify a program that is “ad-libbed” or live. with reckless disregard in reference to the truth or
falsity of their statement. If the plaintiff is able to
Special Harm prove actual malice, then presumed damages may
be awarded. In matters involving purely private con-
The distinction between libel and slander is some-
cerns, the plaintiff can recover presumed damages
times blurred, but it is a significant one. To prove slan-
even without a showing of actual malice.
der, a plaintiff must establish that they suffered some
kind of special harm, meaning harm of a pecuniary
(monetary) nature. These damages can be easily cal-
culated and include lost earnings, future lost earning What Is a Defamatory
capacity, and any other lost business opportunities as
a result of the defamation. Mental anguish, emotional Statement?
distress, loss of enjoyment of life, personal humilia- The Restatement (Second) of Torts defines a state-
tion, and shame, are generally not considered to have ment as being defamatory if it tends to harm one’s
pecuniary value and not recoverable in defamation reputation, thereby lowering them in the estimation
cases in some states. However, if a plaintiff is able of the community or deterring others from asso-
to prove pecuniary loss, they can sometimes attach ciating with them (see Exhibit 13–2). Defamation
emotional damages to their pecuniary loss. requires proof that the defendant’s statement was
Special harm need not necessarily be proved in defamatory and that it was published, that is, com-
the case of libel. municated to someone other than the plaintiff. Fur-
Four exceptions to the special-harm requirement thermore, the defendant must, at the very least, act
for slander exist. In these four cases of slander per negligently (although a greater degree of fault is
se, pecuniary harm can be assumed. The four cate- required under certain circumstances).
gories include statements alleging (1) that the plaintiff
engaged in criminal behavior; (2) that the plaintiff suf-
fers from some type of loathsome and communicable Harm to Reputation
disease; (3) that the plaintiff has acted improperly or To be considered defamatory, a statement must have
committed misconduct in their business, trade, or pro- a tendency to harm the reputation of the plaintiff
fession; and (4) that the plaintiff has engaged in sexual (Restatement [Second] of Torts § 559). The plaintiff’s
misconduct. reputation need not actually be injured. A statement
Under the common law, special harm did not have is sufficiently harmful if the plaintiff’s reputation would
to be proved, and damages were presumed in cases of have been injured if those who heard the statement
libel in which the defamatory nature of the statement had believed it. Therefore, even if everyone who
was obvious. Presumed damages are those damages hears a defamatory statement believes it to be false,
that ordinarily flow from defamation, thereby preclud- this statement can still be considered defamatory.
ing the necessity of the plaintiff proving actual harm. A plaintiff may recover even if their reputation
If damages are presumed, a plaintiff can recover an is tarnished in the eyes of only a certain segment of
amount that approximates the damages that normally a community, as long as the segment consists of a
result from a defamatory statement like the one made significant and “respectable” minority of people.
by the defendant. Recovery is allowed even though In one case, for example, the defendant mistakenly
the plaintiff produces no evidence of any actual harm, published the plaintiff’s picture next to a testimonial
such as loss of business or friends. signed by a nurse praising the medicinal merits of
Supreme Court decisions, however, have sub- Duffy’s pure malt whiskey. As Judge Holmes noted,
stantially limited the courts in their right to award “If the advertisement obviously would hurt the plain-
presumed damages. In cases involving matters of tiff in the estimation of an important and respectable
public concern, a plaintiff cannot be awarded pre- part of the community, liability is not a question of
sumed damages if they are unable to prove “actual majority vote” (Peck v. Tribune Co., 214 U.S. 185,
malice” (Gertz v. Robert Welch, Inc., 418 U.S. 323 190 [1909]). Nonetheless, the statement must con-
[1974]). A defendant who acts with actual malice tain some element of “disgrace.” Although referring

1. A news broadcaster falsely announces that a famous actor was involved in a drunk driving accident. Has
the actor been libeled or slandered?
2. A wax figure representing Sam is displayed in a “Chamber of Horrors” that depicts figures of several
famous murderers. The exhibition is shown for several months. Has Sam been libeled or slandered? Does
it matter if Sam is an actual murderer?
3. Louis makes a gesture at Andrew indicating that Shari is “crazy” which is highly looked down upon in
their community. Has Louis libeled or slandered Shari?
Exhibit 13–2 Elements of Defamation is defamatory in accordance with at least one inter-
pretation that a reasonable person might make and
• Plaintiff’s reputation is harmed or tended to be must also prove that at least one person interpreted
harmed. it in a defamatory way. Before the jury can declare a
• Statement is reasonably interpreted by at least one
statement defamatory, a judge must first determine
person as referring to plaintiff.
• At least one interpretation of statement could that the statement is subject to at least one reason-
reasonably be considered defamatory. able interpretation that is defamatory.
• Statement is intentional and false. To illustrate this point, consider the case involv-
• Statement is seen or heard by someone other ing the famous attorney Melvin Belli, in which a
than plaintiff (publication).
• Defendant acts with actual malice (if plaintiff is a
newspaper alleged that, while on an expense-paid
public official or public figure). appearance before the Florida bar, Belli “took” the
bar by charging hundreds of dollars’ worth of cloth-
ing to his hotel bill. The trial judge ruled that the
statement was not defamatory and refused to sub-
to a person as a gossiper, for example, might engen- mit the case to the jury. The appellate court, how-
der some feelings of hostility, such a statement could ever, held that the statement had a clear defamatory
not be construed as defamatory. meaning (indicating Belli was dishonest) as well as a
nondefamatory meaning (indicating Belli was clever)
Reasonable Interpretation and that the case should have been submitted to
the jury (Belli v. Orlando Daily Newspapers, Inc., 389
The plaintiff must also prove that the statement was
F.2d 579 [5th Cir. 1967]).
reasonably understood by at least one person as refer-
Contrast Belli with a case involving the ex-wife
ring to the plaintiff. The defendant need not refer to
of Jerry Solomon, who later married Nancy Kerrigan,
the plaintiff, but someone must interpret the statement
the well-known figure skater. The National Enquirer
as pertaining to the plaintiff. Furthermore, the defen-
published an article entitled “Nancy Kerrigan in Love
dant need not refer to the plaintiff by name as long
Nest with Married Man.” The paper attributed the
as it is reasonably understood to whom the defendant
following quotation to the plaintiff: “Nancy Kerrigan
is referring. A plaintiff will often have a difficult time
stole my husband! She’s a home-wrecker—a witch
recovering if the defendant’s statement is made in ref-
who deserves to burn in hell!” The plaintiff contended
erence to a group to which the plaintiff belongs. The
that the statements in the Enquirer portrayed her
statement probably will not be considered defamatory
as a “woman who is so hateful, contemptuous,
unless the group is a relatively small one.
and bitter that she would blasphemously call forth
damnation on another person.” The court found the
Burden of Proving Truth plaintiff’s contention “far-fetched to say the least,”
Statements can often be interpreted in several differ- noting that “it strains credulity to believe that others
ent ways. The plaintiff must show that the statement in the community would read the article as literally
as Plaintiff apparently has.” The court denied the defendant to bear such a burden. Today the plaintiff
plaintiff’s claim, finding her interpretation of the bears the burden of proving that a statement was false
published statement to be unreasonable as a matter if the statement involves a matter of “public interest”
of law (Solomon v. National Enquirer, 1996 WL and the defendant is a media defendant (Philadelphia
635384 [D. Md. 1996]). Newspapers v. Hepps, 106 U.S. 1558 [1986]). Even
Sometimes the defamatory content of a state- plaintiffs who are private figures must bear this burden
ment may not be recognizable unless certain extrin- of proof. Whether a defendant may be required to bear
sic facts are known. An engagement announcement, the burden of proving the truth of the statements if the
for example, may not be defamatory on its face, statements are not of public interest and the plaintiff is
but if the recipient of that announcement is made a private figure is not clear.
aware that the plaintiff’s current marriage is not
yet legally final then the defamatory implications Who Can Be Defamed?
become clearer. The plaintiff must specifically show
Only living persons can be defamed. Therefore, sur-
in their pleadings the innuendo, which refers to the
vivors of the deceased or the estate, cannot sue for
way in which the extrinsic facts convey a defama-
defamation because of statements made against the
tory meaning. The plaintiff in the case pertaining to
deceased. If the defamation defame a living person by
the engagement announcement would be required
implication, however, recovery is allowed. For exam-
to allege that because of the fact that the plaintiff
ple, a statement that the deceased was unwed when
was still legally married, the engagement announce-
they gave birth to their child tends to defame that
ment created a false impression that the plaintiff was
child. A corporation, partnership, or association can
breaking the law when in fact the divorce was final
be defamed only if the statement would negatively
but had not yet been recorded for public record.
impact its standing in the business in which it operates
A statement must be obviously false to be con-
(Restatement [Second] of Torts §§ 561 and 562).
sidered defamatory. A statement that is substantially
true—even though it may not be literally true in all
respects—is considered a true statement. Under the Opinion
common law the defendant had the burden of proving Under the common law an opinion could be defam-
the truth of their statement. Supreme Court decisions, atory unless it fell under the privilege of “fair com-
however, have limited a state’s ability to require the ment” i.e., the expression was an opinion on a matter

The rock and roll star Sammy Hagar wrote a book about his life called Red: My Uncensored Life in Rock.
In his book he talks about having sexual relations with a woman who later claimed to be pregnant by him.
He never names the woman and only refers to her as a Playboy Bunny from California. In reality, she was
a Playboy Bunny but was from Michigan. He also states that he paid her some child support, but no child
ever resulted, so he stopped and believed the whole thing to be a scam. The unidentified woman then sued
Sammy for defamation and infliction of emotional distress and the court threw out her case.
The woman claims that the book depicts her as a wild and irresponsible person and that she had suffered
as a result. Do you think that the woman has been defamed? What if Sammy had named her in the book?
Does it matter if he had not accused her of a crime?
In the News
Various articles about defamation in the workplace can be found by using “workplace defamation” as
your search term.
of public concern. Supreme Court decisions point to [Second] of Torts § 578 cmt. e). Those who distrib-
the conclusion that a pure expression of opinion can- ute or sell defamatory matter, such as newspaper
not be defamatory (Restatement [Second] of Torts § vendors and libraries, are not liable if they can show
566 cmt. c). A statement that implies any factual mat- they had no reason to believe that the materials
ters, however, can be considered defamatory. were defamatory. Under the single-publication rule
The difference between fact and opinion is not most courts hold that an entire edition of a book
always clear, but the courts look at a number of fac- or periodical should be treated as one publication.
tors in making that distinction. The more precise a Therefore, even if several copies of a book are sold,
statement is, the more likely a court will consider it a only one defamation can be alleged.
fact. A statement that is almost impossible to verify is
likely to be considered an opinion. The literary con- Intent
text in which the statement is made is also consid-
Under the common law, defamation was essentially a
ered. Readers are generally assumed to understand,
strict liability tort, because defendants could be liable
for example, that statements made by reviewers
even if they had every reason to believe that a state-
constitute opinion rather than objectively verifiable
ment they made was true. That situation has changed,
facts. Statements implying undisclosed facts may be
however, with U.S. Supreme Court decisions. In the
actionable even though they are opinions. A state-
Court’s first landmark decision in this area, New York
ment such as, “I think George is an alcoholic” may
Times Co. v. Sullivan, 376 U.S. 254 (1964), discussed
be defamatory even though the declarant is appar-
earlier in this chapter, it held that if a plaintiff is a pub-
ently expressing an opinion. The implication from
lic official, they can recover only by showing that the
the statement is that the declarant knows or has fac-
defendant acted with actual malice. Actual malice,
tual information about George’s alcohol consump-
also discussed earlier, is defined as having the knowl-
tion that would justify rendering an opinion as to
edge that a statement is false or acting with “reck-
George’s alcoholic condition (Restatement [Second]
less disregard” for the truth or falsity of the statement.
of Torts § 566, illus. 3).
Note that this definition differs from the lay meaning
Suppose, however, someone says, “George has
of the term, which normally implies some type of ill
lived in this house for a year. Every night I see him with
will. Reckless disregard has been defined as evidence
a drink in his hand. I think he must be an alcoholic.”
indicating that the defendant in fact “entertained
This statement offers facts upon which the opinion is
serious doubts” as to the truth of their statements
based and does not imply other facts. Because the
(St. Amant v. Thompson, 390 U.S. 727 [1969]).
facts are not defamatory, the statement is not defam-
The actual-malice requirement was extended
atory (Restatement [Second] of Torts § 566, illus. 4).
to public figures in a later case. The Supreme Court
defined a public figure as “one who has achieved
Publication pervasive fame or notoriety” or who “voluntarily
The term publication, when used in the context of injects themself or is drawn into a particular public
defamation, is a term of art requiring that the state- controversy” (Gertz v. Robert Welch, Inc., 418 U.S.
ment be seen or heard by someone other than the 323 [1974]). In Gertz, the plaintiff was a locally well-
plaintiff. The publication may be intentional or neg- known lawyer who represented the family of a young
ligent. Merely overhearing a statement made by the man killed by a policeman. The defendant, publisher
defendant to the plaintiff does not constitute publica- of a John Birch Society magazine, falsely accused the
tion. The publication must also be understood by the plaintiff of being a criminal and a Communist. The
person who hears it. A defamatory statement made in court held that a person does not become a pub-
a language not understood to the person hearing it lic figure merely because he becomes involved in a
does not meet the requirement of publication. controversy of public interest. Therefore, the plain-
Repetition of a defamatory statement is consid- tiff in Gertz was not a public figure merely because
ered publication. One who repeats a statement is the newspapers took an interest in the lawsuit. The
just as liable as if he were the first person to make Gertz court’s reasoning for giving less protection to
the statement, even if the one repeating the state- public figures was that those in the public eye “usu-
ment does not believe it to be true (Restatement ally enjoy significantly greater access to the channels
of effective communication and hence have a more Jewell claims he gave interviews only to accom-
realistic opportunity to counteract false statements modate his employer and that he never intended to
than private individuals normally enjoy.” Whether influence the outcome of the controversy. Whether
New York Times and Gertz apply to nonmedia an individual has voluntarily injected themself into a
defendants is not clear. public controversy cannot be determined solely by
The public-figure issue arose when Robert reference to their subjective motives, however. The
Jewell, a security guard in Atlanta, sued the Atlanta question is whether a reasonable person would have
Journal-Constitution for defamation after becoming concluded that Jewell would play or was seeking to
a suspect in the bombing that occurred at the play a major role in affecting the outcome of the con-
Olympic Games (Atlanta Journal-Constitution v. troversy. The appellate court concluded that, viewed
Jewell, 555 S.E.2d 175 [Ga. Ct. App. 2001]). Initially, objectively, the evidence was sufficient to support the
Jewell assisted law enforcement in evacuating trial court’s finding that Jewell was a public figure. His
buildings after he spotted a suspicious-looking repeated comments regarding the appropriateness of
package. Following the explosion Jewell granted law enforcement’s response to the bombing and his
one photo shoot and 10 interviews, most of them to attempts to improve the public’s perception of secu-
prominent members of the national press. He was in rity at the park could realistically be expected to have
demand enough to require the assistance of a media an impact on the controversy’s resolution. The court
handler to coordinate his appearances. observed that people can become involved in public

Melba Moore, an entertainer, goes on the Maury Povich show and engages in a lively discussion with mem-
bers of the panel (a divorce attorney, a marital counselor, and members of the studio audience). Povich
introduces her by saying that she has recently come out of an acrimonious divorce and that she is now des-
titute and applying for welfare. The subject of the show is divorce and its financial aftermath. Some of the
dialogue is as follows:
“(1) MAURY POVICH: Or you have applied for welfare, I don’t know …”
MELBA MOORE: I’ve, I’ve applied for welfare and I have been accepted and I just came from the Human
Resources Office, where I put in a petition for child support enforcement, because my husband is, he’s
only been required to pay two hundred dollars a week, and it’s very erratic. But I got to this position
because my husband was my manager, we had a company called Hush Productions, and he got a
fraudulent, secret divorce from me….
***
(8) MELBA MOORE: Extremely well. My husband is a multi-millionaire.
MAURY POVICH: How do you know that?
MELBA MOORE: Well, I can’t prove that, but we lived down the street from each other because he
wasn’t able to get me out of my apartment. We have a multi-million dollar building at 231 West 58th
Street. That’s just one asset.
MAURY POVICH: And that’s supposed to be part of … that’s supposed to be … are, are you on the
deed for that, too … on the title for that?
MELBA MOORE: Well, as part of the, of the partnership, I should share in something …
MAURY POVICH: And you feel you’re sharing in nothing?
Moore’s husband sues her for defamation. Based on the preceding statements only, do you think he has a
cause of action against her? What would he need to prove?
controversies and affairs without their consent. Jewell, prove actual malice. Strict liability, however, is not
by virtue of being in the vicinity of a tragedy, had the sufficient. The plaintiff must, at the very least, prove
misfortune of being just such a person. that the defendant acted negligently.
The public-figure issue is discussed at length
in WFAA-TV v. McLemore, an interesting case that Damages
describes how putting oneself into the public atten-
A plaintiff who successfully proves defamation can
tion and scrutiny may cause one to be deemed a
recover for pecuniary as well as nonpecuniary losses,
“public figure” for purposes of defamation. The lim-
emotional distress, lost friendship, illness, shame,
ited purpose public-figure test states that an individ-
and humiliation. As a constitutional matter, punitive
ual must have more than a trivial role in the situation
damages may not be awarded to private figures
to be considered a public figure. Pay particular
in suits involving matters of public interest unless
attention to the court’s public policy arguments and
the plaintiff is able to prove that the defendant
note its application of the actual-malice standard
acted with actual malice (Dun & Bradstreet, Inc. v.
and the burden of proof.
Greenmoss Builders, Inc., 472 U.S. 749 [1985]).
If a plaintiff is neither a public official nor a pub-
For public figures, punitive damages may still be
lic figure, the Constitution does not require that they
Case
WFAA-TV v. McLemore
978 S.W.2d 568 (Texas 1998)
HANKINSON, Justice
In this defamation suit arising out of the 1993 Bureau of in a gunfight with the Davidians. During the battle, four
Alcohol, Tobacco and Firearms (ATF) raid on the Branch ATF agents and three Davidians were killed, and twenty
Davidian compound at Mount Carmel, we decide ATF agents were wounded. McLemore and Mullony, the
whether a media plaintiff, one of only a few journalists only media representatives to follow the agents onto the
to report live from the scene of the raid, whose reports compound, reported live from the midst of the firefight.
were rebroadcast worldwide, and who willingly gave Two days after the gunfight, media reports began to
numerous interviews about his role in the failed raid, is focus on why the ATF raid had failed and what sparked
a public figure. The plaintiff sued WFAA–TV Channel 8 the gunfight. On March 2, 1998, Kathy Fair, a Houston
in Dallas alleging that its news reports concerning his Chronicle reporter, appeared on Nightline, an ABC
role in the failed raid damaged his reputation in the news show anchored by Ted Koppel. During the show,
community. The trial court denied WFAA’s motion for Koppel and Fair discussed the media’s role in the
summary judgment, and the court of appeals affirmed. botched ATF raid. Koppel asked what went wrong with
On February 28, 1993, ATF agents approached the the media’s coverage, and Fair initially responded that
Mount Carmel compound occupied by the Branch it was too early to determine. She then suggested ATF
Davidians, a small religious sect that had amassed an agents believed they were set up:
arsenal of illegal weaponry. Two local media outlets, I think many officers will tell you that they blame the
KWTX–TV Channel 10 in Waco and the Waco Tribune– media, particularly the local media, for the tragedy that
Herald, learned from various sources that a major occurred here. They think the fact that both the news-
law enforcement operation would proceed at Mount paper and the local television station, who were already
Carmel that morning. KWTX–TV dispatched reporter at the compound, some of whom were reporters for, I
John McLemore and cameraman Dan Mullony to report believe, the TV station, allegedly were already hiding
on the event. in the trees when federal agents arrived. And that was
*570 When the ATF agents attempted to enter one of the first indication that many of them had that they had
the buildings on the compound, they became involved been set up, and that’s a strong belief I think they have
(continued)
Case | WFAA-TV v. McLemore (continued)

that they have not shared publicly yet, is that they think it acted without negligence, the court of appeals deter-
they were set up. mined that the issue was not before it and remanded
As soon as the Nightline broadcast ended, KWTX–TV the defamation action to the trial court for further pro-
began to receive calls critical of McLemore’s role in the ceedings consistent with its opinion. 979 S.W.2d at 343.
raid, even though Fair had not identified him by name. WFAA now appeals under section 22.225(d) of the
WFAA picked up the story the next day and began Texas Government Code, which provides this Court
to broadcast reports by Valerie Williams, a WFAA with jurisdiction to hear a petition for review from an
reporter, who repeated Fair’s report that ATF agents interlocutory order denying a media party’s motion for
saw local media hiding in trees at the compound before summary judgment in a defamation case. TEX. GOV’T
the attack began. WFAA then broadcast video foot- CODE § 22.225(d); TEX. CIV. PRAC. & REM.CODE §
age of McLemore while apparently on the compound 51.014(6). Specifically, WFAA argues that summary
grounds. Williams then continued her report: judgment is proper because McLemore is a public fig-
The only reporters at the scene Sunday morning ure, and as a matter of law, it did not broadcast its
were Steve [sic] McLemore and a television photogra- reports with actual malice.
pher from KWTX–TV in Waco and one or two reporters To maintain a defamation cause of action, the
from the local newspaper. McLemore’s news unit was plaintiff must prove that the defendant: (1) published
used to transport some of the wounded agents. Cur- a statement; (2) that was defamatory concerning the
rently his bosses are consulting with attorneys before plaintiff; (3) while acting with either actual malice, if
issuing a statement. the plaintiff was a public official or public figure, or
Later that evening, WFAA broadcast a similar piece, negligence, if the plaintiff was a private individual,
again repeating excerpts from Nightline, followed by regarding the truth of the statement. See Carr v.
commentary from Williams: Brasher, 776 S.W.2d 567, 569 (Tex.1989) (citing New
[T]he only reporters at the scene Sunday morning York Times Co. v. Sullivan, 376 U.S. 254, 279–80,
were John McLemore and a photographer.... Wednesday 84 S.Ct. 710, 11 L.Ed.2d 686 (1964)). To have pre-
night McLemore’s station ... demanded a retraction vailed on its motion for summary judgment, WFAA
from Nightline saying, “[T]he rumor that a Waco must have disproved at least one essential element of
reporter had tipped the cult about the raid in exchange McLemore’s defamation claim. See Doe v. Boys Clubs
for permission to be on the compound grounds was of Greater Dallas, 907 S.W.2d 472, 476–77 (Tex.1995).
completely false. No reporter or photographer from local Fault is a constitutional prerequisite for defama-
media was on the compound grounds prior to the raid.” tion liability. See Gertz v. Robert Welch, Inc., 418 U.S.
Soon after the reports aired, McLemore sued 323, 347, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974). Pri-
WFAA–TV, Valerie Williams, A.H. Belo Corporation, Belo vate plaintiffs must prove that the defendant was at
Productions, Inc., the Houston Chronicle, and Kathy least negligent. See Foster v. Laredo Newspapers,
Fair for defamation, alleging that their news reports of Inc., 541 S.W.2d 809, 819 (Tex.1976) (holding that “a
his role in the failed raid damaged his reputation in the private individual may recover damages from a pub-
community. WFAA moved for summary judgment on lisher or broadcaster of a defamatory falsehood as
six grounds: (1) no defamatory meaning; (2) fair report compensation for actual injury upon a showing that
privilege; (3) fair comment privilege; (4) truth; (5) no the publisher or broadcaster knew or should have
actual malice; and (6) neutral reporting privilege. After known that the defamatory statement was false”); see
McLemore nonsuited Williams and the two Belo cor- also Gertz, 418 U.S. at 347, 94 S.Ct. 2997 (holding that
porations, the trial court granted summary judgment states may define for themselves the appropriate stan-
in favor of the Chronicle and Fair but denied WFAA’s dard of liability for a publisher of a defamatory false-
motion for summary judgment. hood injurious to a private individual “so long as they
Affirming the trial court’s judgment, the court of do not impose liability without fault”). Public officials
appeals concluded that McLemore was a private indi- and public figures must establish a higher degree of
vidual, and as such, he had to prove negligence, not fault. They must prove that the defendant published
actual malice, in his defamation case. Because WFAA a defamatory falsehood with actual malice, that is, with
did not move for summary judgment on the grounds that “knowledge that it was false or with reckless disregard
(continued)

of whether it was false or not.” New York Times, 376 debate, reporting what people were saying and uncov-
U.S. at 279–80, 84 S.Ct. 710 (defining the actual mal- ering facts and theories to help the public formulate
ice standard and applying it to public officials); see some judgment.
also Curtis Pub. Co. v. Butts, 388 U.S. 130, 87 S.Ct. 6 2 7 F. 2 d a t 1 2 9 7 . I n t h i s c a s e , n u m e ro u s
1975, 18 L.Ed.2d 1094 (1967) (applying the New York commentators, analysts, journalists, and public officials
Times actual malice standard to public figures). were discussing the raid and the reasons why the ATF
Because a defamation plaintiff’s status dictates raid failed. As evidenced by Fair’s comments during
the degree of fault, he or she must prove to render the Nightline broadcast, as well as reports by The Dallas
the defendant liable, the principal issue in this case is Morning News and the Fort Worth Star Telegram, the
whether McLemore is a public figure. The question press was actively covering the debate over why the
of public-figure status is one of constitutional law for ATF raid failed. Many such discussions focused on the
courts to decide. See Rosenblatt v. Baer, 383 U.S. 75, role of the local media in the ATF’s failure to capture
88, 86 S.Ct. 669, 15 L.Ed.2d 597 (1966); Trotter v. Jack the Davidian compound. The controversy surrounding
Anderson Enters., Inc., 818 F.2d 431, 433 (5th Cir.1987). the Branch Davidian raid was public, both in the sense
Public figures fall into two categories: (1) all-purpose, that people were discussing it and people other than the
or general-purpose, public figures, and (2) limited-purpose immediate participants in the controversy were likely to
public figures. General-purpose public figures are those feel the impact of its resolution. See Trotter, 818 F.2d at
individuals who have achieved such pervasive fame or 433; Waldbaum, 627 F.2d at 1297; see also Einhorn v.
notoriety that they become public figures for all purposes LaChance, 823 S.W.2d 405, 413 (Tex.App.—Houston
and in all contexts. See Gertz, 418 U.S. at 351, 94 S.Ct. [1st Dist.] 1992, writ dism’d w.o.j.). While the court
2997. Limited-purpose public figures, on the other hand, of appeals defined the controversy as limited to
are only public figures for a limited range of issues sur- “McLemore’s personal ethical standards as a journalist,”
rounding a particular public controversy. See Id. we do not view it so narrowly. Based on the facts
To determine whether an individual is a limited- outlined above, we conclude that the public controversy
purpose public figure, the Fifth Circuit has adopted a at issue is the broader question of why the ATF agents
three-part test: failed to accomplish their mission.
(1) the controversy at issue must be public both in To determine that an individual is a public figure for
the sense that people are discussing it and peo- purposes of the public controversy at issue, the
ple other than the immediate participants in the second Trotter/Waldbaum element requires the
controversy are likely to feel the impact of its plaintiff to have had more than a trivial or tangential
resolution; role in *573 the controversy. Trotter, 818 F.2d at
433; Waldbaum, 627 F.2d at 1297. In considering a
(2) the plaintiff must have more than a trivial or tan-
libel plaintiff’s role in a public controversy, several
gential role in the controversy; and
inquiries are relevant and instructive: (1) whether the
(3) the alleged defamation must be germane to the plaintiff actually sought publicity surrounding the
plaintiff’s participation in the controversy. controversy, Brewer v. Memphis Pub. Co., 626 F.2d
Trotter, 818 F.2d at 433 (citing Tavoulareas v. 1238, 1254 (5th Cir.1980); (2) whether the plaintiff had
Piro, 817 F.2d 762, 772–73 (D.C.Cir.1987) (en banc)… access to the media, see, e.g., Gertz, 418 U.S. at 344, 94
Applying the Trotter/Waldbaum limited-purpose S.Ct. 2997; Curtis, 388 U.S. at 155, 87 S.Ct. 1975; and
public-figure elements to this case, we must first deter- (3) whether the plaintiff “voluntarily engag[ed] in
mine the controversy at issue. Trotter, 818 F.2d at 433– activities that necessarily involve[d] the risk of increased
34; Waldbaum, 627 F.2d at 1296. In Waldbaum, the exposure and injury to reputation,” see Brewer, 626
D.C. Circuit elaborated on how to determine the exis- F.2d at 1254; Waldbaum, 627 F.2d at 1294–95; see
tence and scope of a public controversy: also Kassel v. Gannett Co., Inc., 875 F.2d 935, 939–40
To determine whether a controversy indeed existed (1st Cir.1989); Dombey v. Phoenix Newspapers, Inc., 150
and, if so, to define its contours, the judge must exam- Ariz. 476, 724 P.2d 562, 571 (Ariz.1986). “By publishing
ine whether persons actually were discussing some your views, you invite public criticism and rebuttal; you
specific question. A general concern or interest will not enter voluntarily into one of the submarkets of ideas and
suffice. The court can see if the press was covering the
(continued)

opinions and consent therefore to the rough competition to the public’s decision to listen to him). Accordingly,
in the marketplace.” Dilworth v. Dudley, 75 F.3d 307, 309 McLemore reached limited-purpose public-figure status
(7th Cir.1996). through his employment-related activities when he vol-
The record reflects that McLemore acted voluntarily untarily injected himself into the Branch Davidian raid.
to invite public attention and scrutiny on several We now turn to the fault standard McLemore must
occasions and in several different ways during the meet in order to sustain his defamation claim against
course of the public debate on the failed ATF raid. WFAA. As a public figure, McLemore must prove that
For example, McLemore was the only journalist to WFAA acted with actual malice in allegedly defam-
go onto the grounds of the compound, while other ing him. See Curtis, 388 U.S. at 162, 87 S.Ct.
reporters assigned to cover the raid did not. By 1975 (Warren, C.J., concurring. Actual malice is a term
reporting live from the heart of the controversial raid, of art, focusing on the defamation defendant’s atti-
McLemore assumed a risk that his involvement in the tude toward the truth of what it reported. See McCoy
event would be subject to public debate. Following v. Hearst Corp., 42 Cal.3d 835, 231 Cal.Rptr. 518, 727
the battle, McLemore spoke to other members of the P.2d 711, 736 (Cal.1986). Actual malice is defined as
press about the attempted raid, conveying his pride the publication of a statement “with knowledge that it
in his coverage from the midst of the gunfight, and was false or with reckless disregard of whether it was
portraying himself as a hero in assisting wounded ATF false or not.” New York Times, 376 U.S. at 279–80,
agents when he remarked that his role in the raid was 84 S.Ct. 710. Reckless disregard is also a term of art.
“at considerable personal risk” and in contrast to other To establish constitutional recklessness, a defama-
journalists who “were pinned down in a ditch” outside tion plaintiff must prove that the publisher “entertained
the compound. As a journalist, McLemore had ready, serious doubts as to the truth of his publication.” St.
continual access to the various media sources. To one Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323,
group of reporters, he explained that “as a journalist, 20 L.Ed.2d 262 (1968).
I was ... pleased to see that my coverage of this story A libel defendant is entitled to summary judgment
was being broadcast to a wide audience.” Thus, under Texas law if it can negate actual malice as
by choosing to engage in activities that necessarily a matter of law. See Randall’s Food Mkts., Inc. v.
involved increased public exposure and media scrutiny, Johnson, 891 S.W.2d 640, 646–47 (Tex.1995); Casso
McLemore played more than a trivial or tangential role v. Brand, 776 S.W.2d 551, 555 (Tex.1989). A libel
in the controversy and, therefore, bore the risk of injury defendant can negate actual malice by presenting
to his reputation. See Brewer, 626 F.2d at 1254. evidence that shows he or she did not publish the
The third and final element we consider—that the alleged defamatory statement with actual knowledge
alleged defamation is germane to the plaintiff’s par- of any falsity or with reckless disregard for the
ticipation in the controversy—is also satisfied in this truth. See Casso, 776 S.W.2d at 559. To negate actual
case. See Trotter, 818 F.2d at 433; Waldbaum, 627 F.2d malice in this case, in her affidavit, WFAA reporter
at 1298. McLemore alleges that WFAA defamed him Valerie Williams detailed her belief that all of the reports
by displaying footage of his coverage from the scene she made were true and set forth the basis of those
of the compound during the raid, while reporting that reports. Specifically, she swore that “[she] believed
federal officials believed a member of the local media [her] reports accurately reflected public allegations by
informed the Branch Davidians about the ATF raid. responsible, respected and well-informed journalists
Therefore, the alleged defamation directly relates and news organizations, regarding a highly newsworthy
to McLemore’s participation in the controversy. He matter and concerned an official investigation by law
was on the scene in his role as a journalist, as con- enforcement officers of a suspected tip-off of the Branch
veyed by the footage WFAA broadcast, and WFAA’s Davidian cult.” She explained in detail the foundation
alleged defamatory comments are indeed germane to of her belief by providing a chronology of the actions
McLemore’s participation in the controversy over the she took and the materials she reviewed in preparing
media’s role in the failed attack. See Waldbaum, 627 her report. This testimony as to Williams’ beliefs and
F.2d at 1298–1300 (explaining that a public figure’s tal- the basis for them was sufficient for WFAA to meet its
ents, education, experience, and motives were relevant burden of negating actual malice. See Randall’s Food
(continued)

Mkts., Inc., 891 S.W.2d at 646–47; Casso, 776 S.W.2d failed, and therefore WFAA was entitled to summary
at 559; Carr v. Brasher, 776 S.W.2d 567, 571 (Tex.1989). judgment on McLemore’s defamation claim.
As McLemore presented no proof controverting these Accordingly, we reverse the court of appeals’
specific assertions, WFAA established as a matter of judgment and render judgment that McLemore take
law that it did not act with actual malice in reporting the nothing.
ATF’s investigation into why the Branch Davidian raid

1. What is the issue in this case?
2. For what reason did the court conclude that no libel had been committed?
3. How was the plaintiff portrayed in the publication?
4. Under Trotter, what is the three-part test to determine if a person is a limited-purpose public figure?
5. Was the ATF raid on the Branch Davidian complex a “public controversy”?
6. How does the plaintiff meet the requirements of the three-factor test of Trotter that determine if he was a
limited purpose public figure?
7. Why is the malice standard not satisfied in this case?
8. What specific things did the plaintiff do that were subject to public debate?

1. Halle Berry decides to sue the National Enquirer for what she alleges are defamatory headlines and arti-
cles appearing about her in the magazine. What intent on the part of the Enquirer will she have to prove,
and why?
2. Clardy was a businessman who had a significant financial stake in a commercial development project
that sued a newspaper for defamation after they printed articles concerning him and his past. The article
referred to his past tax evasion charges and his attempt to evict more than 400 families from their rental
homes. Another article stated that Clardy had used a fictitious address in his HUD paperwork. He argues
he is not a public figure and does not need to prove actual malice. What must he prove in order to be
considered a private individual? What damages does Clardy need to show to be successful?
3. Gerry Spence, a well-known attorney, represents a client (an activist engaged in a fight against pornog-
raphy) in an action against Hustler magazine. In response to the litigation, Larry Flynt, owner of Hustler,
refers to Spence as a “parasitic scum-sucker,” a “reeking rectum,” a “vermin-infected turd dispenser,” a
“hemorrhoidal type,” and “Asshole of the Month for July.” Some statements by Flynt are apparently false;
he says, for example, that Spence stands to “fatten his wallet” by his litigation against Hustler when in
fact Spence has assigned all of his proceeds to a charitable organization. Spence sues Hustler for defa-
mation. Is he a public figure for purposes of this suit? If he is a public figure, can he recover damages for
the statements that are clearly false?
awarded in matters pertaining to issues of simply Exhibit 13–3 Summary of Defamation Law
private concern when only negligence is shown.
Recall that under the common law, presumed 1. Plaintiffs who are public figures or public
damages were allowed in most cases of libel and officials must prove actual malice for public
in cases involving slander per se. Thus, the plain- issues.
tiff could recover even if they could not prove that 2. Plaintiffs who are private figures need not
they suffered any actual harm, because they could prove actual malice but must prove negli-
recover for the harm that “ordinarily” stems from a gence, and establish fault when suing a
defamatory statement. U.S. Supreme Court deci- media defendant over speech involving
sions, however, cut back on this allowance by requir- matters of public concern.
ing the plaintiff to prove that the defendant acted at 3. If the statement involves a public matter,
least with reckless disregard of the truth if they are plaintiffs must prove at least negligence
to recover presumed damages. Therefore, in those in certain states, and a higher standard in
states requiring plaintiffs to prove mere negligence, other states, and cannot recover presumed
plaintiffs are constitutionally precluded from recover- or punitive damages unless they can show
ing presumed damages in cases of public interest. If actual malice.
a matter is not one of public interest, however, pre- 4. If the challenged statement involves a pri-
sumed damages may be awarded even if the plain- vate matter, private plaintiffs need not prove
tiff proves only mere negligence. actual malice to recover presumed or puni-
Even though a plaintiff suffers no quantifiable tive damages.
loss, they may still be motivated to go to court in
an effort to clear their name. Such a plaintiff is often
willing to accept only nominal damages just to be
given the opportunity to have their day in court.
Local Links
The majority of states, in an effort to discourage Does your state have some kind of retraction
defamation suits, have enacted retraction statutes. statute? If so, what does this statute pro-
These statutes essentially bar a plaintiff from recov- vide? Search “your state” retraction statute.
ery if a defendant retracts a defamatory statement
within a certain time period. Other statutes merely
require the defendant to provide the plaintiff with Privileges
response time and do not bar the plaintiff’s recovery.
A plaintiff may lose even if they prove defamation
To illustrate how such statutes function, consider
if the defendant can establish that they were privi-
the Uniform Correction or Clarification of Defamation
leged. Privileges can either be absolute privileges,
Act, which serves as a model for states to enact. This
in which instance they apply regardless of the defen-
act requires that either the plaintiff request a correc-
dant’s motives, or qualified privileges, in which case
tion or clarification from the defendant within 90 days
they apply only when the defendant acts on the basis
after learning of the publication or that the defendant
of certain well-defined purposes (see Exhibit 13–4).
voluntarily make a correction or clarification within the
90 days. Plaintiffs requesting a correction after the
90-day period are limited to recovering economic Absolute Privileges
losses only and cannot recover for pain, suffering, Absolute privileges emanate largely from the nature
embarrassment, humiliation, or loss of reputation. of the defendant’s job or function. Judges, lawyers,
Under this act, the media can act with intentional or parties, and witnesses enjoy an absolute privilege for
reckless disregard toward the truth, immunizing itself the statements they make during judicial proceed-
from all but economic damages, as long as it prints a ings, regardless of the motives for their statements.
timely retraction. Nevertheless, plaintiffs are afforded Such statements must, however, bear some relation
public correction even when they are unable to prove to the matter at issue (Restatement [Second] of Torts
actual malice, when case law requires such a showing. §§ 585–589). These absolute privileges are some-
Exhibit 13–3 summarizes the essential points of times referred to as litigation privileges and include
defamation law. defamatory statements made by parties involved in
Exhibit 13–4 Privileges
Absolute Privileges
• Judges, lawyers, parties, and witnesses during judicial proceedings
• Legislators acting in furtherance of legislative function or in a debate
• Witnesses testifying before legislature
• Federal officials, governors, and high-ranking state officials acting in official capacity (includes political speech and ads)
• Spousal communications
Qualified Privileges
• Reports of public proceedings (e.g., judicial and legislative hearings)
• Statement made to someone with capacity to act in the public interest
• Statement made to protect one’s own interests as long as not for the purpose of obtaining a competitive advantage
(self-defense)
the lawsuit including out-of-court statements between absolutely privileged. If, however, the defamation
the attorney and those involved. The privilege originates with a third person and is relayed from
extends to the reports of the proceedings and also to one spouse to another, the repetition will still be
arbitration communication and proceedings between considered a publication and the third person will be
participants. Similarly, legislators acting in furtherance liable for the privileged repetition of their defama-
of their legislative function during a legislative hear- tory statement. Any publication to which a plaintiff
ing or engaging in debates, enjoy an absolute priv- consents is considered absolutely privileged.
ilege. Witnesses testifying before the legislature are
also absolutely privileged. All federal officials, gov-
Qualified Privileges
ernors, and high-ranking state officials have absolute
immunity while acting in their official capacities. This Reports pertaining to public proceedings, such as
extends to political speech and ads as well. The states court cases and legislative hearings, enjoy a qualified
are in disagreement, however, as to whether absolute privilege of immunity. Because of Sullivan and Gerst
immunity extends to lower-ranking officials, such as the privilege is no longer necessary in those cases
police officers. Some states find lower ranking officials involving public officials or public figures unless the
to have a qualified privilege. Note that no privilege plaintiff can prove the defendant acted with actual
applies to statements issued outside the course and malice. If the report involves a private figure, the
furtherance of the defendant’s job. actual-malice requirement is not applicable, and the
Absolute immunity can also evolve out of a rela- press is limited to a right to comment accurately on
tionship. Spousal communications, for example, are a public proceeding.

The April 1, 2004 edition of the Glastonbury Citizen newspaper published a parody article that the plaintiffs
planned to build a 250,000 square foot complex with a Walmart, Hooters, and a helicopter pad on top.
The article appeared with several other parody articles about unbelievable occurrences. “April Fools” was
prominently displayed across the running head and the word NOT was next to the paper name. Plaintiffs
demanded a retraction and none was published.
1. Is this a potential slander or libel claim?

2. Are plaintiffs public figures for purposes of this case?
3. Is the parody defamatory?
4. Should parodies be protected?
Local Links potential customers (Restatement [Second] of Torts §

595, cmt. h).
Do police officers in your state have abso- A qualified privilege can be lost if it is abused. For
lute immunity from defamation claims? What example, a defendant who makes a statement know-
about council members? ing it to be false or who acts in reckless disregard as to
the truth or falsity of the statement will lose the priv-
ilege. If the primary purpose behind the defendant’s
A statement made to one who has the capacity statement is something other than protecting the
to act in the public interest, such as a public official, interest for which the privilege was originally granted,
is subject to a qualified privilege. An accusation to the privilege will be lost. Suppose an employee’s for-
a prosecutor about purported criminal activity, for mer employer informs their new employer about the
example, is privileged unless the person making the employee’s alleged dishonesty. These allegations
accusation makes it recklessly. A defendant is also will not be privileged if the primary motivation is pre-
privileged in protecting their own interests as long venting the employee from leaving their employment
as those interests are sufficiently important, and the rather than warning the new employer. A privilege is
defamation is directly related to those interests. A also considered abused if a statement is made to more
defendant who protects their property, for example, people than is reasonably necessary to protect the
by telling the police about their suspicions that the interest in question. In the same vein, the privilege is
plaintiff stole their property is privileged. abused if more damaging information is added than
Making a defamatory statement for the purpose is reasonably necessary. A defendant who reports their
of gaining a competitive advantage is not privileged, suspicion to the police that the plaintiff has stolen their
such as telling potential customers about the poor property will probably lose the privilege if they add
workmanship of the competition. A defendant may their belief that the plaintiff is promiscuous (Restate-
be qualifiedly privileged to act for the protection ment [Second] of Torts § 605).
of the recipient of their statement if the recipient is
someone to whom making such a statement would be
considered “within the generally accepted standards Defamation on the Web
of decent conduct” (Restatement [Second] of Torts §
595 [1][b]). Statements made within the parameters In August 2000, a disgruntled employee of an Inter-
of “decent conduct” must be made in response to a net news organization issued a phony news release
request and within the context of a close personal or purportedly originating from the Emulex Corpora-
business relationship. Credit-reporting agencies, for tion, a network equipment-maker, announcing that
example, enjoy a qualified privilege in many states in Emulex had restated its earnings, resulting in the
giving their subscribers creditworthiness reports on immediate resignation of its CEO. Within minutes,

1. The state attorney general issues a press release explaining why their office has been delayed in pros-
ecuting certain cases. In the release they accuse Geraldine of suppressing evidence. Can the attorney
general be found liable for defamation? Would your answer change if a local district attorney has made
the announcement? What if the information was true about Geraldine?
2. In their opening remarks to the jury, a prosecuting attorney makes statements about the defendant that
they know are false. Can the defendant sue them for defamation?
3. Pam overhears a conversation in which she thinks a plot is being conceived to kill Connie. She calls the
police and tells them Mary is planning to kill Connie. The police arrest Mary. Is Pam liable for defamation
if it turns out there was no plot to kill Connie?
several Internet news organizations picked up the securities investment banking firm, sued Prodigy for
bogus story and disseminated it throughout the defamation, asserting that Prodigy was a publisher
investment community, resulting in a temporary loss of allegedly libelous statements. In Prodigy the New
of $2.5 billion in Emulex’s market value and causing York Supreme Court held that the ISP was a pub-
private investors to suffer serious financial losses. lisher, not a distributor.
This incident graphically illustrates the power The CDA directly overruled Prodigy by remov-
of the Internet and the potentially damning effects ing liability for ISPs and other providers when they
defamatory statements can have on the community. act in good faith to regulate objectionable content.
Nevertheless, in light of legislation enacted by Con- Section 230(c)(1) of Title V states that “no provider
gress, it has become increasingly difficult for those or user of an interactive computer service shall be
damaged by defamatory statements to recover treated as the publisher or speaker of any informa-
against Internet Service Providers (ISPs), and the tion provided by another information content pro-
anonymity of the Internet makes it almost impossible vider.” This section overrules Stratton Oakmont v.
to recover against individuals. Prodigy. Consequently, when Internet providers
The Internet makes the risk of defamation more implement software-screening programs designed
likely because it is a global media that is highly to filter out distasteful material, they are not treated
accessible. Messages can be sent via e-mail, pub- as making editorial decisions. The impact of the
lished on websites, social media posts, or posted CDA is to virtually eliminate all liability in defamation
in chat rooms or newsgroups. Furthermore, any- actions in which the plaintiff alleges that the online
one can publish on the Internet at little or no cost. company is a publisher. Moreover, since ISPs are not
Unlike other forms of media that routinely credit treated as publishers, it becomes impossible to sat-
their sources, the Internet promotes anonymity. Con- isfy the publication element of defamation claims.
tent on the Internet is, for the most part, unregu- While nothing in the CDA prohibits recovery
lated, further enhancing the chances of defamation. from ISPs as “distributors” of defamatory statements
Not surprisingly, anonymity encourages some to be that they did not themselves author, the 4th Circuit,
cavalier with the truth. Corporations and individuals in Zeran v. America Online, Inc., 958 F. Supp.
increasingly find themselves defamed on the Net 1124 (E.D. Va.), aff’d, 129 F.3d 327 (4th Cir. 1997),
by anonymous users—who may include disgrun- cert. denied, 118 S.Ct. 2341 (1998), foreclosed
tled investors or employees, unethical competitors, that possibility by extending the CDA’s publisher
or even ex-lovers. People can make up fake reviews immunization to content distributors. Zeran alleged
and post repeatedly to harm the company. that he was defamed by an anonymous America
Knowing that people rely on the Internet as Online (AOL) subscriber who posted several times
a medium for political and educational discourse, on AOL’s bulletin-board services advertising that
Congress has done its best to promote its devel- Zeran was selling T-shirts with tasteless slogans
opment. One significant act it enacted to protect related to the Oklahoma City bombing. The postings
ISPs from defamation claims was the Communica- listed Zeran’s home telephone number, a number
tions Decency Act (CDA) of 1996. This legislation from which Zeran actually did run a legitimate home-
was passed in response to Stratton Oakmont, Inc. v. based business. As a result of the postings, Zeran
Prodigy Services Co., 23 Media L. Rep. (BNA) 1794 was inundated with telephone complaints and death
(N.Y. Sup. Ct. 1995), the decision of a New York state threats, at certain times receiving telephone calls
trial court in which ISP Prodigy Services was found every two minutes. He immediately requested that
liable for defamatory Internet statements, mainly AOL remove the postings, which AOL agreed to do,
because it retained editorial control over the con- but AOL refused Zeran’s request to post a retraction.
tent of the site. Prodigy operated a bulletin board Following the removal of the original posting,
called “Money Talk.” An anonymous user posted subsequent postings by an unknown user appeared
a message on “Money Talk” claiming that one of that continued to advertise offensive products
Stratton Oakment’s securities offerings was a fraud, associated with Zeran’s name. Zeran repeatedly
that the president of Stratton Oakmont was a crimi- contacted AOL and was told that the account of
nal, and that Stratton employed brokers who either the anonymous user who had been posting the
lied for a living or got fired. Stratton Oakmont, a advertisements would soon be shut down.
Zeran sued AOL, arguing not that AOL was he had been discovered taking kickbacks from
liable as a publisher (in view of section 230 of the UroCor, a uropathology laboratory. After issuing
CDA) but that AOL had negligently distributed and subpoenas to Yahoo! and others for several months,
delayed the removal of the defamatory postings and plaintiff’s counsel determined that “fbiinformant”
failed to screen similar future postings. The 4th Cir- was another doctor who had been fired by UroCor
cuit held in favor of AOL, ruling that section 230 of and, using a variety of aliases, regularly attacked the
the CDA immunizes interactive computer services laboratory on the message board. The defendant
from claims based on information posted by a third did not personally know Graham and had made no
party. The court concluded that ISPs should not be independent effort to verify the statements before
liable for the exercise of a publisher’s traditional edi- posting them on the Internet. Even after others
torial functions, such as deciding whether to publish, told the defendant that his statements were false,
withdraw, or alter content. The ISP is not considered “fbiinformant” did not remove his defamatory
a speaker or publisher of any information so is not statements until after Graham discovered his identity
liable. According to the court of appeals, holding and filed suit. The jury awarded substantial damages
AOL liable would frustrate the policy of section 230, to Graham for injury to his reputation and intentional
which is to encourage service providers to regulate infliction of emotional damages, as well as the
the dissemination of offensive materials and to mini- maximum amount of punitive damages permitted by
mize government interference. Virginia law. The case settled while on appeal.
Although defamation plaintiffs would rather
reach the relatively deep pockets of ISPs, they can at
least sue the individual who posted the defamatory Invasion of Privacy
materials. But getting behind the anonymity of Inter-
net messages can be extremely difficult. The first The right to privacy, sometimes referred to as “the
step in unmasking an anonymous online author is right to be let alone,” has a unique origin. Prior to 1890
to determine which ISP has a record of that person’s such a tort had never been recognized by the English
name and address. ISPs generally will not disclose or American courts. But in that year Samuel Warren
subscriber information without a subpoena. In deter- and Lewis Brandeis, fueled by their perception that
mining whether to issue a subpoena against an ISP, individuals needed protection from what they viewed
courts balance the interests of the plaintiff against as an increasingly invasive press, authored a Harvard
the First Amendment rights of the author. They con- Law Review article proposing the creation of a new
sider whether the plaintiff has exhausted good-faith, tort. Their proposal was the subject of extensive aca-
traditional avenues for identifying a defendant, has demic debate and was accepted as a basis of recovery
identified the anonymous defendant specifically in some lower courts. The New York Court of Appeals
enough that the court can determine whether juris- generated a storm of public disapproval when it denied
diction exists, and has set forth a prima facie cause recovery to a plaintiff whose picture had been used to
of action against the anonymous defendant. advertise flour without her consent. The New York leg-
In October 2000, a Virginia federal jury awarded islature went on to pass a statute allowing recovery in
the first known verdict for defamation on the such cases. Today, all states have recognized the right
Internet against an anonymous author (Graham v. to privacy in some form or another.
Oppenheimer, No. 3:00-CV-57 [E.D. Va. Oct. 2000] Invasion of privacy actually comprises four distinct
[unpub]). An individual calling himself “fbiinformant” torts, dissimilar in every respect except that they all
defamed the plaintiff, Dr. Sam Graham Jr., by posting protect the plaintiff from unreasonable interference
statements on a Yahoo! message board claiming with their privacy. These four torts are appropriation,
that Graham had been forced to resign as chairman unreasonable intrusion, public disclosure of private
of a medical school’s urology department because facts, and false light (see Exhibit 13–5).
In the News
Review of current online defamation cases and articles can be found by using “online defamation” as
your search term.
Exhibit 13–5 Invasion of Privacy opening the plaintiff’s private mail, searching their
bags, or examining their private bank account.
Appropriation Unreasonable Intrusion When consumer advocate Ralph Nader planned to
Value of plaintiff’s name, Defendant intentionally publish a book attacking the safety of automobiles
likeness, or personal intrudes upon seclusion of manufactured by General Motors, the company
attribute is used by plaintiff in a way that would attempted to harass Nader by making threaten-
defendant for financial gain. be highly offensive to a ing telephone calls, interviewing his acquaintances,
reasonable person.
tapping his phone, eavesdropping on him using
Public Disclosure of False Light electronic equipment, using women to make illicit
Private Acts proposals to him, and conducting surveillance on
Defendant publicizes Defendant puts plaintiff in the him in public places. The court held that Nader had
details of plaintiff’s private public eye in a false light that a cause of action for invasion of privacy because of
life that would be highly would be highly offensive to a the wiretapping and electronic eavesdropping. The
offensive to a reasonable reasonable person. other activities, however, did not constitute invasion
person.
of privacy because the court did not consider them
unreasonably intrusive (Nader v. General Motors
Corp, 255 N.E.2d 765 [N.Y. 1970]).
Appropriation
If the value of a plaintiff’s name, likeness, or per- Public Disclosure of Private Facts
sonal attribute is used by a defendant for their own By the same token, publicizing the details of the
financial gain, the plaintiff can sue for this appro- plaintiff’s private life may also constitute invasion of
priation. Note that the value of the plaintiff’s name privacy under public disclosure of private facts. The
must be appropriated, not just the name itself. In matter publicized must be of the type that would
other words, the mere use of a name the same as be “highly offensive to a reasonable person’’ and
that of the plaintiff’s does not impose liability. The must “not be of legitimate concern to the public’’
purpose for the appropriation, however, typically (Restatement [Second] of Torts § 652D). For exam-
may be for either commercial or noncommercial ple, a disgruntled creditor who posts a notice in the
purposes, although some state statutes limit recov- window of their store saying that the plaintiff owes
ery to commercial appropriations. The unauthorized them money invades the plaintiff’s privacy (Restate-
use of an actress’s photograph for the purposes of ment [Second] of Torts § 652D, illus. 2).
advertising could give rise to a cause of action for No invasion of privacy exists if the details pub-
appropriation. Notice that appropriation was one licized are contained in a public record. If the name
of the allegations made by plaintiff in Minnifield v. of a deceased rape victim is broadcast on television,
Ashcraft. the victim’s parents have no claim for invasion of pri-
vacy because the victim’s name would be available
Unreasonable Intrusion in an indictment, which would be available for pub-
lic inspection at the suspect’s trial (Cox Broadcast-
A defendant who intentionally intrudes upon the
ing Corp. v. Cohn, 420 U.S. 469 [1975]). Similarly, a
seclusion of another is liable for invasion of privacy
murder suspect whose past history and daily life are
and unreasonable intrusion if their intrusion would
recorded in the newspaper cannot claim invasion of
be considered “highly offensive to a reasonable
privacy, because their activities would be considered
person’’ (Restatement [Second] of Torts § 652B).
matters of legitimate concern to the public (Restate-
Physical intrusion includes the use of mechanical
ment [Second] of Torts § 652D, illus. 13).
devices, such as binoculars, surveillance equip-
ment, or wiretaps. A private detective, for example,
who in the process of seeking evidence for a law- False Light
suit rents a room in a house adjoining the plaintiff’s A plaintiff put before the public eye in a false light that
residence and monitors the plaintiff’s activities for a would be highly offensive to a reasonable person can
period of time using a telescope and camera will be also sue for invasion of privacy (Restatement [Second]
considered to have invaded the plaintiff’s privacy. of Torts § 652E). Suppose that a newspaper publishes
Unreasonable intrusion may also be committed by an article about local taxi drivers cheating on their fares
Case
Minnifield v. Ashcraft
903 So.2d 818 (Alab. 2004)
YATES, Justice
Client brought action against tattoo artist and tattoo there is no genuine issue of material fact and the
studio alleging invasion of privacy arising out of pho- movant is entitled to a judgment as a matter of law. Rule
tographs of tattoo on client’s upper breast that artist 56(c)(3), Ala. R. Civ. P. The movant has the burden of
submitted for publication in national tattoo magazine. making a prima facie showing that there is no genuine
The plaintiff, Wendy Minnifield, appeals from a sum- issue of material fact and that he or she is entitled to a
mary judgment entered in favor of the defendants, Greg judgment as a matter of law. Bass v. SouthTrust Bank of
Ashcraft and Skin Worx, Inc. This case was transferred to Baldwin County, 538 So.2d 794, 797–98 (Ala.1989). If
this court by the supreme court, pursuant to § 12–2–7(6), the moving party makes that prima facie showing, then
Ala.Code 1975. the burden shifts to the nonmoving party, who then has
On February 1, 2002, Minnifield sued Ashcraft and the burden of presenting substantial evidence creating
Skin Worx, Inc., alleging invasion of privacy arising out a genuine issue of material fact. Id.
of photographs of a tattoo on Minnifield’s upper right In determining whether the evidence creates
breast that Ashcraft submitted, without Minnifield’s a genuine issue of material fact, this court must
permission, to “Dark Skin Art,” a national tattoo mag- review the record in the light most favorable to the
azine.1 Minnifield alleged that the publication of the nonmovant and must resolve all reasonable doubts
photographs embarrassed, degraded, and demeaned against the movant. Wayne J. Griffin Elec., Inc. v. Dunn
her, causing her mental anguish and emotional dis- Constr. Co., 622 So.2d 314 (Ala.1993). Evidence is
tress. Ashcraft and Skin Worx moved for a summary “substantial” if it is of “such weight and quality that fair-
judgment, arguing that Minnifield was not entitled to minded persons in the exercise of impartial judgment
damages under the tort of defamation as a result of can reasonably infer the existence of the fact sought
the publication of the photographs and that she had to be proved.” West v. Founders Life Assurance Co. of
signed a general release form releasing Ashcraft and Florida, 547 So.2d 870, 871 (Ala.1989).
Skin Worx from any liability.2 The trial court entered a Viewing the evidence in a light most favorable to
summary judgment in favor of Ashcraft and Skin Worx. Minnifield, as we are required to do, the evidence indicates
Minnifield appeals. that after Ashcraft completed Minnifield’s tattoo he asked
An appellate court reviews a summary judgment by her if he could photograph the tattoo for his portfolio.
the same standard the trial court uses in determining One photograph showed Minnifield pointing at her tattoo.
whether to grant a summary-judgment motion. Pryor Minnifield’s face is clearly identifiable in the photograph. The
v. Brown & Root USA, Inc., 674 So.2d 45, 47 other photograph was a close-up of the tattoo. According
(Ala.1995); Bussey v. John Deere Co., 531 So.2d 860, to Minnifield, Ashcraft told her that the photographs would
862 (Ala.1988). A summary judgment is appropriate if stay in his office. Minnifield believed that Ashcraft would
not show the photographs to anyone else.
Minnifield testified that her cousin’s roommate saw
the photographs in the magazine and recognized
1 It is unclear whether Skin Worx was incorporated when Minnifield
Minnifield. Minnifield also testified that she was
obtained her tattoo in April 1999. Ashcraft testified in his deposition
that Skin Worx was first incorporated in 1999 and that he was the
approached by a stranger while she was swimming,
sole shareholder. However, he did not testify as to what date in 1999 and her tattoo was exposed and that the man stated
Skin Worx was incorporated. Ashcraft said that when he started the that he had seen her tattoo in a magazine. Minnifield
business in 1995 Skin Worx was unincorporated and operated as a stated that she believed that the publication of the
sole proprietorship. None of the defendants’ pleadings or motions refer photographs was degrading because, she said, the
to Skin Worx as being a corporation. Also, a release form, which was
other photographs in the tattoo magazine were not
signed by Minnifield in April 1999, refers to the business entity as “Skin
Worx tattooing (also known as Greg Ashcraft).” tasteful and she felt like she was being stereotyped
with the other people featured in the magazine.
2 Minnifield did not allege defamation in her complaint.
(continued)
Case | Minnifield v. Ashcraft (continued)

Our supreme court has stated: (Emphasis omitted.)
“ ‘It is generally accepted that invasion of pri- Of the four categories of invasion of privacy,
vacy consists of four limited and distinct wrongs: Minnifield asserts a commercial-appropriation claim
(1) intruding into the plaintiff’s physical solitude or (i.e., that Ashcraft and Skin Worx used her likeness
seclusion; (2) giving publicity to private information without her authorization to obtain some commercial
about the plaintiff that violates ordinary decency; benefit and that she was damaged as a result). Ashcraft
(3) putting the plaintiff in a false, but not necessarily and Skin Worx’s appellate brief fails to discuss invasion
defamatory, position in the public eye; or (4) appropri- of privacy and instead addresses defamation. However,
ating some element of the plaintiff’s personality for a Minnifield did not allege defamation in her complaint.3
commercial use.’ ” With regard to commercial appropriation, our
Butler v. Town of Argo, 871 So.2d 1, 12 (Ala.2003) supreme court has stated:
(quoting Johnston v. Fuller, 706 So.2d 700, 701 (Ala. “Restatement (Second) of Torts, § 652C, states that
1997)). Each of these categories of invasion of pri- liability for this wrong arises when one’s name or like-
vacy (intrusion into seclusion, public disclosure of ness is ‘appropriated’ by another to the other’s ‘use or
private information, putting a person in a false light, benefit.’ Comment d to this section states, in part:
and appropriation of an element of a person’s person- “ ‘No one has the right to object merely because his
ality for commercial use) has distinct elements, and name or his appearance is brought before the public,
each category establishes a separate privacy interest since neither is in any way a private matter and both
that may be invaded. Regions Bank v. Plott, 897 So.2d are open to public observation. It is only when the pub-
239 (Ala.2004). licity is given for the purpose of appropriating to the
Johnson v. Corporate Special Services, Inc., 602 defendant’s benefit the commercial or other values
So.2d 385, 387 (Ala.1992), provides: associated with the name or the likeness that the right
“There are two standards the Court uses to find of privacy is invaded.’ ”
whether there has been a tort of invasion of privacy: Schifano v. Greene County Greyhound Park, Inc., 624
So.2d 178, 181 (Ala.1993). In Schifano, patrons of a
“ ‘1) If there has not been public or commercial
dog-racing park were photographed as they sat in a
use or publication, then the proper standard is
section of the park that can be reserved by interested
whether there has been an “intrusion upon the
groups. The park printed the photograph in an adver-
plaintiff’s physical solitude or seclusion,” or a tising brochure. The patrons in the photograph were
“wrongful intrusion into one’s private activities not identified by name. The photograph was taken by
in such manner so as to outrage or to cause a camera mounted on a tripod in full view of, and only
mental suffering, shame or humiliation to a per- a few feet from, the persons being photographed. The
son of ordinary sensibilities”; and 2) if there has court held that there was no unique quality or value in
been public or commercial use or publication of the patrons’ likenesses that would result in commercial
private information, then the proper standard profit to the park simply from using a photograph that
is whether there has been “unwarranted pub- included them—unidentified and seated in a group.
licity,” “unwarranted appropriation or exploita- The court noted that the patrons had failed to rebut the
tion of one’s personality,” publication of private evidence indicating that the photograph was taken in
affairs not within the legitimate concern of the full view of, and only a few feet away from, them and,
public, an intrusion into one’s “physical solitude therefore, that the patrons had failed to present a genu-
or seclusion,” the placing of one in a “false but ine issue of material fact regarding their consent.
not necessarily defamatory position in the pub-
lic eye,” or an “appropriation of some element
of *822 [one’s] personality for commercial use.” ’
“Hogin [v. Cottingham,] 533 So.2d [525] at 530–31 3 Although false-light invasion of privacy is some-
[(Ala.1988)](citations omitted). .... See also, Smith v. times compared to defamation, they are separate torts.
Doss, 251 Ala. 250, 37 So.2d 118 (1948).” See Regions Bank v. Plott, supra (recognizing distinc-
tions between the two torts).
(continued)

There is a “legitimate public interest” exception to of invasion of privacy. See Allison v. Vintage Sports
the right to privacy. In Smith v. Doss, 251 Ala. 250, 37 Plaques, 136 F.3d 1443 (11th Cir.1998).
So.2d 118 (1948), the right to privacy was defined in In Allison, the widow of a well-known race-car driver
part as “ ‘the right of a person to be free from unwar- sued a retailer, alleging that the retailer’s plaques fea-
ranted publicity’ or ‘the unwarranted appropriation or turing the driver’s trading cards violated the driver’s
exploitation of one’s personality, the publicizing of right to publicity under Alabama law.
one’s private affairs with which the public has no legit- In discussing the right to publicity and the inter-
imate concern.’ ” 251 Ala. at 252–53, 37 So.2d at est protected by the commercial-appropriation
120, quoting 41 Am.Jur. Privacy § 2 (1942). However, invasion-of-privacy tort, the Court of Appeals stated:
the Smith court held that the broadcast of matters of “The commercial appropriation right of privacy is
“legitimate public interest” is not prohibited by the right similar, but not identical, to the right of publicity
to privacy because of the interest of the public in being recognized in a number of jurisdictions. Whereas judicial
informed. 251 Ala. at 253, 37 So.2d at 121. In Doe v. acceptance of the four distinct torts that comprise
Roe, 638 So.2d 826 (Ala.1994), our supreme court the general right of privacy is ‘universal,’ J. Thomas
recognized a legitimate-public-interest exception to a McCarthy, The Rights of Publicity and Privacy § 1.5[E]
commercial appropriation. In Doe, the natural mother (1997), the right of publicity has been recognized in
of the plaintiff’s adopted children was murdered by only sixteen states, Id. at § 6.1[B].
their natural father. The nature of the murder and the One commentator has summarized the dif-
subsequent trial, which was a matter of public record, ference between the right of publicity and the
received *823 much publicity. The plaintiff in Doe, the commercial-appropriation prong of the right of pri-
children’s adoptive parent, brought an action seeking vacy this way:
to enjoin distribution of a novel about the murder. Our “ ‘The appropriation type of invasion of privacy, like
supreme court determined that the novel possessed all privacy rights, centers on damage to human dig-
social worth and was a significant medium for the nov- nity. Damages are usually measured by “mental dis-
elist to communicate her ideas about the murder, in tress”—some bruising of the human psyche. On the
which society had an interest. other hand, the right of publicity relates to commercial
In the present case, Minnifield is clearly identifiable in damage to the business value of human identity. Put
one of the photographs. When Ashcraft submitted the simplistically, while infringement of the right of pub-
photographs of Minnifield to the magazine, the caption licity looks to an injury to the pocketbook, an inva-
beside the photographs listed his name and Skin Worx. sion of appropriation privacy looks to an injury to the
Certainly, it is reasonable to infer that Ashcraft and psyche.’
his business entity, Skin Worx, sought a commercial “J. Thomas McCarthy, McCarthy on Trademarks and
benefit from the photographs being published in the Unfair Competition § 28:6 (1997); see Haelan Lab., Inc.
magazine. Ashcraft’s submission of the photographs v. Topps Chewing Gum, Inc., 202 F.2d 866, 868 (2d
to the magazine for publication did not pertain to a Cir.1953) (‘[M]any prominent persons (especially actors
legitimate newsworthy public interest. Therefore, the and ball-players), far from having their feelings bruised
publication of the photographs is not protected under through public exposure of their likenesses, would feel
the legitimate-public-interest exception. sorely deprived if they no longer received money for
The damage that Minnifield claims flows from the authorizing advertisements, popularizing their counte-
publication of the photographs is a result of injuries to nances, displayed in newspapers, magazines, busses,
her feelings rather than from an injury to an economic trains, and subways.’).
interest in her property right in her likeness. “Alabama has not denominated the interest protected
The United States Court of Appeals for the by its commercial appropriation invasion of privacy tort
Eleventh Circuit, applying Alabama law, has ques- as the right of publicity. See McCarthy, Rights
tioned the interest sought to be protected under our of Privacy and Publicity at § 6.1[B] (noting that sixteen
commercial-appropriation invasion-of-privacy tort and states judicially or statutorily have recognized the
whether injuries to psychological interests are com- right of publicity, denominated as such, and that an
pensable under the commercial-appropriation category
(continued)

additional nine states have statutes that cover most and a private person. For a private person, psychological
aspects of the right of publicity). We read Alabama’s interests would likely be the main concern resulting from
commercial appropriation privacy right, however, to the appropriation of his or her likeness, even if only their
represent the same interests and address the same family members or close friends were to recognize their
harms as does the right of publicity as customarily likeness. Second, in Doe v. Roe, 638 So.2d at 827, the
d e f i n e d . I n d e e d , t h e e l e m e n t s o f A l a b a m a ’s plaintiff brought an action to enjoin distribution of a novel
commercial appropriation invasion of privacy tort, about the murder of his adopted children’s natural mother
which bases liability on commercial, rather than because “the fictionalized account of the murder of the
psychological, interests, cf. McCarthy, McCarthy on children’s mother, along with invented dialogue, imaginary
Trademarks and Unfair Competition § 28:6, do not incidents, and creative thoughts and feelings attributed to
differ significantly from those of the tort of violation of the children will disturb the serenity and privacy of their
the right of publicity. Compare Kyser–Smith v. Upscale new lives.” Clearly, psychological interests, not a com-
Communications, Inc., 873 F.Supp. 1519, 1525–27 mercial proprietary interest, were the underlying basis
(M.D.Ala.1995) with Montana v. San Jose Mercury News, for the appropriation invasion-of-privacy claim asserted
Inc., 34 Cal.App.4th 790, 793, 40 Cal.Rptr.2d 639, 640 in Doe (i.e., the plaintiff in Doe was not arguing that the
(1995). As a technical matter, then, we construe appellants’ defendant had taken a valuable commercial property right
claim as one sounding in commercial appropriation, rather from the children without compensating them).
than in publicity, although we conclude that the distinction The right to publicity was first recognized as a
is largely semantic. separate interest than the interest protected by the
“Although the Alabama Supreme Court has commercial-appropriation invasion-of-privacy tort
addressed the tort of commercial appropriation only in Haelan Laboratories, Inc. v. Topps Chewing Gum,
twice and thus has provided us with little guidance Inc., 202 F.2d 866 (2d Cir.1953), and it was later dis-
in determining the contours of the cause of action, cussed in Zacchini v. Scripps–Howard Broadcast-
we read Alabama law to permit a cause of action for ing Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965
invasion of privacy when the defendant appropri- (1977). Both the right to publicity and the right not to
ates without consent the ‘plaintiff’s name or likeness have one’s privacy invaded by misappropriation of one’s
to advertise the defendant’s business or product, or likeness protect an individual from unauthorized com-
for some other similar commercial purpose.’ Kyser– mercial use of their name and likeness. The Restate-
Smith, 873 F.Supp. at 1525. The plaintiff must demon- ment (Third) of Unfair Competition § 46 cmt. b (1995)
strate that there is a ‘unique quality or value in [his] recognized the types of damages claimed as the basis
likeness[ ]’ that, if appropriated, would result in ‘com- for the difference between the two torts; damages for
mercial profit’ to the defendant. Schifano, 624 So.2d commercial appropriation are intended to compensate
at 181; cf. Montana v. San Jose Mercury News, for the personal harm to one’s dignity and integrity
Inc., 34 Cal.App.4th 790, 793, 40 Cal.Rptr.2d 639, 640 while damages for a violation of the right to publicity
(1995) (‘A cause of action for common law misappro- address the economic interest in one’s name or like-
priation of a plaintiff’s name or likeness may be pled by ness. The Nevada Supreme Court has stated:
alleging: (1) the defendant’s use of the plaintiff’s iden- “The distinction between these two torts is the inter-
tity; (2) the appropriation of plaintiff’s name or likeness est each seeks to protect. The appropriation tort seeks
to defendant’s advantage, commercially or otherwise; to protect an individual’s personal interest in privacy;
(3) lack of consent; and (4) resulting injury.’) (internal the personal injury is measured in terms of the mental
quotation omitted).” anguish that results from the appropriation of an ordi-
136 F.3d at 1446–47 (footnote omitted). nary individual’s identity. The right to publicity seeks to
We cannot say that Alabama’s commercial- protect the property interest that a celebrity has in his or
appropriation invasion-of-privacy tort bases liability her name; the injury is not to personal privacy, it is the
solely on commercial rather than psychological interests. economic loss a celebrity suffers when someone else
First, Allison does not distinguish between a public fig- interferes with the property interest that he or she has
ure, like the famous race-car driver involved in that case, in his or her name. We consider it critical in deciding
(continued)

this case that recognition be given to the difference without his consent, not incidental to an occurrence
between the personal, injured-feelings quality involved of legitimate news value.” 259 Ala. at 662, 68 So.2d at
in the appropriation privacy tort and the property, com- 319. Although the press may publish photographs of
mercial value quality involved in the right of publicity prominent public figures, “ ‘it is a very different thing
tort.” for a manufacturer to use without authority such a
People for the Ethical Treatment of Animals v. man’s picture to advertise his goods.’ ” Id., quoting
Bobby Berosini, Ltd., 111 Nev. 615, 636, 895 P.2d Foster–Milburn Co. v. Chinn, 134 Ky. 424, 120 S.W.
1269, 1283 (1995). This is not to say that a celebrity’s 364, 366 (1909). However, we cannot say that the
personal interests cannot serve as a basis for a commercial-appropriation invasion-of-privacy tort
commercial-appropriation claim or that a noncelebrity’s in Alabama bases its liability solely on commercial
economic interests cannot serve as a basis for rather than psychological interests. To do so would,
recovery. See Parks v. LaFace Records, 329 F.3d 437 in effect, substitute the commercial-appropriation
(6th Cir.2003) (civil-rights pioneer, Rosa Parks, sued invasion-of-privacy tort with the tort of violating the
a rap group over their use of her name on its album, right to publicity. Moreover, while the modern view
expressing her disapproval of the profanity, racial slurs, recognizes the two torts as distinct, courts often do
and derogatory remarks about women associated not treat them separately. See Alice M. Hunt, Every-
with a song on the album); Onassis v. Christian Dior– one Wants to Be a Star: Extensive Publicity Rights for
New York, Inc., 122 Misc.2d 603, 472 N.Y.S.2d 254 Noncelebrities Unduly Restrict Commercial Speech, 95
(N.Y.Sup.Ct.1984) (former first lady Jacqueline Kennedy NW. U.L.Rev. 1605 (2001).
Onassis did not seek damages for lost economic Ashcraft and Skin Worx argue that Minnifield volun-
profit for the use of a look-alike model in advertising tarily signed an agreement releasing them from liability.
a line of clothing but instead sought injunctive relief Before Minnifield obtained her tattoo, she signed the
because she had never used her image in promoting following form:
a commercial product); see also Canessa v. J.I. Kislak,
“I am at least 19 years old; I do not have a
Inc., 97 N.J.Super. 327, 235 A.2d 62 (Law Div.1967)
heart condition. I do not have epilepsy. I have
(plaintiffs recovered for the defendant real-estate
not had hepatitis within the last year. I am not
agent’s unauthorized use of a photograph of the
plaintiff’s family in an advertisement); Ainsworth v.
a hemophiliac (bleeder). I am not under the
Century Supply Co., 295 Ill.App.3d 644, 693 N.E.2d influence of drugs or alcohol. I have never been
510, 230 Ill.Dec. 381 (1998) (although worker consented diagnosed with Aids.
to videotaping of his work for an instructional video, “To my knowledge, I do not have any physical,
the later use of his image in a television commercial mental, or medical impairment or disability that
resulted in an economic benefit to employer). might affect my well-being as a direct or indirect
Alabama has not expressly recognized the right to result of my decision to have any tattoo or pierc-
publicity; however, we agree with the Allison court ing related work done at this time.
that Birmingham Broadcasting Co. v. Bell, 259 Ala.
656, 68 So.2d 314 (1953), indicates that the right to pri- “I agree to follow the instructions concerning
vacy in Alabama does protect the commercial value the care of my tattoo or piercing while it is heal-
of a public figure’s identity. In Bell, the plaintiff was a ing. I agree that any touch-up work needed, due
former college football star and an experienced radio to my own negligence, will be done at my own
announcer whose recognizable name had been used expense. I understand that is [sic] my skin color
by the defendant company in soliciting other stations is dark, the colors will not appear as bright as
to broadcast certain college football games announced they do on light skin.
by the plaintiff and in soliciting sponsors for those
broadcasts. Our supreme court stated: “The privacy of “Being of sound mind and body, I hereby release
a public personage may not be lawfully invaded by the any and all persons representing Skin Worx tat-
use of his name or picture for commercial purposes tooing (also known as Greg Ashcraft) from all
(continued)

responsibility. I expect [sic] any and all respon- In the present case, the language of the anticipatory
sibility for any consequences that might stem release purporting to exempt Ashcraft and Skin Worx
from my decision to have any tattoo or piercing is ambiguous. We hold that reasonable minds could
related work done by Skin Worx. differ as to whether the anticipatory release discharged
liability for the intentional tort of invasion of privacy.
“I agree not to sue Skin Worx in connection Although parties may execute an agreement that will
with any and all damages, claims, demands, release claims or damages not particularly contem-
rights and causes of action of whatever kind plated, the parties’ intent to do so must be clearly
of [sic] nature, based upon injuries or property expressed in the agreement. Jehle–Slauson, supra.
damage to or death of my-self or any other per- Construing the release against Ashcraft and
sons arising from my decision to have tattoo or Skin Worx, the drafters of the release, Minnifield’s
piercing related work done at this time, whether commercial-appropriation invasion-of-privacy claim
or not caused by the negligence of Skin Worx is not “based upon injuries or property damage to, or
personnel. death arising from [Minnifield’s] decision to have tattoo
or piercing related work done.” See Jehle–Slauson, 435
“I agree for myself, my heirs, assigns, and legal So.2d 716 (holding that ambiguous releases must be
representatives to hold Skin Worx harmless from construed against the party who wrote them). Instead,
all damages, actions, causes of actions, claim Minnifield’s claim is based on Ashcraft’s publication of
judgments, cost of litigation, attorney fees and photographs without her permission and not on her
all other costs and expenses which might arise decision to obtain a tattoo. Moreover, our supreme
from my decision to have any tattoo or piercing court has indicated that releases purporting to dis-
related work done by Skin Worx. charge liability for intentional torts are against public
policy. In Barnes v. Birmingham International Raceway,
“I agree to leave the premises of Skin Worx, or Inc., 551 So.2d 929 (Ala.1989), our supreme court held
any other establishment where Greg Ashcraft is that anticipatory release forms, although valid to dis-
engaged in business, promptly upon request, charge liability for negligent conduct, were invalid and
for any reason whatsoever, by any agent or contrary to public policy as to wanton or willful con-
employee of Skin Worx. duct. In Reece v. Finch, 562 So.2d 195 (Ala.1990), our
supreme court applied the public-policy rationale set
“I agree that these waivers also pertain to and out in Barnes to prohibit an anticipatory release form
are designed to protect any and all estab- from exculpating a person from liability as to prospec-
lishments where Greg Ashcraft conducts tive intentional torts.
business.” Accordingly, the summary judgment entered in
favor of the defendants, Ashcraft and Skin Worx,
Section 12–21–109, Ala.Code 1975, provides: “All
is reversed, and the cause is remanded for further
receipts, releases and discharges in writing, whether of
proceedings.
a debt of record, a contract under seal or otherwise,
The Court of Civil Appeals, Yates, P.J., held that:
and all judgments entered pursuant to pro tanto settle-
ments, must have effect according to their terms and 1. publication of client’s photographs in tat-
the intentions of the parties thereto.” too magazine was not protected under
Where no ambiguity exists, a court’s only function legitimate-public-interest exception to right
is to interpret the meaning and intentions of the parties to privacy;
as found within the four corners of the document. Pruitt 2. commercial appropriation invasion-of-privacy
v. Circuit City Stores, Inc., 678 So.2d 1166 (Ala.Civ. tort protects both commercial and psycho-
App.1996). Parol evidence will not be admissible to logical interests; and
explain unequivocal terms. Jehle–Slauson Constr.
3. release signed by client was ambiguous and
Co. v. Hood–Rich Architects & Consulting Eng’rs, 435
did not preclude invasion-of-privacy claim
So.2d 716 (Ala.1983).
REVERSED AND REMANDED.

1. In what two ways did plaintiff claim her right to privacy had been invaded?
2. Did the court find that the publication of plaintiff’s photographs constituted a legitimate public-interest
exception to right to privacy?
3. Did the court state that commercial appropriation can include psychological interests?
4. Did the anticipatory release that plaintiff signed preclude her from having a right to privacy claim?
5. What does the court say about a person having their name or appearance brought to the public without
any commercial benefit?
6. How does the tort of appropriation and the right to publicity differ?
7. How does the release relate to the actual appropriation claim?
8. How does the court distinguish the tort of defamation with the right to privacy claim?
9. If there is no ambiguity in a document, what is the courts’ function?
and uses the plaintiff’s photograph to illustrate the for defamation as long as the movie did not tend to
article. If the photograph clearly implies that the plain- harm the plaintiff’s reputation. He could, however,
tiff resorts to such practices (and in fact they do not), sue for invasion of privacy if the presentation would
the plaintiff may recover for invasion of privacy. Such be considered “highly offensive to a reasonable per-
“false-light’’ actions can be brought only if the plain- son’’ (Restatement [Second] of Torts § 652E, illus. 5).
tiff can show that the defendant deliberately portrayed
the plaintiff in a false light or acted in reckless disregard
of the issue (Time, Inc. v. Hill, 385 U.S. 374 [1967]). Injurious Falsehood
A false-light case may or may not be considered
grounds for defamation. The Douglass court consid- Injurious falsehood protects plaintiffs against
ers the similarities and dissimilarities between false false statements made against their business,
light and defamation and discusses why a plaintiff product, or property rights. If the plaintiff’s goods
may opt for a false-light claim rather than a defa- or business are falsely disparaged, the tort com-
mation claim. In addition to being easier to prove mitted is typically referred to as trade libel, but if
in some respects than defamation, the court points the disparagement refers to property rights of the
out, the tort of false light allows recovery for offen- plaintiff, the tort is usually referred to as slander
sive publicity (depicting a plaintiff as pathetic or of title.
ridiculous) and not just defamatory publicity (depict-
ing the plaintiff as immoral or dishonest).
Suppose a movie that is made about a war hero’s Trade Libel
life includes fictitious details about a nonexistent To recover for trade libel, the plaintiff must show
romance. Even if the moviemaker is aware of the fal- that the defendant made a false statement clearly
sity of some of the portrayal, the plaintiff cannot sue referring to the plaintiff’s goods or business and
In the News
A California Court of Appeals case involving plaintiffs who sued Time Warner for invasion of privacy
because of pictures of their team that were published in relationship to their team manager being
involved in child molestation is M.G. v. Time Warner, Inc., 89 Cal.App.4th 623, 107 Cal.Rptr.2d 504 (2001). Use
the case name as your search term.

1. A 1982 edition of the National Enquirer details Clint Eastwood’s romantic involvement with singer Tanya
Tucker and actress Sondra Locke. Eastwood alleges in part that the offending article falsely states
a. that Eastwood “loves” Tucker, and that Tucker means a lot to him.
b. that Eastwood was, in late February 1982, swept off his feet and immediately smitten by Tucker; that
Tucker makes his head spin; that Tucker used her charms to get what she wanted from Eastwood; and
that Eastwood now daydreams about their supposedly enchanted evenings together.
c. that Eastwood and Tucker, in late February 1982, shared 10 fun-filled romantic evenings together; were
constantly, during that period, in each other’s arms; publicly “cuddled” and publicly gazed romantically
at one another; and publicly kissed and hugged.
d. that Eastwood is locked in a romantic triangle involving Tucker and Sondra Locke (“Locke”); is torn
between Locke and Tucker; can’t decide between Locke and Tucker; is involved in a romantic tug-of-
war involving Locke and Tucker; that Locke and Tucker are dueling over him; that Tucker is battling
Locke for his affections; and that when he is with Locke, Tucker is constantly on his mind.
e. that, in or about late February of 1982, there were serious problems in Eastwood’s relationship with
Locke; that he and Locke at that time had a huge argument over marriage; that he and Locke had a
nasty fight; and that Locke stormed out of his presence.
f. that after his supposed romantic interlude with Tucker, Locke camped at his doorstep and, while on
hands and knees, begged Eastwood to “keep her,” vowing that she wouldn’t pressure him into mar-
riage; but that Eastwood acted oblivious to her pleas.
Does Eastwood have a viable false-light claim? If the Enquirer featured Eastwood’s name and photograph
along with the subject of the article in a telecast advertisement, would he have a claim for appropriation?
2. June, who is hospitalized with a rare disease, is approached by a reporter who requests an interview over
the phone, which June refuses. The reporter then comes to the hospital and photographs June, over her
objection. What, if any, tort has the reporter committed?
3. Bob is the father of a deceased rape victim and is suing the television station for airing his late daughter’s
name on air. He is claiming violation of right to privacy. Has the station committed a violation of right to
privacy? What if the daughter had lived and was suing? What about the fact the name is public record?
4. Jean Valjean, who had served time for robbery, has changed his name, concealed his identity, and led an
exemplary life in another city for 20 years. A reporter discovers Valjean’s criminal history and publishes an
article in which Valjean’s true identity is revealed. Valjean’s life and career are ruined. What, if any, tort has
been committed?
A state senator brought suit against multiple defendants for conducting an investigation into his activities.
The result of the investigation was simply information that was already known by others. The senator did
not claim there was any break-in of his home, wiretapping, eavesdropping, or anything else intrusive.
Should there be a claim of violation of right to privacy? What if the senator is ashamed of his answers to
questions and trying to backpedal?
disparaging those goods or business. A defendant the plaintiff. As with defamation, however, the plain-
who falsely claims during an interview on national tiff must show the statement was published and that
television that their company is the only one of its they suffered some kind of pecuniary harm. The
kind may be liable for disparaging a plaintiff’s busi- defendant must also either know their statement is
ness that is identical to theirs. false, act with reckless disregard for the truth or fal-
Note that trade libel differs from defamation in sity of their statement, or (according to some courts)
that the false statement need not ridicule or disgrace act out of spite toward the plaintiff.

The CBS news program 60 Minutes airs a story based on a report published by the Natural Resources
Defense Council discussing the detrimental effects of pesticide use by farmers. The program highlights the
effects of the herbicide Alar, which is used by apple growers to stimulate growth and enhance apple appear-
ance. As a result of the program some consumers boycott apples and apple products. Do apple growers
have a viable cause of action against CBS and the Natural Resources Defense Council?
The same defenses that are applicable to defa- they interfere with the plaintiff’s right to hold or dis-
mation are applicable to trade libel. A defendant is pose of property by filing a false document, such as
also privileged to fairly compete with a plaintiff by a mortgage or levy of execution, they commit slan-
making general comparisons between their product der of title. The statement could have a negative
and the plaintiff’s. A competitor is in fact permitted impact on the value of the property and is proven to
to “puff” even if they are aware that their statements be untrue. Any real property rights, leases, mineral
are false and are made for the purpose of taking rights, trademarks, copyrights, and patents may all be
business away from the plaintiff. The defendant is subjected to slander of title. Filing a false lien would
not privileged, however, if they make specific false be an example of slander of title. The same intent,
allegations about the plaintiff’s product. A person defenses, and privileges applicable to trade libel
cannot be liable for trade libel if the statement is apply to slander of title. Additionally, a defendant
merely negative but true or just an opinion. has a qualified privilege to protect their own interest
by asserting a bona fide claim to property. An asser-
Slander of Title tion of infringement on a patent right is privileged as
long as the assertion is made in good faith and in the
If a defendant falsely disparages the property right of
absence of any motive of a desire to do harm.
another, they commit slander of title. For example, if
Summary
Defamation consists of the related torts of libel and the plaintiff’s reputation is not in fact injured. If the
slander. A statement is defamatory if it tends to statement involves a matter of public interest and
harm the reputation of another in such a way as to the defendant is a media defendant, the plaintiff
lower them in the estimation of the community or must prove that the statement was false. At least
deter others from associating with them. In addition one person must reasonably interpret the statement
to proving that a statement is defamatory, a plaintiff as being defamatory even if the statement could be
must also prove publication and, at the very least, interpreted in several different ways. If the defam-
negligence. atory content of the statement is not recognizable
Slander requires proof of suffering of some kind unless certain extrinsic facts are known, the plaintiff
of special harm except in cases of slander per se. must specifically show the innuendo in their plead-
Under the common law, special harm did not have ings. Expressions of opinion generally are not con-
to be proved because damages were presumed. sidered defamatory.
Under Supreme Court decisions in cases involving Defamation requires publication. Mere repeti-
matters of public concern, however, a plaintiff can- tion of a defamatory statement is considered pub-
not be awarded presumed damages unless they can lication even if the person repeating the statement
prove actual malice. does not believe it. An entire edition of a book or
A defamatory statement must have a tendency periodical is treated as one publication under the
to harm the reputation of the plaintiff even though single publication rule.
Under New York Times Co. v. Sullivan, public alleges that the online company is a publisher. If def-
officials and public figures are required to prove amation plaintiffs cannot recover from ISPs, they can
actual malice. A public figure is one who has achieved still sue the individual who posted the defamatory
“pervasive fame or notoriety” or who “voluntarily injects materials, but getting behind the anonymity of Inter-
themself or is drawn into a particular public controversy.” net messages can be extremely difficult.
A successful plaintiff can recover for compen- The right to privacy consists of four separate
satory damages, including such nonpecuniary losses torts: appropriation, unreasonable intrusion, public dis-
as loss of friendship, illness, and humiliation. Puni- closure of private facts, and false light. Appropriation
tive damages can be recovered in matters of public consists of the use of the value of the plaintiff’s name,
interest if the plaintiff is able to prove the defendant likeness, or personal attribute for the defendant’s finan-
acted with actual malice and in matters of private cial gain. Unreasonable intrusion occurs when the
concern when only negligence is shown. defendant intentionally intrudes upon the seclusion of
In certain circumstances defendants may be another if that intrusion would be considered highly
able to claim an absolute or qualified privilege of offensive to a reasonable person. Publicizing details of
immunity. Judges, lawyers, parties, and witnesses, for the plaintiff’s private life that would be highly offensive
example, have absolute immunity for the statements to a reasonable person and would not be of legitimate
they make during judicial proceedings. Reports per- concern to the public constitutes public disclosure of
taining to public proceedings, as well as statements private facts. If the details publicized are contained in a
made to those having the capacity to act in the public public record, no tort is committed. The so-called false-
interest, are subject to a qualified privilege. Qualified light cases occur when the plaintiff is put in the public
privileges can be lost if they are abused. eye in a false light that would be highly offensive to a
The Internet makes the risk of defamation more reasonable person.
likely because it is a global media that is highly accessi- A false statement made against a plaintiff’s
ble and that promotes anonymity. Nevertheless, since business, product, or property opens one to a claim
the Communications Decency Act (CDA) of 1966, it of injurious falsehood. A false statement made in
has become increasingly difficult for those damaged reference to the plaintiff’s goods or business is usu-
by defamatory statements to recover against Internet ally referred to as trade libel, but a false statement
Service Providers (ISPs). This act virtually eliminates in reference to the property rights of the plaintiff is
all liability in defamation actions in which the plaintiff referred to as slander of title.
Key Terms
absolute privileges injurious falsehood
Absolute defense to defamation, regardless of False disparagement of a plaintiff’s business,
defendant’s motives product, or property rights
actual malice innuendo
Acting with knowledge of the falsity of one’s Use of extrinsic facts to convey the defamatory
statement or with reckless disregard as to the meaning of a statement
truth or falsity of one’s statement libel
appropriation Written defamatory statements
Use of the value of plaintiff’s name or picture for pecuniary
defendant’s financial gain Monetary; that which can be valued in terms of
defamation money
Statement that tends to harm the reputation of presumed damages
another, encompassing both libel and slander Damages that ordinarily stem from a defamatory
false light statement and that do not require the showing
Representing the plaintiff to the public in a way of actual harm
that would be highly offensive to a reasonable publication
person Hearing or seeing of a defamatory statement by
someone other than the plaintiff
public disclosure of private facts slander of title

Publicizing facts about a person that are of a False disparagement of the plaintiff’s property
type that would be highly offensive to a reason- rights
able person and not be of legitimate concern for slander per se
the public Slander in which pecuniary harm can be assumed
public figure special harm
One who has achieved persuasive fame or Harm of a pecuniary nature
notoriety or who becomes involved in a public trade libel
controversy False disparagement of the plaintiff’s goods or
qualified privileges business
Privilege that applies only when a defendant acts unreasonable intrusion
on the basis of certain well-defined purposes Intentional intrusion upon the seclusion of
slander another if the intrusion is considered highly
Oral defamatory statements offensive to a reasonable person
Review Questions
1. Why is defamation a complex tort? 11. How many people must reasonably understand
that the defendant’s statement is referring to the
2. How did New York Times v. Sullivan change the plaintiff in order for defamation to be proved?
face of defamation? a. Must the defendant refer to the plaintiff?
3. Why is defamation seldom litigated? b. Must the defendant refer to the plaintiff by
name?
4. What is the difference between libel and c. Can the plaintiff recover if the defendant’s
slander? statement is made in reference to a group
to which the plaintiff belongs?
5. What are the key features that shape defama-
tion law? 12. What must a judge determine before a jury can
determine that a statement is defamatory?
6. What is the special-harm requirement?
a. In what four cases does special harm not 13. When must a plaintiff show in his pleadings the
have to be proved? innuendo of the defendant’s statement?
b. What are presumed damages, and what is 14. Who has the burden of proving the truth or fal-
their relationship to special harm? sity of the defendant’s statement?
c. What limitations has the U.S. Supreme
Court put on presumed damages? 15. Can the survivors of a deceased person sue for
defamation based on statements made about
7. What are the four exceptions to the slander the deceased?
special harm requirement?
16. Can an expression of pure opinion be
8. What must a plaintiff prove to recover for defamatory?
defamation?
a. What if the opinion implies factual matters?
9. Must a plaintiff’s reputation actually be injured b. What do the courts consider in deciding if a
for them to recover for defamation? Must their statement is an opinion?
reputation be tarnished in the eyes of the
majority of the community? 17. What is publication?
a. What is required for a publication to occur?
10. Who bears the burden of proof that a state- b. Does repetition of a defamatory statement
ment was false if it involves a matter of public constitute publication?
interest and defendant is a media defendant?
18. Why was defamation considered a strict liabil- 22. What is the name of the legislation created to
ity tort under the common law? protect ISPs from defamation?
a. How did New York Times v. Sullivan change 23. How was the tort of invasion of privacy
that situation? created?
b. What is the definition of actual malice, and
when must it be proved? 24. What four torts constitute invasion of privacy,
c. Who is considered a public figure, and why and how are they all related?
are public figures given less protection than
private individuals? 25. Define and give an example of each of the
following:
19. What damages can a plaintiff recover in a defa- a. appropriation
mation case? b. unreasonable intrusion
a. Can punitive damages be awarded? c. public disclosure of private facts
b. Can presumed damages be awarded? d. false light
20. What are retraction statutes, and how do they 26. What must be shown for a false-light action to
operate? succeed?
21. What is the difference between an absolute 27. What is injurious falsehood?
and qualified privilege? a. What is the difference between trade libel
a. Who enjoys an absolute privilege? and slander of title?
b. Under what circumstances is a defendant b. How does trade libel differ from
protected by a qualified privilege? defamation?
c. How can a qualified privilege be lost?
Practice Exam
True-False
1. Defamation involves the courts’ attempt to bal- 6. In a case where the plaintiff is engaged in crim-
ance freedom of expression against protection inal conduct, pecuniary harm can be assumed.
of individuals’ reputation.
7. Under contemporary court decisions, pre-
2. A vast number of defamation cases are liti- sumed damages can never be awarded unless
gated, and most of those are won, especially the plaintiff can prove actual malice.
against media defendants.
8. A defamation plaintiff must prove that the
3. Libel includes statements on records and com- defendant’s statement is defamatory in accord
puter tapes but does not include words dic- with at least one interpretation a reasonable
tated to a stenographer. person might make.
4. In cases of slander, pecuniary losses are not 9. A statement can be defamatory if spoken only
necessary. to the plaintiff.
5. Loss of friendship and emotional distress have 10. A statement that is substantially true, even if it
sufficient pecuniary value for slander. is not true in all respects, is considered a true
statement.
11. A plaintiff’s reputation must actually be injured of statement if the statement is made within
to be considered defamatory. the parameters of the generally accepted
standards of decent conduct and is in the
12. Under today’s U.S. Supreme Court decisions, a context of a close personal or business
defendant has the burden of proving that their relationship.
statement is true.
27. A privilege can be lost if the statement is made
13. Survivors of a deceased person can sue for def- to more people than necessary to protect
amation because of statements made against the interest in question or if more damaging
that person. information is disclosed than is reasonably
14. A partnership or corporation can be defamed. necessary.
15. Statements are more likely to be considered 28. With the growing use of the Internet, defama-
opinion if they are precise and easily verifiable. tion is more prevalent than ever.
16. A statement implying undisclosed facts may 29. Invasion of privacy originated as the result of a
not be defamatory if it is an opinion. Law Review article.
17. One who repeats a defamatory statement is 30. Appropriation occurs when a defendant uses
liable even if they do not believe it to be true. the plaintiff’s name or picture for their own
financial gain.
18. Those who distribute or sell defamatory mate-
rials are liable even if they can show they 31. A defendant can be liable for appropriation for
had no reason to believe the materials were using the plaintiff’s name only.
defamatory. 32. The tort of unreasonable intrusion requires
19. Defamation is essentially a strict liability tort. proof that the defendant negligently
intruded upon the seclusion of another, and
20. A person can become a public figure merely by that the intrusion was disturbing to the plaintiff.
becoming involved in a controversy of public
interest. 33. The physical intrusion required in a claim of
unreasonable intrusion can involve the use of
21. Unless the matter is not one of public interest, mechanical devices.
U.S. Supreme Court decisions require plaintiffs
to prove that the defendant acted with reckless 34. Public disclosure of private facts occurs when
disregard at the very least if they are to recover private details are published about the plain-
presumed damages. tiff’s life that would be highly offensive to a
reasonable person.
22. Punitive damages may be awarded in mat-
ters of private concern with only a showing of 35. Public disclosure of private facts is a viable
negligence. claim even if the details published are con-
tained in a public record.
23. A defamation plaintiff who suffers no quantifi-
able damages cannot go to trial. 36. A false-light claim can also be considered
grounds for defamation.
24. Absolute privileges are enjoyed by judges,
lawyers, parties, and witnesses during judicial 37. A false-light claim is easier in some respects to
proceedings unless their motive is defamation. prove than defamation.
25. Absolute immunity applies to spousal 38. To recover for trade libel, a plaintiff must show
communications. that the defendant made a false statement that
ridiculed or disgraced the plaintiff’s good or
26. An individual may be qualifiedly privileged business.
to act for the protection of the recipient
39. A competitor is not privileged to “puff” if they 40. The same intent, defenses, and privileges
know their statements are false and they intend applicable to trade libel apply to slander of
to take business away from the plaintiff. title.
Matching
GROUP 1
________ 1. Radio program derived from written script a. innuendo
________ 2. Requires proof of special harm b. opinion
________ 3. Required when extrinsic facts are needed to prove defamation c. publication
________ 4. Made by a reviewer d. slander
________ 5. Requirement that statement be seen or heard by someone e. libel

other than plaintiff
GROUP 2
________ 1. Reckless disregard for truth or falsity of statement a. absolute privilege
________ 2. Achieved pervasive fame or notoriety b. qualified privilege
________ 3. Discourage defamation suits c. public figure
________ 4. Enjoyed by federal and high-ranking state officials d. retraction statutes
________ 5. Protects records from court cases and legislative hearing e. actual malice
GROUP 3
________ 1. Use of value of plaintiff ’s name for financial gain a. false light
________ 2. Examining the plaintiff ’s private bank account b. unreasonable
intrusion
________ 3. Offensive publicity c. appropriation
________ 4. False disparagement of product d. slander of title
________ 5. False information about patent or copyright e. trade libel
Fill-in-the-Blank
1. In today’s defamation law, the standard 3. ____________ refers to defamation involving
of proof a plaintiff must meet is determined written words, whereas ____________ refers to
by the ____________ of the plaintiff and the defamation involving oral words.
____________ involved.
4. Under the common law, damages were
2. Two examples of exception to the special harm ____________ in cases of libel if the defamatory
requirement for slander are _____________ and nature of the statement was obvious.
______________.
5. Defamation requires proof that the defendant’s 10. A(n) ____________ ____________ is one who
statements are ___________ and ____________. voluntarily injects themself into or is drawn into
a public controversy.
6. Under the ____________ ____________ rule,
each copy of a book is considered a separate 11. The four torts of invasion of privacy
defamation. are ____________, ______________,
_______________, and ____________.
7. Under common law, defamation was a
____________ tort. 12. ____________ statutes may bar a plaintiff’s
recovery if the defendant withdraws a defama-
8. If a plaintiff is a public official or public fig- tory statement within a given time period.
ure, they can recover for defamation only if
they can show that the defendant acted with 13. A privilege can be lost if it is ____________.
____________ ____________.
9. Privileges can either be ____________ or

__________.
Multiple-Choice
1. Defamation c. the plaintiff’s reputation must be tar-
a. is a fairly simple tort. nished in the eyes of the majority of the
b. is, under the common law, outside the pro- community.
tection of the First Amendment. d. all of the above.
c. is, after New York Times v. Sullivan, outside 5. An opinion
the protection of the First Amendment.
d. all of the above. a. was considered defamatory under the com-
mon law unless it fell under the privilege of
2. The New York Times v. Sullivan court fair comment.
a. encouraged robust debate that may include b. is not considered defamatory by the U.S.
sharp attacks on government and public Supreme Court if it is a pure expression of
officials. opinion.
b. agreed with the common-law rule that defa- c. can be defamatory if it implies factual
mation plaintiffs could recover if they could matters.
show that the defendant’s remarks were false. d. all of the above.
c. believed that defamation was a matter of 6. Defamation is allowed for
state law.
d. all of the above. a. living persons.
b. estates.
3. Special harm need not be proved in cases of c. all those hearing the statement.
slander in which it is alleged that the plaintiff d. none of the above.
a. has engaged in criminal conduct. 7. Publication
b. has a venereal disease.
c. is unfit to conduct their business, trade, or a. does not occur if the statement is not
profession. understood by the person hearing it.
d. all of the above. b. occurs when someone overhears the defen-
dant make a statement to the plaintiff.
4. To be considered defamatory, a statement c. must be intentional.
a. must actually injure the plaintiff’s reputation. d. all of the above.
b. the plaintiff must prove that at least one
person understood it to refer to the plaintiff.
8. A public figure is/are 11. A qualified privilege protects

a. one who has achieved fame. a. those who have the capacity to act in the
b. one who involuntarily inject themselves into public interest, such as prosecutors, when
a particular public controversy. they make defamatory statements.
c. those who wish to be famous. b. someone who makes a defamatory state-
d. none of the above. ment for the purpose of gaining a competi-
tive advantage.
9. A private figure c. those who make defamatory statements to
a. must prove actual malice. protect their own interests, no matter how
b. who successfully proves defamation can insignificant those interests are, as long as
recover pecuniary losses but not nonpecu- they are sufficiently important, and the defa-
niary ones. mation is directly related to those elements.
c. who successfully proves defamation, with- d. all of the above.
out actual malice, can never recover puni-
tive damages. 12. False-light claims require proof that
d. all of the above. a. the plaintiff is put before the public in a
false light that would be highly offensive to
10. The Communications Decency Act (CDA) a reasonable person.
a. was created in 1966. b. the defendant deliberately portrayed the
b. removes liability for ISPs as publishers. plaintiff in a false light.
c. removes liability for ISPs as distributors. c. the publicity was defamatory.
d. none of the above. d. all of the above.
Practice Pointers
Suppose your attorney asked you to find out what happened when the Gerry Spence case was remanded to
the trial court. Was Spence awarded damages against Hustler? If so, in what amount? How would you go about
getting this information given that the lower court decision was never published?
You could contact Gerry Spence’s law office and talk to his staff about the case. But how would you get
the telephone number? First you would look at the appellate decision to find the name of the city and state
in which Spence’s attorney is practicing. Knowing the probable location of Spence’s practice, you could look
in the Martindale-Hubbell Law Directory, a compilation of the names of attorneys, their areas of practice, and
personal data, including phone number, fax number, address, e-mail, and website.
Alternatively, you could go to the trial court to which the case was remanded and, using the court’s index-
ing system, pull the court file. If you went to the court clerk’s office, you could ask for the plaintiff or defendant’s
index and look under Spence or Hustler. In this file you might find, in addition to information about the disposi-
tion of the Spence matter, a gold mine of information, including copies of interrogatories, requests for produc-
tion, and various motions that may be well researched and even well written. If the case is recent enough, you
might use the jury instructions to assist in drafting jury instructions for similar cases. Once the file is reviewed,
copies of exemplary documents should be copied. If the case is particularly instructive, don’t be afraid to ask the
attorneys or their staff questions or to see their files. Remember that imitation is the sincerest form of flattery.
On remand, the Spence case might have been assigned to another judge. If that were so, you could con-
tact the original judge, whose name would be included in the appellate decision. The judge or his staff would
probably be glad to find out who the assigned judge was.
Most appellate decisions are not published, and memorandum decisions are often not readily available.
To get a copy of a memorandum decision, you may have to go to the clerk of the appellate court and look
in an index that is similar to that used by the trial courts. Once again, you might want to look in these files at
briefs to take advantage of the research done in preparing them. You might also look for transcripts of the oral
arguments, which may upon request of the clerk’s office be available on audiotape.
There are a lot of lower court decisions published on the online legal research sites such as LexisNexis
and Westlaw. You can search statutes, cases, articles, journals, and much more. Knowing what to look for as far
as a case name or jurisdiction will help in your search.
Tort Teasers
1. Review the hypothetical scenario at the beginning of this chapter. What will the newscaster have to prove
if she sues for defamation? Are there any elements you anticipate she will have difficulty proving? Do you
think she would be considered a public figure? Would it be difficult for her to prove libel or slander? Why?
What must the plaintiff prove in the following cases?
2. Time Magazine publishes a report that Plaintiff and her husband, both of whom are wealthy socialites,
were granted a divorce based on adultery when in fact the divorce was granted on other grounds.
The court’s final judgment reads (in part): “According to certain testimony on behalf of the defendant,
extramarital escapades of the plaintiff were bizarre and of an amatory nature which would have made
Dr. Freud’s hair curl. Other testimony, in plaintiff’s behalf, would indicate that defendant was guilty of
bounding from one bed-partner to another with the erotic zest of a satyr. The court is inclined to discount
much of this testimony as unreliable. Nevertheless, it is the conclusion and finding of the court that neither
party is domesticated, within the meaning of that term as used by the Supreme Court of Florida…. In the
present case, it is abundantly clear from the evidence of marital discord that neither of the parties has
shown the least susceptibility to domestication, and that the marriage should be dissolved.”

Time’s article reads as follows:

“Divorced. By Russell A. Firestone Jr., 41, heir to the tire fortune: Mary Alice Sullivan Firestone, 32, his
third wife; a onetime Palm Beach schoolteacher, on grounds of extreme cruelty and adultery; after six
years of marriage, one son; in West Palm Beach, Fla.” The 17-month intermittent trial produced enough
testimony of extramarital adventures on both sides, said the judge, “to make Dr. Freud’s hair curl.” Time,
Inc. v. Firestone, 424 U.S. 448 (1976).
3. The manager of Defendant’s motel sends a certified letter to Plaintiff, who had been a guest at the
motel. In the letter he alleges that Plaintiff left without making payment and “accidentally packed” sev-
eral items of motel property. The letter is received by Plaintiff’s maid and read by Plaintiff’s wife. Defen-
dant is unaware that the Plaintiff is married. Barnes v. Clayton House Motel, 435 S.W.2d 616 (Tex. 1968).
4. Parents brought defamation by implication action against newspaper and author for libel in connection
with column that, while not mentioning parents and teenager by name, quoted from teenager’s obitu-
ary and described events surrounding his suicide. Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614
(Tex. 2018).
5. What might the defendants want to argue in the following case? Defendants file a letter with the griev-
ance committee of the Association of the Bar of the City of New York alleging that Plaintiff has been
fraudulent and dishonest in his practice as an attorney. Plaintiff claims that such allegations are defama-
tory. Wiener v. Weintraub, 239 N.E.2d 540 (N.Y. 1968).
6. Former employee brought action against former employer alleging that former employer had slan-
dered her and her responses for request for employment references. When spoken words, such as alle-
gations of stealing or dishonesty, were never used, but were merely assumed to be such by the listener,
innuendo relied on as fact does not alone support a judgment of slander per se and a concomitant
award of compensatory and punitive damages. What does the plaintiff need to prove to show slander in
this case? Rainey v. Shaffer, 456 N.E.2d 1328 (Ohio 1983).
7. Philip and Barbara, high school teachers, filed a lawsuit against the school district and its principal for
slander based on statements made by the principal during a meeting with Philip and Barbara. The
principal accused the two of adultery after they were discovered in a locked bathroom. The principal also
told them that they were subject of rumors by the staff and students who had observed them spending
time together including the incident in the bathroom. Can the plaintiffs prove that they were slandered?
Williams v. Lancaster County School District, 369 S.C. 293 S.E.2d 286 (S.C.App. 2006).
8. Plaintiff, a manufacturer of loudspeaker systems and other audio equipment, claims that Defendant, a
consumer product-testing organization, published false statements in its review of Plaintiff’s loudspeak-
ers. What claim might Plaintiff file in addition to a defamation claim? Bose Corp. v. Consumers Union,
508 F. Supp. 1249 (C.D. Mass. 1981).
Internet Inquiries
When locating an attorney in or outside your state, you can often do your searching online. Martindale-
Hubbell has an online directory (www.martindale.com), as do most state bar associations. Several other online
resources are available, including
West Lawyer Directory (www.lawoffice.com)
Legal Industry Directory (www.lawinfo.com)
U.S. Law Attorney Directory (www.web.uslaw.org)
1. Go to the Martindale-Hubbell online directory and find the listing for the law firm to which Gerry Spence
belongs.
a. What is the name of the law firm?
b. When was the firm initiated?
c. What areas of practice is the firm involved in other than those in which Mr. Spence is active?
d. Where does the firm have offices?
2. Go to the online West Lawyer Directory (at the web address given before question 1) and look for Gerry
Spence. What additional information do you find about him that you did not find at Martindale-Hubbell?
3. Go to the Legal Industry Directory and U.S. Law Attorney Directory (at the web addresses given before
question 1) and look up one of the areas in which Gerry Spence practices. In which of these directories
do you find a listing for Mr. Spence under his area of practice?
You have been called in by your supervisor to do some preliminary work on a potential defamation
case involving Ramona, a medical technician who was the victim of a vicious smear campaign con-
ducted by members of the medical organization where she worked after it was discovered that she
was about to publicly reveal their unethical billing practices. Although ultimately it became unneces-
sary for Ramona to testify against the medical group (because prosecutors discovered another source
of the same information), Ramona believes that her name has been irreparably damaged. She has been
accused by her employer of lying, of stealing monies, and of being involved in other unethical prac-
tices, all of which Ramona vehemently denies.
What will Ramona need to prove in order to recover for defamation, and what evidence will you need to
gather to support her claim? What damages can she recover?
3
Part
Whom to Sue
Chapter 14: Vicarious Liability
Chapter 15: Joint Liability
Chapter 14
Vicarious Liability
Chapter Topics
Overview of Vicarious Liability Imputed Contributory Negligence
Employer–Employee Relationship Parental Liability
Employers–Independent Contractors
Bailments
Chapter Objectives
• Identify the circumstances in which an employer • Recognize situations in which contributory
is vicariously liable for the acts of an employee or negligence is imputed.
an independent contractor. • Identify the circumstances in which parents are
• Distinguish between an employer–employee vicariously liable for the acts of their children.
relationship and an employer–independent
contractor relationship.
• Identify the exceptions to the bailor-nonliability
rule as applied to the owners of automobiles.
L et us take a brief excursion into the not-too-distant future when you have completed your program of study
and have assumed a position as a legal assistant. Suppose you are asked by your supervising attorney
to draft a contract, and the attorney, who is called out of town on a personal emergency, never reviews the
contract. As they dash out of the office they yell back at you to be sure that the contract is signed by the par-
ties within the week. Before you can utter a word of protest, they are gone. Can they be held liable for any
provisions in the contract that eventually prove detrimental to the client?
Suppose that your attorney asks you to do a research project in the library. While en route to the library, you
happen to pass a very elite clothing store, which you know is having an outrageous one-day-only sale. Knowing
that this is your only chance to take advantage of these bargains, you stop by the store for a few minutes. You
put your briefcase on the floor, so your hands are free to do some serious shopping. Another customer fails to
notice your briefcase, catches their heel on its handles, and falls to the ground. The tumble they take is a bad
one, and paramedics have to be called. Will this person be able to sue your employer, since you were engaged
in your shopping diversion during your work time?
CHAPTER 14 Vicarious Liability | 433
Now suppose that, unnerved by the incident at the clothing store, you rush off to the library. Once there you
immerse yourself in your research. Suddenly whose face appears among the book stacks but your ex-spouse’s.
Because you have only recently gotten divorced, within 30 seconds the two of you are engaged in a full-scale
verbal war. Without warning, some negative urge possesses you, and you find yourself using your briefcase
(the same one that just wreaked havoc on the customer) as a weapon. Will your ex be able to recover from your
employer for the injuries sustained as a result of your antagonistic activities? These and other related liability
questions are explored in this chapter.
Overview of Vicarious answer.” This doctrine applies to negligent torts,

intentional torts, and strict liability actions (see
Liability Exhibit 14–2). The rationale most commonly used to
justify this doctrine is that employers should consider
Under the doctrine of vicarious liability, an
the expense of reimbursing those injured by their
individual is held liable for injuries to another and
employees as part of the cost of doing business. As
did not cause the injury but has a particular legal
a practical matter, keep in mind that typically the
relationship to the person who acted negligently
employee is judgment-proof, whereas the employer
or intentionally. These acts are imputed to them
is the proverbial “deep pocket.”
because of the special relationship they hold to the
For the doctrine to be applicable, the employee
tortfeasor. The most common relationship is the
must be acting “within the scope and furtherance
one between employer and employee, in which
of their employment” (Restatement [Second] of
the employer is held vicariously liable for the tortious
Agency § 229). An employee will be considered
acts of their employee. Vicarious liability may also
to be doing this as long as they are intending
arise in relationships between employers and inde-
to further their employer’s business purpose.
pendent contractors and in activities involving joint
An employer may not be liable if the employee
enterprises, between parent and child, and between
engages in activities that were not directed or con-
spouses. Furthermore, automobile-consent statutes
trolled by the employer. If the means the employee
and the family-purpose doctrine contain elements
chooses are indirect or foolish or if their intent
of vicarious liability for automobile owner and driver
is a combination of serving their employer and
cases (see Exhibit 14–1).
meeting their personal needs, they will be viewed
as acting “within the scope and furtherance of their
employment.” Travel to and from work, however, is
Employer–Employee generally not included as falling within the scope
Relationship of employment.
An employer is vicariously liable for the acts of an Intentional Torts

employee under the doctrine of respondeat superior,
What if an employee intentionally injures another?
which translates as “let the person higher up
The employer will still be liable as long as the
tort is reasonably connected to the employee’s
job. A company may be liable, for example, for
Exhibit 14–1 Examples of Vicarious Liability
false imprisonment committed by an overzealous
Employers–Employees
security guard who unreasonably detains a
customer they suspect of shoplifting or for assault
Employers–Independent Contractors
and battery committed by an employee who resorts
Members of Joint Enterprise to Ironman-style techniques in trying to collect a
Automotive-Consent Statutes debt for the company. The employer will not be
Family-Purpose Doctrine liable if the employee’s acts are driven by some
Parental Liability purely personal motive, such as vengeance or
greed.
434 | Part III Whom to Sue
Exhibit 14–2 Employer–Employee Liability (Respondeat Superior)
Employer Is Liable Employer Is Not Liable

• Employee is acting within the scope and furtherance of • Employee goes on “frolic” or “detour.”
employment.
• Employee commits intentional tort reasonably connected • Employee is traveling to or from work.
Exhibit
to job.
1–3 Torts versus Crimes
• Employee’s deviation from business purpose is reasonably
foreseeable.
• Employee commits acts expressly forbidden by employer
but within scope of employment.
• Employee negligently delegates their rights and authority to
another without the employer’s authorization.
Frolics and Detours employee does so anyway? Yes, as long as the

acts are done within the scope and furtherance of
An employer is not vicariously liable when an
employment. Suppose a store expressly forbids
employee goes on a “frolic” or “detour” of their
its employees from using physical force to detain
own. Suppose an employee of a pizza parlor, having
someone suspected of shoplifting. The store will
completed their deliveries, drives 10 miles out of
nevertheless be vicariously liable for the negligence
their way back to their house to pick up a paper
of its employees who countermand those orders,
they forgot for school. Their 10-mile side trip would
and wrestle to the ground an uncooperative
likely be considered a “frolic” or “detour” and,
customer whom they suspect of shoplifting.
under the traditional view, their employer would not
be vicariously liable for any acts of negligence they
might commit. However, if the employee became Delegation of Authority
involved in an accident while en route back to
or Rights
the pizza parlor, the employer would once again
become vicariously liable because once they got Vicarious liability may or may not exist when an
back on track for work, the employee would be employee delegates their authority or rights to
acting within the scope of their employment. another without the employer’s authorization. What if
Under the more modern view, the employee an employee hires someone without the employer’s
would be seen as acting within the scope of their permission? Or what if they allow an unauthorized
employment if their deviation from their business person to use the employer’s property, such as
purpose was “reasonably foreseeable.” Under the company car, and that person commits a tort?
this approach an employee whose deviation is In both cases vicarious liability would exist if the
slight in terms of time and distance is considered employee acted negligently. If the employee knew
acting within the scope of their employment even or should have known that the individual lacked skills
when they are on a personal errand. The reasoning and would be unable to safely complete the job, the
underlying this approach is that employers should employer will be vicariously liable. Notice that the
be liable for those things that can generally be issue of vicarious liability hinges on the employee’s
anticipated as one of the risks of doing business. negligence and not the third party’s negligence,
It comes down to a question of time, distance, and because vicarious liability is based on the link exist-
reasonableness. ing between the employer and the employee.
An interesting case about scope and course
of employment and sexual harassment in the
Forbidden Acts workplace is State v. Schallock, 189 Ariz. 250, 941
Is the employer liable even if they explicitly forbid P.2d 1275 (1997). Read Schallock to see if you agree
the employee to engage in certain acts and the with Justice Feldman’s opinion:

1. Mr. Stone, a car salesman, is involved in a fatal accident on the way to pick up Mr. Urban, a customer. Is
the car dealership liable for the injuries Stone caused, considering that no one at the dealership authorized
or even knew about his trip? What factors would you consider in answering this question?
2. Richard, an employee of Staggs-Bilt Homes, is hired to patrol several subdivisions that are under
construction. He is instructed to observe and report suspicious behavior but not to get involved. While
filling up a Staggs truck at a service station, Richard pulls his gun from his holster, either in horseplay or
to show Rex, the service station attendant. The gun accidentally discharges, injuring Rex. Is Staggs-Bilt
Homes vicariously liable for Richard’s negligence?
3. A janitor negligently starts a trash fire when he burns the refuse. He was specifically ordered not to
dispose of trash by burning it. Is his employer vicariously liable?
4. A visitor to a worker camp on a large vineyard was stabbed by one of the workers who lived there after an argu-
ment regarding his wife. The altercation took place in the evening, after the workers were finished in the fields.
The visitor died and their family is suing the farm under the theory of respondeat superior. Is the farm liable?
5. Bob was a delivery driver for ABC corporation. He was getting ready to head out for his daily deliveries when
his boss asked him to run a paper by the boss’s daughter’s school on the way. On the way to the school, Bob
was involved in an automobile accident which resulted in injuries to himself and the other driver. Can Bob sue
the employer? What about the other driver? Does respondeat superior apply in this case?
6. In accordance with directions by his employer, a clerk takes home papers to work on. He is involved in an
accident on his way back to work. Should his employer be held vicariously liable?
Employers–Independent in the parties’ contract does not determine the

nature of their relationship.
Contractors The mere fact that an employer refers to someone
as an independent contractor is not conclusive in clas-
Generally, one who hires an independent contrac-
sifying the relationship. The nature of the relationship
tor will not be held vicariously liable for the tortious
and not the label that is attached to the relationship
acts of that person. Exceptions exist, but before
determines its classification. Therefore, an employer
dealing with those exceptions, let us first distinguish
cannot evade liability simply by casting the label of
between an employee and an independent contrac-
independent contractor on an employee.
tor. An employee is typically viewed as someone
under the control of the person who hired them; an
independent contractor, although hired to produce Exceptions to Nonliability Rule for
certain results, is considered their own boss. An
independent contractor works at their own pace, in Independent Contractors
their own way, under their own supervision. Several exceptions to the nonliability rule for inde-
Under this definition, would a newspaper carrier pendent contractors exist. First, if the employer
be considered an employee or an independent themself is negligent in dealing with an independent
contractor? Santiago v. Phoenix Newspapers, Inc. contractor, they can be found liable. For example, if
(794 p.2d 138 (Ariz. 1990) raises this question. The the employer hires someone that they know will not
court considers a number of factors, including the perform the work safely (such as an individual who
amount of control exercised by the employer over has a poor safety record), or if they fails to inspect
the carrier’s work, the nature of the carrier’s work, the work after it is done, the employer can be liable even
length of employment, the method of payment, and if the injuries stem from the contractor’s negligence
so on. Read Santiago and notice that the language (see Exhibit 14–3).
Case
Lee v. Pulitzer Publishing Co.
81 S.W.3d 625 (MO, 2002)
DRAPER III, Judge
Jogger who was injured by newspaper carrier brought the Agreement. Carriers are responsible for the costs of
negligence action against newspaper and the owner of conducting and operating their businesses, including the
the route. The Circuit Court, City of St. Louis, Nannette provision of office space, transportation vehicles, equip-
A. Baker, J., granted summary judgment to newspaper. ment, and other supplies. The Agreement specifies Pulit-
Jogger appealed. The Court of Appeals, George W. zer “is interested only in the results to be obtained by the
Draper, III, J., held that carrier was an independent con- Carrier ... and the manner and means to be employed
tractor, rather than a newspaper employee, and thus by the Carrier are matters entirely within the authority
the newspaper was not liable to jogger. and discretion of the Carrier over which [Pulitzer] has no
Seung Lee (hereinafter, “Lee”) appeals from the trial authority or jurisdiction.”
court’s judgment granting summary judgment in favor of Further, the Agreement requires that carriers maintain
Pulitzer Publishing Company (hereinafter, “Pulitzer”). Lee liability insurance on all vehicles and present evidence of
claims the trial court erred in granting summary judgment such coverage upon Pulitzer’s request. Carriers must carry
in favor of Pulitzer because there were genuine issues of liability insurance in the amount of $100,000 for bodily
material fact with respect to whether Pulitzer’s newspa- injury of each person, $300,000 bodily injury for each
per carriers were independent contractors or employees. occurrence, and $25,000 property damage on all vehicles.
Lee alternatively claims if the carriers are deemed inde- Carriers are responsible for paying all payroll expenses
pendent contractors, then the trial court erred in granting for their employees and must file their tax returns on the
summary judgment because there are genuine issues of basis of their status as independent contractors.
material fact as to whether Pulitzer negligently selected The Agreement mandates that carriers deliver the
and retained these carriers. We affirm. daily and Sunday papers according to the perfor-
Pulitzer is a corporation who publishes, markets, mance standards set forth in the Agreement. Pulitzer
sells and distributes the St. Louis Post–Dispatch. As retains the sole discretion to amend these performance
a part of its marketing, sales and distribution efforts, standards upon ten days’ prior written notice. Pulitzer
Pulitzer has established a network of carrier routes, also designates the carriers’ specific delivery area and
each of which encompasses an exclusive geographic provides carriers with a customer list. Pulitzer prohib-
territory. Some carrier routes are owned and operated its carriers from disclosing the customer list or using
by Pulitzer while others are owned and operated by the list to deliver any other product or material except
individuals Pulitzer has designated as independent those designated by Pulitzer. Carriers must return the
contractors pursuant to a Home Delivery Service customer list upon termination of the Agreement.
Agreement (hereinafter, “the Agreement”). The Agree- The Agreement sets forth the fee schedule for delivery
ment governs several areas, inter alia, relationship, of each paper according to the size of the publication.
liability, taxes, delivery, fees, billing and collections, Moreover, the Agreement details how customer billings
carrier delivery area, assignments, delivery lists, and and collections will be handled. Pulitzer determines all
termination. prices charged to the subscriber. Upon Pulitzer’s request,
The Agreement states that carriers are self-employed the carriers prepare and distribute bills to subscribers and
independent contractors and not employees of Pulitzer. use their best efforts to make collections of the monies
Carriers have the right to choose their own employees owed. If the carriers collect fees, Pulitzer provides the car-
and “shall have the right to engage such other sub- riers with a weekly accounting statement. Pulitzer does
contractors as the Carrier may deem necessary ... and not hold carriers responsible for non-collection from sub-
the Carrier shall exercise the sole and exclusive control scribers. Pulitzer offers a collection incentive bonus based
and supervision over all said persons.” Carriers may upon the levels of collections carriers are able to retrieve.
engage in other business activities so long as it does If Pulitzer changes the delivery prices, it informs the
not interfere with the performance of their duties under carriers, and they notify the subscribers. Finally, Pulitzer
(continued)
Case | Lee v. Pulitzer Publishing Co. (continued)

may terminate the carriers’ obligation to collect fees with In October 1992, Carron struck and severely injured
sixty days’ prior written notice. a jogger while delivering papers along Route 261.
An important part of the Agreement at issue in this Shortly thereafter, in 1993, Pulitzer chose to terminate
case is the “Assignment by Carrier” section. It states its agreement with Carron.
that the carriers have “the right to sell and assign all or Upon Pulitzer’s termination of the Agreement, Carron
any portion of its rights and obligations under this Agree- entered into a contract to sell Route 261 to Rommel
ment at any time to any person for such compensation Medrano (hereinafter, “Medrano”) for $90,000. No money
or payment as may be agreed upon between the Carrier changed hands with respect to this transaction, and
and the assignee ...” with some caveats. First, carriers Carron remained the active operator of the route. Carron
must give thirty days’ advance written notice and must hired Jason Meriwether (hereinafter, “Meriwether”) to
provide Pulitzer with all written contracts which comprise drive the route.
the agreement, along with any additional documentation Under the terms of the Agreement, Pulitzer had to
Pulitzer deems necessary to evaluate the prospective receive notice of the sale, together with all information
carrier’s ability and fitness to perform under the Agree- regarding the purchaser. While Pulitzer was required to
ment. Second, Pulitzer must give prior written approval approve the sale, it did not have to select a purchaser,
of any such assignment and may withhold approval for nor did it have the right to select the subcontractor the
any reason so long as it is made in Pulitzer’s reasonably purchaser could use in carrying out its responsibilities
good faith business interest. Third, carriers agree to train under the Agreement.
the new carrier for a reasonable period of time, and upon Medrano entered into a new Agreement with Pulitzer
completion of this training, Pulitzer will provide the orig- on August 2, 1993. Medrano and Carron were careful
inal carrier with a written release from any other obliga- to give Pulitzer the impression that Medrano was Route
tions under the Agreement. 261’s owner. Medrano attended meetings at the St.
The Agreements devotes several paragraphs to termi- Louis Post–Dispatch. Carron opened a business checking
nation under the Agreement. Initially, this section states account and rented a post office box in Medrano’s name.
that the Agreement shall remain in effect until Pulitzer He also signed up for electronic voice mail for which
ceases publication of the St. Louis Post–Dispatch, unless Medrano provided the prerecorded greeting. Medrano
otherwise terminated. Should Pulitzer determine that a received the bills for the newspapers purchased at his
carrier has failed to perform fully any of its obligations set rented post office box.
forth under the Agreement, it may terminate the Agree- On April 8, 1999, Lee and a friend were jogging
ment by providing the carrier with written notice detailing on the sidewalk along the west side of Hanley when
the reasons for termination. Additionally, Pulitzer may ter- a van driven by Meriwether crossed into the opposite
minate the Agreement for any conduct on the part of a lane of traffic, left the road, and struck both of them.
carrier, or any employee, subcontractor, or other person Lee’s friend was pronounced dead at the scene. Lee
under the control of the carrier which would constitute sustained several serious injuries.
fraud, misrepresentation, theft, conversion, or dishonesty Lee filed an Amended Petition for personal injuries,
with respect to Pulitzer or its subscribers. setting forth four counts of negligence against four defen-
Finally, Pulitzer shall determine whether sufficient dants, Pulitzer, Medrano, Carron, and Meriwether. Count I
grounds exist for it to terminate the Agreement in its alleged a general claim for personal injuries against all
good faith discretion. Carriers then may appeal Pulitzer’s four defendants and against Pulitzer based on the the-
decision or must find an assignee within ninety days. ory of respondeat superior. Count II set forth a claim of
In the event they cannot find an assignee, Pulitzer shall negligence against Pulitzer for negligently approving
purchase the assignment from the carriers. Medrano as a carrier, negligently allowing its carriers to
In December 1988, David Carron (hereinafter, employ incompetent substitute drivers, and *630 neg-
“Carron”) began delivering newspapers on Route ligently failing to require adequate insurance to protect
261 for Pulitzer after purchasing it for $60,000 from the public. Count III asserts a claim against Pulitzer and
a third party. In May 1991, Carron executed a form of Carron for negligent entrustment and negligent selection
the Agreement with Pulitzer and continued to deliver of Meriwether. Finally, Count IV asserts a claim of negli-
papers as he had before executing the Agreement. gent entrustment and negligence against Medrano.
(continued)

Pulitzer sought summary judgment on Counts I, Lee’s first point on appeal claims the trial court erred in
II, and III. The trial court granted Pulitzer’s motion granting summary judgment in favor of Pulitzer because
for summary judgment, holding that Hougland v. there are genuine issues of material fact with respect to
Pulitzer Pub. Co., Inc., 939 S.W.2d 31 (Mo.App. the status of Pulitzer’s independent contractor carriers.
E.D.1997) and Skidmore v. Haggard, 341 Mo. 837, 110 Lee argues there are genuine issues of material fact that
S.W.2d 726 (1937) were controlling. The trial court stated show these independent contractors are actually employ-
that the Hougland and Skidmore cases addressed and ees which Pulitzer has the right to control. Therefore, Lee
rejected claims similar to Lee’s, and therefore, Pulitzer asserts that Pulitzer would be liable for her injuries under
did not have a master-servant relationship with Medrano, a respondeat superior theory of liability.
Carron, or Meriwether. Further, the trial court held that Pulitzer contends that Medrano, Carron, and
in order for Lee’s claim against Pulitzer for negligent Meriwether were not employees of Pulitzer at the time
entrustment and selection to be viable, there must be a of the accident, but rather Medrano was an independent
master-servant relationship between Pulitzer and Carron contractor who in turn hired Carron to operate and man-
and/or Meriwether, which was not the case here. Finally, age the route. Carron then hired Meriwether to drive the
the trial court held there was no contractual duty or other route. Further, Pulitzer claims there is no basis for respon-
relationship between Pulitzer and Carron that would deat superior liability because the evidence shows a lack
give rise to a duty on Pulitzer’s part, and therefore, no of control or right to physically control Medrano, Carron,
causation as to Medrano as an independent contractor. or Meriwether in the means and method of transporting
This appeal follows. and delivering newspapers on its delivery route.
It is well settled that when considering an appeal Under the doctrine of respondeat superior, if an
from a grant of summary judgment, we review the employee commits negligent acts or omissions within the
record in the light most favorable to the nonmovant. ITT scope of his or her employment, the employer is liable
Commercial Fin. v. Mid–America Marine, 854 S.W.2d for the damages. Hougland, 939 S.W.2d at 33. Only if
371, 376 (Mo. banc 1993). Our review is essentially de a master-servant relationship exists between the parties
novo. Id. at 376. The criteria on appeal for testing the does the doctrine of respondeat superior act to impose
propriety of summary judgment are no different from liability on an employer. Id. To determine if respon-
those employed by the trial court to determine the pro- deat superior applies, it must be determined whether the
priety of sustaining the motion initially. Id. The burden person sought to be charged as a master had the right
of proof on a summary judgment movant is to establish or power to control and direct the physical conduct of
a legal right to judgment flowing from facts about which the other in the performance of the act. Studebaker v.
there is no genuine dispute. Id. at 378. Nettie’s Flower Garden, Inc., 842 S.W.2d 227, 229 (Mo.
A “defending” party may establish a right to judg- App. E.D.1992). If there is no right to control, there is no
ment by showing: (1) facts that negate any one of the liability; those rendering services but retaining control
claimant’s elements; (2) that the nonmovant has not over their own movements are not servants. Id. at 678.
been able to produce, or will not be able to produce, If there is no right to control, the person contracted to
evidence sufficient to allow the trier of fact to find the perform the work is an independent contractor. Hougland,
existence of any of the claimant’s elements; or (3) that 939 S.W.2d at 33. “An independent contractor is one who
there is no genuine dispute as to the existence of facts contracts with another to do something for him [or her]
necessary to support the movant’s properly pleaded but is neither controlled by the other nor subject to the
affirmative defense. Id. at 381. other’s control with respect to his [or her] physical conduct
The nonmovant must show by affidavits, deposi- in the performance of the undertaking.” Tom Lange Co.
tions, answers to interrogatories, or admissions on file, v. Cleaning by House Beautiful, 793 S.W.2d 869, 871
that one or more of the material facts shown by the (Mo.App. E.D.1990). Whether a party is liable under the
movant to be without any genuine dispute is, in fact, doctrine of respondeat superior depends on the facts
genuinely disputed. Id. A “genuine issue” exists where and circumstances in evidence in each particular case
the record contains competent materials that establish and no single test is conclusive of the issue of the party’s
a plausible, but contradictory, version of the movant’s interest in the activity and the right to control. Studebaker,
essential facts. Id. at 382. 842 S.W.2d at 229.
(continued)

The principal factors to be considered in determining Skidmore appealed claiming the trial court erred
whether a person is an independent contractor are when it issued the peremptory instruction. The Star
set forth in the Restatement (Second) of Agency claimed that no jury case was made against it because
Section 220(2) (1958) as follows: the evidence conclusively showed that Haggard was
(a) the extent of control which, by the agreement, an independent contractor. Id. at 727. The Court looked
the master may exercise over the details of the to the contract and Haggard’s working habits in order
work; to determine their relationship.
The parties entered into a written contract after
(b) whether or not the one employed is engaged in
Haggard purchased the route for $300.00. Id. at
a distinct occupation or business;
728. Haggard filled out an application and spoke with
(c) the kind of occupation with reference to The Star’s circulation manager. After he purchased the
whether, in the locality, the work is usually route, Haggard made some changes from time to time
done under the direction of the employer or in order to deliver the paper to persons who purchased
by a specialist without supervision; from him and because of road conditions. Haggard also
(d) the skill required in the particular incorporated other areas into his route after service
occupation; was discontinued by another carrier and hired a sub-
(e) whether the employer or the workman supplies contractor to service this route. Id. at 729.
the instrumentalities, tools, and the place of The contract stressed that the newspapers be deliv-
work for the person doing the work; ered promptly to various carriers and that Haggard “make
such delivery, distribution and collection of funds accord-
(f) the length of time for which the person is
ing to his own means and methods of conveyance, which
employed;
shall belong to him and be in the exclusive charge and
(g) the method of payment, whether by the time or
control ..., and shall not be subject to the control or super-
by the job;
vision in any manner by [The Star], except as to the results
(h) whether or not the work is a part of the regular of said work.” Id. at 728. Either party had the right to ter-
business of the employer; minate the agreement at any time. Id. at 731.
(i) whether or not the parties believe they are cre- Haggard was responsible for the costs of conducting
ating the relationship of master and servant; and operating his business, including providing his
and own transportation and suffering a risk of loss should
(j) whether the principal is or is not in business. his subscribers not pay for delivery of the paper. Id. at
729. Haggard had authority to accept alternative
See Skidmore, 110 S.W.2d at 730; Keller v. Missouri payment from his subscribers when they were unable
Baptist Hosp., 800 S.W.2d 35, 38 (Mo.App. E.D.1990); to pay with cash or check.
and Ferguson v. Pony Exp. Courier Corp., 898 S.W.2d The Star provided Haggard with blank sheets for a
128, 132 (Mo.App. W.D.1995). collection book, the papers which he had to purchase
In Skidmore, the Supreme Court held that a news- and deliver, and a weekly sum of $45.00. Id. at 728–
paper carrier, under a similar contract and responsible 29. The Star required Haggard to keep subscriber lists,
for similar duties to those of Carron in Hougland, and receipts, and account sheets on the blank sheets they
Medrano in the instant case, was an independent con- provided. Id. at 731. Additionally, the Star required
tractor. Emory Skidmore (hereinafter, “Skidmore”) sued Haggard to submit a map of his route, his subscriber
Troy Haggard (hereinafter, “Haggard”) and the Kansas list, and reports showing the time he delivered to each
City Star Company (hereinafter, “the Star”) after he customer. Id. at 732. The Star also had the right to
was injured in an accident with Haggard while Haggard designate the customers, places, routes and schedules
was delivering newspapers under contract with the from time to time, and it could require Haggard to
Star. Skidmore, 110 S.W.2d at 727, 732. At the close of collect money from subscribers for it. Id. at 728.
the evidence, the trial court gave the jury a peremptory The Skidmore Court concluded that the contract
instruction to find for the Star. Id. at 727. The jury later “shows the results sought by the Star were prompt deliv-
returned a verdict against Haggard. eries ... [but] clearly and specifically leaves the means and
(continued)

methods for accomplishing results to Haggard.” Id. at Lee attempts to distinguish Hougland and its reli-
731. Moreover, the Court noted that the keeping of ance on Skidmore from the instant case by claiming that
subscriber lists and accounting sheets was neither in Hougland there was no evidence to dispute the terms
an assumption of control nor a direction concerning of the Agreement. Here, Lee argues, there are several
Haggard’s physical conduct in reaching the desired disputed factual differences with the Agreement. Lee
results. Id. at 733. Additionally, the Court recognized the focuses primarily on the fact that the agreement between
parties must have considered the work done by Haggard Medrano and Carron was a sham and that there was
as a distinct and independent business because Haggard never any intention by Medrano to run the route.
purchased the route. Id. at 730. Finally, the Court noted, This argument is unpersuasive. First, the sales contract
“restrictions as to territory and as to selling prices are between Medrano and Carron is a separate, distinct, and
modern business practices even between manufacturers independent transaction from the relationship established
and merchants dealing in various kinds of products.” Id. at by Medrano and Pulitzer under the Agreement.
731. Based on the foregoing, the Skidmore Court con- Second, the Agreement designates Medrano as inde-
cluded that “the evidence was not sufficient to show pendent contractor. The Agreement specifically states that
an assumption of control of the physical activities of the carriers have the right to choose their own employees
Haggard, so inconsistent with the original relation of inde- and “shall have the right to engage such other subcon-
pendent contractor as to change his status to that of a tractors as the [c]arrier may deem necessary.” Additionally,
servant or employee.” Id. at 733. “the [c]arrier shall exercise the sole and exclusive control
Building upon Skidmore, this Court made similar findings and supervision over all said persons.” Even if the
in Hougland v. Pulitzer Publishing Company. In Hougland, arrangement was a sham, the act of allowing Carron to
this Court addressed similar issues involving a carrier’s continue operating the route was permissible under the
employment status with Pulitzer. Hougland sustained terms of the Agreement and was within Medrano’s dis-
serious permanent personal injuries when she was struck cretion. The Agreement makes it clear that Pulitzer has no
by a van driven by Carron.1. Id. at 32. At the time of the control or supervisory powers over such persons.
accident, Carron was delivering papers for Pulitzer under Lee points to other factual differences which she
the Agreement. Hougland appealed the trial court’s claims show how Pulitzer controlled Medrano and Carron
entry of judgment notwithstanding the verdict after a jury as employees under the Agreement. These include:
entered judgment against Pulitzer in her favor. Id. (1) retaining control over the price of its papers; (2) specifying
This Court pointed out “[r]eview of the transcript the times and places for the delivery of its papers;
reveals that none of the witnesses’ testimony disputed (3) requiring deliveries to meet its written performance
or called into question the terms of the two documents standards; (4) Carron not possessing a distinct and sepa-
under which Carron provided services to Pulitzer.” Id. at rate business from Pulitzer; (5) the Agreement not requir-
33. In light of the undisputed terms, the Court stated ing specialized skills or training; (6) providing certain
that the determination of the relationship between supplies to its carriers; and (7) considering the long-term
Carron and Pulitzer would be based solely on the inter- duration of the contract. These factors have been con-
pretation of the documents. Id. As such, the interpreta- sidered and rejected by the Supreme Court in Skidmore,
tion of contract provisions was purely a matter of law to supra and need not, therefore, be addressed again here.
be determined by the trial court and not an issue for the Finally, the Agreement is the identical agreement
jury to decide. Id. that Carron was working under in Hougland. Here,
After an extensive discussion of Skidmore, the only difference is that Medrano is the named party
supra, this Court determined that it controlled the out- under the contract, not Carron. Further, the same terms
come in Hougland and affirmed the trial court’s entry and conditions apply to Medrano under the Agreement
of judgment notwithstanding the verdict in Pulitzer’s as they did previously to Carron. Hougland held, under
favor. Id. at 35. That Court concluded that the evidence the exact factual situation presented here, that the evi-
was insufficient to show that Pulitzer assumed control dence was insufficient to show Pulitzer assumed con-
of Carron’s physical activities which would be incon- trol over Carron’s physical activities to be inconsistent
sistent with his classification under the documents as with his classification under the documents as an inde-
an independent contractor. Id. pendent contractor. Carron contracted with Pulitzer to
(continued)

deliver its newspapers but was neither controlled by Comment (a) states the words “competent and careful
Pulitzer nor subject to Pulitzer’s control with respect to contractor” denote a contractor who possesses the
his physical conduct in the performance of delivering knowledge, skill, experience, and available equipment
these newspapers. Because there was no right to con- which a reasonable person would realize that a contrac-
trol, Carron was an independent contractor. Because tor must have in order to do the work which he or she
Pulitzer did not have the right to control Carron’s is employed to do without creating unreasonable risk of
actions, the doctrine of respondeat superior does injury to others, and who also possesses the personal
not apply to hold Pulitzer responsible for Carron’s characteristics which are equally necessary.
negligence while delivering newspapers. In this case, Lee presented no evidence that would
939 S.W.2d at 35. prove the prerequisite element of incompetence on
Similarly, the evidence before the trial court on Medrano’s part. Lee presented no evidence that Medrano
summary judgment in this case was not sufficient had a poor safety record, a poor reputation, or that he
to create a genuine issue of material fact as to the lacked sufficient expertise and experience to act in the
characterization of Pulitzer’s relationship with Medrano, capacity as a carrier under the Agreement. See Sullivan,
Carron, or Meriwether. Point denied. 770 S.W.2d at 357. Lee argues in her first point that
Lee’s second point argues that even if we hold that Medrano did not have the specialized skills necessary
Pulitzer’s carriers are in fact independent contractors, then to create an employer-independent contractor relation-
there are genuine issues of material fact that preclude ship because the “only job requirements are the ability
summary judgment in Pulitzer’s favor because there are to drive, stuff papers in bags and throw papers.” Con-
disputed facts as to whether Pulitzer negligently selected versely, for this point, Lee argues Medrano was not
and retained incompetent independent contractors. Lee competent because he did not receive any training and
alleges Pulitzer negligently failed to investigate the sale of he had no prior experience as a deliveryman. This is not
the delivery route from Carron to Medrano, failed to super- sufficient to create a genuine issue of material fact as to
vise Medrano and Carron’s activities, and failed to require the hiring and retention of Medrano.
adequate insurance to protect the public. Moreover, Medrano’s retention of Carron as its
In Missouri, an employer will be held liable for the subcontractor does not affect Pulitzer’s liability under
negligent action of an independent contractor when the Agreement as discussed above. As stated earlier,
the employer fails to exercise reasonable care to hire Medrano had the authority to hire whomever he wanted
a competent contractor. Sullivan v. St. Louis Station as a subcontractor, and Pulitzer exercised no control
Associates, 770 S.W.2d 352, 356 (Mo.App. E.D.1989). over these subcontractors. Furthermore, neither
An employer has a duty to select a “skilled and com- Medrano nor Carron were operating the vehicle at the
petent” contractor. Id. Therefore, when the contractor time of the accident.
chosen is in fact competent, the employer will not be Finally, Lee argues she stated a cause of action against
liable for the contractor’s negligence despite any lack of Pulitzer for its negligence in requiring carriers to carry only
care used in the selection. Id. It is well recognized that $100,000 in liability insurance. Lee argues once Pulitzer
a contractor’s negligence in conducting the work it was took affirmative steps to require its carriers to have liability
hired to do creates no presumption that the employer insurance, it can be held liable if it performed that function
was negligent in selecting the contractor. Id. in a negligent manner. We disagree.
The Restatement (Second) of Torts Section 411 Pulitzer’s requirement that carriers carry a
(1965) states that an employer is subject to liability for minimum $100,000 in liability insurance exceeds
physical harm to third persons caused by his [sic] failure the minimum level of liability insurance required
to exercise reasonable care to employ a competent and by Missouri’s Motor Vehicle Financial Responsibil-
careful contractor ity Law, Section 303.190 RSMo (2000). We will not
(a) to do work which will involve a risk of physical impose a greater burden of liability on Pulitzer when
harm unless it is skillfully or carefully done, or its minimum exceeds that provided for by law. Point
denied.
(b) to perform any duty which the employer owes
The judgment of the trial court is affirmed.
to third persons.

1. Did the trial court err in granting summary judgment in favor of Pulitzer because there were genuine issues
of material fact with respect to whether Pulitzer’s newspaper carriers were independent contractors or
employees?
2. What issues lean toward the carriers being independent contractors and not employees?
3. What control does Pulitzer have over the carriers?
4. Can the carriers assign their rights and duties under their agreement with Pulitzer?
5. What is the length of the contract between the carriers and Pulitzer?
6. What is the burden of proof for a summary judgment movant?
7. What must the nonmovant prove?
8. What section of the Restatement of Torts applies here to determine the level of control by Pulitzer?
9. If a contractor chosen for a job is in fact competent, will the employer be liable for the contractor’s
negligence despite any lack of care used in the selection?
10. Did Lee prove the required element of incompetence in this case?
Nondelegable Duties shopping mall can be held vicariously liable for dam-
A nondelegable duty means that the task may be ages resulting from an independent contractor’s neg-
delegated to someone else, but the responsibility for ligent repair of its roof, or a negligent janitorial service
doing the task remains with the person who delegated who causes injury to customers by their actions. The
the duty. The liability for the breach of a nondelegable courts have not clearly defined what is and is not a
duty comes about because there is a direct liabil- “delegable” duty, but their decisions are generally
ity and not an imputed one. Some duties of care are motivated by a desire to prevent employers from
so important that they are nondelegable. A city that avoiding liability by hiring independent contractors to
hires a private contractor to work on its streets cannot carry out their responsibilities.
delegate to the company its duty to keep its streets One of the most litigated exceptions to the inde-
in good repair. For this same reason, the owner of a pendent contractor nonliability rule is the “retained
control” exception, adopted from the Restatement
(Second) of Torts § 414, which provides the following:
Exhibit 14–3 Employer–Independent Contractors One who entrusts work to an independent contrac-
tor, but who retains control of any part of the work,
General Rule:
is subject to liability for physical harm to others
• Employers are not vicariously liable for torts of whose safety the employer owes a duty to exercise
independent contractors.
reasonable care, which is caused by their failure to
Exceptions to Nonliability Rule: exercise their control with reasonable care.
• Employer is negligent in dealing with or hiring an Comment c to § 414 provides:
independent contractor.
• Employer delegates nondelegable duty to independent It is not enough that [the employer] has merely
contractor. a general right to order the work stopped or
• Employer hires independent contractor to conduct an resumed, to inspect its progress or receive reports,
activity involving unusual risks that are recognizable in to make suggestions or recommendations which
advance. need not necessarily be followed, or to prescribe
• Employer contracts for performance of an illegal act. alterations and deviations. Such a general right
• Doctors are liable for negligent acts of those under is usually reserved to employers, but it does not
their control (this doctrine has been abolished in some mean that the contractor is controlled as to their
jurisdictions and limited in others).
methods of work, or as to operative detail. There
must be such a retention of a right of supervision liable if the contractor drove negligently, because the
that the contractor is not entirely free to do the risk involved in hauling shrubs is not an unusual one.
work in their own way. Employers will not be liable if the risks involved
For this section to apply to a situation, the control exer- are not recognizable in advance. If a family hires a
cised by the employer must go beyond retaining con- lawn-care service to tend their lawn while they are
trol over the premises; the control must relate to the on vacation and one of the workers decides to add
actual manner in which the work performed by the con- water to the pool and forgets to shut it off, the family
tractor is done. Supervising the sequence of the work will not be vicariously liable for the flood damage to
is not enough; the employer must have actual control their adjoining neighbor’s property. The risk of over-
over the details of how the work is done. The idea is to filling the pool would not be considered an inherent
ensure that proper precautions are taken in all duties. or foreseeable risk of lawn care.
In one case, for example, a general contractor
hired an independent contractor to install a pipe from Illegal Acts
a water main to a building that was under construc- Another exception to the nonliability of employers
tion. Plaintiff, who was employed by the independent for the acts of independent contractors is in the
contractor, was injured while working in a trench that area of illegal acts. If an employer contracts for the
collapsed on them. The court found that the general performance of an illegal activity, they will be vicariously
contractor had insufficient control over the contrac- liable for any damage caused by the contractor.
tor to come within the retained control exception
(Downs v. Steel & Craft Builders, Inc., 831 N.E.2d 92 Physicians
[Ill.App 2 Dist. 2005]). Although the general contractor Historically, physicians were exceptions to the non-
retained control over scheduling, change orders, and liability rule. A physician was vicariously liable for the
hiring approval, the general contractor relied on the negligence of nurses, other physicians, paramedical
subcontractor for compliance with safety issues and personnel, and hospital administrators who, although
regulations. not under their employ, were for legal purposes con-
sidered to be under the physician’s control. The courts
Extraordinary Risks reasoned that a physician acting in a supervisory role
Employers continue to be vicariously liable if they hire over other medical personnel was the “captain of the
independent contractors to carry out activities involving ship” and thus should be held vicariously liable for
risks that require more than ordinary precautions. If their negligent acts. The impetus behind this doctrine
an employer hires an independent contractor to relo- probably lay in the court’s attempt to circumvent chari-
cate date palm trees, for example, special precautions table immunity and find a solvent defendant. With the
obviously will have to be taken in securing the trees to demise of charitable immunity, this doctrine has been
ensure that transportation along public highways was abolished in many places and in other jurisdictions has
done without endangering others. In the case of an been strictly limited to acts committed during surgery.
accident the employer would be vicariously liable. This Most physicians are employed by a medical facility or
special rule of liability applies only to unusual risks and hospital so they would ultimately be the employer. This
not to risks arising out of ordinary forms of negligence. same rationale has been used by plaintiffs to recover
Suppose the contractor were asked to transport com- from hospitals that hire private franchises to carry out
mon shrubs in an enclosed truck rather than freestand- special functions in the hospital, such as radiology and
ing palm trees. In that case the employer would not be serology.

1. After being cited for speeding, Faustino appears before Judge Ranier and pays a fine. Due to a clerical
or administrative error, the receipt of Faustino’s payment is not noted; during a subsequent review of his
file, Ranier determines that the fine has not been paid and issues a bench warrant for Faustino. Later
Faustino is stopped for a minor traffic violation and is arrested and incarcerated overnight because of the
outstanding bench warrant. Faustino appears before Judge Ranier, and the clerical error is discovered
and corrected. Apologies are made and Faustino is released. Later Faustino sues Ranier and the county
that employs Ranier. Is the county vicariously liable for Ranier’s actions?
2. A motion picture company employs an independent contractor to provide snakes for the film. While the
picture is being made, one of the snakes escapes and bites an actor. Is the motion picture company
vicariously liable for the injuries sustained by the actor?
3. The van that a hotel uses to convey passengers to the airport is damaged in a collision. The hotel contracts
with a rental company to use one of its vans to take hotel guests to the airport. The only driver available is
inexperienced, and while driving the passengers from the hotel they are involved in an accident because
they inadvertently hit the accelerator instead of the brake. Is the hotel liable to the driver of the other vehicle
involved in the accident? Would your answer change if the driver had been experienced but had been talking
to one of the passengers and not watching where they were going when they ran into the other vehicle?
4. Fisher is a member of a chicken-catching crew that was assembled by Reid, a weighmaster who was
working for Townsends, a chicken-processing business. Fisher is injured while he is riding in a vehicle
driven by Reid. At the time Reid is driving, he is working for Townsends.
Reid has worked for Townsends for five years exclusively. Their relationship began with oral understandings;
shortly before the accident, Townsends presented Reid with a written Catching Crew Agreement. This agree-
ment, which indicates that Reid is an independent contractor, was not intended to change their oral agreement.
The parties disagree about whether the Catching Crew Agreement was executed prior to Reid’s accident.
Townsends supplies Reid with Daily Movement Sheets that identify the farm where the day’s work is to
be done, the birds that are to be removed, which crew is to be assigned to a job, and the time the crew is to
report. Townsends owns and supplies the trucks, forklifts, cages, and stools that are used to catch chickens,
as well as the paper masks and disposable gloves worn by the catchers. Townsends’s manager visits the
farms periodically to see if the weighmasters, truck drivers, or forklift operators are experiencing problems.
Townsends requires its weighmasters to keep two-way radios in the vehicles they use to transport their crews.
Townsends supplies Reid with these radios, which allows Townsends to keep Reid advised of changes in
work sites and work orders and enables him to communicate with Townsends’s processing plant, truck driv-
ers, and forklift operators regarding work-related problems.
Apply the criteria set forth in Santiago v. PNI to decide how you would characterize the relationship
between Townsends and Reid.
5. In celebration of Independence Day, Jose and Susan contract with Marutamaya to provide a fireworks
display. Marutamaya then contracts with R. Borgman Sales Co. to conduct the display. During the display
two of the shells explode prematurely, injuring two of the operators, both of whom are employees of
Borgman and are experienced, licensed pyrotechnic operators. Should Jose and Susan be held liable for
the operators’ injuries, or did they delegate their responsibility to Marutamaya by hiring the company as
an independent contractor? Is Maratamaya responsible?
6. A worker is killed in a dirt collapse while performing an excavation on a site owned by a mining company,
Kennecott Copper Company. The company was in the process of expanding its facilities and had contracted
with the employer of the deceased worker to do the job. Under its contract with the contractor, Kennecott
maintained control over employee selection and over salaries to be paid to key employees. Kennecott could
discharge any employee on the job and had to approve drawings detailing how work was to be performed.
Should Kennecott be held liable for the death of the employee of its contractor?
Bailments car in for repair, you are the bailor, and the service
station is the bailee. The question in terms of vicar-
If a party temporarily entrusts goods to the care ious liability is whether a bailor should be liable for
of another, the party who hands over the goods is the negligence of a bailee.
referred to as a bailor; the person who receives cus- Under the common law majority rule, a bailor
tody of the goods is a bailee. When you take your is not vicariously liable for the acts of a bailee
(see Exhibit 14–4). Thus, if someone rents a car from Local Links
a rental agency and negligently injures a plaintiff
while driving such a car, the rental agency (bailor) is In your state does the presence of an owner
not vicariously liable for the acts of the individual who in a vehicle create the presumption that the
rented the car (bailee). The bailor may be liable for owner is in control of the vehicle? Does your
their own negligence if they entrust control of their state have a family-purpose doctrine?
property to a person that they know or reasonably
should know is likely to endanger others. Therefore, if
the rental agency in this example was aware that the owner as if they were a guest in their own car. The
driver was intoxicated or otherwise unable to control courts will not, however, impute the driver’s negligence
the vehicle, it could be held vicariously liable for the to the owner if the owner is not present.
driver’s negligent acts.
Family-Purpose Doctrine
Exceptions to Bailor Nonliability In their struggle to circumvent the nonliability
rule for absent owners, some courts created a
The courts, for the most part, have been dissatisfied
legal fiction called the family-purpose doctrine.
with the nonliability rule regarding bailors when that
Under this doctrine the assumption is made that
rule is applied to owners of automobiles who allow
others to drive. They have adopted a number of strat- the driver is carrying out a “family purpose,” mak-
ing the family head, typically the most financially
egies by which vicarious liability can be placed on the
responsible person in the family, vicariously liable.
owners of vehicles. The implicit reasoning behind the
This doctrine is maintained even though, typically,
notion of owner liability is that owners are more likely
the driver is using the vehicle on their own behalf.
to be able to pay for damages than those to whom
So long as the driver is a member of the family’s
they loan their vehicles and that owners, not drivers,
household and has permission to use the car,
are expected to carry insurance.
the head of the family is vicariously liable for the
In some courts the mere presence of the owner
driver’s negligent acts.
in the car creates the presumption that the owner had
The family-purpose doctrine is in effect in less
control over the driving. As a result, the owner is con-
than half the states today and is complicated by a host
sidered vicariously liable for the acts of the driver. Some
of exceptions. It arises most often in cases in which
courts have retreated from this position by making the
a minor is relegated to driving a particular vehicle.
presumption a rebuttable one. Others have negated
Usually, parents provide only as much insurance on
the presumption altogether and treat the nondriving
a vehicle driven by a minor as mandated by law but
provide more extensive coverage on the vehicles
Exhibit 14–4 Bailment they themselves drive. Anyone injured by the minor
will find little compensation in the minor’s coverage
General Rule: and will often be motivated to turn to the parents for
• Bailors are not vicariously liable for the acts of a bailee. relief. If the plaintiff can meet the requirements of
the family-purpose doctrine, they can recover from
Exceptions to Nonliability Rule:
the parents instead of the minor.
• Bailor negligently entrusts property to one he knows or
should know will endanger others. Automobile-Consent Statutes
• In some states, mere presence of owner in vehicle
Dissatisfaction with the rule of nonliability of bailors led
makes owner vicariously liable for acts of driver.
several state legislatures to adopt automobile-consent
• Family-Purpose Doctrine—driver (nonowner) is
presumed to be carrying out family purpose, making statutes. These statutes make the owner vicariously
owner vicariously liable. liable for negligent acts committed by anyone using
• Automobile-Consent Statutes—owner is vicariously the car with the owner’s permission. If the borrower
liable for negligent acts committed by anyone using the (bailee) of the car exceeds the scope of the owner’s
vehicle with the owner’s permission. consent, the owner (bailor) is generally not vicariously
• Joint Enterprise Doctrine—owner is vicariously liable for liable unless the deviation is a relatively minor one. If
negligent acts committed by joint venture.
the bailee in turn lends the car to a third person, the
courts are divided in terms of the owner’s liability. In Local Links

one case a rental agency explicitly forbade customers
from allowing anyone else to drive the car. The court Does your state have an automobile-consent
found that the agency was deemed to have impliedly statute in effect?
given consent and held the agency liable when its
customer allowed a third person to drive who subse-
quently caused a collision (Shuck v. Means, 226 N.W.2d A social trip is not a joint enterprise because it
285 [Minn. 1974]). Not all courts agree with this case, involves no sharing of a pecuniary interest. The mere
however, and such courts are less likely to find liability sharing of expenses is not enough by itself to establish
when the bailee is not in the vehicle at the time of the a pecuniary interest. Furthermore, the courts frequently
accident. find that a passenger on a social trip has no right of
The omnibus clause in most automobile liability control over the driver. For this doctrine to be applica-
insurance policies has substantially reduced the need ble, each of the joint venturers must have some say in
for automobile-consent statutes. Such clauses extend how the car is to be driven. Each person need not have
insurance coverage to members of the insured’s house- a right to arbitrarily steer the car at any time, but each
hold and to any person using the automobile with the must have an equal say in what route will be followed,
insured’s permission as long as the use falls within the how fast the car will travel, and so on. Two partners in a
scope of the permission given. Consequently, plaintiffs law firm, for example, who carpool together would be
have no incentive to find liability on the part of the considered members of a joint enterprise.
owner, at least up to the policy limits. Once the joint-enterprise requirements are met,
each of the joint venturers is vicariously liable for the
Joint Enterprises negligence of the others. This doctrine almost always
arises in the context of automobile cases. Typically,
Another court-created doctrine designed to make
the plaintiff is a passenger in another car and wishes
the owner of an automobile vicariously liable is the
to recover against a passenger (usually the “deep
Joint-Enterprise Doctrine (see Exhibit 14–5). A joint
pocket”) in the joint venturer’s vehicle. By imputing
enterprise consists of four elements:
the negligence of the driver to the passenger, the
1. an express or implied agreement among plaintiff is allowed to recover.
members of a group
2. a common purpose or goal to be carried out
by the group Imputed Contributory
3. a common pecuniary interest in the purpose Negligence
or goal
Suppose the driver of an automobile and a truck driver
4. an equal right of each member to control for Company X negligently collide with each other.
the direction of the enterprise. (Restatement Should the truck driver’s negligence be imputed to—
[Second] of Torts § 491, cmt. c.) that is, charged against or attributed to—Company X,
making Company X contributorily negligent and thus
barring it from suing the automobile driver, who was also
Exhibit 14–5 Joint Enterprise negligent? Under traditional common law, the answer to
that question was yes. The negligence of a driver was
General Rule:
imputed to the passengers. Because of the contribu-
• All joint venturers are vicariously liable for the negligent
tory negligence imputed to them, an injured passenger
acts of other joint venturers.
could not sue the other driver. Similarly, a few courts
Elements of Joint Enterprise: have actually used imputed negligence to preclude a
• Express or implied agreement passenger from suing the driver of the vehicle in which
• Common purpose or goal they were riding when the driver and passenger are joint
venturers. The driver’s negligence is imputed to the pas-
• Common pecuniary interest
senger, who is then considered contributorily negligent
• Equal right to control direction of enterprise
and thus barred from recovering from the driver.
Under the modern rule, however, contributory Local Links

negligence is imputed only if the relationship is such
that the plaintiff would be vicariously liable if they In what situations do the courts in your state
were a defendant (Restatement [Second] of Torts § impute negligence?
485). In the earlier example of the passenger want-
ing to sue the driver of the vehicle with which he
In the case of the truck driver because the
collided, the passenger would not be vicariously
employer (Company X) would be vicariously liable for
liable for the negligence of the driver of the vehicle
the truck driver’s acts, the truck driver’s negligence
in which they were a passenger. Therefore, no negli-
would be imputed to the employer and the employer
gence would be imputed to the passenger and they
would be prevented from suing the other driver.
could recover for their injuries (see Exhibit 14–6).
Because the employer bears responsibility for the
The rationale for not imputing a driver’s negli-
acts of their employees, imputing the negligence of
gence to a passenger is that a passenger basically
employees to their employer seems neither illogical
has no control over the acts of the driver of the vehi-
nor unfair, according to the prevailing reasoning of
cle in which they are riding. The passenger should
the courts. The negligence of the employee is not
not, therefore, be saddled with responsibility for
imputed to the employer, however, if the employer is
the driver’s negligence. In other words, contributory
suing the employee rather than a third party.
negligence should not be imputed unless negli-
The rule regarding the imputation of negligence
gence can also be imputed.
is in general disfavor today. In most states the neg-
ligence of one spouse is not imputed to the other
Exhibit 14–6 Imputation of Negligence (except in some community-property states where
recovered damages are treated as community
Negligence Not Imputed property), nor are parents or children barred from
recovery because of the negligence of the other.
Negligence of D2 is not imputed to P2 Under the modern rule the contributory negligence
of a bailee is generally not imputed to the bailor,
Driver 1 (D1) Driver 2 (D2) Passenger 2 (P2) even when the bailor would be liable as a defendant
pursuant to an automobile-consent statute.
In derivative claims, such as wrongful-death actions
and loss-of-consortium claims, the contributory negli-
gence of the injured party is imputed to the plaintiff.
Because the plaintiff’s claim is derived from and depen-
dent on another person’s injury, the imputed-negligence
P2 can sue D1 doctrine is applicable. Therefore, if a driver is killed in
a collision and their family sues the other driver in a
wrongful-death action, any negligence on the part of
Negligence Imputed the decedent will be imputed to the family.
Negligence of D1 imputed to ER
Parental Liability
Employer (ER) Driver 1 (D1) Driver 2 (D2)
Some states, in an effort to curb juvenile delinquency,
have enacted statutes that hold parents liable for the
tortious acts of their children. These torts can involve
either personal injury or property damage, but they
must be intentional torts. Most such statutes have
damage ceilings, which can be as high as several
ER cannot sue D2, because of ER’s thousand dollars. Reasonableness is the key to deter-
imputed contributory negligence mining if these statutes are enforceable. A Georgia
statute that provided no such ceiling was held void

1. Steven, who is 20 years old, is involved in a motor vehicle accident. The driver of the other vehicle seeks
grounds upon which he can sue Steven’s father, because Steven is financially insolvent. The driver discovers
the following: Steven paid for the car and liability insurance himself; his father co-signed for the car so that the
financing agency would loan Steven the money; the car was registered in the father’s name; Steven exercised
exclusive control of the car, and his father drove the car only a couple of times. Do you think the injured driver
will be able to recover from Steven’s father under the family-purpose doctrine?
2. The owner of a vehicle specifically instructs her teenage daughter not to let anyone else drive her vehicle. One
day she allows her daughter to drive to a friend’s house on an errand but insists that the daughter return imme-
diately after performing the errand. Instead of returning directly home, the daughter picks up some teenage
friends and drives around town. One of the girls takes over driving and, while driving at high speed, runs into
two boys on a bicycle. Is the owner of the vehicle liable for the injuries to the boys if an automobile-consent
statute is in effect? What if she lent her car to her neighbor and the neighbor hit the boys?
3. A group of hikers is crossing a rockslide area when one of the hikers accidentally knocks rocks down to the
road below. A driver coming down the roadway is unable to avoid all of the rocks and is forced to drive over
one of them, causing damage to their vehicle. The insurer of the company brings suit against the leader of the
hikers under a theory of joint enterprise. Do you think the insurer is likely to be successful? Why or why not?
4. Is the negligence of one spouse imputed to the other spouse under the laws of your jurisdiction?
5. Are parents liable for the tortious acts of their children under the laws of your jurisdiction?
Local Links In the aftermath of Columbine and other mass

shootings, many states have reexamined their
What do the statutes in your state provide in terms parental-responsibility laws. New York passed a stat-
of parental liability for torts by their minor children? ute allowing schools and local governments to recover
thousands of dollars from students who make phony
bomb threats. Many states have considered statutes
under the due-process clause (Corley v. Lewless, 182
that would hold parents criminally responsible if their
S.E.2d 766 [Ga. 1971]).
children commit crimes using firearms.
Although lawsuits based on negligent supervision
A parent may also be vicariously liable if they
are generally rare, they become more visible in the wake
encourage the commission of a tortious act or
of the shootings at Columbine High School in Littleton,
accept benefits from it. Similarly, a parent who negli-
Colorado. Several families of the students who were
gently entrusts a dangerous object to a child or who
killed or wounded filed lawsuits against the parents of
fails to protect others from dangerous tendencies
the two teenage shooters, Harris and Klebold, for fail-
of the child will be held liable. In one case the
ure to supervise their children. The defendant parents
parents of a 15-year-old boy were held liable for the
claimed to have no awareness of their sons’ activities,
injuries suffered by a 5-year-old girl he molested
but the plaintiffs argued that it would have been hard
while babysitting. The boy’s parents were aware of
for them to have no knowledge of their sons’ year-long
his history of molestation of young girls (Schurk v.
building and exploding of bombs. The families have
Christensen, 497 P.2d 937 [Wash. 1972]).
recovered more than $2 million in insurance money.
Summary
The doctrine of vicarious liability provides that an Examples of such special relationships are those
individual is liable for the tortious acts of another if between employers and employees, employers
they share a special relationship with the tortfeasor. and independent contractors, parents and children,
and parties involved in a joint enterprise. Both the Under the majority rule, bailors are not vicar-
family-purpose doctrine and automobile-consent iously liable for the acts of bailees unless they negli-
statutes involve elements of vicarious liability. gently entrust control of their property to a person they
The doctrine of respondeat superior is applicable know or reasonably should know is likely to endan-
if an employee is acting “within the scope and further- ger others. Dissatisfaction with this rule as applied to
ance of their employment” but not if an employee owners of automobiles led some courts to create the
goes on a “frolic” or “detour” of their own. Even if an presumption that an owner’s mere presence in the car
employee engages in conduct specifically prohibited establishes their control over the driving, making them
by the employer, the employer remains liable as long vicariously liable.
as the acts are done within the scope and furtherance I n a c c o rd a n c e w i t h t h e c o u r t - c re a t e d
of the employment. An employer also retains liability family-purpose doctrine, a driver is assumed to be
if an employee negligently delegates their authority or carrying out a “family purpose” as long as they
rights to a third party without the employer’s authoriza- are a member of the owner’s household and have
tion and the third party commits a tort. permission to use the car. Along similar lines, many
In general, one who hires an independent con- state legislatures have adopted automobile-consent
tractor is not vicariously liable for the tortious acts of statutes, which make an owner vicariously liable for the
that individual. Exceptions to the nonliability rule for negligent acts committed by anyone using the car with
independent contractors exist. An employer who is the owner’s permission unless the bailee exceeds the
negligent in dealing with an independent contractor scope of the owner’s consent. The joint-enterprise doc-
can be found liable, as can an employer who contracts trine, also created by the courts, renders the owner of
for the performance of an illegal activity. Some duties an automobile vicariously liable for the negligence of
of care cannot be delegated; thus, in some cases at the driver if the two are involved in a joint enterprise.
least, employers will be prevented from evading lia- Modern courts generally impute contributory
bility by hiring an independent contractor. Employers negligence only if the relationship is such that the plain-
will be vicariously liable if they hire independent con- tiff would be vicariously liable if they were a defendant.
tractors to carry out activities that involve risks requir- Under this rule an employee’s negligence is imputed to
ing more than ordinary precautions, but they will not the employer, which prevents the employer from suing
be liable if those risks are not recognizable in advance. any other third party who is negligent as well.
Key Terms
bailee joint enterprise
One who is temporarily entrusted with the Two or more persons who agree to a common
custody of goods goal or purpose, share a common pecuniary
bailor interest, and have an equal right to control the
One who entrusts her goods to the temporary direction of the enterprise
custody of another respondeat superior
imputed negligence Doctrine establishing the vicarious liability of
Negligence that is charged or attributed to employers for the acts of their employees
another vicarious liability
independent contractor Liability for the tortious acts of another
Someone hired to do a job who works at his own
pace, in his own way, under his own supervision
Review Questions
1. What is the doctrine of respondeat superior, 3. Under what conditions does respondeat
and what is its rationale? superior apply, and when does it not apply?
2. What relationship is required for there to be 4. When can an employer be liable for the
vicarious liability? intentional torts of an employee?
5. What criteria are used to distinguish an 9. What have courts and legislatures done to
employee from an independent contractor? avoid the bailor-nonliability rule?
a. What is the significance of this a. Describe the family-purpose doctrine.
difference? b. What is an automobile-consent statute?
b. Under what conditions can an employer c. What is an omnibus clause, and how has it
be held liable for the negligence of an affected automobile-consent statutes?
independent contractor?
10. What is a joint enterprise?
6. Give an example of a non-delegable duty for a. What is the purpose of the joint-enterprise
purposes of independent contractors. doctrine?
7. Explain the level of control an employer b. What elements must be present for a joint
must retain for the worker to be considered enterprise to exist?
an employee and not an independent 11. Give an example of a situation in which
contractor. negligence would be imputed.
8. Give an example of a bailor–bailee a. Give an example of a situation in which
relationship. negligence would not be imputed.
a. Identify the bailor and the bailee in this b. What is the general rule today regarding the
relationship. imputing of contributory negligence?
b. Is a bailor generally liable for the negligence 12. In what circumstances can parents be held
of a bailee? liable for the tortious acts of their children?
Practice Exam
True-False
1. Under the doctrine of vicarious liability, the 7. The language alone in two parties’ contract is
acts of a tortfeasor are imputed to another not dispositive of whether they have created an
even though there is no special relationship employer–employee or employer–independent
between the tortfeasor and the individual contractor relationship.
held liable.
8. An employer cannot be held liable for the
2. Respondeat superior means “let everyone answer”. negligence of an independent contractor even
if they are negligent in hiring that person or fail
3. The doctrine of respondeat superior applies to
to inspect the work of that person.
negligent torts but not intentional torts or strict
liability actions. 9. An employer who hires an independent
contractor but who retains control over any
4. An employer is vicariously liable for negligent
part of the work can be held liable for the
acts engaged in by an employee while travel-
negligence of that contractor.
ing to and from work.
10. Under the “retained control” exception to the
5. For frolic and detour to apply, if the deviation
nonliability rule for independent contractors,
is reasonable, the employer can still be liable.
an employer is considered to have retained
6. If an employee hires a third party without the control if the employer maintains control over
employer’s authorization, the employer is not the premises or supervises the sequence of the
vicariously liable for the negligence of the third contractor’s work.
party under any circumstances.
11. If an employer contracts for performance of 17. For the family purpose doctrine to apply the
an illegal act, they will be vicariously liable for driver must be a relative of the owner.
damages caused by the contractor.
18. If the borrower of a vehicle loans it to a third
12. If a risk that requires more than ordinary precau- person, the courts are divided as to whether
tions is required of the independent contractor, the owner of the vehicle should be liable for
the employer can be vicariously liable. the negligence of the third party.
13. Under the common law majority rule, a bailor 19. The omnibus clause of most insurance policies
is not vicariously liable for the acts of a bailee has increased the need for automobile-consent
unless the bailor is negligent in entrusting their statutes.
goods into the care of a bailee they reasonably
20. A social trip is considered a joint venture
should know will endanger others.
because there is sharing of pecuniary
14. Physicians are vicariously liable for everyone interests.
under them for all actions.
21. Under the modern view of imputing negli-
15. The courts hold owners liable for the negligence, contributory negligence is imputed only
gence of those to whom they loan their vehi- if the relationship between the parties is such
cles because they believe owners are usually that the plaintiff would have been vicariously
better able to pay for damages and are more liable if he had been the defendant.
likely to carry insurance than the drivers to
22. Parents can be held liable for any tortious acts
whom they loan their vehicles.
of their children.
16. The family-purpose doctrine has been adopted
in almost every state.
Matching
________ 1. Employer liable for negligence a. family-purpose doctrine
________ 2. Employer not liable for negligence b. automobile-consent statute
3. Insurance that covers extended family and borrowers of c. respondeat superior

________ vehicle
________ 4. Allows plaintiff to sue parents of underinsured teenager d. independent contractor
5. Bypasses bailor nonliability rule for defendant who is e. joint venturers

________ underinsured borrower of vehicle
________ 6. Liable for the negligence of one another f. omnibus clause
Fill-in-the-Blank
1. Under the doctrine of ____________ 4. A(n) ____________ ____________ is considered
____________, an individual is held liable for their own boss and works at their own pace in
the tortious acts of another. their own way.
2. ____________ ____________ means “let the 5. Taking a 20-minute detour while delivering
person higher up answer.” your truck load is considered a ___________
3. For respondeat superior to apply, the and ___________.
employee must be acting within ________ and 6. One of the most litigated exceptions of the
________ of their employment. independent contractor non liability rule is the
__________ exception.
7. A person who entrusts goods into the care of 9. ____________ ____________ statutes make the
another is referred to as a(n) ____________, owner of a vehicle liable for the negligence of
whereas the person who agrees to accept anyone using their car with their permission.
custody of the goods is referred to as a(n) 10. The ________ has extended the insurance
____________. coverage to members of the insured’s household.
8. The ____________ ____________ doctrine 11. A company whose driver is negligent cannot
assumes that the head of the family is the sue the driver of the other automobile who is
most financially responsible person in the also negligent because the negligence of its
family. driver is ____________ to the company.
Multiple-Choice
1. The doctrine of respondeat superior does not 5. Examples of exceptions to the non-liability of
apply if an employee is bailors are
a. acting outside the scope and furtherance of a. family purpose doctrine.
their employment. b. automobile consent statute.
b. serving their employer and meeting their c. joint enterprise.
personal needs. d. all of the above.
c. intending to further their employer’s busi-
6. Under the majority law today, doctors are
ness by doing something foolish.
d. all of the above. a. vicariously liable for the negligence of
nurses, paramedics, and other personnel
2. An employer can be held liable they supervise.
a. if an employee intentionally injures someone. b. perceived as the “captain of the ship” for
b. for the negligence of an employee who legal purposes as a means of circumventing
goes on a frolic or detour if the employee’s the charitable-immunity rule.
deviation is reasonably foreseeable. c. not held vicariously liable for the acts of
c. if they expressly forbid an employee to do those they supervise except, in some states,
something and they do it anyway. when they are performing surgery.
d. all of the above. d. none of the above.
3. An employer can be held liable for the 7. A joint enterprise
negligence of an independent contractor a. requires that each member of the group
a. if the employer tries to delegate a have an equal right to control the direction
nondelegable duty to that independent of the enterprise.
contractor. b. is created when people go on a social
b. if the employer hires the contractor to carry trip.
out an activity that is the slightest bit risky. c. is created any time there is a sharing of
c. unless the activity the independent expenses on a trip.
contractor is to carry out is illegal. d. all of the above.
8. Under the modern rule, negligence is usually
4. Under the retained control exception imputed
a. supervising the sequence is enough. a. to spouses.
b. control must relate to the actual manner in b. to the plaintiff in wrongful-death actions.
which the work performed by the contractor c. to bailors.
is done. d. all of the above.
c. the contractor is free to do the work in their
own way.
Practice Pointers
One of the easiest ways to gain information about an employer’s relationship to a worker is through the use
of interrogatories. In comparison to depositions, interrogatories are relatively inexpensive to prepare. They do
not, however, provide the same type of information that depositions do.
Depositions give attorneys an opportunity to see how an individual reacts to pressure and allows them,
in general, to assess the individual’s probable performance on the witness stand. Additionally, depositions
allow attorneys to follow up immediately on questions and to pursue a line of questioning aggressively without
giving the individual an opportunity to collect their thoughts. Although depositions are typically a more helpful
discovery device, their expense precludes extensive use. Therefore, law firms spend considerable time preparing
and answering interrogatories.
Interrogatories give more insight into the attorney’s thoughts than to the clients. This is because attorneys
assist clients in responding to interrogatories and, in some cases, actually prepare the answers for the client’s
signature. Generally, attorneys strive to avoid answering any questions they do not absolutely have to, and
they try to reveal no more information than is ethically required.
Because attorneys often delegate the task of drafting interrogatories to their legal assistants, you should
become familiar with this process. Interrogatories should be as specific and narrow as possible. General questions
promote general answers. If you want to know how the plaintiff was injured, do not ask broad questions such as,
“How did the accident occur?” Use questions that call for specific information. Divide the accident into relatively
short time sequences, and ask questions pertaining to each sequence. Ask, for example, what the defendant was
doing immediately preceding the accident, which direction they were headed in, what time of day it was, what
the lighting conditions were, what intersection the accident occurred at, where were they headed, when did the
defendant first observe the plaintiff, and so on.
Avoid asking questions that can be truthfully answered with a simple “yes” or “no” unless you intend
to follow up with detail-seeking questions. Always use open-ended questions. Include specific requests for
names, addresses, and titles of witnesses. Ask whom the other side intends to call as witnesses and what their
anticipated testimony will be. Also ask about the documentation and exhibits opposing counsel intends to use
at trial including medical exams.
Phrase questions carefully to prevent opposing counsel from having an excuse for evading any question.
Questions that violate any privileges (such as the privilege against self-incrimination, the attorney-client priv-
ilege, or the attorney work-product rule) should be avoided, as should questions that are irrelevant or overly
burdensome for opposing counsel to respond to.
When formulating questions, it is often helpful to mentally walk through the chain of events that led up
to the plaintiff’s injury and that ultimately resulted in the plaintiff seeking legal assistance. The sequence of
your questions should follow that same chronological order. Imagine that you are photographing the scene
as it unfolds and that now, as you ask your questions, you have slowed down the camera speed so that you
can see one frame at a time. Try to ask at least one question for each frame of action. Even when this proves
impractical, the frame-by-frame approach will encourage you to ask extremely narrow questions and not miss
any steps.
When you review your questions, check to see that they are straightforward and concise. Confusing,
convoluted questions often beget confusing, convoluted answers. Simplicity and precision are the key to
effective interrogatories.
Sample Interrogatories
1. How long has Josh Stevens been associated with your company?
2. What was the original purpose of the association?

a. Has that purpose changed? If yes, what is the current purpose of their association?
3. Has Josh Stevens ever signed a contract or agreement with your company for any purpose?
a. If so, please attach a copy of any such documents if you will do so without a subpoena.
4. List the specific duties Josh Stevens was assigned when they were first associated with your company.
a. Have those duties changed? If yes, specify the duties they are currently assigned.
5. What was Josh Steven’s title when they were first associated with your company?
a. What titles have they held since that time?
b. What is their current title?
6. How did you first learn that Josh Stevens was or might be available to provide services for your company?
7. Did Josh Stevens in the past, or do they currently, have their own office outside of your company?
8. Did Josh Stevens in the past, or do they currently, advertise their services to others?
9. Did Josh Stevens in the past, or do they currently, have their own equipment?
10. Do you exercise any control over who Josh Stevens can hire or work with on projects for your company?
11. Is Josh Stevens covered by any insurance policies owned or paid for by your company?
a. If so, list each such policy.
Tort Teasers
1. Review the three hypothetical questions posed at the beginning of this chapter and determine if the
attorney in each case would be liable for the acts of their employee (you).
2. In the evening hours on the car sales lot, the manager of the lot instructs one of the employees to go
and purchase some beer for them to drink at work. The employee does so, and a couple of employees
and the manager partake in some drinks before closing the lot. After leaving the showroom, defendant
gets in their car and proceeds to hit another employee that was leaving the building. That employee
sustains substantial traumatic brain injuries and is permanently paralyzed and in a nursing home. Were
the car lot and the manager liable for the actions of defendant? Was defendant acting in the scope of
their employment? In Re Rudolph Automotive, 616 S.W.3d 371 (Texas 2020).
3. Plaintiff is involved in a car accident that he contends was caused by Defendant’s negligent repair of his
brakes 15 months prior to the accident. Should Defendant be held liable? Nguyen v. Good Chevrolet,
Inc., 2005 WL 762624 (Wash.App. Div1 2005).
4. A relatively healthy 52-year-old woman has surgery to repair her heart valve. She encounters excessive
bleeding during the robotic surgery and a month after surgery dies from her complications. Her estate is
suing the hospital and the surgeon as well as the medical assistant under the theory of respondeat supe-
rior that there was not enough warning of the excessive bleeding during the surgery. The hospital argues
that respondeat superior does not apply in this case because there was no lack of warning. What infor-
mation would need to be proven to show respondeat superior in this case? What about for the surgeon?
The Hospital? DeHart v. Jones, 310 So.3d 658 (LA 2020).
5. Employee, entrusted with a vehicle by Employer, suffers an epileptic seizure and causes an accident
that results in the death of one person. Employer hired Employee six weeks before the accident.
Three weeks before the accident, Employee suffered dizzy spells and had minor accidents on three
separate occasions, two of which were brought to the attention of Employer. Employer arranged
to have Employee examined by a physician, who found nothing wrong with Employee. Should
Employer be held vicariously liable in a wrongful-death action? Syah v. Johnson, 55 Cal. Rptr. 741
(Ct. App. 1966).
6. Plaintiff who was an adult with severe nonverbal autism, was a resident of defendant facility. Plaintiff claims
they were severely burned and injured by an employee of defendant facility and sues under the theory of
respondeat superior. What must be proven to be successful in this claim? Does the fact that the defendant
facility did not check any previous references or check any of defendant employee’s previous jobs have a
bearing on the case? What if a simple check would have shown defendant employee had been let go of a
previous position for similar reasons? Sandoval v. Leake and Watts Service, Inc. 192 A.D.3d 91 (NY 2020).
7. The owner of a vehicle brings his car to a car wash. It is attached to a tow line and towed without its
operator through the car wash. When it emerges from the wash it rolls down an incline and strikes
Plaintiff’s automobile. Is the car wash liable for the damages to Plaintiff’s car?
Assume that the motor vehicle code of that state provides that the negligence of one who uses or operates a
vehicle with the owner’s express or implied permission is imputed to the owner of the vehicle. In accordance
with this statute, should the vehicle owner be held liable for the property damage to Plaintiff’s vehicle? Allcity
Insurance Co. v. Old Greenwich Delicatessen, 349 N.Y.S.2d 240 (Civ. Ct. 1973).
8. Defendant driver collides with a school bus while acting as a chauffeur for the owner of the vehicle he is
driving. Defendant is driving with the owner’s permission for the purpose of keeping the car running in good
shape. If Defendant was contributorily negligent, can the owner sue the driver and owner of the school bus
for the damages sustained by his vehicle? Can the two passengers in the vehicle at the time of the accident
recover for their injuries? Can the driver’s wife recover for her injuries (assume this is a community-property
state)? Muhammad v. United States, 366 F.2d 298 (9th Cir.), cert. denied, 386 U.S. 959 (1966).
Internet Inquiries
One of the many gateways to legal information is www.scholar.google.com—this site is chock full of useful
information and links to a number of legal cases and you can search cases by jurisdiction. The Legal Information
Institute www.law.cornell.edu is also a wonderful site that contains a lot of legal information as well as a
legal encyclopedia. www.nolo.com is another site that contains legal information and is in easy-to-read terms.
For looking up laws and statutes, www.uscode.house.gov/ will give you everything in the U.S. Code, your
individual state will have specific state statutory sites and state constitution sites.
Go to one of the above sites and find a link that provides
1. abbreviations and acronyms for medical and pharmaceutical terms.
2. links that will assist you in conducting medical research.
3. information about forensic sciences.
4. links to federal public records.
5. an article on finding experts.
Your firm has recently accepted Maria Conseulas as a client. Maria was seriously injured when she fell
off a horse while jumping it at a horse show. The horse caught its foot when going over a difficult jump
and fell, crushing Maria under its body. A couple of trainers who observed the accident commented
to Maria’s parents that they believed the horse she was riding was being asked to jump at a level it
was not physically able to and that Maria’s trainer should not have entered Maria in this event. Maria’s
parents would like to sue the horse trainer, but some preliminary research indicates that the trainer is
essentially judgment-proof. The trainer does, however, work for a large ranch, Escondido Farms.
What will your firm need to ascertain before it can decide whether Escondido Farms can be sued in this case?
What questions should be asked in making this determination? What about going after the trainer themself?
Chapter 1
15
Joint Liability
Chapter Topics
Joint and Several Liability Release
Satisfaction “Mary Carter” or “Gallagher” Agreements
Contribution Indemnification
Chapter Objectives
• Identify situations in which tortfeasors are jointly • Distinguish between releases and covenants not
and severally liable for their acts. to sue.
• Apply the concepts of contribution, satisfaction, • Recognize the problems associated with releases
and indemnification. in light of contribution.
Y ou and a friend go out west for a week’s vacation. While there you decide to take in the local scene by
going on a trail ride through the desert. The fancy resort where you are staying sponsors these rides,
which are designed for cowfolk such as yourself. The hotel uses ABC Stables for the rides and covers the cost
for its’ patrons. It is advertised as a peaceful, scenic ride that allows you to enjoy the panoramic vistas of the
desert. When you arrive at the stable, you tell the trail hands, Tex and Rex, of your ignorance about horses. Tex
and Rex, engaging in a little humor, put you on Molly, a mare noted for her impulsive urges to return to the
stable without giving any notice to her rider. Unfortunately, Molly succumbs to this urge while you are a passen-
ger. She dumps you unceremoniously on the rocky ground, never demonstrating the least bit of remorse as she
gallops back to the stable.
You suffer several broken bones and a concussion as a result of this little adventure and decide to sue Tex
and Rex, ABC Stables who employed them, and the resort that promoted the trail ride. Assuming you are able
to prove liability on behalf of all the defendants, can you elect to recover your damages only from the resort,
even though Tex and Rex were primarily responsible for your injuries? Can the resort then turn around and seek
reimbursement from ABC Stables for its portion of the damages? What about reimbursement from Tex and
Rex? If ABC Stables is held liable only because the negligence of Tex and Rex is imputed to it, can ABC seek
reimbursement from Tex and Rex? If Tex comes to you and says that the whole scheme was Rex’s idea, can you
agree to absolve Tex from all liability in exchange for securing his testimony against Rex? Can one of the defen-
dants get a release and if so, does that preclude you from recovering from the other defendants? Would ABC
Stables indemnify Tex and Rex? We will return to answer these questions after reading this chapter.
CHAPTER 15 Joint Liability | 457
Joint and Several Liability will be held liable for the plaintiff’s death because
death is not apportionable. Similarly, if the plaintiff’s
Two or more persons who act in concert to pro- property is destroyed, the harm is considered indi-
duce a negligent or intentional tort are called visible and nonapportionable.
joint tortfeasors. Joint tortfeasors are jointly and Even if one of the defendants directly causes
severally liable, in that they are totally liable for the plaintiff’s injuries, all the defendants will be held
the entire loss suffered by the plaintiff if that loss liable if a court concludes that they acted in con-
is indivisible. A loss that cannot be apportioned cert. Suppose two young men are drag-racing down
among the defendants is considered indivisible. a public street and one of them collides with the
The rule of joint liability also applies to concurrent plaintiff’s car. Both will be held liable even though
tortfeasors, those whose independent acts concur only one of them actually came in contact with the
(combine) to cause the plaintiff’s injury. Notice that car. The reasoning is that the tortious conduct of
joint tortfeasors act together whereas concurrent one encouraged the tortious behavior of the other
tortfeasors act independently, but their combined and the combination led to the harm caused. (See,
acts cause the plaintiff’s injuries. for example, Bierczynski v. Rogers, 234 A.2d 218
Under the rule of joint and several liability, [Del. 1968].)
each defendant can be held responsible for the
entire harm or any designated portion of the
harm (see Exhibit 15–1). Although a plaintiff may Harm That Cannot Be Apportioned
recover from one or all of the joint tortfeasors, they The majority of states follow a modified joint and
can recover only once for the total damages. As several liability theory that splits the risk of insol-
a result of this rule, one defendant can be held vency. The defendant is responsible for the entire
responsible for payment of all damages even amount if they are found above a certain percent-
though their contribution to the plaintiff’s injuries age at fault. If the amount of fault is easily divisible
was relatively minor. Therefore, if the plaintiff suf- then they will be responsible for their portion. In
fered damages in the amount of $10,000, and five other words, if 60 percent of the harm was caused
defendants acted together to cause the injuries, by defendant A and the remainder by defendants
the plaintiff could recover $2,000 from each defen- B and C, defendant A will be responsible for
dant, $10,000 from one defendant, or $1,000 from 60 percent of the damages and defendants B and
four of the defendants and $6,000 from one of the C will be responsible for the other 40 percent. As
defendants, and so on. discussed in Chapter 7 on damages, if the harm
If the plaintiff dies as a result of the independent can be apportioned but can be done so only with
or concerted acts of the defendants, each defendant great difficulty, the burden of allocating harm is on
Exhibit 15–1 Joint and Several Liability
Joint Liability Satisfaction Contribution
Each tortfeasor is liable for entire Plaintiff is entitled to only one A defendant who pays more than
loss if loss is indivisible. satisfaction (payment) of their pro rata share of damages
judgment. is entitled to contribution
(partial reimbursement) from
other defendants.
Release Indemnification
A plaintiff who agrees to release A tortfeasor who agrees to

a defendant absolves that indemnify another tortfeasor
defendant of all liability. accepts all financial responsibility
on behalf of that tortfeasor.
the defendants. If the defendants are unable to hurt the business. Using business to provide “insur-
satisfactorily prove who was responsible for each ance” only encourages plaintiffs to find wealthy
percentage of the damages, all the defendants will business defendants to sue, resulting in a tort sys-
be held jointly and severally liable. tem that is no longer grounded in moral obligation
As of 2019, 14 states have pure several lia- and that serves up defendants as scapegoats or
bility which means that the burden of identifying deep pockets.
nonparty tortfeasors is on the plaintiff and not the One well-publicized case that illustrates the
defendant. Each defendant is only liable for their policy questions posed by the doctrine of joint
assigned portion of the damages based on their and several liability involves a sympathetic plaintiff
percentage of liability. The rest of the states have and a nominally negligent defendant. In this case a
either pure joint and several liability or a modified husband and wife, Gene and Cynthia Ellwood, and
joint and several liability. Cynthia’s four children from a previous marriage,
were crowded inside a van Gene was driving. Gene
Status of Joint and Several failed to notice a stop sign as he headed into a busy
intersection at 40 miles per hour and went directly
Liability into the path of a school bus loaded with a soccer
Joint and several liability has been abolished in team. The officer at the scene said there was noth-
some states, primarily because of the concern that ing the bus driver could have done to avoid the
the doctrine is used to go after the “deep pocket” accident. The impact killed Cynthia’s 10-year-old
defendant, who may actually be responsible for son and left Cynthia in a coma from which the doc-
only a minimal portion of the harm. A corporation, tors said she would never recover. She will require
for example, whose negligence contributed to only constant care in a nursing home as long as she
10 percent of the plaintiff’s harm may be held totally lives, at a total cost of $1 million or more.
responsible for the plaintiff’s damages under the rule Gene was insured for $100,000; beyond that he
of joint and several liability simply because the more had few if any assets. His insurance company paid
blameworthy defendant is penniless. immediately, but the $100,000 barely covered the
Basically, the question of whether to retain joint medical bills for the first month after the crash.
and several liability is a matter of social policy— The bus driver admitted during a deposition
where society wants to assign the burden when a that she never saw the Ellwood car approaching the
liable party cannot pay damages. Without joint and intersection. The side road on which the Ellwoods
several liability, the injured plaintiff bears the loss. were traveling joined the highway at a slant from the
Although society pays less, some plaintiffs will not bus driver’s left. Nothing blocked vision in the area
be fully compensated. If joint and several liability is between the roads. Based on this testimony the
in effect, the loss is assigned to other liable defen- attorney representing the bus company estimated
dants, who routinely pass on their added costs to the bus driver’s negligence at under 10 percent. The
society as a whole. attorney representing Cynthia estimated the worth of
Many criticisms of joint and several liability cen- the case as somewhere between $4 and $5 million.
ter on the risks and costs it forces on defendants. Fifteen months after the accident, and just days
Critics maintain that defendants should not be before trial was to begin, the insurance carrier paid
required to shoulder the burden for harm caused $1.9 million on its $2 million policy and the case was
by others. Others argue that joint and several dismissed. The attorney for the insurance carrier says
liability hurts industry because even if a business he settled out of court because “we just couldn’t
can pass on its tort-related costs to society as a risk going to trial” and facing responsibility under
whole through higher prices, those higher prices joint and several liability for a verdict greater than
$2 million.
The ultimate question in this case was, “Who
Local Links should pay?” If the bus company’s insurance had
What is the status of joint and several liability not provided $2 million for Cynthia’s expenses, she
in your state? would have had no one to take care of her except
Social Security. Joint and several liability thus tapped
a minimally negligent defendant to provide a safety have since abolished or modified. Some states, for
net for Cynthia. However, because of this doctrine a example, limit the liability of tortfeasors whose contri-
defendant that was only nominally responsible was bution to the plaintiff’s damages falls below a certain
forced to pay large damages. percentage; such tortfeasors are liable only for their
This case was the topic of heated debate and equitable share of the damages. For a more in-depth
during legislative hearings was used to illustrate the discussion of joint and several liability as it relates to
abuses caused by a doctrine that most jurisdictions the broader topic of tort reform, see Chapter 16.
Case
In Re Stutsman
612 S.W.3d 695 (Tex. 2020)
BURGESS, Justice
Injured motorist brought personal injury action against 650 & n.12 (Tex. App.—El Paso 1999, orig. proceed-
two different drivers who had each rear-ended her ing)). Mandamus will issue to correct a clear abuse
automobile in a short period of time. Defendants of discretion where there is no adequate remedy by
moved to sever the claims, and the trial court granted appeal. Walker v. Packer, 827 S.W.2d 833, 839–40
the motion. Plaintiff sought mandamus relief. (Tex. 1992) (orig. proceeding). “A trial court abuses
In this personal injury case, Misty Stutsman seeks its discretion if ‘it reaches a decision so arbitrary and
mandamus relief from the trial court’s severance order unreasonable as to amount to a clear and prejudicial
that severed her claims against two alleged tortfeasors. error of law’ or if it clearly fails to correctly analyze
Because we conclude that the entry of the severance or apply the law.” In re Cerberus Capital Mgmt., L.P.,
order did not constitute a clear abuse of discretion, we 164 S.W.3d 379, 382 (Tex. 2005) (per curiam) (orig.
deny the requested relief. proceeding) (quoting Walker, 827 S.W.2d at 839). To
satisfy this standard, the relator must show “that the
I. Background
trial court could reasonably have reached only one
On December 17, 2018, Stutsman was involved in an decision.” Walker, 827 S.W.2d at 840.
automobile accident in which Bruno Otto Schueler “The mere fact that a trial court may decide a matter
rear-ended her vehicle. Then, on December 28, within its discretionary authority in a different manner
2018, Stutsman was involved in a second automobile than an appellate court in a similar circumstance
accident in which Cameron J. Peoples rear-ended her does not demonstrate that an abuse of discretion has
vehicle. As a result of the two collisions, Stutsman occurred.” Liu, 290 S.W.3d at 518 (quoting Adams v.
filed a lawsuit against Schueler and Peoples. Peo- Baxter Healthcare Corp., 998 S.W.2d 349, 356 (Tex.
ples filed a motion to sever, joined by Schueler, App.—Austin 1999, no pet.) (“conducting review of
alleging that the claims against them were misjoined severance order”)). And, when the trial court’s sever-
under Rule 41 of the Texas Rules of Civil Procedure. ance ruling falls “within the wide zone of reasonable
See TEX. R. CIV. P. 41. agreement, the appellate court reviewing that deci-
Following a hearing, the trial court severed Stuts- sion within the context of a mandamus proceeding
man’s claims against Schueler and Peoples. This origi- should not conclude the lower court abused its discre-
nal proceeding followed. tion.” Id. at 520. Finally, where, as here, the trial court
does not make findings of fact or conclusions of law,
II. Standard of Review
the trial court’s ruling will not be disturbed if “it can
“Mandamus is the appropriate avenue by which a be upheld on any legal theory that finds support in
party may seek review of a trial court’s order regarding the evidence.” Id. at 519 (quoting Worford v. Stamper,
severance.” In re Liu, 290 S.W.3d 515, 518 (Tex. 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)); see In
App.—Texarkana 2009, orig. proceeding) (citing In re Brookshire Bros., Ltd., 198 S.W.3d 381, 387 (Tex.
re Hoover, Bax & Slovacek, L.L.P., 6 S.W.3d 646, App.—Texarkana 2006, orig. proceeding) (absent
(continued)
Case | In Re Stutsman (continued)

written findings by trial court, mandamus court must orig. proceeding) (“trial court should look exclusively
uphold trial court ruling on any legal theory finding to the live pleadings on file in determining whether to
support in evidence). effect a severance”)). Our analysis necessarily begins
with the examination of Stutsman’s pleadings.
III. Analysis
Stutsman’s complaint alleged that her vehicle
“A severance splits a single suit into two or more inde- was rear-ended by Schueler on December 17, 2018
pendent actions, each action resulting in an appealable and was rear-ended a second time by Peoples on
final judgment.” Van Dyke v. Boswell, O’Toole, Davis & December 28, 2018. The allegations of negligence
Pickering, 697 S.W.2d 381, 383 (Tex. 1985). “Severance with respect to each defendant are identical. Stut-
of claims under the Texas Rules of Civil Procedure rests sman sought to recover damages for her medical
within the sound discretion of the trial court.”1 Liberty expenses, loss of earning/earning capacity, physical
Nat’l Fire Ins. Co. v. Akin, 927 S.W.2d 627, 629 (Tex. pain and mental anguish, and physical impairment,
1996) (orig. proceeding) (citing Guar. Fed. Sav. Bank v. “all of which damages Plaintiff incurred by reason
Horseshoe Operating Co., 793 S.W.2d 652, 658 (Tex. of bodily injuries sustained in two (2) motor vehicle
1990)). A trial court properly exercises its discretion crashes which occurred in Longview, Gregg County,
to sever when “(1) the controversy involves more than Texas.” Stutsman then alleged, by reason of the force
one cause of action; (2) the severed claim is one that and violence of the two (2) crashes Plaintiff has sus-
could be asserted independently in a separate lawsuit; tained bodily injuries which are inseparable in that the
and (3) the severed actions are not so interwoven with injuries were to the same area of Plaintiff’s body.
the other claims that they involve the same facts and Under the doctrine of inseparable injury announced
issues.” Id. “The controlling reasons for a severance by the Texas Supreme Court in Landers v. East Texas
are to do justice, avoid prejudice and further conve- Salt Water Disposal,[2] Plaintiff would show that Defen-
nience.” Guar. Fed. Sav. Bank v. Horseshoe Operating dants should be held jointly and severally liable for
Co., 793 S.W.2d 652, 658 (Tex. 1990). all injuries and damages sustained by Plaintiff in an
“The issue of whether a trial court should or should amount within the jurisdictional limits of this Court, for
not grant a severance motion is ultimately a question which sums Plaintiff now sues.
of law.” Liu, 290 S.W.3d at 520 (citing Guar. Fed. Sav. Stutsman’s response to the motion to sever indi-
Bank, 793 S.W.2d at 658–59). In making this determi- cates that, following the initial accident, Stutsman
nation, “the trial court must generally accept the plain- reported to the emergency department complaining
tiff’s pleadings as true and then determine whether of pain across the chest, neck pain, and right elbow
severance is appropriate.” Id. (citing Jones v. Ray, 886 pain. Two days later, Stutsman received chiropractic
S.W.2d 817, 820 (Tex. App.—Houston [1st Dist.] 1994, treatment by Gary Lipkin, D.C., where she complained
of neck and upper back pain, bilateral paresthesia
in her upper extremities, headaches, and stiffness in
1 Rule 40 of the Texas Rules of Civil Procedure provides for per-
missive joinder and states, in pertinent part:
her lower back. She continued treatment for those
All persons may be joined in one action as defendants if there is complaints on December 20–21, December 26, and
asserted against them jointly, severally, or in the alternative any right December 28. The record further indicates that, when
to relief in respect of or arising out of the same transaction, occur- Stutsman next visited Lipkin on January 7, 2019, she
rence, or series of transactions or occurrences and if any question of
explained that her symptoms had increased 2 Landers
law or fact common to all of them will arise in the action.
v. E. Tex. Salt Water Disposal Co., et al., 151 Tex. 251,
TEX. R. CIV. P. 40(a). Rule 41 of the Texas Rules of Civil Proce-
dure addresses misjoinder and states, in pertinent part: 248 S.W.2d 731 (1952). following the December 28
[A]ctions which have been improperly joined may be severed rear-end collision. Lipkin’s medical narrative indicated
and each ground of recovery improperly joined may be docketed as that Stutsman was “maintained under active medi-
a separate suit between the same parties, by order of the court on cal care for her first accident from 12-19-2018 until
motion of any party or on its own initiative at any stage of the action,
12-28-2018. The treatment dates from 1-7-2019 until
before the time of submission to the jury or to the court if trial is with-
out a jury, on such terms as are just. Any claim against a party may be
2-19-2019 were for treatment of her neck and back
severed and proceeded with separately. injuries with a combined causation of the first and
TEX. R. CIV. P. 41. second crash.”
(continued)

This controversy involves more than one cause of defendants jointly, when each acted independently of
action—defined as a “plaintiff’s primary right to relief the others and there was no concert or unity of design
and the defendant’s act or omission that violates that between them.” Id. at 715. It reasoned that this rule,
right.” Jones v. Ray, 886 S.W.2d 817, 821 (Tex. App.— strictly followed, has made it impossible for a plaintiff,
Houston [1st Dist.] 1994, orig. proceeding). Having though gravely injured, to secure relief in the nature
been involved in two automobile accidents on different of damages through a joint and several judgment by
dates with different drivers, Stutsman is clearly enti- joining in one suit as defendants all wrongdoers whose
tled to bring a separate cause of action for injuries she independent tortious acts have joined in producing
sustained in each accident. But the severed cases an injury to the plaintiff, which, although theoretically
must not be so “interwoven” that they involve the divisible, as a practical matter and realistically consid-
“same facts and issues.” See Guar. Fed. Sav. Bank, 793 ered is in fact but a single indivisible injury. Landers,
S.W.2d at 658. 248 S.W.2d at 734. The Texas Supreme Court noted
In reliance on Landers, Stutsman argues that her that the class of cases following the Robicheaux rule
damage claims are interrelated because the two seemed to embrace the philosophy “that it is bet-
accidents combined to cause inseparable injuries. ter that the injured party lose all of his damages than
In the Landers case, Landers sued two defendants, that any of several wrongdoers should pay more
seeking a joint and several judgment for dam- of the damages than he individually and separately
ages. Landers, 248 S.W.2d at 731. Landers’s petition caused.” Id. And, although there was no allegation
alleged that, “on or about April 1, 1949,” East Texas that Landers’s injuries happened simultaneously, the
Salt Water Disposal Company’s pipe line broke and court reasoned that “the burden of proving the share
“negligently permitted some 10,000 to 15,000 barrels contributed to the injury by each of the wrongdoers is
of salt water to escape from the line and to flow over just as onerous in this case as in [a case of simulta-
[his] land and into his lake, killing his fish and other- neous injury].” The court continued, “[W]e perceive no
wise injuring and damaging him.” Id. at 732. Landers sound reason for permitting the imposition of joint and
further alleged that, on the same day, a pipeline car- several liability in the one class of cases and denying
rying oil and salt water owned by Sun Oil Company it in the other.” Id. at 735. The court defined an indi-
“broke and the defendant Sun Oil Company negli- visible injury as one that “from its nature cannot be
gently permitted large quantities of oil and salt water apportioned with reasonable certainty to the individual
to escape and run ... into plaintiff’s lake, killing his fish wrongdoers.” Id. at 734.
and otherwise injuring and damaging him.” Id. The Although Landers is clearly distinguishable on its
Texas Supreme Court held that those allegations were facts, it plainly recognizes instances in which inde-
sufficient to assert joint and several liability: pendent tortious injuries can combine to produce an
Where the tortious acts of two or more wrongdoers indivisible injury, as Stutsman alleges in her original
join to produce an indivisible injury, that is, an injury petition. The real parties in interest point out, though,
which from its nature cannot be apportioned with rea- that Landers should not control in light of the fact that
sonable certainty to the individual wrongdoers, all of the two automobile accidents in which Stutsman was
the wrongdoers will be held jointly and severally lia- involved occurred over one week apart. In support of
ble for the entire damages and the injured party may this proposition, they rely on Phillips v. Gulf & South
proceed to judgment against any one separately or America S.S. Co., 323 S.W.2d 631, 635 (Tex. App.—
against all-in-one suit. Id. at 734.3 Houston 1959, writ ref’d). In that case, Phillips injured
In reaching this conclusion, the court overruled his low back on January 14, 1957, while loading cargo
Sun Oil Co. v. Robicheaux, 23 S.W.2d 713 (Tex. Com. aboard a ship operated by Creole. Id. at 632. Then, on
App. 1930), which held that “an action at law for dam- August 1, 1957, Phillips sustained a second injury to his
ages for torts cannot be maintained against several low back while working aboard a ship operated by Gulf
& South American Steamship Company, Inc. Id. Phillips
sued Creole and Gulf seeking a joint and several judg-
3 Because the allegations in the petition were sufficient to assert
ment for injuries to his low back sustained in each
a case of joint and several liability, there was no misjoinder of either accident. Id. Phillips alleged that his injuries were “so
parties or causes of action. Landers, 248 S.W.2d at 734. interrelated as to make it impossible to differentiate
(continued)

between the effects of each.” Id. Following a hearing, past and future resulting from his injury were subject
the trial court granted Gulf’s motion to sever.4 Id. to determination with reasonable certainty.” Id. More-
Evidence at the severance hearing established the over, his right to recover for those damages was not
injury dates and showed that, on each date, Phillips altered by the second accident. Finally, the damages
slipped and fell on dangerous substances. Id. at 632–33. resulting from the second accident resulted in time
Following the first injury, Phillips sought medical off from work and ultimately caused him to leave his
treatment and continued that treatment two or three employment. Id. Any aggravation of the prior injury
times the following week. Id. at 633. Despite this injury, was likewise subject to a damage claim against
and although his back still hurt, Phillips continued to Gulf. Id. Consequently, the appellate court determined
work as a longshoreman until the time of his second that the severance order was proper. Id.
injury. Id. After the second injury, Phillips’s back both- This case is different than Phillips because the acci-
ered him more, and he did not work for about two and dents in which Stutsman was involved were only eleven
one-half to three months. He returned to work in May days apart. That said, it is apparent from Stutsman’s
1958, but ultimately quit because he could do only light pleadings that she was treated five times for injuries
work, which was in short supply. Id. sustained in the first accident before she was involved
On appeal, Phillips claimed that the court erred in in the second accident. Under these facts, the trial
severing his claims because his injury was indivisible, in court could have concluded that Stutsman’s claims
reliance on Landers. Id. The court concluded that “there against Schueler and her claims against Peoples, hav-
is no basis in law under the allegations contained in ing originated from two different automobile accidents
[Phillips’s] petition ... which would entitle [him] to obtain more than one week apart, were not in such close tem-
a joint and several judgment against each [defendant] poral proximity to cause proof of damages in each case
for both injuries he may have received on the two sepa- to have been interrelated to the extent that Schueler
rate occasions in question.” Id. at 635. In reaching this and Peoples would be jointly and severally liable for
conclusion, the court explained that, at least for sev- those damages. We do not believe that such a conclu-
eral months before the second injury, “damages both sion is “so arbitrary and unreasonable as to amount to
a clear and prejudicial error of law,” Walker, 827 S.W.2d
at 839, such that “the trial court could reasonably have
reached only one decision.” Id. at 840.
4 The trial court ordered Phillips “to amend his pleadings so as to
proceed against the two appellees in separate causes.” Phillips, 323 IV. Conclusion
S.W.2d at 632. When Phillips failed to do so, the trial court dismissed
Phillips’s lawsuit, and Phillips appealed. Id. We deny Stutsman’s petition for writ of mandamus.

1. How many separate accidents are represented in this case?
2. Who are the defendants? What is the basic allegation against them?
3. Were the motions against the defendants severed?
4. What would be the effect of a severance?
5. How does the plaintiff argue that the events are inseparable?
6. What is the key to whether the two separate incidents can be brought in the same action?
7. How does one prove their injuries are inseparable?
8. How does this case differ from the Phillips case?
9. How does the issue of the accidents being in close temporal proximity affect the holding of this case?
10. How can the plaintiff separate her injuries?
11. Did the court think the lower court could have found these claims inseparable? Why?

1. A psychiatric patient goes to a general practitioner, complaining of certain pains; the patient is hospital-
ized and rehospitalized. The first physician calls in a psychiatrist, who diagnoses the patient as suffering
from a chronic anxiety reaction and continues to treat them. After their discharge from the hospital, the
psychiatrist prescribes drugs that the patient believes caused them to have an automobile accident. The
first physician never sees the patient after they are discharged from the hospital, and the psychiatrist
continually treats them until they are involved in the accident.
The patient alleges that the two physicians are jointly liable, on the grounds that (1) one prescribed an
excessive quantity of dangerous drugs and failed to inform them of the risks of driving while taking
the drugs and (2) the other failed to inform them that the physician to whom he had referred them was
a psychiatrist and gave them insufficient information to enable them to decide whether to accept the
recommended treatment. Are the physicians jointly liable if they independently diagnosed and treated
the patient?
2. Two physicians, their employer hospital, a pharmacist, and their employer pharmacy were all sued by an
estate of a woman who died as a result of a stroke. The physicians both diagnosed her with a blood clot
and proceeded to prescribe her a blood thinner. The pharmacist filled the prescription and the patient
then went to the emergency room still in pain and was found to be bleeding from a stage IV tumor in her
stomach. She proceeded to have a stroke and die. Are the physicians jointly liable? Is the pharmacist
jointly liable? What about their employers? Who would have the burden of proving the joint liability of the
severability?
3. A young woman is injured when the bumper car she is driving on a ride at Disney World is struck by a
bumper car driven by her fiancé. At trial, the jury apportions 14 percent of the fault to the young woman,
85 percent to her fiancé, and 1 percent to Disney World. The plaintiff does not join the fiancé as a defen-
dant to the action. Can Disney World be held liable for 86 percent of the damages?
4. Future residents of a condominium complex sue the contractor, the condominium board, the finance com-
pany of the project, and the city for delayed permits for the delay in opening their condominium complex. Is
each of the parties individually and collectively responsible for the damages suffered by the residents?
Satisfaction courts denied contribution to intentional tortfeasors

and eventually denied it to all joint tortfeasors. That
If tortfeasors A, B, and C are jointly and severally common law rule was severely criticized and has today
liable for a $10,000 judgment and the plaintiff been changed by statute or judicial decision. Today,
recovers the full amount from A, they cannot collect under the majority rule, contribution is permitted to
anything from B and C. Additional recovery is not some extent. Although typically allowed for negligent
allowed because the plaintiff is entitled to only one tortfeasors, contribution is often denied for intentional
satisfaction (payment) of the claim. Although they tortfeasors. The justification underlying contribution is
can collect from all the tortfeasors, they can collect that one tortfeasor should not be saddled with all the
on their judgment only once. damages while others are allowed to escape without
any responsibility.
The courts disagree about the division of dam-
Contribution ages in the context of contribution. In some juris-
dictions each defendant is required to pay an equal
Tortfeasor A may, however, be entitled to contribution share of the damages. In those states that have
from B and C. In other words, A may turn to B and C adopted comparative negligence, the damages are
for partial reimbursement because they paid more than generally divided in proportion to each defendant’s
their pro rata share of the damages. Early American contribution to the plaintiff’s harm. A defendant to
whom a jury assigns 25 percent fault but who pays If the plaintiff receives payment from defendant A
the entire judgment can collect 75 percent of that and signs a release that does not mention defen-
amount from the other defendants in a comparative dant B, defendant B can later point to the common
negligence state. law rule regarding releases and escape all liability.
Contribution hinges on joint liability. If a defen- A plaintiff may preserve their rights against other
dant can raise a defense, such as immunity, that tortfeasors by specifically including a provision to
would bar recovery by the plaintiff, then the other that effect in the release. A desire to reserve one’s
defendants cannot seek contribution from them. right to sue may be proved by external evidence,
Similarly, contribution cannot be sought against such as verbal or written statements. This eviden-
an employer if a workers’ compensation statute tiary rule was promulgated out of a desire to pro-
prevents the plaintiff employee from suing the tect those who enter into such releases without legal
employer. This is because under workers’ compen- advice but who clearly intend to reserve their rights
sation statutes, employees can recover from insur- to sue the nonsettling defendants (Restatement
ance carried by their employers for any work-related [Second] of Torts § 885, cmt. d).
injury, regardless of who was at fault. Employees who
recover under these statutes are therefore barred Differences between a Release
from suing their employers in tort.
and a Covenant Not to Sue
Note the distinction between a release and a
Release covenant not to sue: a plaintiff who enters into a
release surrenders her claim; a plaintiff who enters
Contribution becomes particularly problematic into a covenant not to sue does not surrender
when a release, a document absolving a defen- their claim but agrees that they will not sue on it.
dant of all liability, is given to one defendant. If the plaintiff later reneges on a covenant not to
Under the common law, a plaintiff had a single, sue and decides to sue, the defendant with whom
indivisible cause of action against all joint tort- they entered into the covenant will have a coun-
feasors. Therefore, a release of one tortfeasor terclaim for breach of contract.
released all tortfeasors. To avoid the restrictive Plaintiffs should be cautioned against entering
results of a release, a plaintiff who settled with into releases prematurely. If a plaintiff’s injuries turn
one defendant would enter into a covenant not out to be more extensive than originally realized,
to sue, in which they promised not to sue that the release may have to be set aside on the grounds
particular defendant but continued to hold all of fraud or mistake. Litigation regarding the valid-
other defendants liable. ity of releases can be avoided by simply refrain-
According to Restatement (Second) of Torts ing from entering into releases until the full extent
§ 885, which reflects the majority rule, all tortfea- of the plaintiff’s injuries is known, which may be
sors are released if the release is silent regarding never.
their continuing liability. To illustrate this point,
suppose the plaintiff is injured by defendant A and Problems with Releases in Light of
seeks medical treatment from defendant B, who
aggravates the injury through negligent treatment.
Contribution
Problems arise in the context of contribution
when one defendant is granted a release and the
Local Links other defendants are not (see Exhibit 15–2). Sup-
In your state how are damages divided in the pose the plaintiff accepts $2,000 from defendant
context of contribution? A and releases them and then sues defendant B
and obtains a judgment for $20,000. Can B obtain
In the News
For articles on apportionment for joint tortfeasors, use “damage apportionment among joint tortfeasors”
as your search term. Try searching on www.tort.laws.com/joint-tortfeasors
In the News
Examples of releases and covenants not to sue can be found by searching sample tort releases and
sample covenants not to sue as your search term.
contribution from A? Under the traditional major- “Mary Carter” Or

ity rule, the answer is yes. Unfortunately, this rule
discourages defendants from settling because “Gallagher” Agreements
they know they may be subject to contribution at
Plaintiffs and defendants sometimes enter into
a later time.
agreements known as “Mary Carter” or “Galla-
To prevent this problem, some courts disallow
gher” agreements. Mary Carter agreements have
contribution but reduce the plaintiff’s claim against
been so designated because of Booth v. Mary Car-
the nonreleased defendant on a pro rata basis. Sup-
ter Paint Co., 202 So. 2d 8 (Fla. Dist. Ct. App. 1967)
pose that, as in the previous example, the plaintiff
in which such an agreement was first reviewed by
releases defendant A and is later awarded damages
the appellate courts. Under these agreements a
in a jury trial against defendant B for $20,000. The
defendant (or some of the defendants) agrees
plaintiff will be allowed to recover only $10,000 from
to guarantee a predetermined amount of money
defendant B because, by settling with defendant A,
if the plaintiff loses or recovers less than a stated
they liquidated half of their total right to recovery.
amount. In return, the plaintiff agrees to refund part
Defendant B, however, would not be allowed to
of the defendant’s payment in the event of a verdict
obtain contribution from defendant A. This rule is
against the defendant in excess of a stated amount.
also problematic in that it discourages plaintiffs from
Funds may actually change hands prior to trial or
settling as much as the previous rule discouraged
may be transferred on paper alone. Settling defen-
defendants from settling.
dants to these agreements will not be liable for any
To encourage settlement, therefore, some courts
form of damages and will impose liability upon the
relieve the settling defendant from contribution lia-
nonsettling defendants. Numerous variations on
bility altogether. Both the plaintiff and the settling
this theme exist, but the important feature is that
defendant must reach settlement in “good faith.”
the contracting defendant, although still a party in
They must also show they did not act in collusion
the case and usually a participant at the trial, ben-
with each other. The issue of good faith often ends
efits by the size of the judgments against the other
up being litigated under this approach.
defendants. The existence of Mary Carter agree-
ments and their terms must be disclosed in order to
Local Links prevent injustice.
How do the courts in your state deal with A typical agreement may also prohibit the plain-
contribution when one defendant has been tiff from settling with nonagreeing defendants for an
released? amount less than the guaranteed amount without
the agreeing defendant’s consent and might require
Exhibit 15–2 Three Approaches to the Problem of Releases in the Context of Contribution
Approach A Approach B Approach C
Nonreleased defendant can seek Nonreleased defendant cannot Nonreleased defendant cannot
contribution from released seek contribution, but plaintiff’s seek contribution, and plaintiffís
defendant. claim against nonreleased claim is unaffected by release
defendant is reduced. as long as parties negotiate in
Problem Associated with good faith.
Approach A: Discourages Problem Associated with
defendants from settling. Approach B: Discourages Problem Associated with
plaintiffs from settling. Approach C: Leads to litigation
regarding issue of good faith.
Case
Spence v. Julian
30 A.3d 220 (MD 2011)
GRAEFF
This appeal arises from a medical malpractice declaratory judgment action, the court found that
action. The issue presented involves the effect of Dr. Julian had the right to file a claim for contribution
a release agreement pursuant to the Maryland Uni- against Mercy. On August 27, 2010, a different judge
form Contribution Among Joint Tort–Feasors Act (the dismissed Dr. Julian’s contribution claim against
“UCATA”), Md.Code (2006 Repl.Vol.) § 3–1401 to –1408 Mercy, finding that, pursuant to the Release Agree-
of the Courts and Judicial Proceedings Article (“C.J.P.”). ment, Mercy was relieved from liability to make contri-
The Circuit Court for Baltimore City, in two separate bution to Dr. Julian.
opinions, reached conflicting conclusions. The Spences noted an appeal from the judgment
The initial lawsuit (the “Primary Action”) was filed in of the circuit court in the declaratory judgment action.
February 2005. Appellants, Wycinna and Christopher Dr. Julian appealed the court’s order dismissing his
Spence, individually, and Ms. Spence, as the Per- complaint seeking contribution. The two cases were
sonal Representative of the Estate of Caleb Spence consolidated for appeal.
(the “Spences”), filed suit against Emerson R. Julian The parties then presented multiple questions for
Jr., M.D., Emerson R. Julian, Jr., M.D., P.A., and Har- our review…
bor City OB/GYN (collectively “Dr. Julian”) and Mercy
FACTUAL AND PROCEDURAL BACKGROUND
Medical Center and its employees (“Mercy”) for inju-
a. The Release Agreement and Primary Action
ries sustained by their son, Caleb Spence, prior to and
during his birth. Before trial, Mercy and the Spences On February 15, 2005, the Spences filed a medical
entered into a Confidential Settlement Release Agree- malpractice claim against Mercy and Dr. Julian. They
ment (the “Release Agreement”), which provided that alleged negligence, wrongful death, and lack of informed
no other person would be entitled to a reduction of consent in the labor and delivery of their son, Caleb, who
damages by reason of the settlement “unless and suffered brain damage and died within one year.
until” Mercy was “adjudicated to be [a] Joint Tortfea- On September 20, 2006, prior to trial, the Spences
sor” with the other person. The Spences’ claim pro- settled their claim against Mercy and entered into
ceeded to trial solely against Dr. Julian, and a jury the Release Agreement. The Release Agreement dis-
found him liable for Caleb’s injuries. The jury awarded charged Mercy from all claims as a result of the Occur-
damages in excess of $8 million; the award subse- rence.2 It addressed the effect of the settlement on any
quently was reduced to $2,186.342.50, and Dr. Julian award of damages the Spences might recover against
paid the full amount. Dr. Julian as follows:
On April 17, 2009, the Spences filed a Complaint 7. Joint–Tortfeasor Nature of Agreement:
for Declaratory Judgment and Injunctive Relief. They a. The [Spences] and the Released Parties agree
asked the circuit court to declare that Dr. Julian was and understand that this is a “Swigert Release”
“barred from any right of contribution” from Mercy. as set out in the case of Swigert v. Welk, 213 Md.
On June 15, 2009, Dr. Julian filed a claim against 613 [133 A.2d 428] (1957), and, in accordance with
Mercy, asserting that Mercy was liable to him for con- that decision and the Maryland Uniform Contri-
tribution as a joint tortfeasor. Mercy moved to dis- bution Among Joint Tort–Feasors Act, [C.J.P.] §
miss the claim, arguing that the Release Agreement it 3–1401 et seq. (1974, 2002 Repl.Vol.) (“the Act”)
signed with the Spences in the original malpractice the Released Parties are neither deemed joint tort-
case precluded Dr. Julian from seeking contribu- feasors for purposes of this Release, nor are [the
tion from Mercy. Spences] hereby releasing any other person or entity,
Both cases were heard in the Circuit Court for whether or not a named party to this agreement. Any
Baltimore City, but the hearings took place before person or entity, other than the Released Parties,
different judges. On November 25, 2009, in the whom the [Spences] claim are liable to them for
(continued)
Case | Spence v. Julian (continued)

injuries, The “Occurrence” refers to Caleb’s birth and review it to determine how to protect his claims against
the injuries that ensued. Mercy as a joint tortfeasor…
losses and damages that are the subject of this Dr. Julian is entitled to know whether or not
action shall not be entitled to any reduction of the the Release between the plaintiffs and Mercy Medical
damages the [Spences] are claiming against them Center gives rise to claims for contribution or results
by reason of the payment herein, unless and until in automatic set-off. Dr. Julian is entitled to know the
the Released Parties have been adjudicated to be amount of the Release and Settlement to enable him
Joint Tortfeasors with said other person or entity. In to determine the extent of the set-off against him. If
the event the Released Parties are adjudicated to Dr. Julian learns that he must pursue a separate claim
be Joint Tortfeasors liable to the [Spences] for dam- against Mercy Medical Center, then he will require the
ages, the [Spences] agree that their damages recov- document in order to file an Amended Answer pursuant
erable against all other tortfeasors, including but not to Rule 2–323 of the Maryland Rules to assert the affir-
limited to [Dr. Julian], will be reduced to the extent of mative defense of Release…
the pro rata share of the Released Parties pursuant The trial proceeded solely against Dr. Julian. The
to the Maryland Uniform Contribution Among Joint jury found Dr. Julian liable and awarded the Spences
Tort–Feasors Act, [C.J.P.] § 3–1405 (1974, 2002 Repl. more than $8,000,000; the award subsequently was
Vol., 2005 Supp.). This provision is further intended to reduced to $2,186,342.50. On appeal, we affirmed the
relieve and protect the Released Parties from any lia- judgment in an unreported opinion, Emerson R. Julian,
bility for contribution to any person, firm, partnership, Jr. v. Christopher Spence, No. 1466, Sept. Term 2007
or corporation.[3] (filed Dec. 23, 2008). On April 10, 2009, the Court of
The release contained a provision for an escrow Appeals denied Dr. Julian’s petition for writ of certiorari.
account to be maintained if the Spences obtained a Julian v. Spence, 408 Md. 150, 968 A.2d 1065 (2009).
judgment against Dr. Julian. The next month, Dr. Julian’s insurance company paid
The Release Agreement also contained an the judgment against him in full.
indemnity and hold harmless clause. It provided
b. Declaratory Judgment Action
that the Spences would indemnify Mercy for any
claims against it arising out of the Occurrence. On April 17, 2009, the Spences filed a complaint in
The Release Agreement specifically stated that its the Circuit Court for Baltimore City seeking declara-
purpose was to limit forever the amount of money to tory and injunctive relief against Dr. Julian, who had
be paid by the Released Parties in conjunction with informed them that he intended to pursue a contri-
the Occurrence.... to relieve the Released Parties bution action against Mercy.5 The Spences requested
from any liability to make contribution to or indemnify that the court “[d]etermine and adjudicate the rights
[Dr. Julian], or any other person or entity, in the event and liabilities of the parties with respect to the Swi-
that the Released Parties are found to be tortfeasors gert Release,” including Dr. Julian’s “failure to plead
liable for damages pursuant to the finding of any court and prove negligence on the part of” Mercy and his
of law. “failure to affirmatively plead ‘Release’ in conformance
Following the execution of the Release Agreement, with Maryland Rule 2–323.” They asked the court
the Spences filed a Stipulation of Voluntary Dismissal. to declare that Dr. Julian was “barred from any right
It dismissed the “Complaint, and each and every Count of contribution,” and he had “a duty to pay the full
therein, asserted against Defendant [Mercy], only,” with amount of the $2,186,342.50.”
prejudice. On June 15, 2009, Dr. Julian filed a Motion to Dis-
Prior to trial, Dr. Julian moved to compel production miss and Motion for Sanctions.
of the Release Agreement, stating that he needed to
5 As indicated, pursuant to the Release Agreement, the Spences

3 The Release Agreement provided that “[t]he agreement to agreed to indemnify Mercy in the event Dr. Julian successfully
indemnify the Released Parties does not include payment of attor- pursued a contribution claim against it, and they agreed to hold in
neys’ fees and costs (e.g., expenses, travel expenses, exhibits, court escrow one half of the amount of the judgment for three years or until
costs, photocopying costs, expert witness fees, etc.).” Dr. Julian’s claim for contribution had been extinguished.
(continued)

On July 13, 2009, the Spences filed their opposi- The Spences responded in two ways. First, they
tion to Dr. Julian’s motion. They argued that declara- asserted that the HCADRO proceedings did not render
tory relief was appropriate because it “may terminate the Spences’ declaratory judgment motion improper
all further controversy related” to the case, thereby because the proceedings involved different claims and
fulfilling the purpose of the declaratory judgment stat- different parties—the HCADRO proceedings involved
ute. Noting that they were not a party in the HCADRO a medical negligence claim that Dr. Julian had initi-
proceeding, which was initiated two months after they ated against Mercy, whereas the declaratory judg-
had filed their complaint for declaratory judgment, the ment proceedings involved the Spences’ request that
Spences maintained that “[d]eclaratory relief is par- the court determine Dr. Julian’s right to contribution.
ticularly appropriate, if not essential, when the inter- Counsel maintained that the claims were “separate
ests of a party in one case might not be properly or and distinct” and declaratory relief is disfavored only
completely represented by a separate party in another when parallel proceedings involve identical parties
case.” They asserted that they had “no statutory rights and identical issues. Second, counsel argued that
or other means” to protect their rights. The Spences Dr. Julian waived his right to pursue a contribution
insisted that, pursuant to Swigert, 213 Md. at 613, 133 claim because he did not plead release as an affirma-
A.2d 428, the Release Agreement insulated Mercy from tive defense or implead Mercy to establish its status
any claim for contribution. They further argued that the as a joint tortfeasor in the Primary Action.
doctrine of res judicata prevented Dr. Julian from filing The court issued its ruling from the bench, denying
a contribution suit against Mercy because he “failed to Dr. Julian’s Motion to Dismiss and Motion for Sanc-
plead or prove any negligence on the part of Mercy and/ tions. The court found that the matters pending before
or its employees” in the Primary Action, and he waived it and in the HCADRO proceedings were “not even
the defense of release because he failed to timely plead the same,” noting that they involved “different parties,
it as an affirmative defense in the Primary Action. The different issues, [and] different claims.” It observed
Spences also maintained that Dr. Julian’s motion for that Mercy’s status as a joint tortfeasor had not been
sanctions was “neither substantive or thoughtful,” and established, and Dr. Julian “did not really protect [him]
they urged the court to deny the motion. self in a way that [he] should have or that it appeared
On July 28, 2009, Dr. Julian filed a reply. He main- that he was going to in reference to amending ... [his]
tained that “[d]ismissal of the declaratory judgment Answer ... for the affirmative defense of release or to
action is mandated given that the parties may file a cross claim or a cross interpleader.” The court
adjudicate the identical issues in the pending stated that the Spences’ had a “valid declaratory relief
HCADRO contribution action,” arguing that the action,” and it denied Dr. Julian’s Motion to Dismiss.
Spences were, in fact, parties in the HCADRO pro- On August 21, 2009, Dr. Julian filed his answer
ceedings because they were contractually bound to to the Spences’ complaint. He alleged a number of
indemnify Mercy. defenses, including that the Spences’ claim was barred
On August 7, 2009, the Honorable Lynn K. Stewart by C.J.P. § 3–409(b), which prohibits declaratory relief
held a hearing on Dr. Julian’s Motion to Dismiss. Counsel when “a statute provides a special form of remedy for
for Dr. Julian argued that the court should dismiss a specific type of case.” Dr. Julian also maintained that,
the declaratory judgment action because there was if the court granted the declaratory relief requested by
another proceeding pending on the issue involved. the Spences, he would “be entitled to a credit or setoff
She further argued that the relief the Spences were for the amount of the settlement with Mercy Medical
requesting was not available, stating that Dr. Julian Center.”
had a statutory right to contribution, was not obligated On August 27, 2009, Dr. Julian filed a Motion for
to file a cross-claim in the Primary Action to establish Summary Judgment, arguing that there was no dispute
Mercy’s liability as a joint tortfeasor, and “there [is] no of material fact and that he was entitled to judgment as
case law, whatsoever, that suggests that” a nonsettling a matter of law.
defendant must “plea[d] release in the underlying mal- The Spences filed an opposition to Dr. Julian’s
practice case before [it] can pursue [contribution] in a Motion for Summary Judgment, as well as their own
subsequent action.” motion for summary judgment. They maintained that
(continued)

they were entitled to judgment as a matter of law, argu- that, because Mercy settled with the Spences by sign-
ing: (1) Dr. Julian waived his contribution claim because ing a non-Joint Tortfeasor Release, he was entitled
he “did not affirmatively plead ‘Release’ pursuant to establish Mercy’s negligence and obtain an award
to Maryland Rule 2–323”; and (2) Dr. Julian failed to pre- in the amount of Mercy’s pro rata share of liability via
serve a contribution claim because he did not plead or a contribution claim.
prove Mercy’s negligence in the Primary Action, which On May 12, 2010, after filing its Answer, Mercy filed
was required to obtain contribution under the UCATA. a motion to dismiss or, in the alternative, for summary
The Spences asserted that Dr. Julian’s “assumption judgment.
that [he] could prove negligence in a subsequent claim Mercy further asserted that it had provided Dr. Julian
and ignore the intervening requirement to introduce with a copy of the Release Agreement, but “[Dr.] Julian
evidence of joint tortfeasor negligence in the underly- made no effort ... to adjudicate Mercy and [the nurses’]
ing claim” was fatal to his ability to recovery under the alleged liability and/or joint tortfeasor status.” It
UCATA. maintained that Dr. Julian did not “avail himself of
On November 19, 2009, after a hearing, the Hon- the benefit of the pro rata reduction provided for in
orable Evelyn O. Cannon stated that she was “going the Release” Agreement, and therefore, his claim was
to issue declaratory judgment that [Dr. Julian’s] action barred by C.J.P. § 3–1405.
may go forward.” The court stated that there was no On May 26, 2010, Dr. Julian filed his Opposition
requirement in Maryland that a claim for contribution be to Mercy’s motion to dismiss and motion for sum-
made in the underlying action by a cross-claim or third- mary judgment. He maintained that Mercy’s claim
party claim, and therefore, Dr. Julian was not barred for dismissal was barred by res judicata, asserting
from pursuing a contribution claim against Mercy at that Judge Cannon had concluded in the declara-
that point. tory judgment action that, because Mercy and the
On November 25, 2009, the circuit court issued its Spences had entered into a nontortfeasor “Swigert
declaratory judgment order in Dr. Julian’s favor. Release,” “Dr. Julian was permitted to pursue a con-
The Spences timely filed a Notice of Appeal. tribution action against Mercy” to establish Mer-
cy’s status as a joint tortfeasor. Although Mercy was
c. Dr. Julian’s Contribution Claim
not a party to the declaratory judgment proceeding,
On June 15, 2009, Dr. Julian filed a claim in the Dr. Julian maintained that it was bound by the judg-
HCADRO, seeking contribution from Mercy for the ment because it was in privity with the Spences by vir-
damages award it paid as a result of the verdict in tue of the Spences’ promise to indemnify it for claims
the Primary Action. On August 13, 2009, the HCADRO related to Caleb’s injuries.
transferred the case to the circuit court. Dr. Julian argued that C.J.P. § 3–1405 was not
On September 23, 2009, Dr. Julian filed a Complaint applicable, asserting that C.J.P. § 3–1405(2) requires
against Mercy and two nurses, Justina Mammeri and a release to provide for a pro rata reduction in a
Tina Call (the “nurses”),6 in the Circuit Court for Balti- nonsettling tortfeasors’ liability, but in this case,
more City. He alleged that Mercy and the nurses were the Release Agreement excluded Mercy as a joint
negligent in the prenatal care and delivery of Caleb tortfeasor and precluded Dr. Julian from obtaining a
Spence. Specifically, Dr. Julian alleged that Mercy and reduction in the damages award. Dr. Julian argued that
the nurses failed “to adequately monitor and super- he was not obligated to file a cross-complaint to adju-
vise the administration of Cytotec and Pitocin,” which dicate Mercy’s liability in the underlying proceeding,
caused Caleb to “lose his oxygen reserve during labor” and he did not waive his right to prove Mercy’s liability
and “suffer a severe and ultimately fatal injury during in an independent contribution claim.
that delivery that was prolonged.” Dr. Julian maintained On June 22, 2010, Mercy filed its reply to Dr. Julian’s
opposition to its motion to dismiss and motion for sum-
mary judgment. It maintained that its motion to dis-
6 Another nurse, Rachel Breman, was also listed as a party in
Dr. Julian’s complaint, but she was never properly served. The claim
miss was not barred by res judicata because it had not
against Ms. Breman was formally dismissed without prejudice on had “a full and fair opportunity to litigate the applica-
October 7, 2010. tion of” C.J.P. § 3–1405 in a prior proceeding because
(continued)

the circuit court’s decision in that regard was made in Dr. Julian relies heavily on C.J.P. § 3–1402. He
response to the Spences’ motion for declaratory judg- argues that his contribution action was authorized by
ment, to which it was not a party. Mercy argued that this statute, and his claim did not accrue until payment
the Release Agreement complied with C.J.P. § 3–1405, of the judgment in May 2009.
which expressly “relieve[s] the joint tortfeasor from Section 3–1402, however, cannot be read in isola-
liability to make contribution to another tortfeasor.” It tion. The UCATA has additional provisions addressing
asserted that “[Dr.] Julian had a complete opportunity the effect of a *582 plaintiff’s settlement with some, but
to obtain the benefit of Mercy’s release by filing a third- not all, defendants in a case.
party claim in the Primary Action and establishing” A release by the injured person of one joint tortfeasor,
Mercy’s status as a tortfeasor, but he waived the right whether before or after judgment, does not discharge
for tactical reasons at trial. the other tortfeasors unless the release so provides,
On June 25, 2010, the court held a hearing on but it reduces the claim against the other tortfeasors in
the motions. The court went on to find that, because the amount of the consideration paid for the release or
the Release Agreement satisfied the requirements of in any amount or proportion by which the release pro-
C.J.P. § 3–1405, Mercy was relieved from liability to vides that the total claim shall be reduced, if greater
make contribution to Dr. Julian. The court found that Dr. than the consideration paid.
Julian’s contribution claim against Mercy was barred, Section § 3–1405 provides a mechanism for a settling
and it granted Mercy’s Motion to Dismiss.7 defendant to protect against a claim for contribution.
Dr. Julian timely appealed the court’s order. It states:
A release by the injured person of one joint tortfeasor
DISCUSSION
does not relieve the joint tortfeasor from liability to
The issue here is whether, when a release provides make contribution to another joint tortfeasor unless
for a reduction of damages awarded against a the release:
nonsettling defendant, but only if the settling defendant (1) Is given before the right of the other tortfeasor to
is adjudicated to be a joint tortfeasor, is the nonsettling secure a money judgment for contribution has accrued;
defendant required to litigate the settling defendant’s and
joint tortfeasor status in the underlying action, or (2) Provides for a reduction, to the extent of the
does he have the option to litigate that issue in a pro rata share of the released tortfeasor, of the injured
separate contribution action. person’s damages recoverable against all other
Before addressing the specific issue raised, we tortfeasors.8
will address generally the right to contribution in The Court of Appeals stated in Hashmi, 416 Md. at
Maryland. 722, 7 A.3d 1059, and the parties here agree, that §
Pursuant to the UCATA, the term joint tortfeasor is 3–1405 extinguishes a nonsettling party’s claim for con-
defined as: “two or more persons jointly or severally tribution if two conditions are met. First, the release must
liable in tort for the same injury to person or property, be given before the nonreleased tortfeasor has accrued
whether or not judgment has been recovered against a right of contribution, i.e., before he or she has paid
all or some of them.” C.J.P. § 3–1401. Section 3–1403 more than his or her pro rata share. There is no dispute
specifically abrogates the common law rule, provid- that this condition was met here; the right to contribu-
ing: “The recovery of a judgment by the injured person tion had not accrued at the time the Release Agreement
against one joint tort-feasor does not discharge the was executed.
other joint tort-feasor.” The second condition is that the release provide for
a reduction of damages, to the extent of the pro rata
share of a joint tortfeasor. Whether that condition was
7 The court noted, however, that neither party addressed “whether satisfied here is sharply disputed.
Dr. Julian may bring, not a contribution action against Mercy, but an
The Spences and Mercy maintain that the Release
action to determine Mercy’s joint tortfeasor status that would allow
Agreement comports with § 3–1405 because it pro-
him to take advantage of that which he forwent at trial: the opportunity
for a pro rata reduction of the damages he, as an adjudicated tortfea- vided for a pro rata reduction in Dr. Julian’s liability in
sor, was made to pay the Spences.” the event that Mercy was adjudicated a joint tortfeasor.
(continued)

Accordingly, they maintain, Dr. Julian is barred from third-party claim until after resolution of the underlying
pursuing a contribution claim against Mercy. ‘primary’ litigation.” He explains:
Dr. Julian, in contrast, asserts that the Release For example, should the defendant be successful
Agreement does not satisfy this second element of in the primary matter, the secondary action becomes
C.J.P. § 3–1405 because the Release Agreement moot. Accordingly, by deferring the contribution action
“explicitly and unequivocally excluded Mercy Medical until resolution of the primary, upon a success-
Center as a joint tortfeasor and precluded Dr. Julian ful defense of the primary action, a party potentially
from obtaining a reduction in the damages award.” saves the expense associated with pursuing the sub-
He argues that, although the release contemplated a sequent contribution action. Furthermore, a defendant
pro rata reduction, it was conditioned upon an adju- may not wish to battle against multiple parties during
dication of Mercy as a joint tortfeasor, which has not the primary matter. The expert witnesses necessary
yet occurred. Dr. Julian insists that a release “must to defend the primary malpractice allegations may
provide for a pro rata reduction in damages absent differ from those necessary to prosecute a contribu-
a need to adjudicate tortfeasor status” to satisfy § tion action. Thus, addressing both aspects in one trial
3–1405(2). Because Mercy was not deemed a joint can be costly, as well as overly complex and confusing,
tortfeasor by the terms of the Release Agreement, when presenting them to a jury.[10]
Dr. Julian maintains that the Release Agreement does Thus, we turn to consider whether there is any bar
not satisfy the requirements of C.J.P. § 3–1405, and to filing a contribution claim in a subsequent proceed-
therefore, he is free to pursue a contribution claim ing, i.e., whether there is any requirement that the claim
against Mercy. be brought in the underlying action. We have been
Here, there was no admission in the Release Agree- unable to find any such requirement.
ment that Mercy was a joint tortfeasor. Indeed, Mercy The Spences, however, claim that C.J.P. § 3–1405
expressly denied liability as a joint tortfeasor, and prohibits an independent contribution claim if
the Release Agreement specifically stated that Mercy the release provides for a reduction of damages. We
was not to be “deemed joint tortfeasors for purposes agree if the release so provides. The problem here is
of this Release.” The Release Agreement specified that that the provision for a reduction in damages was
Dr. Julian was not entitled to a reduction in damages conditional.
“unless and until” Mercy was adjudicated a joint tort- We hold that, where a release conditions a reduc-
feasor. It provided for a reduction of the damage award tion of damages on an adjudication of joint tortfea-
pursuant to the UCATA only “in the event” Mercy was sor status of the settling defendant, and where there
adjudicated a joint tortfeasor. is no such adjudication in the underlying litigation,
Thus, pursuant to the terms of the Release Agree- the release does not provide for a reduction pursuant
ment, there was no automatic statutory reduction of the to C.J.P. § 3–1405. In these circumstances, the right
verdict against Dr. Julian. A reduction was conditional; to contribution is not extinguished.
it would occur only “in the event” Mercy was adjudi- Accordingly, Dr. Julian’s failure to assert a cross-
cated to be a joint tortfeasor. claim against Mercy, or his failure to file his own third-
The question here is whether this adjudication party claim against Mercy after it was dismissed,
regarding tortfeasor status was required to take place does not bar an independent claim of contribution.
in the underlying action. Certainly, this was one way to Although, pursuant to Swigert, 213 Md. at 613, 133
resolve the issue, and the Court of Appeals, in Swigert A.2d 428, Dr. Julian could have insisted on keeping
v. Welk, 213 Md. 613, 133 A.2d 428 (1957), recognized Mercy in the Primary Action, he was not required to do
the right of the nonsettling defendant to insist on this so. He had the option to adjudicate Mercy’s status as
way of proceeding. a joint tortfeasor in a subsequent proceeding.
Although considerations of judicial economy weigh
in favor of adjudicating the joint tortfeasor status of the
settling defendant in the underlying action, Dr. Julian 10 We note further that, depending on the timing of the settlement,
asserts that “[t]here are countless strategic reasons the nonsettling defendant may not be in a position to prove the joint
that a defendant may wish to forego a cross-claim or tortfeasor status of the settling defendant.
(continued)

Parties entering a settlement agreement have the damages awarded will be reduced as provided
various options in structuring a release agreement. in the release, and the nonsettling defendant has no
They may specifically provide, pursuant to Jones, 54 right to contribution.
Md.App. at 610, 459 A.2d 219, that the settling defen- As indicated, however, there is no requirement that
dant is a joint tortfeasor and any damages assessed the nonsettling defendant proceed with a claim against
against the nonsettling defendant(s) will be reduced to the settling defendant in the plaintiff’s case against
the extent of the pro rata share of the released tort- it. If the settling defendant does not remain in the
feasor. Such a release implicates C.J.P. § 3–1405. underlying action, and a judgment is rendered against
By providing for a reduction, it protects the settling the nonsettling defendant, he or she retains the right to
defendant from a claim for contribution, and it elimi- pursue an independent contribution claim.
nates the need for the settling defendant to remain in Dr. Julian did not waive his right to contribution by
the case as a party. failing to raise the issue in the Primary Action. Accord-
If the parties do not state in the settlement agree- ingly, we affirm the judgment of the circuit court in the
ment that the settling defendant is a joint tortfeasor, declaratory judgment action, finding that Dr. Julian
and instead, require an adjudication of joint tortfea- had the right to file a contribution action, and we
sor status, § 3–1405 is not implicated in the absence reverse the judgment of the circuit court dismissing Dr.
of such an adjudication. Pursuant to Swigert, 213 Julian’s contribution claim.
Md. at 619–20, 133 A.2d 428, the nonsettling defen- JUDGMENT OF THE CIRCUIT COURT GRANTING
dant has the right to insist that this adjudication DECLARATORY JUDGMENT IN FAVOR OF DR. JULIAN
occur in the plaintiff’s case and that the settling AFFIRMED. JUDGMENT OF THE CIRCUIT COURT
defendant remain in the case to obtain an adju- DISMISSING DR. JULIAN’S CONTRIBUTION COM-
dication of its joint tortfeasor status. If the settling PLAINT REVERSED. COSTS TO BE PAID BY WYCINNA
defendant is adjudicated to be a joint tortfeasor, then AND CHRISTOPHER SPENCE.

1. Who did the Spences enter into a release agreement with first?
2. What was the result of the release agreement?
3. Did the release contain an indemnity or hold harmless clause?
4. What did Dr. Julian file against the hospital?
5. Does Dr. Julian have a right to contribution from Mercy?
6. Did the release provide for a reduction of damages as required?
7. Is the nonsettling defendant required to proceed against the settling defendant?
that the parties conceal the agreement not only from Besides obtaining security by being guaranteed
the jury but also from the court and other parties. payment, the plaintiff is able to present a more
Plaintiffs benefit from such arrangements streamlined, simplified case merely by reducing
because they pressure settling defendants, who the number of defendants. They may also profit
have a substantial interest in a sizeable plaintiff’s from disputes that break out during trial between
recovery, to cooperate with the plaintiff in discovery, the settling and nonsettling defendants as they
peremptory challenges, trial tactics, witness maneuver to establish the other’s liability.
examination, and influencing the jury. By having the Likewise, settling defendants benefit by elim-
settling defendants remain at trial, the plaintiff is inating the risk of paying more than the amount
relieved of dealing with the “empty chair” defense. agreed on. The cost of litigation is reduced because
the need for an aggressive defense is no longer war- Local Links

ranted. Most importantly, the settling defendant has
in effect purchased part of the plaintiff’s claim, giving Do the courts in your state permit Mary
them a chance to recover all or part of what it has Carter or Gallagher agreements? If so,
paid or agreed to pay. If the parties to a Mary Carter what restrictions do they put on these
or Gallagher agreement succeed in their attack on agreements?
the remaining defendants, the settling defendants
may end up paying nothing—even if the jury finds
substantial fault on their part. which Dr. Elbaor was responsible for 88 percent,
The vast majority of courts tolerate these agree- and Dr. Syrquin for 12 percent. After deducting all
ments even though the past secrecy of their terms credits for Dr. Syrquin’s percentage of causation,
is subject to great controversy. The existence of and Carole’s settlements with other defendants, the
the agreement as well as the terms must be dis- trial court rendered judgment against Dr. Elbaor for
closed to the court and the parties as soon as they $1,872,848.62.
are made. If they are not disclosed, it puts on the In finding Mary Carter agreements contrary to
presumption that the adversarial parties are in fact public policy, the court characterized Mary Carter
allies. A few states, however, have found that such agreements as agreements that skew the trial process,
agreements violate public policy. In a case that illus- mislead the jury, promote collusion among adver-
trates the structure and potential abuses of these saries, and create the likelihood that a less culpable
agreements, the Texas court struck down Mary defendant will be held liable for the full judgment. The
Carter agreements as being contrary to public pol- court balanced the public policy of judicial integrity
icy (Elbaor v. Smith, 845 S.W.2d 240 [Tex. 1992]). against judicial economy and found that the need for
In Elbaor the plaintiff, Carole, received emergency fair trials outweighed the desirability of Mary Carter
treatment for her ankle at the Dallas/Fort Worth agreements as partial settlement tools.
Medical Center-Grand Prairie by Dr. Syrquin after The court pointed to specific evidence of
being severely injured in a motor vehicle accident. abuses that occurred during this trial. For exam-
Subsequent to this treatment she was transferred to ple, even though Carole’s own experts testified that
Arlington Community Hospital, where she received Dr. Syrquin committed malpractice, her attorney
treatment from a team of physicians including stated during both voir dire and opening state-
Dr. Elbaor, an orthopedic surgeon, as well as a plastic ments that Dr. Syrquin’s conduct was “heroic”
surgeon and an infectious disease specialist. Later and that it was Dr. Elbaor’s negligence that caused
she was operated on twice as a result of complica- Carole’s damages. The attorneys for the settling
tions from her ankle injury. Ultimately Carole brought defendants characterized Carole’s damages as “dev-
a medical malpractice suit against Dallas/Fort Worth astating,” “astoundingly high,” and “astronomical.”
Medical Center-Grand Prairie, Arlington Community On cross-examination, they elicited testimony from
Hospital, Drs. Elbaor and Syrquin, and other doctors. Carole that was favorable to her case and requested
Prior to trial, Carole entered into Mary Carter agree- recovery for pain and mental anguish.
ments with Dr. Syrquin, Arlington Community Hospital, As the facts of Elbaor demonstrate, these
and another doctor. She then settled with Dallas/ agreements may promote settlement, but they can
Fort Worth Medical Center-Grand Prairie, releasing also be abusive to nonsettling defendants, who
them from the suit. Dr. Elbaor, who filed cross-claims may be faced with a lower chance of resolving
against the other doctors and Arlington Community the dispute as well as an increased exposure for
Hospital for contribution in the event he was found damages. Although most courts now require the
liable, remained as the sole nonsettling defendant. disclosure of such agreements, at least to the court
Under the terms of her Mary Carter agreement and the nonsettling parties, these agreements
with Dr. Syrquin, Carole accepted $350,000; under continue to affect trials covertly. They skew the liti-
the terms of her agreement with Arlington Com- gation process by hiding from the jury the full extent
munity Hospital she accepted $75,000. Both defen- of the allegiance between the plaintiff and the set-
dants retained a financial stake in the lawsuit and tling defendant and by distracting the parties and
were required to participate at trial. The jury found the court from the merits of the case. As can be seen
that Carole’s damages totaled $2,253,237.07, of by the events in Elbaor, these agreements may force
attorneys into questionable ethical situations and against a “deep pocket” defendant, that defendant
can encourage settling defendants to share with the will be unable to limit their liability by seeking relief
plaintiff information obtained from other defendants from the other joint tortfeasors. Mary Carter and
during joint defense efforts. Gallagher agreements, however, allow defendants
In effect these agreements allow parties relief to limit their liability, in essence circumventing rules
from any no-contribution rule. If the no-contribution prohibiting contribution.
rule is in effect and a plaintiff executes a judgment
Case Reutzel v. Hunter Yes, Inc.

135 A.D.3d 1123 (NY 2016)
Employee of lessee brought personal injury action clause relied upon by defendant either was inapplicable
against lessor, seeking to recover damages for inju- or violated the provisions of General Obligations Law §
ries sustained when he fell while descending from 5–321. Paraco’s motion was denied in June 2013. The
an external staircase at the leased premises. Lessor parties then appeared before Supreme Court (Elliott, J.)
commenced third-party action against lessee seek- for trial in November 2013, at which point counsel for
ing contractual indemnification based on provision plaintiff announced that plaintiff had settled the main
in the lease. Following denial of lessee’s motion action against defendant for $500,000. In conjunction
for summary judgment, parties appeared before therewith, counsel for plaintiff stipulated that plaintiff
the Supreme Court, Greene County, Elliott, J., and bore “some culpable conduct with respect to the [sub-
entered settlement agreement between employee ject] fall.” Supreme Court then severed the third-party
and lessor. The Supreme Court, Greene County, Plat- action, denied Paraco’s request for an immediate trial
kin, J., denied lessee’s second motion for summary and directed defendant to file a note of issue.
judgment. Lessee appealed. Thereafter, in April 2014, Paraco again moved for
Appeal from an order of the Supreme Court (Platkin, summary judgment dismissing the third-party action,
J.), entered July 22, 2014 in Greene County, which, among again contending that the subject indemnification
other things, denied third-party defendant’s motion for clause violated General Obligations Law § 5–321 and,
summary judgment dismissing the third-party complaint. further, that plaintiff’s admission of culpable conduct
At all times relevant, defendant leased a portion of constituted an impermissible “Mary Carter” agreement.
the premises located at 7261 Main Street in the Town Defendant opposed the motion and cross-moved
of Hunter, Greene County to third-party defendant, for summary judgment seeking, among other things,
Paraco Gas Corporation. Specifically, defendant leased indemnification from Paraco. Supreme Court (Platkin,
the entire first floor and a portion of the basement J.) denied Paraco’s motion and granted defendant’s
level to Paraco for use as office space. On January cross motion, prompting this appeal.
25, 2010, plaintiff, one of Paraco’s employees, slipped Preliminarily, we reject Paraco’s assertion that
and fell while descending an external rear staircase at Supreme Court abused its discretion in entertaining
the leased premises, prompting plaintiff to commence defendant’s admittedly untimely cross motion for sum-
this negligence action against defendant seeking to mary judgment. “A cross motion for summary judgment
recover for her resulting injuries. Defendant answered made after the expiration of the deadline for making
and, in March 2012, commenced a third-party action dispositive motions may be considered by the court,
against Paraco seeking, among other things, contrac- even in the absence of good cause, where a timely
tual indemnification based upon a provision embodied motion for summary judgment was made seeking relief
in the subject lease. nearly identical to that sought by the cross motion”
Following service of its answer, Paraco moved for (Alonzo v. Safe Harbors of the Hudson Hous. Dev. Fund
summary judgment dismissing the third-party complaint, Co., Inc., 104 A.D.3d 446, 448–449, 961 N.Y.S.2d 91
contending, among other things, that the indemnification [2013] [internal quotation marks, brackets and citation
(continued)
Case | Reutzel v. Hunter Yes, Inc. (continued)

omitted]; see McCallister v. 200 Park, L.P., 92 A.D.3d As to the issue of indemnification, the lease entered
927, 928, 939 N.Y.S.2d 538 [2012]; Snolis v. Clare, 81 into between defendant and Paraco provided, in relevant
A.D.3d 923, 925, 917 N.Y.S.2d 299 [2011], lv. denied 17 part, that Paraco would “forever indemnify and save
N.Y.3d 702, 2011 WL 2183766 [2011]; see also Williams harmless [defendant] for and against any and all liabil-
v. Wright, 119 A.D.3d 670, 671–672, 990 N.Y.S.2d 60 ity, penalties, damages, expenses and judgments arising
[2014] ). Here, both Paraco’s timely motion for summary from injury during said term to person or property of any
judgment dismissing the third-party complaint and nature, occasioned wholly or in part by any act or acts,
defendant’s untimely cross motion for summary judg- omission or omissions of [Paraco], or of the employees,
ment on its contractual indemnification claim were pre- guests, agents, assigns or undertenants of [Paraco] and
mised upon essentially the same grounds—namely, the also for any matter or thing growing out of the occupa-
applicability and enforceability of the indemnification tion of the demised premises or of the streets, sidewalks
clause at issue. Under these circumstances, Supreme or vaults adjacent thereto.” Defendant’s entitlement
Court properly considered the merits of defendant’s to contractual indemnification under this provision
cross motion. hinges upon (1) whether the underlying facts fall within
Paraco’s further claim—that the settlement entered the scope of the indemnification provision in the first
into between plaintiff and defendant and plaintiff’s instance, and (2) whether the provision violates General
corresponding admission of culpability constituted an Obligations Law § 5–321.
impermissible “Mary Carter” agreement—is equally With respect to the first inquiry, to the extent
unpersuasive. A “Mary Carter” agreement “is a con- that Paraco argues that because plaintiff’s accident
tract by which one or more [of the] defendants in a mul- occurred in what defendant’s president acknowledged
tiparty case secretly conspires with the plaintiff to feign was a common area of the premises, i.e., a location
an active role in the litigation in exchange for assur- for which defendant admittedly bore repair and main-
ances that its own liability will be diminished propor- tenance responsibility under the terms of the lease, it
tionately by increasing the liability of the nonagreeing necessarily follows that plaintiff’s accident does not
defendant(s)” (Stiles v. Batavia Atomic Horseshoes, 174 fall within the scope of the indemnification provision,
A.D.2d 287, 292, 579 N.Y.S.2d 790 [1992], revd. on we disagree. Simply put, the indemnification clause
other grounds 81 N.Y.2d 950, 597 N.Y.S.2d 666, 613 does not require that the accident occur on or within
N.E.2d 572 [1993]; see Maroon’s Home Prods. v. Manu- the demised premises—only that the accident “grow[s]
facturers & Traders Trust Co., 244 A.D.2d 882, 884, 665 out of the occupation of the demised premises or of
N.Y.S.2d 770 [1997]; Leon v. Peppe Realty Corp., 190 the streets, sidewalks or vaults adjacent thereto.” This
A.D.2d 400, 413–414, 596 N.Y.S.2d 380 [1993] ). “broadly drawn language” (Campisi v. Gambar Food
Notably, “[s]ecrecy is the essence” of what gener- Corp., 130 A.D.3d 854, 855, 13 N.Y.S.3d 567 [2015] )
ally is regarded as an “essentially collusive” agree- is—independent of plaintiff’s admission of some mea-
ment (Leon v. Peppe Realty Corp., 190 A.D.2d at sure of culpability—sufficient to trigger application of
414, 596 N.Y.S.2d 380 [internal quotation marks and the indemnification provision.
citation omitted]). Here, the record is bereft of any As to the enforceability of this provision, “General
evidence of an agreement between plaintiff and defen- Obligations Law § 5–321 provides that an agreement to
dant to increase Paraco’s share of liability and, con- exempt a lessor from its own negligence is void and
trary to Paraco’s assertion, the underlying settlement unenforceable. However, where, as here, the liability is
between plaintiff and defendant—made in open court to a third party, [the statute] does not preclude enforce-
and with Paraco’s full knowledge—“lacks any of the ment of an indemnification provision in a commercial
indicia of collusion and secrecy that mark a disfavored lease negotiated at arm’s length between two sophisti-
‘Mary Carter’ agreement” (Jamaica Pub. Serv. Co. v. La cated parties when coupled with an insurance procure-
Interamericana Compania De Seguros Generales, 262 ment requirement. In such circumstances, the landlord
A.D.2d 73, 74, 693 N.Y.S.2d 6 [1999]; see Maroon’s is not exempting itself from liability to the victim for its
Home Prods. v. Manufacturers & Traders Trust Co., 244 own negligence. Rather, the parties are allocating the
A.D.2d at 884, 665 N.Y.S.2d 770). Accordingly, the set- risk of liability to third parties between themselves,
tlement agreement itself is not a bar to defendant’s essentially through the employment of insurance, and
claim for contractual indemnification. the courts do not, as a general matter, look unfavorably
(continued)
Case | Reutzel v. Hunter Yes, Inc. (continued)

on agreements which, by requiring parties to carry insurance on the demised premises and to name
insurance, afford protection to the public” (Castano v. defendant as an additional insured in this regard.
Zee–Jay Realty Co., 55 A.D.3d 770, 772, 866 N.Y.S.2d The record is silent, however, as to whether such
700 [2008] [citation omitted], lv. denied 12 N.Y.3d 701, insurance actually was procured. To the extent that
876 N.Y.S.2d 348, 904 N.E.2d 503 [2009]; see Great N. Paraco complied with its obligations in this regard
Ins. Co. v. Interior Constr. Corp., 7 N.Y.3d 412, 418–419, and obtained a policy of insurance naming defendant
823 N.Y.S.2d 765, 857 N.E.2d 60 [2006]; Hogeland v. as an additional insured, the record also is silent as to
Sibley, Lindsay & Curr Co., 42 N.Y.2d 153, 160–161, 397 the areas that actually were covered under the terms
N.Y.S.2d 602, 366 N.E.2d 263 [1977]; Campisi v. Gambar of that policy.1 Under these circumstances, we can-
Food Corp., 130 A.D.3d at 855–856, 13 N.Y.S.3d not say that either defendant or Paraco demonstrated
567; Bacon v. 4042 Austin Blvd., LLC, 120 A.D.3d their entitlement to summary judgment relative to the
727, 728, 991 N.Y.S.2d 365 [2014]; K.L.M.N.I., Inc. v. indemnification issue and, therefore, neither party is
483 Broadway Realty Corp., 117 A.D.3d 654, 655, 987 entitled to such relief at this juncture. The parties’
N.Y.S.2d 316 [2014] ). This analysis presupposes, how- remaining contentions, to the extent not specifically
ever, that the required insurance actually is procured addressed, have been examined and found to be
(see Port Parties, Ltd. v. Merchandise Mart Props., lacking in merit.
Inc., 102 A.D.3d 539, 541, 959 N.Y.S.2d 37 [2013] ). ORDERED that the order is modified, on the law,
Here, there is no dispute that the indemnifica- without costs, by reversing so much thereof as granted
tion provision embodied in the underlying lease was defendant’s cross motion for summary judgment on
the product of an arm’s length negotiation between the issue of indemnification; said cross motion denied;
two sophisticated business entities. Indeed, Para- and, as so modified, affirmed.
co’s counsel acknowledged this point at oral argu-
ment. There also is no question that defendant and
1 Although Paraco makes much of the fact that plaintiff’s fall
Paraco executed a rider to the lease that, insofar as
occurred in a common area and that the rider to the lease only required
is relevant here, required defendant to carry public Paraco to obtain insurance coverage for the demised premises, this
liability insurance on the parking and common areas argument begs the question as to what coverage Paraco actually
and, further, required Paraco to carry public liability obtained and, hence, the extent of the coverage actually available.
Indemnification in cases involving vicarious liability. The unjust enrich-

ment occurs when a tortfeasor is not required to reim-
When one tortfeasor accepts total financial respon- burse a tortfeasor who pays the claim, resulting in the
sibility for another tortfeasor, they are said to have discharge of them both. An employer, for example,
indemnified that other tortfeasor. The party against pays a judgment incurred by one of its employees
whom indemnification is sought is referred to as only because it is vicariously liable for the torts of its
an indemnitor and the party seeking to be indem- employees. The courts reason that if the employer was
nified is an indemnitee. Indemnification can be dis- not then indemnified by its employee so that it could
tinguished from contribution in that contribution recover the full amount of what it paid in damages,
involves a sharing of liability, whereas indemnifica- the employee would be unjustly enriched by being
tion involves a complete shift of liability from one allowed to shirk their responsibility to pay for dam-
tortfeasor to another. A discussion of the rules of ages they caused. Because employers and employ-
both contribution and indemnity is found in Spence ees are generally covered under a single insurance
v. Julian, excerpted earlier in this chapter. The most policy, however, liability of both parties is satisfied by
frequent way indemnification arises is by contractual the insurance company’s payment of the claim, and so
agreement in which one party promises to indemnify indemnification is rarely sought.
another, as is often the case in contracts between In addition to situations involving vicarious lia-
general contractors and their subcontractors. bility, indemnity also applies to defendants who are
The right to indemnity also arises out of the law’s liable only because they failed to discover or prevent
attempt to avoid unjust enrichment of tortfeasors, as another’s misconduct. A retailer, for example, who
innocently fails to discover a defect in goods that they can be indemnified by the doctor who aggra-
they sell, will be indemnified by the manufacturer of vates the plaintiff’s injuries by negligent medical
the defective goods. If, however, the retailer knows of care. The driver would be entitled to indemnification
the defect, or should have known, the manufacturer for that portion of the plaintiff’s damages that were
will not be obligated to indemnify them. Some courts attributed to the negligent treatment.
also deny indemnity if the retailer acts negligently. Traditionally indemnity was an all-or-nothing sit-
The issue of indemnification sometimes arises uation, requiring that the indemnitor pay the indem-
when an individual follows the directions of another nitee the full amount that the indemnitee paid the
and reasonably believes the directions to be lawful. plaintiff. Under the doctrine of equitable indemnity,
Typically, this occurs in the context of a principal-agent the amount of indemnity is dependent on the relative
relationship in which the agent acts under the direction fault of the tortfeasors. Therefore, a tortfeasor may
of the principal. But it can also take place when a sheriff conceivably be indemnified for only part of the total
is instructed to seize someone’s property and no lawful damages she paid. Suppose a judgment is paid in full
basis for such seizure exists. As long as the sheriff rea- by an individual because the other defendants are
sonably believes that the orders are lawful and engages penniless. In accordance with the doctrine of equita-
in no deliberate wrongdoing, they will be indemnified ble indemnity, if that individual were to be indemnified
by the governmental agency for which they work. by their principal, they would be indemnified only to
Indemnity is sometimes allowed in cases in which the extent that they were actually responsible for the
the plaintiff’s injuries were aggravated by negligent plaintiff’s damages. The doctrine of equitable indem-
treatment. If a driver, for example, pays for the total nity is inapplicable in cases in which the indemnitee’s
damages incurred by the plaintiff whom they injured, liability is purely vicarious.
In the News
Writers and composers are often required to sign indemnification agreements so that there is no issue
of copyright violation for the person who hires the writer. An explanation of these agreements, and sug-
gestions for those who are required to sign them, can be found by using “writers indemnification agreements”
as your search term.

1. A subcontractor’s employee is injured when they fall from a ladder at a construction site. They obtain a
judgment against the owner and the general contractor for their injuries. On what basis might the owner
and general contractor recover from the subcontractor?
2. Jones sues Stich, a psychologist, claiming that they engaged in sexual improprieties while treating them.
They also sue Dr. Schulte, from whom Stich is renting office space, and the Schulte Institute for Psycho-
therapy and Human Sexuality. During the trial Stich agrees to pay Jones $500,000 in exchange for the
following agreement:
Jones covenants not to enforce or execute on any judgment entered against Stich, expressly reserving
the right to proceed against James and Marjorie Schulte and the Schulte Institute on all of Jones’s
claims against Schulte including, but not limited to, the respondeat superior, implied agency, ostensible
agency, and apparent authority claims based upon the acts of Stich.
Is this agreement a release or a covenant not to sue?
3. Students, parents, and teachers bring a product liability action against the manufacturer of the team
football helmets. Several students had suffered concussions from a flaw in the design of the helmet. The
plaintiffs and manufacturer reach a settlement. If the distributor and retailer in the chain of distribution are
sued by the plaintiffs, what is their recourse? What effect will the settlement between the plaintiff and the
manufacturer have on their options?
4. One of the defendants in a case in which a jury verdict for $1.5 million is rendered agrees to settle with
the plaintiff for $5,000, in the hope that the defendant who had to pay the remainder of the judgment will
be barred from obtaining contribution against the settling defendant. The settling defendant is a relative
of the plaintiff. Will the nonsettling defendant be barred from contribution?
5. Jill and Jose are involved in a motor vehicle accident with a tractor-trailer driven by Richard. The cause
of the accident is in dispute. Jill, who was a passenger in Jose’s car and who was seriously injured,
sues Jose and Richard as well as Richard’s employer and the employer’s insurance carrier. Prior to trial
Jose’s insurance company and Jill enter into a compromise settlement of her claim against Richard.
On the morning of trial, the defendants and the trial court are advised of the settlement, but not of its
terms. Richard remains in the suit as a named defendant at trial, as do his employer and the employer’s
insurance carrier. The other defendants demand that the settlement agreement be produced at trial and
admitted into evidence. Do you think they will be successful?
Summary
Joint tortfeasors are those who act together to pro- however, those defendants not parties to a release
duce a negligent or intentional tort. If the harm are absolved of liability only if the release is silent
created is indivisible, each tortfeasor is jointly and regarding their continuing liability.
severally liable for the harm suffered by the plain- Plaintiffs and defendants sometimes enter into
tiff. If all the defendants acted in concert, all will be Mary Carter or Gallagher agreements. In such agree-
held liable even though only one of the defendants ments, one (or more) of the defendants agrees to
directly caused the plaintiff’s injuries. If the harm can guarantee the plaintiff a certain amount of money
be apportioned (divided), the rule of joint and several regardless of the outcome of the case and the plain-
liability is inapplicable. Joint and several liability has tiff agrees to reimburse the defendant if the verdict
been abolished in some states and limited in others. exceeds a stated amount. These agreements tend
A plaintiff is entitled to only one satisfaction to pressure defendants to cooperate with the plain-
of their claim. A defendant who has paid more than tiff. Most courts tolerate these agreements, but state
their pro rata share may, however, turn to the other that their existence and terms must be disclosed.
defendants for contribution. Although contribution Indemnification involves one tortfeasor’s
was denied under the common law, it is allowed in acceptance of total financial responsibility for
most states for negligent torts. The courts are not in another. An employer that is vicariously liable
agreement as to how damages should be divided in for the torts of its employee may be indemnified
the context of contribution. by that employee, in that it can recover the full
Contribution becomes particularly problem- amount of what it paid in damages. Defendants
atic when a release is given to one defendant. The who are liable only because they failed to discover
rules created by the courts to deal with contribution or prevent another’s misconduct may also be
when a release has been granted have discouraged indemnified. The doctrine of equitable indemnity,
either plaintiffs or defendants from settling. Under which has been adopted by some courts, allows
the common law, a release of one tortfeasor was a indemnity to be based on the relative fault of the
release of all tortfeasors. Under the Restatement, tortfeasors.
Key Terms
concurrent tortfeasors Total acceptance of financial responsibility by
Tortfeasors who independently cause the plain- one tortfeasor for another
tiff injury joint and several liability
contribution Liability for an entire loss if the loss is indivisible
Partial reimbursement of a tortfeasor who has paid joint tortfeasors
more than their pro rata share of the damages Those who act together to cause the plaintiff’s injury
covenant not to sue release
Promise by a plaintiff not to sue a particular Agreement to absolve a defendant of all liability
defendant satisfaction
indemnification Payment of a judgment
Review Questions
1. What is joint and several liability? 12. (new) If a defendant has a defense such as
immunity, how does that affect contribution?
2. When is the doctrine of joint and several liabil-
ity applicable, and when is it not? 13. How have courts dealt with the problem of
contribution when a release is given, and what
3. What is the status of joint and several liability consequences arise out of each solution the
today? courts have devised?
4. (new) Can a plaintiff recover more than once 14. (new) What is the difference between a release
under joint and several liability? and a covenant not to sue?
5. (new) If the defendants cannot prove who was 15. What should a plaintiff do before agreeing to
responsible for each percentage of damages, release a defendant?
who is liable?
16. What do Mary Carter agreements typically
6. What social policy underlies joint and several provide, and how do they differ from Gallagher
liability? agreements?
7. Why is the doctrine of joint and several liability 17. How do plaintiffs and defendants benefit from
criticized? Mary Carter and Gallagher agreements?
8. Define the following: 18. Why are some courts critical of Mary Carter
a. satisfaction and Gallagher agreements?
b. contribution
c. indemnification 19. How do Mary Carter and Gallagher agree-
d. release ments affect contribution?
e. covenant not to sue
20. Who is the indemnitor and who is the indemni-
9. What was the common law rule regarding con- tee in an indemnification agreement?
tribution, and what is the majority rule today?
21. How does indemnification usually arise?
10. What is the justification for contribution?
22. What is the doctrine of equitable indemnity?
11. What problems arise in reference to contribu-
tion when the plaintiff releases a defendant? 23. (new) Is indemnity an all or nothing situation?
Practice Exam
True-False
1. Concurrent tortfeasors cannot be jointly and 3. (new) A plaintiff may recover from one or all
severally liable. joint tortfeasors as many times as they can.
2. Under the rule of joint and several liability a 4. Joint tortfeasors can each be held jointly and
defendant can be held responsible for all of severally liable if the harm can be apportioned.
the damages even though their contribution to
the plaintiff’s injuries was relatively minor.
5. (new) If plaintiff dies as a result of independent 16. (new) In a covenant not to sue, the plaintiff
or concerted acts of defendants, each defen- promises not to sue a particular defendant but
dant will be held liable for plaintiff’s death can hold the other defendants liable.
because death is not apportionable.
17. (new) A release and a covenant not to sue are
6. The question of whether to retain joint and the same thing.
several liability depends on where society
18. The contracting defendant to a Mary Carter
wants to place the burden when a liable defen-
agreement does not participate at trial and is
dant cannot pay damages.
no longer considered a party to the case.
7. When joint and several liability is abolished,
19. Plaintiffs benefit from Mary Carter and Gallagher
plaintiffs must bear the loss if liable defendants
agreements because these agreements pressure
are unable to pay a judgment.
the defendant into cooperating with the plaintiff
8. Critics of joint and several liability argue that during discovery and at trial, but they are a dis-
this doctrine hurts business because it leads advantage to plaintiffs in that they make the trial
to an increase in prices to compensate for more complicated and cause plaintiffs to deal
tort-related expenses. with the “empty chair” defense.
9. In some states, defendants whose contribution 20. Defendants benefit from Mary Carter and Galla-
to the plaintiff’s injuries falls below a desig- gher agreements because they can recover some
nated percentage are liable only for their equi- or even all of what they have agreed to pay the
table share of the damages. plaintiff and they can reduce the cost of litigation.
10. (new) Contribution is often denied for inten- 21. Some courts object to Mary Carter and Galla-
tional tortfeasors. gher agreements because they believe such
agreements promote collusion among adver-
11. In the context of contribution, tortfeasors need not saries and mislead the jury.
necessarily pay an equal share of the damages.
22. Indemnification can arise out of a contractual
12. If a plaintiff reneges on a covenant not to sue, the agreement.
defendant cannot later sue for breach of contract.
23. (new) Indemnification involves a shift of liability
13. (new) If a defendant raises a defense like from one tortfeasor to another.
immunity that bars recovery from the plaintiff,
then the other defendants can still seek contri- 24. Indemnification of a retailer by a manufacturer
bution from them. is required when a retailer innocently fails to dis-
cover a defect in a product but is not required if
14. Plaintiffs should enter into releases as soon as the retailer is negligent or knows of a defect in a
the defendant offers to settle the case. product but sells the product anyway.
15. Defendants are discouraged from settling 25. The doctrine of equitable indemnity provides
when nonreleased defendants cannot seek that the indemnitor must pay the indemnitee the
contribution from released defendants. full amount that the indemnitee paid the plaintiff.
Matching
GROUP 1
________ 1. Surrender of claim a. indemnification
________ 2. Agreement not to sue b. contribution
________ 3. Only one of these for plaintiff c. release
________ 4. Sharing of liability d. covenant not to sue
________ 5. Shifting of liability e. satisfaction

GROUP 2
________ 1. Party seeking indemnification a. Mary Carter agreement
________ 2. Party against whom indemnification is sought b. Gallagher agreement
________ 3. Terms of agreement that are secret c. equitable indemnity
________ 4. Terms of agreement that are disclosed d. indemnitor
________ 5. Indemnity dependent on relative fault of tortfeasors e. indemnitee
Fill-in-the-Blank
1. Joint tortfeasors are jointly and severally liable plaintiff a certain amount of money if the plain-
for any harm that is ____________. tiff loses or receives less than a designated
amount. The terms of this agreement are usu-
2. ____________ tortfeasors act together, whereas
ally cloaked in secrecy, but in ____________
____________ tortfeasors act independently.
agreements the terms of the agreement are
3. Joint and several liability has been abolished usually disclosed to the court and jury.
in some states out of a concern that it is unfair
6. A _________ is a document absolving a
to hold ____________ ____________ defendants
defendant of all liability.
fully liable when they were only marginally
responsible for the plaintiff’s injuries. 7. One tortfeasor is said to have __________
the other tortfeasor by accepting financial
4. Although the plaintiff can collect from any or
responsibility.
all defendants under the doctrine of joint and
several liability, they are entitled to only one 8. Under the doctrine of _________ the amount of
____________ of their claim. indemnity is dependent on the relative fault of
the tortfeasors.
5. With a(n) ____________ ____________ agree-
ment the defendant agrees to guarantee the
Multiple-Choice
1. Joint tortfeasors c. the loss will not be assigned to other defen-
a. will be considered jointly and severally lia- dants or passed on to society.
ble even if the defendants can prove who d. none of the above..
was responsible for each percentage of the 3. Contribution
damages.
b. cannot each be held liable for the death of the a. was allowed to all tortfeasors under the
plaintiff or destruction of the plaintiff’s property. common law.
c. can each be held liable even if only one b. is allowed for intentional tortfeasors.
defendant directly caused the plaintiff’s c. is justified on the basis that some defendants
injuries. should not be saddled with all of the damage
d. all of the above. while other defendants escape responsibility.
2. (new) Whether to retain joint and several
liability is: 4. Contribution can be sought
a. a matter of social policy. a. only when defendants are jointly liable.

b. that plaintiffs will be fully compensated. b. can be sought from a defendant who has a
valid defense.
c. can be sought from an employer if workers’ c. reveals the terms of the agreement to the
compensation statutes prevent the plaintiff jury, the court, and the other parties.
from suing the employer. d. all of the above.
8. Mary Carter and Gallagher agreements
5. If a plaintiff releases one tortfeasor, a. create the likelihood that a less culpable
a. under the common law, all of the tortfeasors defendant will be held liable for the full
were released. judgment.
b. and wants to reserve their right to sue the b. help defendants avoid the no-contribution
other tortfeasors, they can enter into a cove- rule but are not particularly effective settle-
nant not to sue with a particular defendant. ment tools.
c. and wants to reserve their right to sue the c. tend to focus parties on the merit of the case.
other tortfeasors, they can make verbal d. all of the above.
statements indicating their intention to
reserve their right to sue the remaining 9. Indemnification sometimes arises out of
defendants. a. the law’s attempt to avoid unjust enrichment
d. all of the above. of a tortfeasor.
b. a contractual agreement.
6. In some courts a nonreleased defendant c. a relationship in which one party is vicari-
a. can seek contribution from a released ously liable for the torts of another.
defendant. d. all of the above.
b. cannot seek contribution, but the plaintiff’s
claim against the nonreleased defendant 10. Indemnification
can be reduced. a. is often needed when an employer pays an
c. cannot seek contribution as long as the employee’s claim.
released defendant negotiated with the b. will be allowed if an agent follows the direc-
plaintiff in good faith. tions of their principal, reasonably believing
d. all of the above. the directions to be lawful, even though the
orders are subsequently shown to be unlawful.
7. A typical Mary Carter agreement c. will not be allowed if a doctor aggravates the
a. involves no exchange of funds, even on injuries sustained by the plaintiff in an auto-
paper, before trial. mobile accident and the driver who injured
b. provides that the plaintiff cannot agree to the plaintiff pays the entire judgment.
settle with the nonagreeing defendant for d. all of the above.
an amount less than the guaranteed amount
without the agreeing defendant’s consent.
Practice Pointers
Legal assistants are sometimes asked to draft releases, which are typically prepared by defense counsel or the
defendant’s insurance carrier. They are accompanied either by a draft of the agreed to settlement terms or a
letter stating that such draft will be provided upon return of the executed release agreement by the plaintiff.
When preparing a release, you should consider doing the following where appropriate:
• designate the capacities and authorities of the releasors and the released parties.
• include reference to all officers, directors, agents, and employees.
• identify the consideration for the release and the time and manner of making payment as consideration.
• disclose all legal rights and obligations of parties without a release.
• identify the common law, statutory, constitutional, administrative, and contractual rights of action and
recovery affected.
• identify the effect of the release on heirs, successors, or assigns of parties.
• describe the claim or liability released.

• describe the scope of the release and exceptions to or limitations on the release.
• identify the rights and obligations not affected by the release.
• explain how the release is affected by matters unknown and unknowable by parties at the time of
execution.
• explain how the release is affected by criminal acts; intentional torts; illegal acts; malicious, reckless,
or wanton misconduct; or grossly negligent acts or omissions.
• explain how the release is affected by the conduct of agents, officers, or employees acting beyond
the scope of duty, authority, agency, or employment.
• explain how the release is affected by damage or injury to the releasor.
• identify the duration of the release.
• identify the grounds for and manner of terminating or invalidating the release.
• include the releasor’s acknowledgment of understanding the terms, conditions, and effect of the
release; a statement of the releasor’s capacity to understand and execute; and the releasor’s acknowl-
edgment of delivery and acceptance of consideration and release.
• identify the date and place of execution and the signatures of the parties.
• designate representative capacities and authority.
• notarize signatures.
The following is a sample release, which contains some, but not all, of the provisions just listed.
State of ___________
Mutual Release
This Mutual Release (this “Release”) is made on _____ day of _______________, 20_____ between
________________________ [Name], at ________________________________________ [Address] and
________________________ [Name], at ________________________________________ [Address].
1. Both parties mutually release and forever discharge the other party including the other party’s
affiliates, successors, officers, employees, representatives, partners, agents and anyone claiming
through them, in their individual and/or corporate capacities from any and all claims, liabilities,
obligations, promises, agreements, disputes, demands, damages, causes of action of any nature
and kind, known or unknown, which the party has or ever had or may in the future have against the
other party arising out of or relating to: ___________________________________________ __________
___________________________________________________________(“Claims”)
2. The consideration for this Release is the mutual waiver by both parties of their respective legal
rights regarding the dispute and difference described above and:
a. ________________________ [Name] will provide
________________________ [Name] a payment: (Check one)
• In the amount of $__________
• Of ___________________________________ [Item description]
b. ________________________ [Name] will provide
________________________ [Name] a payment: (Check one)
• In the amount of $__________
• Of ___________________________________ [Item description]
By executing this Release, the parties agree to accept the payments as full and complete settle-
ment and satisfaction of any present and prospective claims.
3. This Release shall not be in any way construed as an admission by either party that it has acted
wrongfully with respect to any party or person, that it admits liability or responsibility at any time for
any purpose, or that either party has any rights whatsoever against the other party.
4. This Release shall be binding upon the parties and their respective heirs, administrators, personal
representatives, executors, successors and assigns. Both parties have the authority to release the
Claims and have not assigned or transferred any Claims to any other party or person. The provi-
sions of this Release are severable. If any provision is held to be invalid or unenforceable, it shall
not affect the validity or enforceability of any other provision. This Release constitutes the entire
agreement between the parties and supersedes any and all prior oral or written agreements or
understandings between the parties concerning the subject matter of this Release. This Release
may not be altered, amended or modified, except by a written document signed by both parties.
The terms of this Release shall be governed by and construed in accordance with the laws of the
State of _________________.
5. Both parties represent they fully understand their right to review all aspects of this Release with
attorneys of their choice, that they have had the opportunity to consult with attorneys of their
choice, that they have carefully read and fully understand all the provisions of this Release and that
they are freely, knowingly and voluntarily entering into this Release.
SIGNATURES
__________________________ __________________________
Signature Date
__________________________
Printed Name
__________________________ __________________________
Signature Date
__________________________
Printed Name
Tort Teasers
1. Discuss the questions raised at the beginning of this chapter. What additional information would you
need to fully answer these questions?
2. A is injured as a result of the combined negligence of B and C. A settles with B for $2,000 and releases them.
A then sues C and obtains a judgment for $30,000. If C pays $30,000, can he obtain contribution from B?
3. A construction worker was injured when the trusses he was working on collapsed and rendered him a
paraplegic. The worker filed suit against the construction company they were working for, the construc-
tion company that installed the trusses and the truss company that manufactured the trusses. Before trial,
the truss manufacturing company settled with the plaintiff. The disclosure of this settlement and that the
company had been a co-defendant were not admitted into trial. Was the exclusion of the settlement
being prohibited from trial an error? Is there an implicit exception to allow such settlements for impeach-
ment purposes? Saleeby v. Rocky Elson Const. Inc., 3 So.3d 1078 (Florida 2009).
4. HOVIC enters into a contract with Beloit in which Beloit agrees to supply certain equipment for installa-
tion at the HOVIC refinery. HOVIC then contracts with Litwin for the installation of the equipment HOVIC
purchased from Beloit. A Litwin employee is seriously injured while installing the Beloit equipment at the
HOVIC refinery. The employee brings an action against Beloit, and a jury finds Beloit liable. Beloit subse-
quently brings an action against HOVIC for contractual indemnity based on the contract of sale between
Beloit and HOVIC. Defendant HOVIC then impleads Litwin as a third-party defendant, arguing that if
HOVIC owes anything to Beloit, then through the operation of an indemnity provision in HOVIC’s con-
tract with Litwin, Litwin is required to indemnify HOVIC.
The law of the state in which these actions take place requires that an indemnification clause must
state in clear and unambiguous terms that a party may be subject to indemnification. Under these
guidelines do you think the following clause (drafted by Beloit) should be enforceable against HOVIC?
N. Warranty
Under no circumstances shall the seller have any liability for liquidated damages or for collateral,
consequential or special damages or for loss of profits or for actual losses, or for loss of production or
progress of construction, whether resulting from delays in delivery or performance, breach of warranty,
claims of or negligent manufacture or otherwise. The aggregate total liability of the seller under this
contract, whether for breach of warranty or otherwise, shall in no event exceed the contract price. Buyer
agrees to indemnify and hold harmless seller from all claims by third parties which extend beyond the
foregoing limitations on seller’s liability.
Do you think the following indemnity clause should be enforceable by HOVIC against Litwin?
VI. INDEMNITY AND INSURANCE
A. From date of Contract until Ready for Charge date, CONTRACTOR shall indemnify and hold HOVIC
harmless from and against any and all loss, damage, injury liability and claims thereof, including claims for
personal injuries, death and property damage and loss, unless caused by the sole negligence of HOVIC. . . .
Beloit Power Systems, Inc. v. Hess Oil Virgin Islands Corp., 561 F.Supp. 279 (Virgin Islands, 1983) and 757
F.2d 1427 (3d Cir. 1984).
5. Plaintiffs are injured when the car in which they are passengers collides with a taxicab. Plaintiffs sue the
owner of the taxicab but not the owner of the car in which they were riding. What are the options of the
taxicab owner? Knell v. Feltman, 174 F.2d 662 (D.C. Cir. 1949).
Internet Inquiries
In deciding whom to sue, an attorney must assess the assets of each potential defendant. If a potential defendant
is not insured and has no assets that can be collected if a judgment is won, initiating a lawsuit may be an exercise
in futility. After all, a lawsuit is only as viable as the solvency of the defendant against whom the lawsuit is directed.
Legal assistants are often asked to assist in the process of asset evaluation. Some of the information they
can use to assess an individual’s or company’s financial status includes
• property records
• tax liens
• recorded judgments
• pending litigation
• credit reports (credit reports for individuals can be accessed only for specific purposes)
We will focus on recorded judgments in this exercise. The trial phase of litigation ends when a judgment
is entered. In federal court, entry occurs when a judgment is signed by the court and filed in the clerk’s docket
(list of cases on the court’s calendar). In state courts, the procedure may vary, but in all courts, judgments are
ultimately filed. In most instances, the judgment is recorded with the county recorder’s office. This recorded
judgment is a public record that can be accessed by anyone willing to take the time to find it and is most often
considered as constructive notice to the world of the existence of the judgment. Most states also recognize
that a recorded judgment is a lien (a legal claim against real or personal property) on all property owned by the
judgment debtor in the county where the judgment is recorded.
Judgments can be found by going to the county recorder’s office, the clerk’s office of the court where
the judgment was rendered, or by having a private company find the judgment. Courts maintain a judgment
docket (also called an abstract of judgment index), which is prepared by the court clerk or the judge who
issued the judgment. The judgment docket indicates
• judgment debtor (the party against whom the judgment was entered)
• judgment creditor (the party in whose favor the judgment was entered)
• amount of the judgment
• date the judgment was entered
• case number (number of the action)
• whether the judgment has been satisfied
Using a name provided by your instructor (or the name of someone you know to be a judgment debtor),
go to the web page for your local county recorder (which you can find by going to www.lexisone.com). If
more than one judgment exists, use only one to answer the following questions. (If your county recorder is not
online, go to the Marion County’s home page at www.in.gov/mylocal/marion_county and follow the appro-
priate steps to find judgments for a specific the judgment debtor.)
1. What is the judgment creditor’s name?
2. What is the amount of the judgment?
3. When was the judgment entered?
4. Has the judgment been satisfied?
5. Describe the process you must follow to bring up a judgment record for this individual.
6. For what time period are these records available online?
7. What is the telephone number and address of your local recorder’s office?
Assume the same facts as given in the “Practical Ponderables” feature for Chapter 14, except assume that
the trainer is an employee of Escondido Farms and has substantial assets of their own. Further assume that
Maria’s injuries were compounded by negligent treatment in the emergency room and that their parents
decide to sue Mercy Hospital and the doctor who treated them, Dr. Martin, for negligence.
1. In your state, can Maria recover their entire judgment from Escondido Farms even if a jury decides that it
was only 10 percent responsible for their injuries?
2. What options does Escondido Farms have if Maria decides to recover their entire judgment from them alone?
3. Go on the Internet and find a sample release you think could be modified for use in this case if Maria
decided to release the trainer.
4. In your state could Escondido Farms seek contribution from the trainer if they were released?
5. In your state could your firm enter into a Mary Carter or Gallagher agreement with the trainer? What lim-
itations would be put on this agreement?
4
Part
Torts in Practice
Chapter 16: Tort Reform
Chapter 17: Automobile Insurance
Chapter 18: Bad Faith
Chapter 19: Workers’ Compensation
Chapter 16
Tort Reform
Chapter Topics
Goals of the Tort System Is There Really a Problem?
Historical Roots of Tort Reform Tort Reform in Practice
Focus of Today’s Reformers
Chapter Objectives
• Identify the goals of the tort system. • Critique the measures being proposed to reform
• Identify the historical roots of tort reform. the tort system in reference to punitive damages,
joint and several liability, collateral-source payments,
• Describe the primary issues that drive the tort
and frivolous lawsuits.
reform movement today.
A burglar falls through a skylight during a robbery. A jury grants him a lifetime award of $206,000 with a
monthly award of $1,500 a month. These are the “facts” as represented by an American Tort Reform
Association publicity pamphlet. But is this what really happened? Actually, there was no jury award because the
case was settled. The plaintiff was a teenager who had climbed up on the school roof to take a floodlight. The
skylight was painted over, and the boy was rendered paraplegic as a result of his fall. A similar accident had
resulted in a death at another school eight months earlier, and school officials had contracted to board over the
skylights to resolve maintenance and safety problems.
Goals of the Tort System responsible ways. Over time, both individuals and
businesses learn to consider the social consequences
What are these goals? First, the tort system is designed of their actions. Third, tort law spreads the risk of injury
to compensate victims. Not only are victims served by among members of society. By incorporating the costs
this compensation, but society also benefits because of this social “insurance” into the costs of goods and
tort victims who are compensated are less likely to services, all are protected from the expenses of cat-
become the public’s responsibility, thereby alleviating astrophic loss. Fourth, justice is served when victims
some of the stress on an overburdened social welfare are made whole. Restoring victims to the positions in
system. Second, tort law serves a deterrent function, which they would have been but for the defendant’s
providing individuals with an incentive to act in socially wrong serves the collective conscience. Fifth, tort law
CHAPTER 16 Tort Reform | 489
Exhibit 16–1 Goals of the Tort System the role of the tort system as something of a “karmic
adjustor,” through which the wrongs of society could
• Compensation be righted by means of a type of social engineering,
• Deterrence they advocated no-fault approaches that helped the
• Cost-spreading
plaintiff at the defendant’s expense.
From the 1960s through the 1980s, a series of
• Restoration
social phenomena influenced the evolution of tort
• Exposure law. In the late 1960s medical costs rose sharply,
according to healthcare providers, because more
patients filed negligence claims. In the late 1970s,
exposes corruption, incompetence, and a variety of manufacturers experienced rising liability insurance
other forms of misconduct. Behaviors that might oth- premiums. In the late 1980s insurance companies,
erwise have escaped public attention because they citing continuing financial losses, cancelled or
are not typical “crimes” are brought into the limelight refused to reissue policies held by high-risk policy-
of public scrutiny and rectified. (See Exhibit 16–1.) holders. The public assigned the tort system primary
Two key questions that should be uppermost in blame for these perceived crises and began to
the minds of tort reformers are (1) are these viable associate lawsuits with the destruction of business.
goals, and (2) if they are, is the tort system as pres- The legal community also became disenchanted
ently structured effectively meeting these goals? with the focus on plaintiff compensation and sought to
For example,should the tort system serve a deter- correct what it saw as the excesses of the Progressive
rent function, or is that function better left within the Era. Focusing on the goal of deterrence, the classical
purview of the criminal justice system? And if deter- tort reformers sought the repeal of any rules that
rence is a viable goal, do punitive damages alone, were not aimed at deterring potential tortfeasors
for example, actually accomplish that goal? Broad from engaging in risky behavior. In particular, they
policy questions such as these must be addressed sought to eliminate any rules they viewed as being
before a meaningful discussion about specific issues particularly harsh toward defendants.
is possible. What specific changes occurred as a result of the
classical reform movement? In the 1970s, responding
to the medical crisis of the 1960s, at least 43 states
passed legislation that limited the potential malprac-
Historical Roots of Tort tice liability of healthcare providers. The second wave
Reform of classical reforms resulted in many states eliminat-
ing joint and several liability and imposing caps on
A brief review of the historical roots of tort reform non-economic damages, particularly punitive dam-
illustrates the consequences of changes in goals. ages. Several states reestablished sovereign-immunity
After World War I, in the Progressive Era of tort doctrines; others allowed defendants to pay awards
reform, legal commentators were primarily con- periodically rather than in lump sums; some penalized
cerned with plaintiffs being adequately compen- plaintiffs who brought frivolous lawsuits; still others
sated. Because at the time the tort system tended mandated some form of alternative dispute resolu-
to protect defendants’ interests, reformers opted for tion. By 2014 all states had enacted some form of tort
changes in the law that were plaintiff-oriented, such reform and many states have caps for certain types of
as workers’ compensation and strict liability. Seeing tort awards. (See Exhibit 16–2.)
In the News
The Web address for the American Tort Reform Association (ATRA) is www.atra.org. At this site, which
advocates on behalf of tort defendants, you can find news relating to tort reform activities around the
country along with links to other tort reform organizations. This organization is dedicated to repairing and
reforming our civil justice system. A tort reform record offers a state-by-state summary of ATRA-supported
reforms proposed or enacted by the states.
490 | Part IV Torts in Practice
In the News
Numerous articles relating to tort reform from a plaintiff’s prospective and the effects on consumers can
be found at www.citizen.org and on the site www.whatistortreform.com. Enter “tort reform” as your
search term to find many others.
Exhibit 16–2 Pendulum Swing of Tort Reform Exhibit 16–3 Focus of Today’s Reformers
Progressive Reform Classical Reform • Plaintiff orientation

Plaintiff-oriented Defense-oriented • No-fault
• Causation requirements
• Comparative negligence
Focus of Today’s • Privity

• Litigiousness
Reformers • Excessive jury verdicts
What is the rallying cry of today’s reformers? Most • Inhibition of medical and business practices
have focused on the law’s plaintiff orientation, the
litigiousness of society, the excessiveness of jury
verdicts, and the inhibition of medical and business Services Office concluded that tort reform laws
practices (see Exhibit 16–3). The insurance industry that limit damage awards and lawsuits have done
in particular has accused the plaintiff orientation of nothing to lower insurance costs. In some instances,
the tort system of making it nearly impossible to pre- premiums have risen more in states that have imple-
dict risks and set prices. mented tort reform laws than those that have not
Before considering the alleged plaintiff orienta- (Lawrence Messina, “Tort Reforms Not Affecting
tion of the tort system, we should evaluate insurance Insurance Rates, Study Says,” WV Gazette, July 18,
industry claims that the tort system is to blame for 1999, p. 2A). In the area of medical liability, health
its financial woes. There is evidence to indicate that economists and independent legal experts argue
the crisis proclaimed by the insurance industry in the that “medical liability costs are a small fraction of the
mid-1980s was actually caused by a cyclical down- spiraling costs of the U.S. health care system, and
turn combined with questionable underwriting prac- that the medical errors that malpractice liability tries
tices and a drop in interest rates, not by an increase to prevent are themselves a huge cost—both to the
in lawsuits (Eliot M. Blake, “Rumors of Crisis: Consid- injured patients and to the health care system as a
ering the Insurance Crisis and Tort Reform in an Infor- whole” (Daphne Eviatar, “Tort Reform Unlikely to Cut
mation Vacuum,” 37 Emory L.J. 401, 411–12 [1988]). Health Care Costs,” The Washington Independent,
This conclusion is consistent with a 1986 report on August 18, 2009).
the insurance industry by the National Association of
Attorneys General, which declared that the causes
Plaintiff Orientation
of the insurance crisis lay within the insurance indus-
try itself (Kenneth S. Abraham, “The Causes of the Specific examples of plaintiff orientation singled out
Insurance Crisis,” in New Directions in Liability [New for blame are the expansion of liability to include
York: Academy of Political Science, 1988], p. 54). In no-fault (strict liability) liability, the relaxation of
fact, tort filings declined more than 80% between causation requirements, the adoption of comparative
1993 and 2015 according The Wall Street Journal. negligence, and the abolition of privity.
This was due to the rising cost of bringing the law-
suits and the fact that they are so time consuming. No-Fault
Furthermore, the tort reforms advocated by the No-fault (strict liability) for defective design,
insurance industry have not resulted in lower insur- manufacture, and warnings is the primary exam-
ance costs. A study based on data from the Insurance ple raised to illustrate the unbridled expansion
of tort liability. One of the most noteworthy examples retailer. Recall that privity requires a plaintiff suing
of no-fault involves Restatement (Second) of Torts § in negligence to have direct contact with the defen-
402A. To review, this section shifts the costs of injuries dant. This liberalization of the scope of suit further
resulting from unreasonably dangerous products to expanded the realm of tort liability and opened up
manufacturers, who, the drafters of the Restatement the universe of potential defendants. The trend has
reasoned, are better able to absorb the costs of injuries been to expand liability up the stream of commerce
into their overall business expense. Expansive interpre- to remote sellers and suppliers of parts who may be
tations of this Restatement section (which was widely passed on to the final purchaser.
adopted by state legislatures) have allowed escalated
claims against manufacturers and prompted calls for Litigiousness
reform.
Today’s reformers diagnose society as suffering from the
pangs of overlitigiousness. In The Litigation Explosion:
Causation Requirements
What Happened When America Unleashed the Law-
Relaxed causation requirements have also fueled the suit (New York: Truman Talley Books, 1991), Walter
debate about the permissiveness of contemporary Olson accused lawyers of inciting businesspeople to
tort law. The case most often pointed to in this regard sue rather than negotiate and of encouraging individ-
is Sindell v. Abbott Laboratories, 607 P.2d 924 (Cal. uals to pursue claims and defend rights they might
1980) (see Chapter 6). Recall that in this class action, otherwise ignore. Although the book certainly fueled
a group of women whose mothers had received DES the debate on tort reform, the author provided little
during pregnancy to prevent miscarriage sued when in the way of empirical evidence to support his claims.
the drug was later linked to the daughters’ cancer. In To the contrary, a Rand Institute for Civil Justice
what some perceive as a radical liberalization of the study revealed that in 1989, only 1 in 10 Americans
rules concerning proof of causation, the California who were injured sought compensation from some-
Supreme Court found each defendant manufacturer one involved in the accident. Most of these were
of DES liable for its market share of the damages to auto accidents. In non-auto, non-work accidents, the
the plaintiff class, even though the plaintiffs were attempted claim rate was only 3 out of 100 (Hensler
unable to prove which specific companies had actu- et al., Rand Survey of Compensation for Accidental
ally supplied DES to their mothers. This waiver of Injuries in the United States [Santa Monica, CA: The
proof as to who actually caused the plaintiffs’ injuries RAND Corporation, 1990]).
dramatically altered causation principles, despite
this doctrine’s limitation to certain factual situations. State Courts
Was this considered joint and several liability?
Much of the emphasis by those urging reform is on
data from the federal courts; however, 98 percent of
Comparative Negligence
all civil litigation takes place in state courts (Galanter,
Comparative negligence where all defendants bear “The Day After the Litigation Explosion,” 46 Md. L.
responsibility in a pro rata share to the plaintiff for Rev. 3, 5 [1986]).
damages, has allowed recovery by plaintiffs who Notwithstanding traffic cases, civil caseloads are
would have been excluded by the restrictive param- 17 percent lower in 2018 than in 2009. Civil cases
eters of contributory negligence (see Chapter 8). did start to see an upswing in the number of cases
in 2017 and is continuing through 2018 with a 3%
Privity increase. (State Court Caseload Digest). They are
By the same token, abolition of privity has allowed still maintaining an overall decrease of 16% from
plaintiffs who did not buy directly from the 2009 to 2018. Tort cases make up only about 4% of
manufacturer to sue the manufacturer as well as the all civil caseloads. In 2018, civil cases accounted for
In the News
Findings regarding tort cases in your county can be found by using “tort cases in (your) county” or “tort
decisions in (your) county” as your search term.
20 percent of the almost 20 million civil cases filed are more resistant to resolving disputes outside of
in the state court. Contract, small claims cases, pro- litigation. In the interest of tort reform many large
bate, and tort cases typically account for 80 percent corporations have adopted a fight at all costs strat-
of civil caseloads (State Court Caseload Digest). egy to send a message to plaintiffs’ lawyers to think
twice before filing a tort lawsuit. Daimler Chrysler
Federal Courts AG spent over $250,000 to defend an $8,700
The federal courts have experienced a 16 percent case that it lost. As the prevailing party, the plain-
increase in overall filings for civil cases for the year tiff was awarded almost $150,000 in attorney’s fees
ending 2020 with almost 333,000 cases filed. Most (Corporate Wolves in Victims’ Clothing. Trial 36–37,
of the increase involved litigation related to the inju- July 2006). Increased filing can also result from an
ries sustained from Combat earplugs, and the airline increase in the number of transactions between
crash of Ethiopian Airlines Flight ET 302. Tort cases parties. If doctors, for example, are having more
and personal injury product liability cases accounted doctor–patient contacts, and thereby providing
for around 100,000 of the 333,000 civil cases filed more medical care, more injuries and consequently
in federal courts in 2020 (www.uscourts.gov more complaints could be anticipated.
/statistics-reports). To summarize, empirical evidence is needed to
substantiate claims of overly litigious behavior. Once
What Do the Statistics Mean? the evidence is amassed, it must be carefully ana-
lyzed before any relevant conclusions can be drawn
When assessing claims of litigiousness, several ques-
regarding American attitudes toward litigation.
tions should be raised. Is the increase in the num-
ber of lawsuits filed commensurate with increases
in population? Although more lawsuits are being Runaway Verdicts
filed today, the question is whether any increase in Although jury verdict research data are frequently
litigation per capita has occurred. Are Americans cited by tort reformers, it is difficult to find reliable
more litigious than citizens of other countries? Some statistics with systematic and representative sam-
studies show that American litigation rates are not plings. There are some Department of Justice
significantly higher than those in other industrialized studies that reveal some statistics about jury verdicts.
countries. Although many countries have much lower One study found that around 51% of plaintiffs pre-
rates of litigation, per capita use of the courts in vailed in tort cases before juries and 56% before
Canada, Australia, New Zealand, England, Denmark, judges. Of these 51% plaintiff winners, over 75% of
and Israel appears to be within the same range as them received less than $24,000. There is also data
that of the United States (Galanter, “Reading the to prove that a large percentage of plaintiff won tort
Landscape of Disputes: What We Know and Don’t cases have the damage awards significantly reduced
Know [and Think We Know] About Our Allegedly after trial. Punitive damages were only awarded in
Contentious and Litigious Society,” 31 UCLA L. Rev. 3% of tort cases. (www.bjs.gov)
4, 53 [1983]). How do litigation rates today com- Rather than permitting plaintiffs to ransack
pare with those of 100 years ago? Several studies defendants’ coffers, the evidence indicates that
document higher per capita rates of civil litigation juries are generally cautious about awarding plain-
in nineteenth- and early twentieth-century America, tiffs’ substantial awards and there appears to be a
as well as in colonial times (McIntosh, “150 Years of downward trend. Moreover, the average jury award
Litigation and Dispute Settlement: A Court Tale,” 15 is generally less than the actual losses suffered by
Law & Soc’y Rev. 823 [1980–81]). Furthermore, the plaintiffs (W. Kip Vicusi, “Toward a Diminished Role
1930s and 1940s, which form the baseline for many for Tort Liability: Social Insurance, Government
comparisons, were a historic low point for litigation Regulation, and Contemporary Risks to Health and
(Seacat, “The Problem of Decreasing Litigation,” 8 Society,” 6 Yale J. on Reg. 65, 95–97 [1989]). When
U. Kan. City L. Rev. 135 [1940]). juries do make large awards, it is usually in business
Even a finding that filings have increased, litigation and not tort cases (Center for Justice &
however, does not necessarily mean that society has Democracy, Punitive Damages in California: Myth
become more litigious. An increase might not mean vs. Reality, cited in B. Tassoni, D. O’Fallon, and B.
that plaintiffs are more litigious but that defendants Finzen, “Tort Reform: Perception versus Reality,”
Minnesota Trial Lawyer, Winter 2003, footnote 6). attorneys and attorneys consequently have a higher
In fact, scholars investigating jury verdicts have quality pool of cases from which to select, they are
noticed a marked underpayment when plaintiffs likely to choose those cases with large potential
suffer major damages, as illustrated by an insur- recoveries.
ance industry study that concluded that claimants Consequently, even if jury awards are on the
with more than $1 million of legitimate economic increase, the reasons behind this increase must be
loss were awarded an average of only 58 cents on explored before one can conclude that the system is
the dollar by juries (Lawrence W. Soular, A Study out of control. Given that one of the goals of the tort
of Large Product Liability Claims Closed in 1985 system is restoring the victim to wholeness, does
[Downers Grove, IL: Alliance of American Insurers, an increase in awards reflect a cultural value that
1986], p. 18; confirmed by Deborah Jones Merritt should be nurtured or misguided philanthropy that
and Kathryn Ann Barry, “Is the Tort System in Crisis? should be brought into balance? If jurors today tend
New Empirical Evidence,” 60 Ohio St. L.J. 315, to place a higher value on human life and health,
397[1999]). Furthermore, more than 90 percent of should that trend be discouraged or encouraged?
tort actions settle out of court, and on average tort Along the same line, another criticism of the
claims settle for 74 percent of their potential recov- tort system is that all of society bears the brunt of an
ery (Patricia M. Danzon, “Malpractice Liability: Is the increase in jury awards (“we all pay”). In light of the
Grass on the Other Side Greener?” in Tort Law and cost-spreading goal of the tort system, should we
the Public Interest, edited by P. H. Schuck [New York: accept increased costs as part of the social price of
Norton, 1991], p. 30). security, or should we reevaluate the wisdom of this
goal? After all, if the system is designed to remove
Interpreting the Statistics some of the burden of accidents from the individual
and shift it to the larger society, redesigning the sys-
Interpreting these results is another matter. Because
tem so that individuals bear the brunt of their mis-
most tracking organizations do not poll jurors, they
fortune is a fundamental social change. This change
do not know jurors’ rationales. Furthermore, statistics
has widespread implications that, apart from the
may simply reflect a random fluctuation rather than
monetary ramifications, should be examined.
a statistical trend. Some argue that statistical trends
are unimportant anyway and that individual exces-
sive awards are the primary indicia of a dysfunctional Inhibition of Medical and Business
system. The American Tort Reform Association often
uses specific cases to illustrate its premise that jury Communities
awards are sometimes irrational. Caution must be Finally, supporters of tort reform claim that increased
used, however, in evaluating these claims, because tort liability has obstructed product development
sometimes not all of the facts are included in and created the practice of defensive medicine (the
the case summaries (as illustrated in the opening of conservative practice of practicing medicine to avoid
this chapter). legal action rather than what is best for the patient).
When evaluating statistics for median jury Essentially, tort reformers maintain that excessive
awards, researchers are likely to make adjustments tort liability has hampered business, resulting in
for inflation of healthcare costs—but what about the higher prices and fewer new products. In medicine,
costs of rehabilitation? Because medicine is better the tort system has arguably thwarted the practice
able to prolong life and to rescue people who just a of good medicine by increasing prices, encouraging
few years ago would have died, jurors are more likely unnecessary tests, and making doctors reluctant to
now to factor the cost of round-the-clock medical perform high-risk procedures. Their fear of a poten-
care and rehabilitation into their awards. If plaintiffs tial lawsuit often forces them to order unnecessary
live longer and receive more treatment, jury awards tests so that they do not miss anything. It comes as a
should be expected to reflect those increases in result of rising malpractice insurance premiums.
longevity. As evidence to the contrary, from 2009 to 2018,
Alternatively, increases in jury awards may reflect the number of claims against doctors and hospitals
the types of cases attorneys are bringing into the has dropped by 18.5%. (National Practitioner Data
courts. If more people are bringing their claims to Bank NPDB) Some attribute the decrease in claims
to the high procedural cost of filing a malpractice Cook County, Illinois, 1960–1979 [Santa Monica,
claim (costs for medical reports, expert witnesses, CA: Institute for Civil Justice, 1982], table 3, p.
second opinions, etc.) (Physician Payment Review 19). This relatively small rate of recovery may indi-
Commission, Annual Report to Congress 291 cate that juries tend to give healthcare practitioners
[1994]). Also, the length of time for a malpractice the benefit of the doubt. If, as some data indicate,
claim averages five years from start to finish. There the fraction of plaintiff verdicts is increasing
were over 85,000 malpractice claims made against (id., p. 17), perhaps the increase can be attributed to
physicians from the years 2009–2018. a change in jury attitudes or a change in the quality
To determine whether doctors actually use of cases being brought to trial.
unnecessary procedures because of fear of liability, On a more positive note, evidence indicates that
the Office of Technology Assessment (OTA) analyzed products are safer as a result of tort litigation. In Wyeth
existing studies and then did a national survey of v. Levine, 129 S.Ct. 1187, 1202 (2009) the Supreme
cardiologists, surgeons, and obstetrician/gynecol- Court noted that “State tort suits uncover unknown
ogists. The OTA did not find substantial levels of drug hazards and provide incentives for drug manu-
defensive medicine, even though it set up scenarios facturers to disclose safety risks promptly. They serve
that were specifically designed to elicit a defensive a distinct compensatory function that may motivate
response (Office of Technology Assessment, Defen- injured persons to come forward with information.”
sive Medicine and Medical Malpractice, 103d Cong. More than 75 percent of defendants subject to puni-
56 [1994]: 43–46). In an extensive study of medical tive damages in product liability cases surveyed
practices, respected researcher Patricia M. Danzon between 1969 and 1990 took some safety steps in
concluded that malpractice claims have not induced the wake of litigation, including removing products
an increase in laboratory tests and X-rays (primary from the market or redesigning them (Michael Rustad,
forms of defensive medicine) (Patricia M. Danzon, Demystifying Punitive Damages in Products Liability
“Malpractice Liability: Is the Grass on the Other Side Cases: A Survey of a Quarter Century of Trial Verdicts
Greener?” in Tort Law and the Public Interest edited [Washington, DC: The Roscoe Pound Foundation,
by Schuck [New York: Norton, 1991]). 1991]). Managers say products have become safer,
In fact, some believe that the crisis in the med- manufacturing procedures have been improved,
ical arena and business community is not that so and instructions have become more explicit as have
many needless and capricious claims are being filed adding more extensive warning labels. (N. Weber,
but that so many wrongs are going unredressed. A “Product Liability: The Corporate Response,” The
Harvard Medical Practice Study revealed that in New Conference Board, Report No. 893 [1987]). One
York State, eight times as many patients are injured scholar has suggested that the tort system is now so
from medical negligence as there are malpractice unwieldy and costly that only a select few can maneu-
claims. Only about half of claimants receive compen- ver through its obstacles. Those few may receive
sation. Consequently, there are about 16 times as awards that exceed their just compensation. Although
many patients who suffer from medical negligence such recoveries could represent only a tiny fraction of
as those who receive compensation through the tort the real costs of injury, they may serve as an effective
system (Harvard Medical Practice Study, Patients, deterrent that is out of proportion to their actual costs
Doctors and Lawyers: Medical Injury, Malpractice to defendants and insurers. Such a system would cre-
Litigation, and Patient Compensation in New York ate an image of unfairness to the public because of
[Cambridge, MA: The President and Fellows of the few plaintiffs who received large awards, while the
Harvard College, 1990]). If this study is representa- unfairness to the many plaintiffs who are uncompen-
tive of what is transpiring in the larger healthcare sated would remain invisible (Michael Saks, “If There
system, then consideration might be given to Be a Crisis, How Shall We Know It?” 46 Md. L. Rev.
enhancing incentives and making the filing easier 63, 67 [1986]).
and less expensive for bringing suit. Contrary to industry claims that businesses are
Interestingly, plaintiffs prevail in a smaller frac- being overwhelmed by lawsuits, one study reveals
tion of malpractice cases that go to trial than in any that liability costs for corporations decreased 37
other category of litigation (M. Peterson and G. percent from 1992 to 1997 (Ernst & Young LLP and
Priest, The Civil Jury: Trends in Trials and Verdicts, Risk & Insurance Management Society, Inc., RIMS
In the News
A very interesting article from 2019 by Marianne Bonner titled “What Does Tort Reform Mean” about tort
reform, can be viewed at www.thebalancesmb.com
Benchmark Survey, 1998). A study by the OTA elimination of joint and several liability, caps on con-
found that the greatest influence on corporate tingency fees, elimination of the collateral-source
competitiveness with foreign corporations is cap- rule, adoption of comparative negligence, institution
ital costs. Its report did not even mention liability of periodic rather than lump-sum payments, and
laws as a factor (Office of Technology Assessment, required payment of prejudgment interest. The
Competing Economies: America, Europe, and the study showed that the adoption of plaintiff-friendly
Pacific Rim, 1991, pp. 3–7). Moreover, studies show doctrines, such as comparative negligence, led to
that jurors tend to be generally favorable toward declines in employment and productivity, whereas
business, more skeptical about the profit motives adoption of defendant-oriented reforms led to
of individual plaintiffs than of business defendants increased employment and productivity.
and committed to holding down awards (Valerie The authors of the study are quick to point out that
Hans and William Lofquist, “Jurors’ Judgments of these gains may have been due to other state poli-
Business Liability in Tort Cases: Implications for the cies, such as lower taxation. Also, they note, capital
Litigation Explosion Debate,” 26 Law & Soc’y Rev. may flow from high-liability to low-liability states. Or
85, 94–95 [1992]). companies in low-liability states may have lower costs
simply because they are not bearing the true costs of
Judicious Use of Statistics production (as reflected in states where companies are
Discerning trends and making comparisons is more likely to be sued). Although the results do not
important in gaining an understanding of litigation in support any definitive conclusions, they certainly pro-
relationship to the business and medical world, but vide a basis for additional research, and they support
statistics must be used and evaluated with care. The tort reformers’ claims that expansive tort liability is bad
average award was $1.669,000 in 2018 for product for business.
liability cases, a decrease of $150,000 from the pre-
vious year. It is important to note that these numbers
can appear skewed by a handful of very high awards.
Addressing these liability concerns through risk man-
Is There Really a Problem?
agement is a huge factor. This includes liability insur- Many of the allegations about the “system gone ber-
ance. The United States is the largest commercial serk” are unsubstantiated by empirical evidence, or
liability insurance market in the world in volume ($85 the evidence is subject to debate (see Exhibit 16–4).
billion) and as a percentage of gross domestic prod- Nevertheless, some very real problems do exist.
uct (.52%). More than half of the entire global liabil- Insurance premiums keep going up, insurance
ity premiums originate in the United States. coverage is getting more difficult to obtain, and
the insurance industry appears to be losing money.
Can Tort Reform Benefit the Business The caseload of the courts is growing, even if that
Community? growth is simply proportional to population growth.
Is there any evidence that tort reform could actually Some plaintiffs are overcompensated for their
benefit the business world? Tort reformers can now injuries while others are either undercompensated or
point to a study released by the National Bureau of receive nothing at all.
Economic Research in Cambridge, Massachusetts, How do we go about constructively remodeling
that suggests a possible link between the adop- the system? Do we search for empirical evidence, or
tion of tort reform and increases in employment is the controversy more ideological in nature? Con-
and productivity. The study uses economic data sider a $150 million verdict against General Motors
from 1969 to 1990 and looks at eight legal reforms: in Hardy v. General Motors Corp., CV-93–56 (Ala.
punitive damage reform, limits on damage awards, Cir. Ct., Lowndes County, verdict June 3, 1996).
To some, the verdict ($50 million in compensatory through the windshield and that the driver-side door
damages and $100 million in punitive damages) for had never opened.
a 38-year-old driver who was rendered a paraplegic What can we glean from this case? Does it serve
illustrates the chaos and lack of control in the tort as evidence of a tort system run amuck, or it is an
system. For others, the verdict exemplifies the need aberration? Was the award reasonable in the context
for deterrence of indifferent corporate behavior and of all the evidence presented? Should we use indi-
confirms that this is the role that punitive damages vidual cases like this one as the impetus to remodel
should play. In this case the driver argued that the system since they are so out of the norm, or do
he was injured when he was ejected through a these cases simply further polarize opponents? If
driver-side door that opened because of a defec- individual cases are insufficient, what data should
tive door latch. GM had allegedly been informed of we be collecting? Once we have data, how do we
the defective latch by its engineers but had made determine its relevance before assigning cause-
no efforts to remedy it. GM claimed that the driver, and-effect relationships? As you can see, revamping
who had admitted to not wearing a seat belt, and the tort system is a bit more complex than it might
who GM claimed had been drinking, was ejected appear at first glance.
Exhibit 16–4 Questioning the Criticisms of the Tort System
Criticism: Americans have become too litigious.

• Is increase in lawsuits commensurate with population growth?
• Do most Americans sue when injured?
• Are increases in litigation at the state or federal level?
• Have plaintiffs become more litigious, or are defendants more resistant to suit?
• In areas of law that have experienced increases in litigation, has there been a concomitant increase in the number of
transactions?
• Are Americans more litigious than citizens of other nations?
• Are Americans more litigious today than they were 100 years ago?
Criticism: Jury awards are out of control.
• Has there been a substantial increase in median jury awards?
• Are increases in jury awards due to random fluctuation, or do they represent a change in jurors’ thinking?
• When analyzing this issue, should we focus on statistical trends or individual cases?
• Do increases in some types of awards reflect increases in longevity and the resulting costs of long-term care?
• Are attorneys bringing better cases to trial today?
• Are attorneys bringing more cases overall today?
• Are jurors today placing a higher value on health and life?
• Should we reexamine the cost-spreading goal of the tort system?
• If the frequency in both small and large awards has increased (as some data would indicate), is this increase due to the
use of smaller juries?
Criticism: The increase in tort liability has hampered the business and medical communities.
• Are more claims being filed against doctors and hospitals today?
• Are there significant numbers of patients who are injured but never compensated?
• Do medical malpractice claims so often fail because they are meritless, or because jurors tend to give healthcare
practitioners the benefit of the doubt?
• If the percentage of plaintiff verdicts is increasing, is this increase due to a change in juror attitudes or to the better quality
of cases being brought to trial?
• Are products being created safer as a result of tort litigation?
In the News
Descriptions of the most common types of tort reform can be found by entering “Types of Tort Reform”
as your search term.
Tort Reform in Practice Exhibit 16–5 Objectives of Today’s Tort Reform
Operating from the assumption that society is • Damage award caps

overly litigious and that jury awards are excessive, • Modification of joint and several liability
the primary objectives of today’s tort reformers are • Modification of collateral-source rule
to curb what are perceived as unduly high dam- • Discouragement of frivolous lawsuits
age awards and to reduce the number of claims
• Statutes of repose
filed. Several avenues have been pursued to ful-
• Rules of discovery
fill these objectives (see Exhibit 16–5). Caps have
• Alternative dispute resolution
been proposed on damage awards, particularly
punitive damages; joint and several liability and the • Workers’ compensation immunity
collateral-source rules have been modified; efforts • Automobile insurance
have been made to discourage frivolous lawsuits. • Periodic payments
Other reform measures being considered that are • Sovereign immunity
not discussed in this chapter relate to statutes of • Attorney fee limitations
repose, rules of discovery, alternative dispute
resolution, workers’ compensation immunity, auto
insurance, periodic payments, sovereign immunity,
The Supreme Court has capped punitive damages at
and limits on attorney fees.
no more than a 10:1 ratio. This means that a punitive
The Common Sense Reform bills illustrate these
award cannot exceed 10 times the initial award that
proposals. When the Republican Party gained con-
is given. The idea is the punitive damages are for
trol of Congress in 1994, the momentum of tort
tort reform and as a sense of punishment. Therefore,
reform shifted from the state to the federal level.
they must be used fairly.
Tenet 9 of their Contract with America called for a
variety of tort reforms, including product liability
reform, punitive-damage limitations, and institution Damage Caps
of the British rule of fee-shifting (see section later Let us examine each of these measures individually,
in this chapter on frivolous lawsuits). In the first 100 beginning with a topic that most state legislatures have
days of office, the party introduced four Common tackled: damage caps. Why is the limitation of dam-
Sense Reform bills. Several of the bills precluded a ages such a concern? Assigning a precise numerical
plaintiff from recovering punitive damages unless value to a physical injury is virtually impossible. For
they could show by clear and convincing evidence this reason, jury verdicts for compensation for bodily
that the defendant had acted with conscious indiffer- harm are always unpredictable. Responding to this
ence to the plaintiff’s safety (actual malice). Individ- unpredictability, most states have passed some kind
ual states can also have caps on actual damages and of legislation aimed at regulating damage awards.
punitive damages they allow. Many of them cap at a The American Bar Association, in contrast, has criti-
certain multiple of the actual damages and some are cized these reforms as depriving those who are most
capped at a multiple of the defendant’s net worth. seriously injured of their due compensation.
In the News
The states that enacted tort reform medical malpractice caps can be seen by entering “damage caps for
malpractice cases” as your search term.
The courts’ responses to these caps have varied has gone to punitive damages. The primary purpose
depending on whether the damage award involved of punitive damages is to deter undesirable behavior
economic damages, non-economic damages, or and to punish those who engage in such behavior. In
punitive damages. Restrictions on economic damages one decision, the Alabama Supreme Court opined
have not generally been favored by the courts. For that often the only recourse for victims of fraud is lit-
example, an Ohio statute restricting general damages igation and that punitive damages have historically
to $200,000 was found to violate the equal protection served as part of the remedy for those victims (Life
clause because it unfairly burdened those plaintiffs Insurance Co. v. Johnson, 1996 WL 202543 [Ala.]).
least able to pay their medical and legal expenses. The The court quoted an author who explained that
court observed that “the legislative scheme of shifting punitive damages have been used “to help equal-
responsibility for loss from one of the most affluent ize the playing field between the powerful and the
segments of society to those who are most unable to powerless—whether between king and subject, rail-
sustain that burden, i.e., horribly injured or maimed road and passenger, or corporation and consumer”
individuals, is not only inconceivable, but shocking to (Jonathon Massey, “Why Tradition Supports Puni-
this court’s conscience” (Duren v. Suburban Community tive Damages: And How the Defense Bar Misreads
Hospital, 495 N.E.2d 51, 58 [Ohio 1985]). History,” Trial, September 1995, p. 19). The court
A Wisconsin statute that placed a $350,000 ceiling reviewed the historical use of punitive damages in
on non-economic damages in medical malpractice England against the crown and the aristocracy, and
cases was striken as unconstitutional. The court found in nineteenth-century America against the railroads
that the statute created classes of victims; those that and robber barons. It then concluded that the con-
are fully compensated and those that are partially sumer plaintiff suing the corporate defendant falls
compensated (Ferdon ex rel. Petrucelli v. Wisconsin within the historical legacy of using punitive dam-
Patients Compensation Fund 701 N.W. 2d 440). ages to redress imbalances in relationships.
Another variation on limiting damages includes Some question whether caps on punitive dam-
efforts to penalize plaintiffs if they reject settle- ages might encourage companies to let defective
ment. One such statute was overturned as violating products go without recall or improvement. They are
the Georgia constitution’s guarantee of access to concerned that some companies will see it as cost-
the courts and the equal protection clause; and as effective to bypass safety measures. In Grimshaw v.
undermining the jury’s function. The statute required Ford Motor Company, 174 Cal. Rptr. 348 (Ct. App.
plaintiffs in tort cases to pay the defendant’s attorney 1981), the company deliberately decided against
fees and costs if the plaintiff received a jury verdict including safety measures it knew would save
less than 25 percent higher than a previous settle- human lives because those measures were not con-
ment offer by the defendant. There is simply no way sidered cost-effective. Punitive damages put such
to predict what a jury may award to a plaintiff. manufacturers on notice that indifference to human
When non-economic rather than economic dam- life is not acceptable and will be subject to severe
ages are restricted, the courts have been more willing sanctions. A cap on punitive damages, in contrast,
to uphold the regulating statute. In so doing, courts arguably enhances the probability that they will weigh
either defer to rational legislative objectives or they the costs of manufacturing against the highest pos-
uphold across-the-board limitations that they see sible damage award and choose the more profitable
as fair, consistent, and promoting settlement. Some action even at the expense of consumer safety.
courts have pointed out that excessive awards can be
prevented by trial courts’ use of remittur. Remittur is Criticisms Of Punitive Damages: Critics have
the procedural process by which an excessive jury ver- warned that punitive damages either do not deter
dict is reduced. The plaintiff may be required to remit at all or lead to overdeterrence, as in the case of
a portion of the verdict that is deemed excessive. manufacturers who are overly cautious to avoid lia-
bility and thus fail to develop new and useful prod-
Punitive Damages ucts for fear of potential litigation. There is also
fear that physicians will perform controversial and
Purpose Of Punitive Damage: In the debate over unnecessary procedures for fear of litigation. Critics
the capping of damages, the lion’s share of attention have also charged that punitive damages may lead
to excessive litigation by plaintiffs who hope that Studies conducted by the Bureau of Justice Sta-
defendants wishing to avoid the expense and risk of tistics and the National Center for State Courts in
litigation will settle. Some further argue that plaintiffs the nation’s 75 largest counties concluded that puni-
unfairly benefit from a windfall of monies intended tive damages are awarded in only 3.3 percent of all
to punish tortfeasors. This windfall encourages even cases and that judges were more likely than juries to
more litigious behavior. Finally, punitive damages award them. Judges awarded punitive damages 7.9
have been criticized for hampering business by percent of the time while juries awarded them 2.5
increasing the cost of insurance. Specifically, in the percent of the time. The median damage awarded
medical arena, critics claim that punitive damages by judges was $75,000; the median jury award was
victimize doctors serving socially useful functions $27,000 (National Council for State Courts, Litiga-
(particularly in such high-risk areas as obstetrics) and tion Dimensions: Torts and Contracts in Large Urban
inhibit doctors as a group from taking risks. (See Areas [1995]; Bureau of Justice Statistics, Civil Jury
Exhibit 16–6.) Cases and Verdicts in Large Counties [July 1995]).
In the context of product liability specifically, the A review of nine empirical studies on punitive dam-
doctrine of punitive damages is criticized because ages reveals the following: (1) punitive damages are
punitive damages (1) against corporations punish awarded most frequently in intentional-tort cases
shareholders of defendant corporations rather than and business and contract disputes rather than in
the actual wrongdoers; (2) do not serve the goals personal injury litigation; (2) roughly half of all puni-
of punishment and deterrence associated with such tive-damage awards are reversed or reduced in the
awards; (3) are not necessary to achieve optimal post-verdict period, with the largest awards hav-
product safety; (4) are incompatible with the fault- ing the highest post-verdict mortality rate; (3) the
free theories of strict liability and breach of warranty; South accounts for more than 50 percent and the
(5) cause overpunishment, which leads to adverse western states for about 20 percent of non-asbes-
social and economic consequences; and (6) cause tos punitive-damage awards; (4) between 1965 and
cases to be overvalued because punitive damages 1990 Texas led the nation with 51 punitive dam-
are a wild card in the sense that they make it difficult ages verdicts, whereas six states (Louisiana, Michi-
for corporations to predict damages. gan, Nebraska, New Hampshire, North Dakota, and
Do punitive damages actually wreak havoc on South Dakota) awarded no punitive damages in any
the system? A study by the RAND Institute for Civil personal injury or product liability case during that
Justice indicated that the frequency and magnitude same time period; (5) punitive damages peaked in
of punitive-damage awards changed little from 1962 most jurisdictions between 1981 and 1985; (6) juries
to 1987 (William Landes and Richard Posner, The award punitive damages infrequently (in only about
Economic Structure of Tort Law [Cambridge, MA: 5 percent of cases), and the amounts are usually
Harvard University Press, 1987], p. 15). Furthermore, modest; and (7) five states account for almost half
the General Accounting Office examined data from of all punitive damages awarded in medical mal-
five states from 1983 to 1985 and concluded that practice litigation, whereas 11 states did not have
punitive-damage awards were neither excessive nor a single punitive-damage verdict in a medical mal-
frequent (General Accounting Office, Report to the practice case from 1963 to 1993 (Michael Rustad,
Chairman, Subcommittee on Commerce, Consumer “Unraveling Punitive Damages: Current Data and
Protection, and Competitiveness, GAO/HRD-88–89, Further Inquiry,” 1998 Wis. L. Rev. 15 [1998]).
[September 1989], p. 2). No case has generated more furor about puni-
tive damages than the so-called “hot coffee” case
in which McDonald’s was sued when one of its
Exhibit 16–6 Criticisms of Punitive Damages
patrons was severely burned by scalding coffee.
This case is often the poster child for campaigns
• Product development inhibited
that assert the tort system has spun out of con-
• Excessive litigation fostered
• Windfalls given to plaintiffs
trol. Stella Liebeck was 79 years old at the time
• Medical practice inhibited she purchased a cup of coffee from McDonald’s
• Not actually a deterrent drive-through window. Liebeck, a passenger in
her grandson’s parked automobile, attempted
to secure the Styrofoam coffee cup, by placing times the compensatory damages, except for par-
it between her legs and removing the lid to put ticularly abhorrent offenses such as drunk driving
sugar and cream in the cup. The cup tipped over, or child molestation. The American College of Trial
spilling hot coffee on her inner thigh, perineum, Lawyers itself has recommended that the recovery
buttocks, genital, and groin areas, resulting in third of punitive damage awards be limited to the greater
degree burns. She was hospitalized for eight days of twice the amount of compensatory damages or
and required whirlpool treatment for debridement $250,000.
of her wounds and skin grafting. She was disabled Oklahoma’s new Tort Reform Law provides an
for two years and had permanent scarring. She interesting example of punitive-damage reform. Under
filed the lawsuit after McDonald’s refused to pay this law, such awards are divided into three categories:
her medical bills of approximately $20,000.00. In Category I, the plaintiff must prove by clear and con-
The jury heard evidence that the temperature of vincing evidence that the defendant acted with reck-
the coffee was mandated by McDonald’s corporate less disregard for the rights of others (the prior statute
office to be 180–190 degrees Fahrenheit, which is required a preponderance of the evidence). Having
hot enough to cause third-degree burns in two to done that, the plaintiff may recover punitive damages
seven seconds. Most restaurants serve coffee at a in the amount of the actual damages or $100,000,
temperature of 155-175 degrees Fahrenheit. From whichever is greater. In Category II, if the plaintiff
1982 to 1992 McDonald’s had over 700 reported proves that the defendant acted intentionally and with
claims and lawsuits regarding the temperature of malice toward others, they may recover the greater of
the coffee. McDonald’s quality control manager tes- $500,000, twice the amount of actual damages, or the
tified McDonald’s enforces a requirement that the increased financial benefit that the defendant derived
coffee be maintained at 185 degrees, plus or minus as a direct result of its misconduct. This last measure is
five degrees, and that McDonald’s did not intend to subject to reduction by the amount that the defendant
reduce the temperature. McDonald’s’ human-factors has already paid in punitive damages in Oklahoma
engineer told the jury that the issue of hot coffee state court actions to other plaintiffs based on the
burns was statistically insignificant when compared same conduct. In Category III, no limits are placed on
to the billion cups of coffee that McDonald’s sells punitive damages, but the plaintiff must prove that the
each year. The jurors felt that through this testimony, defendant acted intentionally and with malice toward
McDonald’s was saying that the graphic photos of others and also engaged in life-threatening conduct
Liebeck’s burns didn’t matter. toward humans.
The jury awarded Liebeck $200,000.00 in com- The decision of how to classify an action (Category
pensatory damages, reduced by 20 percent for her I, II, or III) now falls to the jury rather than the judge, and
negligence and $2.7 million in punitive damages. the jury must make these findings under a clear-and-
The judge reduced the damages to $480,000.00 convincing-evidence standard. (Both the jury and judge
and the parties settled for an undisclosed lesser must decide if a case comes under Category III.) The
amount before the appeal was decided. Revenue determination of the appropriate category is made
from McDonald’s coffee sales was $1.3 million a day, separately from the determination of the amount of
which meant that the company would lose slightly the award. Because the defendant’s financial condition
more than two days revenue by paying the $2.7 is not relevant to determining the defendant’s liability,
million punitive-damage award. evidence of the defendant’s net worth is not admissi-
ble until after actual damages have been awarded and
Reforms Being Implemented: Despite the lack of the jury has selected the appropriate category for the
data supporting the notion of a punitive-damage defendant’s conduct.
crisis, reform in this area is now burgeoning. As of Some states have created specific defenses to
2005 statistics, 22 states have legislature that limits punitive damages. In North Dakota, for example,
punitive damages. To illustrate, under Indiana’s new punitive damages cannot be awarded against a
laws, punitive damages are capped at the greater of manufacturer when the product complied with fed-
$50,000 or three times the compensatory damages. eral or administrative regulations or was certified by
New Jersey’s cap is the greater of $350,000 or five a federal agency.
A few states have responded to those who feel When Are Punitive Damage Awards
that punitive damages represent an undeserved Excessive?
windfall to plaintiffs. They have followed the lead Read the Supreme Court decision, State Farm Mut.
of Chief Justice Rehnquist, who recommended that Auto Ins. Co. v. Campbell, 123 S.Ct. 1513 (2003)
punitive damages be awarded “to the State, not to (Chapter 7) where the Court applied the standards
the plaintiff—who by hypothesis is fully compen- established seven years earlier for awarding puni-
sated” (Smith v. Wade, 461 U.S. 30, 59 [1983]). The tive damages in BMW of North America, Inc. v.
Alabama Supreme Court, for example, implemented Gore, 116 S. Ct. 1589 (1996). The Court rejected the
a new procedure for trying punitive-damage claims. defendant’s argument that a manufacturer’s “good
In Life Insurance Co. v. Johnson, 1996 (Ala.), the faith” compliance with government regulation or
court required half of any punitive damage award to industry standards creates an irrebuttable presump-
be distributed to the state after attorney fees were tion that its actions were reasonable as opposed to
paid. Although Alabama was the first state to impose reprehensible and therefore punitive damages were
an award-sharing requirement by court order, other inappropriate.
states, such as Illinois and Iowa, have adopted this
requirement by statute. Are Punitive-Damage Caps Effective?
The bifurcated procedure for determining punitive
damages established by the Alabama court is interest- Do the caps being proposed by such bills as the
ing. After determining liability and compensatory dam- Common Sense Reform bills protect businesses? The
ages, the jury must decide by special verdict whether Common Sense Product Liability Legal Reform Act of
the evidence supports the imposition of punitive dam- 1996 (which was vetoed by President Clinton on the
ages. If the jury answers in the affirmative, a second ground that it would harm consumers more than it
trial is held in which the jury determines the amount of would correct the injustices of the legal system) was
punitive damages it finds appropriate. designed to establish a nationwide ceiling for puni-
Other states have limited punitive damages tive-damage awards in product liability cases. The
to a given multiple of compensatory damages or act would have limited such awards to the greater of
to a percentage of the defendant’s profits. Such $250,000 or twice the plaintiff’s total economic and
caps have been criticized, however, as irrational non-economic damages (pain and suffering, emo-
and contrary to the goals of punitive damages. tional distress, and loss of companionship). This act
Some critics have argued that punitive-damage lia- would not protect small businesses, which would be
bility should be decided by judges rather than by devastated by a $250,000 verdict. Even large compa-
juries because juries are arguably not competent nies would face insolvency if the plaintiff’s damages
to decide whether punitive damages are appro- were high, as they are in a typical toxic tort case.
priate. The rationale for allowing the judge to set One way to assess the viability of proposed dam-
the dollar value is that awards would be more pre- age caps in preventing runaway awards is to apply
dictable, which would further the goal of deter- the legislation to an actual jury award. Applying the
rence. Some argue that the burden of proof should provisions of the Product Liability Legal Reform Act
be heightened when determining punitive dam- to the $150 million verdict against General Motors
ages because more proof of culpability should be in Hardy would have had no effect on that verdict.
required when the intent is to punish the tortfeasor. The jury in that case awarded $40 million in compen-
Still other reformers assert that juries are not given satory damages to the plaintiff, $10 million to the
enough guidance for determining punitive-damage plaintiff’s wife, and $100 million in punitive damages.
awards and that jury instructions should be altered. Therefore, the $100 million punitive-damage
Whether the wealth of the defendant should award was within the acceptable range of twice the
be considered by the jury when deciding puni- compensatory damage award of $50 million.
tive-damage awards is also a point of contention.
Some states do not allow evidence of the defen- Alternatives to Punitive-Damage Caps
dant’s wealth to be admitted because they do not Some scholars suggest that plaintiffs should be
consider it relevant evidence. required to relinquish punitive-damage awards to a
third party, such as the state. Medical malpractice plaintiffs with full compensation for their injuries.
awards, for example, could be allocated toward They believed it was more important to compensate
improving the quality of medical care, thereby a victim of negligence than to protect a negligent
deterring physician misconduct. Doing so would dis- defendant from disproportionate liability.
courage plaintiffs from bringing meritless suits. Also, Classical reformers labeled joint and several
because plaintiffs would not be the beneficiaries of liability the “deep-pocket” theory, meaning that it
such awards, relinquishment would address the crit- allowed plaintiffs to go after defendants with max-
icism that punitive damages are a windfall to plain- imum financial resources even if they had minimal
tiffs. Such claims would presumably be pressed by culpability and claimed that this practice was patently
state-appointed attorneys who would pursue defen- unfair. They also reasoned that plaintiffs should bear
dants with an eye for deterrence. the risk of insolvent defendants in multiple-defendant
Others have suggested that guidelines could be actions just as they bore the risk of an insolvent
structured for punitive damages around such factors defendant in a single-defendant action. (See Exhibit
as the actual harm the plaintiff suffered, the harm 16–7.) As one court noted, “Between one plaintiff
not covered by compensatory damages, the like- and one defendant, the plaintiff bears the risk of
lihood that plaintiffs will sue, and the chances that the defendant being insolvent; on what basis does
the defendant will escape detection. Having uniform the risk shift if there are two defendants, and one is
guidelines would protect against excessive awards insolvent?” (Bartlett v. New Mexico Welding Supply,
when deep-pocket defendants are involved and Inc., 646 P.2d 579, 585 [N.M. Ct. App. 1982]). Further,
would still deter defendants whose actions resulted they argued that this practice increased insurance
in social harm. costs because it precluded insurance companies from
being able to accurately predict potential liability.
Punitive Damages: A Summary Their reasoning was that anything that interfered with
Although punitive damages may serve a socially use- the insurer’s predictive capacities led to increased
ful service of punishing tortfeasors, their deterrence costs. Some advocates of joint and several liability
value, their effects on plaintiffs’ decisions to sue, and argue that elimination of this doctrine could lead to
their potential inhibition of the medical and business increased insurance rates because nonjoint liability
communities are questionable. The Supreme Court would require more proceedings and longer court
concluded that punitive awards could violate the due delays as more plaintiffs sued defendants individually
process clause if they are “grossly excessive,” but (for strategic reasons).
the BMW decision will probably have little effect on The doctrine of joint and several liability was
the majority of cases involving punitive damages. originally warmly embraced; by 1973, it was found
Many states have imposed punitive-damage caps, in every state. Some studies, however, show that in
but these caps would not affect many cases, even actual practice joint and several liability is seldom
those involving very large punitive-damage awards. relied upon. One Wisconsin study, for example,
Alternatives to damage caps have also been showed that joint and several liability played a
proposed, but two questions remain despite the role in only 1.6 percent of 834 personal injury jury
efforts to curb punitive damages. First, are excessive
punitive damages really a primary problem facing
Exhibit 16–7 Criticisms of Joint and Several
the tort system? Second, will any of the legislative
Liability
reforms being proposed or currently enacted actu-
ally change litigant behavior and jury outcomes? Or • It is unfair to defendants.
will they open the doorway for potential misconduct, • Plaintiff, not defendant, should bear risk of
particularly in the business and medical world? insolvency.
• It increases insurance costs.
Joint and Several Liability • Under comparative negligence, joint and several
liability is no longer necessary.
Historically, the Progressive Era reformers heralded
• It causes increased taxes and reduced services by
joint and several liability because it dispersed losses municipalities.
among defendants rather than plaintiffs and provided

Assume you represent State Farm in State Farm Mut. Auto Ins. Co. v. Campbell (Chapter 7). What arguments
would you make on appeal to support your contention that the punitive-damage award was excessive? What
arguments do you think the plaintiff would make in rebuttal?
verdicts (Paul Bargen, “Comment, Joint and Several destroys the fundamental conceptual basis for the
Liability: Protection for Plaintiffs,” 1994 Wis. L. Rev. abandonment of contributory negligence. (Brown
453 [1994]). v. Keill, 580 P.2d 867, 874 [Kan. 1978])
Two conflicting objectives thus dominate the To see the inequities that can still result when
discussion of joint and several liability. The first joint and several liability coexists with comparative
objective is to hold defendants liable only for their negligence, consider the case of a husband and
proportionate share of fault. The second objective is wife who, while riding on a motorcycle, ran into an
to compensate plaintiffs fully for their injuries. When automobile. A jury determined that the husband
joint and several liability was originally instituted, the was 99 percent negligent, and that the driver of the
doctrine of contributory negligence prevailed. Under automobile was 1 percent negligent. Although the
that doctrine, usually only wholly innocent plaintiffs husband was precluded from recovering, the defen-
could recover. Therefore, when the innocent plain- dant driver had to compensate the wife for the
tiff was compared to the tortfeasor, fairness dictated entire amount of her injuries because her husband
that the guilty party bear the damages for other was immune from suit (Dunham v. Kampman, 547
insolvent, unreachable, or unknown defendants. P.2d 263 [Colo. Ct. App.], aff’d en banc, 560 P.2d
Comparative negligence, however, changed this 291 [Colo. 1977]).
equation. Most states that adopted comparative The drive to modify joint and several liability
negligence modified joint liability so that only defen- has stemmed from injustices such as this. Local
dants whose fault was relatively large in comparison governments also complained of being deep pock-
to the plaintiff were jointly liable. In the words of one ets even when their comparative fault was rela-
court, tively low and argued that such liability resulted in
Previously when the plaintiff had to be totally with- increased taxes and reduced services. At least 35
out negligence to recover and the defendants had states responded by either abolishing or modifying
to be merely negligent to incur an obligation to pay, the joint and several liability rule. Some states have
an argument could be made that justified putting abolished or modified joint and several liability
the burden of seeking contribution on the defen- except for certain types of torts (e.g., those involv-
dants. Such an argument is no longer compelling ing hazardous wastes) or when the plaintiff is fault-
because of the purpose and intent behind the free (in which case joint and several liability applies).
adoption of the comparative negligence statute. In other states, the doctrine applies only to certain
It appears more reasonable for the legislature to types of damages (as in California, where joint and
have intended to relate duty to pay to the degree several liability was retained for economic damages
of fault. Any other interpretation [of the statute] but abolished for non-economic damages), or

Do you think joint and several liability should be maintained in a comparative-negligence jurisdiction? What
about in proportion to the percentage of fault? Why or why not?
its application depends on the percentage of reformers observed that some plaintiffs were filing
the defendant’s fault (as in Iowa, where joint and claims with the primary intent of inducing defen-
several liability applies unless a tortfeasor’s fault is dants to settle in order to avoid the costs of liti-
less than 50 percent of the total fault assigned to all gation or the possibility of a large award. Because
parties). of this, insurance claims—and hence insurance
To resolve the inequities of this doctrine, some premiums—escalated.
have suggested that if a plaintiff is unable to collect Reformers looked first to Rule 11 of the Federal
from a defendant, the remaining parties, whether Rules of Civil Procedure, which allows sanctions to
defendant or plaintiff, should be held accountable be issued against parties who file frivolous lawsuits.
for that uncollected share, based on their individual Although this rule was at first used infrequently by
fault percentage (assigned by the jury). This the courts, amendments to it have eroded courts’
suggestion resolves the issue of unfairly burdening reluctance to impose sanctions and encouraged
defendants who have committed minimal wrongs them to use it as a tool to discourage frivolous law-
and, at the same time, ensures that joint tortfeasors suits. More recently, however, the Common Sense
are made to internalize costs created by an insolvent Reform bills propose adoption of the British rule,
tortfeasor. which requires that losers in a lawsuit pay all or part
Empirical research on litigation trends in those of the winner’s attorney fees. This rule is clearly
states that have repealed joint and several lia- intended to discourage plaintiffs from bringing
bility showed an increase in tort litigation (Hans- claims they are likely to lose and to discourage
Duck Lee et al., “How Does Joint and Several Tort defendants from settling frivolous claims to avoid
Reform Affect the Rate of Tort Filings? Evidence the costs of trial, as those costs will be borne by the
from the State Courts,” J. Risk & Ins. 61 [1994]: losing party.
295). Scholars attribute this increase in part to Some argue that the British rule may actually
the fact that the repeal of joint and several liabil- increase administrative costs of the judicial system.
ity reduced incentives for defendants to promote When both parties believe they are going to win,
safety because they were exposed to a lesser risk they are less likely to settle under this rule, because
of payment. Another reason is that plaintiffs must the amount they estimate they will save by settling
bring separate actions against each tortfeasor to is unimportant if they believe their litigation costs
collect the value of all harm suffered, which means will be covered. If fewer cases settle under this rule,
that insurers end up defending policy holders in administrative costs will rise.
more cases. A one-way fee-shifting rule has also been pro-
posed by some scholars. Fee-shifting rewards plaintiffs
Frivolous Lawsuits who are successful by reducing their litigation costs but
does not penalize plaintiffs who lose. Although such a
In the Progressive Era, the notion of frivolous law-
rule encourages potential tortfeasors’ compliance with
suits was foreign to legal scholars, because the
the law, it does not discourage plaintiffs from suing.
common law rules tended to be pro-defendant.
Therefore, it does nothing to curb frivolous lawsuits
Pretrial screening mechanisms made it unlikely that
and is unlikely to be given serious consideration in
non-meritorious claims would survive. As reforms
today’s political climate.
led to the liberalization of tort rules, classical

What is the status of joint and several liability What is the status of punitive damages in
in your state? your state? Is there a cap?
Summary
Before a comprehensive reform of the tort system is at the state level that implements damage caps,
attempted, a careful review of the goals of the system that abolishes or modifies joint and several liability
should be undertaken to determine if the goals are still and the collateral-source rule, and that discourages
viable and if they are being achieved by the current frivolous lawsuits. Although little evidence sup-
system. A historical review of the Progressive Era and ports the contention that punitive-damage awards
classical reform movements illustrates how changes in are out of control, the bulk of reform measures has
goals have resulted in changes in tort law. been directed at punitive damages. Whether the
The deficiencies that today’s reformers perceive reforms that have been implemented actually solve
in the tort system are that it is too plaintiff-oriented, the problems they are intended to address remains
that it encourages overly litigious behavior, that it in question. In reviewing large punitive-damage
promotes excessive jury awards, and that it inhibits awards, the United States Supreme Court refused to
the business and medical communities. Examples of apply the fines clause of the Eighth Amendment but
plaintiff-oriented changes that reformers point to are used the due process clause to overturn an award
the development of no-fault doctrines, the relaxation that it found to be grossly excessive.
of causation requirements, the evolution of compar- Since the introduction of comparative negli-
ative negligence, and the abolition of privity. Claims gence, most states have abolished or modified the
of over-litigiousness, excessive jury awards, and inhi- doctrine of joint and several liability in order to avoid
bition of business and medical practices lack the sup- unfairness to wealthy defendants. By the same token,
port of unequivocal empirical evidence. Before these many states have modified the collateral-source rule
claims can be intelligently addressed, their validity to limit some of the duplication that arises when the
must be verified and claims of cause-and-effect rela- plaintiff is compensated by multiple sources. Federal
tionships must be carefully studied. Rule of Civil Procedure 11 has been amended, and
The primary objectives of tort reformers today some have recommended adoption of the British
are curbing damage awards and reducing the num- rule of fee-shifting as a means of discouraging
ber of claims filed. Toward those ends, legislation frivolous lawsuits.
has been proposed at the federal level and enacted
Review Questions
1. What are the goals of the tort system, and why 8. Are jury verdicts out of control?
is it important to understand these goals when
contemplating tort reform? 9. What factors should be considered when
assessing statistics?
2. What changes did the Progressive Era reform- 10. What effects has the tort system had on the
ers bring to the tort system, and why? medical community?
3. What changes did the classical tort reformers 11. What effects has the tort system had on the
bring to the tort system, and why? business community?
4. What is the focus of today’s tort reformers? 12. What does the evidence say about juries
5. What are some examples that have caused awarding plaintiff’s substantial awards?
plaintiff-oriented cases to be looked at 13. Explain the criticism that in a tort system all of
negatively? society should bear the brunt of the increase of
6. In what respects is our tort system arguably plaintiff injury awards.
plaintiff-oriented? 14. Has the business community benefited from
7. Is today’s American society an unduly litigious tort reform?
society?
15. Why have some states instituted caps on 19. How do the Progressive Era reformers and
damages, and how have the courts responded the classical reformers view joint and several
to these caps? liability?
16. What are the Common Sense Reform Bills? a. What are the conflicting objectives that
dominate any discussion of joint and several
17. What is the purpose of punitive damages? liability?
a. Why are punitive damages criticized? b. What inequities can this doctrine create,
b. Have punitive-damage awards wreaked and how have those inequities been
havoc on the tort system? resolved by some states?
c. What reforms have been instituted with c. What has been the consequence in some
regard to punitive damages? states of repealing joint and several liability?
d. Under what conditions can punitive-damage 20. Why have some states limited or eliminated
awards violate the Constitution? the collateral-source rule?
e. Are punitive-damage caps effective?
f. What alternatives to damage caps are 21. What steps have been taken to prevent the
available? filing of frivolous lawsuits?
18. Explain the bifurcated procedure for 22. What is a fee-shifting rule, and does it curb
determining punitive damages. frivolous lawsuits?
Practice Exam
you score lower than 80%, you should re-read the materials.
True-False
1. Tort systems can expose corruption and other 8. Abolition of privity has led to an increase in
misconduct. lawsuits.
2. The Progressive Era of tort reform favored 9. Most of the data used by those advocating tort
reforms that benefited defendants. reform comes from the federal courts and is
therefore misleading because most tort claims
3. The classical reformers eliminated sovereign are litigated in state courts.
immunity.
10. In the federal courts the greatest overall
4. Those who maintain that the tort system is too increase in filings was due to an increase in
plaintiff-oriented point to the expansion of filings by the federal government.
strict liability and the adoption of comparative
negligence. 11. In assessing the litigiousness of American society,
the question is not whether there has been an
5. Most Americans who are injured in an accident increase in tort filings but whether there has been
seek compensation from the individual or an increase in litigation per capita.
entity that caused the accident.
12. An increase in tort filings points to a clear
6. Strict liability may be the reason that tort increase in litigiousness.
liability insurance expanded.
13. The national median for jury awards has
7. Comparative negligence allows fewer plaintiffs steadily increased since 1990.
to recover.
14. Both smaller and larger jury awards are more 28. Some states have tiers for punitive damages
frequent than they were 20 years ago because based on the defendant’s level of intent.
of the failure to use small juries.
29. The excessive fines clause of the Eighth
15. Jury Verdict Research is reluctant to inter- Amendment does not apply to punitive
pret trends in jury awards because they damages, but the due process clause
do not poll juries and do not know jurors’ does.
reasoning.
30. In State Farm v. Campbell, the Court found
16. Although individual cases may point to a the punitive-damage award grossly exces-
dysfunctional system, they may be misleading sive because the ratio between the compen-
when not all of the facts are known. satory damages and punitive damage was
unreasonable.
17. Plaintiffs prevail in a smaller fraction of mal-
practice claims that go to trial than any other 31. Tort reform legislation does not necessarily
type of litigation. prevent runaway verdicts.
18. In most medical malpractice cases, either the 32. Progressive Era reformers advocated the
claims are meritless, or the jury tends to give adoption of joint and several liability because
doctors the benefit of the doubt. they thought it was important to protect
negligent tortfeasors from disproportionate
19. The oft-cited statistic that the average verdict liability.
in product liability cases is $1 million is mis-
leading because it was based on typical defen- 33. Classical reformers disliked joint and several
dants’ verdicts. liability because they believed that plaintiffs
should bear the risk of insolvent multiple
20. It appears that plaintiff-friendly reform defendants just as they did when there was
increases employment and promotes only one defendant.
productivity.
34. After adopting comparative negligence, some
21. The problems of the tort system cannot states abolished joint and several liability or
be resolved by simply gathering empirical modified it so that only defendants whose fault
evidence. was large in comparison to the plaintiff could
22. Assigning a precise numerical value to physical be jointly liable.
injuries is always impossible. 35. Under the collateral-source rule a plaintiff
23. Plaintiffs are almost always overcompensated. might not be fully compensated for all of her
injuries.
24. Punitive-damage awards are frequent and
commonly excessive. 36. The collateral-source rule has been abolished
in some states because allowing the admission
25. Courts are generally willing to uphold of evidence of supplemental benefits helps
legislation imposing limits both on economic ensure that liability is divided among tortfea-
damages and non-economic damages. sors in accord with their respective degrees of
culpability.
26. One criticism of punitive damages is that
they lead to excessive litigation by plaintiffs 37. Rule 11 of the Federal Rules of Civil Procedure
who hope to intimidate defendants into is used infrequently.
settling.
38. The British rule may increase administrative
27. Some states have required some part of costs of the judicial system.
punitive-damage awards to be distributed
to the state.
Matching
GROUP 1
________ 1. No-fault approaches a. limits punitive damages
________ 2. Eliminated joint and several liability b. increase in jury awards
________ 3. Abolition of privity c. plaintiff orientation
________ 4. Increase in healthcare costs d. Progressive Era reform
________ 5. Common Sense Reform bill e. classical reform
GROUP 2
________ 1. Filed to induce defendants to settle a. Eighth Amendment
________ 2. Sanctions against attorneys b. Due process clause
________ 3. Loser pays attorney fees c. Rule 11
________ 4. Applies to punitive damages d. frivolous lawsuits
________ 5. Does not apply to punitive damages e. British rule
Fill-in-the-Blank
1. The goal of classical reformers was to create rules 3. Proponents of tort reform argue that increased
in the tort system that favored ____________, tort liability has increased the practice of
while the goal of reformers in the Progressive Era ____________ medicine.
was to create rules favoring ____________.
4. Under the ____________ rule, the tortfeasor
2. ________ has allowed recovery by plaintiffs is prevented from benefiting from insurance
who would have been excluded by contribu- protection the plaintiff has obtained.
tory negligence.
5. The ____________ Bills were passed that
limited punitive damages.
Multiple-Choice
1. Tort law 2. Personal injury claims
a. has a function of compensation but not a. make up the majority of civil cases.
deterrence. b. have experienced little or no increase since
b. prevents the risk of injury from being spread 1986.
among all members of society. c. are usually litigated in federal courts.
c. exposes incompetence, corruption, and d. all of the above.
other forms of misconduct.
3. Litigation rates 6. One of the greatest problems in the medical

a. are not significantly higher in the United system is that
States than they are in other industrialized a. claims against doctors and hospitals have
countries. steadily increased since the 1980s.
b. are higher now than they were in the nine- b. many wrongs are going unredressed.
teenth century and early twentieth century. c. more plaintiffs that go to trial prevail than in
c. were at their highest in the 1930s and other categories of litigation.
1940s, and those rates are used as a base- d. all of the above.
line for many comparisons of litigation.
d. all of the above. 7. Joint and several liability
a. is frequently relied upon by plaintiffs.
4. Tort reformers claim that b. was originally introduced when the doctrine
a. Americans are too litigious. of contributory negligence prevailed.
b. the insurance industry finds it impossible to c. seems to reduce insurance costs.
predict risks and set prices because the tort d. all of the above.
system is too defendant-oriented.
c. the median for jury awards is relatively stable. 8. The collateral-source rule
d. all of the above. a. has been abolished in some states because
allowing the admission of evidence of sup-
5. In product liability cases, punitive damages are plemental benefits helps ensure that liability
criticized because is divided among tortfeasors in accord with
a. they punish shareholders instead of their respective degrees of culpability.
wrongdoers. b. prevents plaintiffs from being fully
b. they are incompatible with fault-free theo- compensated.
ries of strict liability. c. prevents or limits duplication in awards from
c. they do not serve the goals of punishment multiple sources.
and deterrence. d. all of the above.
Tort Teasers
1. What reform measures have been instituted in your state in regard to damage caps, joint and several
liability, the collateral-source rule, and frivolous lawsuits? How effective have they been? What reform
measures are currently proposed?
2. How would you answer this question: “Are the benefits that parties and attorneys reap by fighting in the
courts worth the cost to the rest of society?” Explain your answer.
3. What is the essence of the debate surrounding joint and several liability? Summarize the arguments
made for its retention and for its abolition. Do you think joint and several liability should be retained,
abolished, or modified? Why?
4. Discuss the Oklahoma category approach to punitive damages. Do you think it helps curb frivolous law-
suits? Why or why not?
5. Do you think the punitive-damage award against McDonald’s by Stella Liebeck was a reasonable one
in light of the facts? Why or why not? Does the award satisfy the purpose of punitive damages? Does it
illustrate any of the criticisms levied against punitive damages? If you think the award was unreasonable,
propose a workable alternative.
Internet Inquiries
Harvard Law School Library website contains a comprehensive list of secondary legal resources. Go to
www.guides.library.harvard.edu to find the following:
1. Select legal encyclopedias and find a national legal encyclopedia. Select its Web page. Are you able to
download issues of this encyclopedia?
2. Select Law Review Articles. Are you able to locate any foreign law review articles? What is a website of
one if you are able?
3. Can you locate the Restatement of Torts?
Choose one topic of reform discussed in this chapter and prepare a paper explaining (in your own words) what
the problems in this area of the law are, what proposals have been suggested and why, and which proposal
you think is best and why. Find at least two cases and/or articles that are not cited in the text in writing this
paper. You can do this on the Internet simply by going to www.google.com and typing in the topic of interest
and case.
Chapter 17
Automobile Insurance
Chapter Topics
Overview of Automobile Insurance Uninsured Motorist Coverage
Automobile Liability Coverage Underinsured Motorist Coverage
Medical Payment Coverage Arbitration
Comprehensive Coverage Termination
Collision Insurance No-Fault Insurance
Miscellaneous Coverage
Chapter Objectives
After completing the chapter, you should be able to • Recognize when reformation of policies is
• List the characteristics of medical payment, col- appropriate.
lision, comprehensive, UM, UIM, and umbrella • Describe the arbitration process used to resolve
coverage. disputes.
• Recognize an insurer’s subrogation and termina- • List the characteristics of no-fault automobile
tion rights. insurance.
A s Pauline and Perry are leaving their local fast-food restaurant, Perry prepares to make a left turn across
traffic on a four-lane street immediately in front of the restaurant. Upon pulling out into traffic, Pauline
and Perry’s 2007 Chevrolet, a half-ton pickup, is broadsided in the second lane of traffic by Denise, who is
driving a 1986 Ford Crown Victoria. Her 14-year-old brother, David, is a passenger. Perry, who is not wearing a
seat belt, is critically injured in the accident and dies 10 days later. Pauline, who is wearing her seat belt, is also
seriously injured. She suffers a broken shoulder, a concussion, extensive scarring to the side of her face, and
severe soft tissue injuries, including cervical strain and sprain.
Neither Denise, a 16-year-old unlicensed driver, nor David is wearing a seat belt. Denise’s injuries require
only minor medical treatment. David, however, is catapulted from the front seat through the windshield of the
Ford and suffers severe facial injuries as well as nerve damage that renders him a paraplegic.
Pauline and Perry’s automobile insurance policy for the Chevrolet provides $100,000/$300,000 liability
coverage, $10,000 medical payments coverage, $50,000 property damage coverage, and $15,000/$30,000
in both UM (uninsured motorist) coverage and UIM (underinsured motorist) coverage. They also have $500
deductible collision coverage and a zero deductible comprehensive provision. The Ford that Denise is driving,
which she took without her parents’ permission, has registering or driving a vehicle. Additionally, in most
no applicable insurance. Her father had purchased states either civil or criminal sanctions await those
the car five months earlier and was in the process of who unlawfully drive without mandatory insurance
restoring it. coverage.
At the time of the accident, Denise was driving The types of automobile insurance coverage avail-
with her headlights off. Pauline tells the investigat- able vary, depending on whether the state requires
ing officers that she was looking to the left when her fault insurance or no-fault insurance. No-fault insur-
husband was making his turn and did not see the ance is based on the concept that the insured’s car-
Ford coming. Wilma, a registered nurse who was rier should pay for the insured and their passenger’s
immediately behind Pauline and Perry at the restau- damages regardless of who is at fault.
rant exit, tells the investigating officer that she saw
the Ford approaching even without seeing its head-
lights. Warren, a construction worker driving a van,
tells the investigating officers that he was approx- Automobile Liability
imately 50 yards behind Denise at the time of the Coverage
accident and that Denise was driving at the speed
limit but never applied her brakes prior to impact The primary purpose of automobile insurance is
with Perry’s pickup. Warren also states that the Ford to provide liability coverage to the insured for the
did not have illuminated taillights. In fact, he says, he bodily injury or property damage they cause while
almost ran into Denise’s car earlier because the car, operating an automobile (see Exhibit 17–1). An
being dark green and unilluminated, was difficult to example of the terms and conditions of liability and
see at night. property damage coverage can be found by look-
Denise’s father is an assembler at a local elec- ing at your own policy or finding a policy on the
tronics plant, where he works the night shift from Web. Liability coverage provides either split-limits
4 p.m. to 12 a.m. Her mother has been hospital- or single-limit coverage. With split-limits coverage,
ized for two weeks with a serious illness, which has each individual may recover a set amount of dam-
severely strapped the family’s financial resources. ages, with an aggregate amount available for dam-
Because her mother was hospitalized and her father ages independent of the total number of individuals
was working, Denise had the responsibility of watch- injured. Split limits coverage is split into different
ing out for David. For this reason, she had access to categories and specifies limits for three types of
the keys to the Ford. Prior to this joy-riding incident claim: bodily injury per person, bodily injury per
Denise had always been a very responsible teenager accident, and property damage per accident. A
and was an honor student at her high school. We will single-limit coverage provides one limit cap over
use this scenario in the “Tort Teasers” section at the the entire accident incident. The limits are not split
end of the chapter to apply the concepts presented between the categories.
throughout this chapter.
Exhibit 17–1 Characteristics of Automobile

Policies
Overview of Automobile
Insurance • Single-limit versus split-limits coverage
• Types of coverage (collision, comprehen-
As mentioned in Chapter 16, more litigation arises
sive, liability, personal injury protection,
out of the automobile insurance contract than any
uninsured/underinsured)
other type of insurance. The horrendous number of
automobile accidents, coupled with the mandatory • Coordination-of-benefits provisions
insurance legislation in most states, has created this • Primary versus secondary coverage
proliferation of lawsuits. Failure to obtain and main- • Subrogation rights
tain the minimal insurance coverage required by state • Arbitration rights
law can prevent an automobile owner from either
CHAPTER 17 Automobile Insurance | 513
An example of split-limits coverage is the min- Reformation of Policy

imum limits set by many states, in which $15,000
If an insurance carrier attempts to issue a policy with
must be available for each person injured, and
limits less than those required by the state statute,
$30,000 must be available as an aggregate amount
the courts will call for reformation of the policy by
for all individuals injured. If a minimum of $10,000
requiring it to provide the minimum statutory cov-
were required to cover property damage, the lia-
erage. In some instances, the insurance policy itself
bility limits of such a policy would be described as
provides terms and conditions to conform the policy
$15,000/$30,000/$10,000.
to state law in the event the cancellation or nonre-
Exhibit 17–2 lists types of automobile insurance
newal provisions are contrary to the laws of the state.
coverage, each of which will be discussed in detail.
Umbrella Policy Subrogation

The total limits of liability available for bodily injury If an insurer pays its insured, the insurer is then sub-
and property damage are as high as the maximum rogated to the rights of the insured, meaning it can
amount provided by the carrier issuing the policy. institute suit against the responsible person, in the
As a practical matter, however, bodily injury limits in name of the insured, to collect the amounts paid by
excess of $250,000 to $500,000 and property dam- the insurer to the insured. Subrogation is universally
age in excess of $100,000 generally are not covered allowed with respect to uninsured motorist, collision,
by the automobile policy itself but by a separate pol- and comprehensive payments made by the insurer.
icy called an umbrella policy. The umbrella policy If subrogation is allowed, the insured has an obli-
may be written by the same carrier issuing the auto- gation to cooperate with his insurer in the subroga-
mobile insurance policy or by a different carrier. Such tion claim. Cooperation could include assisting the
a policy is usually subject to a large deductible. insurer at trial and in the discovery process.
The umbrella carrier is liable only after the first Look at the subrogation provision of your pol-
insurer pays the full limits of its coverage. If, for icy or find such a provision on the Web. A subroga-
example, a primary insurer pays $500,000 to the tion provision called a trust agreement provides that
person injured by the insured for bodily injuries but the insured will take no action that would cause the
the individual actually sustains $750,000 in damages insurer to lose any of its rights of recovery against
for bodily injuries, the umbrella carrier would pay the either the uninsured or underinsured motorist. In
additional $250,000 (or the amount up to the limits many states, there is no right of subrogation for
of the insured’s umbrella policy). underinsured motorist claims.
Exhibit 17–2 Types of Coverage

Liability Coverage for losses caused by the insured while operating a motor vehicle.
Medical Payment Reimbursement of medical expenses incurred when injured in a vehicle covered by
policy.
Comprehensive Coverage for losses resulting from something other than a collision.
Collision Reimbursement for repair or replacement of a damaged vehicle.
Accessory Emergency road service.

Car rental.
Mechanical breakdown coverage.
Guaranteed Auto Protection (GAP).
Glass insurance.
Death and disability.
Uninsured Motorist Coverage for losses caused by uninsured motorist.
Underinsured Motorist Coverage for losses caused by motorist whose liability insurance is insufficient to cover
the insured’s losses.
In the News
Answers to FAQs regarding automobile insurance, practical advice about what to consider when buying
insurance, and a list of state-by-state minimums for liability insurance can be found by searching “Car
(or Automobile) Insurance Basic Requirements.”

1. A single-limit policy provides for $300,000 in bodily injury coverage and $50,000 in property damage cov-
erage. How would you write the shorthand for the coverage available?
2. An umbrella policy can also provide extended protection for any uninsured motorist (UM) or underinsured
motorist (UIM). Check with your insurance agent to determine the additional cost of UM and UIM
coverage in an umbrella policy.
Medical Payment Coverage incurred within a fixed time period after the date of
the accident. Typically, these time periods range
Medical payment coverage provides for reimburse- from one to three years after the accident. If medi-
ment of all reasonable medical expenses incurred cal expenses are incurred after this time has elapsed,
by an insured while occupying a covered vehicle the insurer is not responsible for payment.
or when the insured, as a pedestrian, is struck by a In most instances, an injured party may receive
different vehicle. In some states, medical payment benefits under medical payment coverage in addi-
coverage is referred to as personal injury protection tion to any benefits received under any of their other
(PIP). If the insured is injured in a motor vehicle medical policies. Some policies have a coordination
owned by someone other than the insured, the of benefits provision, which precludes payment if
owner’s medical payment coverage will be primary other insurance is available. The multiple policies are
coverage. In other words, the automobile owner’s assessed to determine which will be assigned with
medical payment coverage will be primarily respon- the primary responsibility for covering the majority
sible for payment of the insured’s medical expenses share of the claim costs. If neither the medical pay-
up to the limits of the owner’s medical payment ments nor the health insurance coverage has this
coverage. provision, the injured party can lawfully recover twice
If the insured’s medical expenses exceed the for medical expenses. Such recovery is, of course,
owner’s limits, the secondary coverage available to subject to any deductible or co-insurance limit in
the insured under their own medical payment cov- the health insurance policy. This double recovery,
erage will come into effect. Suppose an automobile allowed under the so-called collateral-source rule
owner’s medical payment coverage is $5,000 and (see Chapter 7 on damages), is premised on the idea
the individual injured has medical payment cover- that the insured, who is paying a separate premium
age of their own for $10,000. If the individual incurs for each type of coverage, should be able to reap
reasonable medical expenses of $20,000, the first the benefits of their investment.
$5,000 will be paid by the owner’s policy, the next Many medical payment plans also provide
$10,000 by the injured person’s medical payments for benefits in the event of the insured’s death.
carrier, and the balance of $5,000 by the injured Death benefits are usually fixed at a certain dol-
party or their own health insurance policy, assuming lar amount and are intended, in part at least, to
no third party is liable for the injuries. cover burial expenses. Medical expenses incurred
Most medical payment policies provide that by the deceased up to the date of death are also
benefits are payable only for those medical expenses covered.
The terms and conditions of a typical medical expenses it incurs in repairing the insured vehicle.
payment coverage provision can be found by using If the damage is caused by the insured’s own negli-
it as the search term. gence, the insurer has no right to seek payment from
the insured. Most collision policies are issued subject
to a deductible. Typical examples of the protection
provided by having collision coverage can be found
Comprehensive Coverage by using collision coverage as the search term.
Comprehensive automobile insurance provides cov-
erage for loss to the insured vehicle and, in some
cases, to a non-owned automobile for losses other Miscellaneous Coverage
than those resulting from collision. Coverage for
property damage and loss caused by fire, theft, wind- The automobile insurance contract can also include
storm, and hail is included. Losses typically recovered coverage for emergency road service, which pays
under comprehensive coverage are from a shattered for towing and any other emergency services occur-
windshield, from the theft of valuables from a vehicle, ring on the road, up to a maximum amount. This
and from the loss of a vehicle and its contents due can often include changing the tire with a func-
to fire or theft. Reimbursement for a lost or damaged tional spare, jumping a battery, lockout services,
item is determined by its actual cash value (purchase fuel delivery, etc. Its primary purpose is to pay for
price less depreciation) or its replacement cost. Many towing a disabled vehicle to the nearest service sta-
policies require physical signs of forced entry before tion. Other available coverages include death and
the insured can be reimbursed for stolen property. disability insurance, mechanical breakdown, glass
Some policies are subject to a deductible, which is coverage, and car rental insurance. Most provisions
the responsibility of the insured to pay. of this type establish the absolute maximum amount
State insurance departments do not require for which the insurer is liable as well as the maximum
comprehensive coverage to be part of the standard per diem expense that will be paid.
automobile insurance contract. However, if a vehicle Care should be taken in selecting these acces-
is being financed through some kind of financing sory coverages. Make sure the premium for the risk
institution, the insured may be required to maintain to be covered is in proportion to the premiums and
comprehensive as well as collision coverage. Typical risk covered in a regular disability or accidental death
provisions providing comprehensive coverage can policy. The latter may provide coverage whether or
be found by using comprehensive automobile insur- not the incident triggering coverage resulted from
ance coverage as the search term. the use of an automobile.
These types of “miscellaneous” coverage provi-
sions can be found by using miscellaneous automo-
bile insurance coverage as the search term.
Collision Insurance
Collision insurance reimburses the insured if they
must repair or replace a damaged vehicle. Like med- Uninsured Motorist
ical payment insurance, collision insurance provides Coverage
coverage irrespective of who is to blame for the
damages. In the case of a negligent motorist, the Next to liability insurance, the most important
carrier is subrogated to the rights of the insured and coverage available under the standard automo-
can seek reimbursement from the motorist for any bile insurance contract is uninsured motorist (UM)
In the News
The Kelley Blue Book is available online at www.kbb.com. You can find market values for both new
and used vehicles there. Insurance companies sometimes refer to this site when valuing a car after
a collision.
coverage, which provides coverage only for injuries is the minimal amount allowed by law. Suppose an
caused by an uninsured motorist. The percentage insured has $10,000 in medical payment coverage
of uninsured motorists on the road is alarmingly and $15,000 in UM coverage (the statutory mini-
high, especially in those states requiring automo- mum). The carrier cannot credit monies paid under
bile insurance coverage but not requiring writ- medical payments to the amount otherwise due the
ten proof of such insurance when one registers a insured under their UM coverage. That credit might,
motor vehicle. Because many uninsured motorists however, be allowed if the insured has UM coverage
are financially incapable of paying any substan- in excess of the statutory minimum.
tial award for damages they inflict, UM coverage
ensures that funds are available to compensate the Primary versus Secondary
injured insured. This coverage guarantees compen- Coverage
sation up to the limits of the insured person’s pol-
Most UM policies provide coverage regardless of
icy, by their own insurer to the extent that a third
whether the insured was driving the automobile spe-
party (the uninsured motorist) is responsible for
cifically referred to in the policy or a different vehicle.
their injuries.
If the insured was driving a different vehicle, the UM
An uninsured motorist is typically defined as a
coverage will be coordinated with the coverage that
motorist having no applicable automobile insur-
would otherwise be available on the vehicle being
ance policy for the vehicle being driven or having an
driven. Most policies designate the coverage pro-
applicable policy with an insolvent insurance carrier.
vided with the vehicle being driven as primary and
In some policies a hit-and-run driver may be consid-
the policy covering the driver (the insured in this case)
ered an uninsured motorist.
as secondary. The primary carrier is liable for all dam-
Most states require that UM coverage be pro-
ages up to the limits of its policy. At that point, the
vided with the issuance of a liability policy. The
secondary carrier is liable for any damages sustained
minimum limits of this coverage are generally set
by the insured above the limits of the primary policy
by state statute and are often the same as the min-
up to the amount of the insured’s loss or the limits of
imum-coverage limits required for liability insurance
the excess policy, whichever is less.
coverage. Uninsured motorist coverage typically
does not provide for any deductible to be paid by
the insured. In most states the insured’s carrier can Coordination of Benefits
reduce the amount of damages paid to its insured in If an insured has applicable insurance in addition
proportion to the insured’s own negligence. to that provided by their automobile policy, the
coordination of benefits provision (mentioned
earlier) of most policies will require the insurance
Local Links carrier to be responsible for its pro rata share of the
Does your state require UM coverage with damages, as long as the insured is driving their own
the issuance of a liability policy? If so, vehicle. A carrier’s pro rata share is determined by
what are the required statutory limits of this the proportion of its coverage to the total amount
coverage? of available insurance. Suppose the insured has
UM coverage of $50,000 per person and an
additional $100,000 of coverage under a different
If payment is made to the insured, the UM car- but applicable policy. The UM insurance carrier
rier is subrogated to the rights of its insured and can would be responsible for no more than one-third
bring an action in the name of its insured against the of the damages ($50,000/$150,000), up to a total
responsible party. Subrogation relieves the insured maximum liability of $50,000. Because the carrier
of having to chase the uninsured motorist to either that provided $100,000 of coverage probably has
obtain or collect a judgment. a comparable coordination of benefits provision,
An insurance company cannot, for the most part, litigation between the two carriers would likely be
attempt to offset monies paid under a medical pay- necessary to determine their respective obligations.
ment policy against the amount otherwise due the Coordination of benefits provisions also apply to
insured under a UM policy, especially if the policy underinsured coverage (discussed next).
Typical provisions contained in a policy provid- In multi-vehicle accidents, however, UM coverage

ing UM coverage can be found by using UM cover- may be applicable to one joint tortfeasor and UIM
age (or uninsured motorist coverage) as the search coverage may be applicable to another.
term. Typical provisions contained in a policy provid-
ing UIM coverage can be found by using UIM cov-
erage (or underinsured motorist coverage) as the
Local Links search term.
Is stacking of UM and UIM coverage allowed
in your state?
Arbitration
Most policies require arbitration for disputes arising
Underinsured Motorist out of medical payment, UM, or UIM coverage with
Coverage respect to the amount of damages sustained by the
insured in a no-fault state. As most states favor the
Underinsured motorist (UIM) coverage protects the use of arbitration to resolve contractual disputes,
insured who is injured by a motorist whose liabil- these policy provisions are generally enforceable.
ity coverage is insufficient to fully compensate the You can request an arbitration if you wish, but it is
insured for their injuries. UIM coverage is applicable, not required by the insurance company. Both the
for example, when the insured sustains $50,000 in insured and the carrier are usually required to select
damages but the responsible party has only $15,000 and pay for an arbiter of their choosing, but both will
worth of liability coverage. In that case the responsi- have a say in who the final arbiter will be. Arbitration
ble party’s insurance carrier will pay $15,000 and the is often much quicker and less expensive than going
insured’s UIM policy will compensate the insured for to trial. The specific policy will state how many arbi-
the remaining $35,000, assuming the UIM coverage trators are required.
limit is $35,000 or greater. UIM coverage typically In a hearing before the arbiter, local evidentiary
does not provide for any deductible to be paid by rules are often applied; a decision rendered by one
the insured. or two of the arbiters (depending on the require-
Most states prohibit stacking of policies for UM ment in the policy) is binding on both parties. Often,
and UIM coverage. In other words, UM and UIM are however, the arbitration clause provides that if an
not available to the insured for the same accident. award is entered in excess of the statutory minimal
Therefore, an uninsured motorist who is the respon- limits for bodily injury, the arbitration award will not
sible party cannot be alleged by the insured to be be binding. If either party contests an award, a trial
both uninsured for the purposes of UM coverage de novo, in which the issue of damages is relitigated
and underinsured for purposes of UIM coverage. without regard to the arbiters’ findings, is held.

1. To reduce premiums, some companies are now providing medical payment coverages that have deduct-
ible and co-insurance provisions. What would be the advantage of having medical payment insurance on
your automobile policy if you had your own non-automotive medical insurance?
2. Refer to the scenario at the beginning of this chapter. Assuming that Denise’s vehicle had an applicable
liability policy for property damage, why might Pauline have her vehicle repaired under her own collision
coverage, even with its $500 deductible?
3. A comprehensive coverage loss is usually evaluated on the basis of actual cash value. Why might it be
worth the additional premium expense to purchase replacement cost coverage?
An arbiter’s findings with respect to the insured’s for nonpayment becomes effective only after a des-
damages are not admissible at trial. ignated time period following the giving of written
The current trend is away from three-arbitrator notice. The insurer can also terminate a policy if an
panels. Many insurers require that they and the insured or driver who lives with the insured has their
insured agree on a single arbitrator to hear the license suspended or revoked. In accord with current
dispute instead. The use of a single arbitrator societal attitudes about intoxication, most policies
greatly reduces the cost of arbitration. As a practical allow termination if an insured is convicted of driving
matter, it was usually the third arbitrator in the three- while intoxicated.
arbitrator panels who controlled the outcome.
A typical arbitration requirement can be found
by using “arbitration requirement in insurance Local Links
claims” as the search term. These arbitration pro- Does your state require written proof of
visions relate only to uninsured and underinsured insurance coverage to register your vehicle?
motorist coverage claims. However, many policies
also require that disputes with respect to medical
payments be arbitrated.
No-Fault Insurance
No-fault automobile insurance was created in
Termination response to what was perceived as a crisis in the
automobile insurance industry—a crisis caused by
An automobile insurance contract can be terminated the increasing volume of tort claims for automo-
at the request of the insured or due to the acts of bile accidents. In concept, no-fault insurance was
the insured. If the insured chooses to terminate their to result in prompt payment to injured insureds for
policy, the termination is effective on the date notice economic damages, reduced litigation, and reduced
is given, usually to the insured’s agent. The insured automobile insurance premiums. None of those
is then entitled to a return, usually pro rata, of any goals has been attained.
advance premiums paid. In a no-fault jurisdiction, the insured gives up
Voluntary termination has been complicated in their right to sue in tort for damages sustained as a
some states by mandatory insurance requirements. result of a third party’s negligence. Currently, there
In certain circumstances, termination can result in the are no pure no-fault states. There are 12 states
insured forfeiting their registration rights to the vehi- with no-fault provisions. An individual injured in an
cle unless another policy that meets state require- accident may still be able to file a claim against an
ments is taken out. Statutes and case law should be at-fault party if they meet certain verbal or monetary
carefully researched to determine the implications of threshold requirements. A verbal threshold is one
voluntary termination. that involves a “serious” injury like a catastrophic
If the insurer initiates termination, it must com- injury, an injury that leads to permanent disfigure-
ply with the policy’s notification requirements as ment or disability, or death. All no-fault states have
well as the terms and conditions upon which ter- this verbal threshold. Seven of the twelve no-fault
mination is permitted in that state. Termination is states have monetary thresholds. This is where that
always an option for an insurer if an insured fails to dollar amount for medical expenses must be met or
pay the premiums. In most instances, termination exceeded in order to qualify. The injured insured’s
In the News
The American Arbitration Association (AAA) is a private, nonprofit organization that provides rules for
parties to follow in private arbitrations. It also maintains a list of qualified arbitrators with knowledge in
specific areas. For information about the AAA, go to www.adr.org. At this site, you will find publications per-
taining to arbitration, get information about the rules and procedures governing arbitration, and see a roster of
arbitrators.
own carrier pays for the damages they sustain, up to of who is responsible for the accident. Separate
the limits of their own policy. The ability to recover limits may be set for various types of damages; for
for pain and suffering is relinquished in exchange for example, medical expenses, lost wages, and rehabil-
a promised reward of lower premiums and prompt itation may all have different limits. Alternatively, an
payment for economic loss. aggregate limit, such as $50,000, may be set for all
In all no-fault states, the right to sue for tort dam- economic damages sustained in an accident.
ages is retained for intentional injuries inflicted with The no-fault experiment has not been particu-
an automobile and for injuries caused by intoxicated larly successful. In many states, such as Kentucky,
drivers. Many no-fault states have set limits above the threshold for suing in tort is so low that the
which the injured party may sue the responsible party no-fault benefits are merely add-on costs for the
for tort damages. In Kansas, for example, the injured typical tort suit that follows. The existence of a
insured cannot sue in tort until their medical expenses threshold amount also appears to have increased
exceed $2,000. (Legislators are constantly changing treatment expenses in no-fault states. To illustrate,
the no-fault figures, so this number may have already when one no-fault state raised its threshold amount,
changed by the time you read this.) the average cost of treatment expenses went up by
These thresholds are generally tied to an injured an equal amount. In that same state, the average
person’s medical expenses. They begin as low as number of chiropractic visits per automobile acci-
$1,000 (Kentucky) and go as high as $5,000 (Hawaii). dent went from 10 to 30, and the total payout for
Some states, have higher thresholds but are not tied chiropractic services increased 320 percent. There
to medical expenses alone. are currently bills in some state legislatures attempt-
States also vary greatly in the minimum amount ing to abolish no-fault status. This is a topic that is
of benefits they require insureds to purchase. These ever-changing.
benefits, often called personal injury protection, vary
from a few thousand dollars to an unlimited amount.
They are designed to cover medical expenses for you Local Links
and your passengers (including work-loss coverage) Has your state adopted some form of
that regular medical coverage may not. Personal no-fault insurance? If so, how is it struc-
injury protection insurance is a type of no-fault cov- tured? Are there thresholds?
erage meaning expenses will be covered regardless

If you had a small claim that was subject to arbitration, would the prospect of having to pay for arbitrators to
have it evaluated affect your position on settlement? Would you prefer arbitration because it is quicker and
less expensive than litigation?
In the News
Articles on the basic elements and purpose of no-fault insurance are available at www.kiplinger.com by
entering “no-fault insurance” as your search term.
In the News
A table showing no-fault restrictions on pain-and-suffering lawsuits by state can be examined by enter-
ing “no-fault insurance restrictions by state” as your search term.
In some ways the no-fault system closely par- various required coverages and the threshold levels
allels the workers’ compensation acts discussed in for suit are constantly being adjusted. No jurisdiction
Chapter 19. In a no-fault system, the right to sue is has yet allowed no-fault and traditional tort reme-
relinquished; medical expenses are paid; and, after a dies to coexist. Three states—Kentucky, New Jersey,
prescribed waiting period, lost wages are paid for a and Pennsylvania—have mixed systems that allow a
preset percentage of the insured’s average monthly policyholder to choose which system they have: tra-
wage. Unlike workers’ compensation, no-fault med- ditional tort or no-fault. These choice-based systems
ical and rehabilitation expenses are limited by the require all policyholders to select between the two
amount of coverage purchased, as is the amount of at the time a policy is issued or renewed. Once this
lost wages. occurs, a policyholder cannot convert to the other
Ideas currently under discussion include prohib- system without a full policy rewrite. In Kentucky and
iting uninsured motorists from suing for damages New Jersey, consumers who do not make a choice
they sustain, based on the fact that they have not will be assigned a no-fault option by default; and in
contributed to the insurance pool. A less punitive Pennsylvania, the tort option is the default for those
approach is to prohibit uninsureds from suing for who do not specify a choice. The possibility of such
pain and suffering but to allow them to claim eco- coexistence now appears more likely, however, as
nomic losses. neither system has lived up to the expectations of its
Nofault is a relatively new concept, and one that proponents. One stumbling block to greater exper-
has been implemented fairly recently in many states. imentation with no-fault is the states’ constitutions,
Changes occur with great frequency in almost every many of which have provisions prohibiting interfer-
no-fault jurisdiction. The applicable limits for the ence with citizens’ right to sue.
In the News
The effects of no-fault insurance on driving behavior, as well as the results of other studies regarding
automobile insurance, can be found by using “effect of no-fault automobile insurance on accidents” as
your search term.
Summary
The primary purpose of automobile insurance is to pedestrian, they are struck by a different vehicle. If an
protect the insured for expenses incurred as a result insured is injured in a motor vehicle owned by some-
of bodily injury or property damage caused while one other than the insured, the automobile owner’s
the insured is operating their automobile. Both sin- medical payment coverage is primarily responsible
gle-limit and split-limits coverage are available. for payment of the insured’s medical expenses up
Umbrella policies are available as a secondary source to the limits of the owner’s medical payment cover-
of coverage when the full limits of the primary cov- age. Once that limit is exceeded, the insured’s own
erage are exceeded. Courts will reform policies in medical payment coverage takes effect. If the medi-
which the policy limits are less than those required cal payment coverage has a coordination-of-benefits
by statute. provision, the injured is not allowed to recover twice
The insurer is subrogated to the rights of the for their medical expenses.
insured, which allows the insurer to institute suit Other types of automobile insurance coverages
against the responsible person in the name of the include comprehensive, collision, and “accessory”
insured. Many states prohibit subrogation with coverages such as towing, car rental, and death
respect to UIM claims. An insured has an obligation and disability insurance. Comprehensive coverage
to cooperate with their insurer in subrogation claims. applies to property damage and losses caused by
Medical payment coverage reimburses the fire, theft, windstorm, and hail. Collision insurance
insured for all reasonable medical expenses incurred provides coverage regardless of who is to blame for
while occupying a covered vehicle or when, as a the damages.
Most states require uninsured motorist (UM) An insured can voluntarily terminate their
coverage. A carrier cannot credit monies paid under automobile insurance contract by giving notice to
a medical payment policy to the amount due the the agent. Likewise, an insurer can terminate the
insured under their UM coverage unless the insured contract for nonpayment of premiums, or because
has UM coverage in excess of the statutory minimum. the insured’s license is suspended or revoked,
Most UM policies provide coverage regardless of or if the insured is convicted of driving while
whether the insured was driving the automobile intoxicated.
referred to in the policy or a different vehicle. No-fault insurance is an alternative to the tort
Underinsured motorist (UIM) coverage protects system for dealing with automobile accident cases.
an insured who is injured by a motorist whose In no-fault the insured gives up the right to sue for
liability coverage is insufficient to fully compensate pain and suffering (in varying degrees) for promised
the insured for the injuries sustained. Most states prompt payment of economic losses and reductions
prohibit stacking of UM and UIM coverage. in automobile insurance premiums. Every person
Arbitration is usually required as a means of files a claim with their own insurance company after
resolving disputes that arise with respect to cover- an accident, regardless of who was at fault. This rel-
age. An arbitration award is often not binding if it atively new concept is in the experimental stage,
exceeds the statutory minimum limits for bodily but the results to date have not met its proponents’
injury. Arbitration can be faster and less expensive expectations.
than litigation.
Key Terms
coordination of benefits provision secondary coverage
Policy provision that precludes payment to Insurance that provides coverage for damages
the insured if the insured has other insurance incurred but that does not do so until the limits
available of the primary policy have been exhausted
fault insurance single-limit coverage
Automobile insurance coverage where the insur- Insurance coverage providing a single amount
ance carrier of the vehicle pays for damages to of recovery that is available for damages
the vehicle’s occupants and others only if the split-limits coverage
driver of the vehicle was responsible for the inju- Insurance coverage that sets forth a maximum
ries sustained amount an individual can recover for damages
no-fault insurance and an aggregate amount available for damages
Automobile insurance coverage where the insur- independent of the total claims involved
ance carrier of the vehicle pays for damages to stacking of policies
the vehicle’s occupants regardless of whether or Using one or more policies to provide coverage
not the driver of the vehicle was responsible for for the same incident
the injuries sustained subrogation
primary coverage The right of an insurer to institute suit in the name
Insurance providing initial coverage for all dam- of the insured against the responsible party to col-
ages up to the limits of the policy lect for monies paid by the insurer to the insured
reformation of a policy umbrella policy
Construing a policy to provide the minimum Policy that provides a secondary source of cover-
coverage required by statute age after the deductible has been paid, usually
coordinated with the limits of the underlying policy
Review Questions
1. What is the primary purpose of automobile 2. What is the difference between split-limits and
insurance coverage? single-limit coverage? Give an example of each.
3. What is an umbrella policy? 15. Can an insurer offset monies paid under a
medical payment coverage against an amount
4. Under what circumstances will a court reform due under a UM policy?
an insured’s policy?
16. Can UM and UIM coverage be stacked?
5. What does subrogation allow an insurer to do?
17. In what types of disputes involving insurance is
6. What do each of the following coverages arbitration typically used?
provide?
a. medical payment 18. What happens if either party contests the arbi-
b. comprehensive tration decision?
c. collision 19. Describe the arbitration process followed when
d. uninsured motorist resolving a typical dispute pertaining to insur-
e. underinsured motorist ance coverage.
7. If an insured is injured while driving a motor 20. On what grounds can an insurance contract be
vehicle owned by someone other than the terminated?
insured, whose coverage is considered primary
and whose coverage is considered secondary? a. What has complicated voluntary
termination?
8. What is the purpose of collision insurance b. What steps must an insurer take to termi-
coverage? nate an insured’s policy?
9. What is a coordination-of-benefits provision? 21. What is the purpose of no-fault insurance?
10. How is the value of damaged property deter- a. What can and cannot be recovered with
mined for purposes of reimbursement by no-fault insurance?
means of comprehensive coverage? b. What limits are often established with
no-fault insurance, and on what are these
11. What precautions should be taken when pur- limits based?
chasing miscellaneous coverage? c. Is no-fault insurance generally considered a
successful experiment?
12. Why is buying uninsured motorist (UM) cover- d. How does no-fault insurance compare with
age so important? workers’ compensation?
13. Who is considered an underinsured motorist e. What suggestions have been made to
(UM)? improve the no-fault system?
14. Is UM coverage required in most states? 22. How does no-fault parallel worker’s
compensation?
Practice Exam
True-False
1. Most states have sanctions for those that drive 3. An umbrella policy is liable after the first
without insurance. insurer pays full limits on its coverage.
2. An umbrella policy must be issued by the same 4. Subrogation is always allowed with respect to
carrier that provides the automobile policy. collision, comprehensive, and UIM coverage.
5. Insureds have no obligation to cooperate with 19. Uninsured motorist policies provide coverage
their insurer in the subrogation process. regardless of whether the insured was driving
the automobile specifically referred to in the
6. Medical payment coverage does not apply to policy or a different vehicle.
damages sustained by an insured when they
are injured as a pedestrian. 20. Under a coordination-of-benefits provision, an
insurer is responsible for its pro rata share of
7. If an insured is injured while in a vehicle owned the damages as long as the insured was driving
by someone else, the insured’s coverage will her own vehicle.
be used to pay her medical expenses up to the
limits of their coverage. 21. Arbitration is usually required in most policies
in the event of a dispute regarding the amount
8. Most medical payment policies provide for of the insured’s damages with respect to UM,
a fixed period of time after the accident UIM, and medical payment coverage.
that payments for medical expenses will be
allowed. 22. In some policies the insured and the insurer
must agree on and jointly pay for the services
9. Death benefits under medical payment of a single arbitrator who hears the case.
coverage are usually fixed at a certain dollar
amount. 23. Most policies provide that a decision by two of
three arbitrators is binding on the parties and
10. Death benefits are used to compensate the cannot be appealed.
deceased’s family for pain and suffering.
24. If a party appeals an arbitration award, the
11. Comprehensive coverage can include loss from issue of damages can be relitigated in consid-
fire, storms, and hail. eration of the arbitrator’s findings.
12. Under the terms of a collision insurance policy, 25. An insurer cannot terminate a contract on the
coverage is dependent on who is at fault. basis of the insured being convicted of driving
13. Under the terms of a collision insurance policy, while intoxicated.
the insurer can seek payment from the insured 26. No-fault insurance was created on the prem-
if the insured is responsible for the damage to ise that it would result in prompt payment to
the vehicle. insureds for economic damages and to reduce
14. Coverage for such services as emergency ser- automobile insurance premiums.
vices is almost always cost-effective and should 27. In a pure no-fault system, the insured gives up
be routinely purchased. their right to sue for damages sustained as a
15. Uninsured motorists do not include motorists result of a third party’s negligence.
who have a policy with an insolvent insurer or 28. None of the states that have adopted no-fault
hit-and-run drivers. have a pure no-fault system.
16. The percentage of uninsured motorists on the 29. In no-fault states, the right to sue for torts is
road is very low. retained for intentional injuries inflicted with an
17. In all states the insurer can reduce the dam- automobile and injuries caused by intoxicated
ages paid to the insured in proportion to the drivers.
insured’s negligence. 30. States vary in the minimum amount of benefits
18. An insurance company can sometimes offset they require insureds to buy.
monies paid under a medical payment plan 31. In a no-fault system, lost wages are paid
against the amount due the insured under his immediately in the amount actually lost by the
UM coverage. injured party.
32. Some have suggested that uninsured motor- 34. Several jurisdictions allow no-fault and tort
ists in no-fault states should not be allowed to remedies to coexist.
recover for their damages.
33. Changes are rare in no-fault jurisdictions.
Matching
GROUP 1
________ 1. Individual and aggregate amounts of recovery a. single limit
________ 2. One limit for recovery b. split limits
________ 3. Prevents double recovery c. umbrella
________ 4. Allows insurer to file suit against responsible person d. coordination of benefits
________ 5. Augments standard policy e. subrogation
GROUP 2
________ 1. Personal injury protection a. miscellaneous
________ 2. Cover burial expenses b. collision
________ 3. Losses from vehicle c. death benefits
________ 4. Repair of damaged vehicle d. comprehensive
________ 5. Car rental e. payment of lost wages
Fill-in-the-Blank
1. Courts can ____________ a policy if an insur- coverage for the vehicle will be considered
ance carrier provides limits less than those ____________.
required by statute.
4. Reimbursement for a lost or damaged item is
2. __________ insurance is where insured’s carrier determined by its ____________ value or its
would provide coverage to insured for bodily ____________ ____________value.
injury or property damage while operating a
vehicle. 5. ____________ ____________ coverage provides
coverage when an uninsured motorist is unable
3. If an insured is injured while in a vehicle to pay the insured’s damages.
owned by someone else, the insured’s cover-
age will be considered ____________ and the 6. If a party appeals an arbitration award, a trial
____________ ____________ is held.
Multiple-Choice 4. No-fault
a. has resulted in the lowering of treatment
1. Termination of an insurance contract
expenses.
a. does not entitle an insured to a return of b. allows an injured party to retain the right to
advance premiums. sue.
b. can result in the insured forfeiting her regis- c. allows an injured party to sue for his actual
tration rights to a vehicle. medical and rehabilitation expenses and
c. for nonpayment is always an option even if lost wages.
no notice is given. d. none of the above.
5. UM coverage
2. Subrogation is allowed with respect to
a. is not required in most states with the issu-
a. uninsured motorist. ance of a liability policy.
b. collision. b. can be stacked with UIM coverage.
c. comprehensive. c. may be allowed in multi-vehicle accidents
d. all of the above. for one vehicle and UIM coverage for
another.
3. In a no-fault state
a. an injured party cannot sue for intentional
injuries inflicted with an automobile. 6. Comprehensive insurance coverage
b. an injured party cannot sue for injuries a. does not apply to the shattering of a wind-
caused by an intoxicated driver. shield or to the theft of valuables.
c. thresholds for recovery may be tied to a b. must always be part of any standard auto-
party’s medical expenses. mobile contract.
d. all of the above. c. often requires proof of forced entry before
the insured will be reimbursed for stolen
property.
Practice Pointers
Once your law firm has been retained (and sometimes before), you will want to review the client’s automobile
insurance policy in great detail. In many cases, the client has been with the same insurer for some time and may
not be able to find their policy; or they may not be able to find all the various endorsements and amendments
that have been made as part of the original policy. They probably do not even know their different limits. Make
sure that you are aware of all insurance policies that might provide coverage for the accident. An injured pas-
senger, for example, might have their own medical payment coverage, which might be available to them if the
medical payment coverage on the vehicle in which they are injured is insufficient to pay for all their medical
expenses.
If your client cannot find a current policy, or if you think that the documents provided are not complete,
have the client contact their insurance agent and request a copy of the policy that was in effect on the date of
the accident. Most of the relevant facts regarding the policy can be found on the declarations page of the pol-
icy. Many companies make the declarations page a part of their annual or semiannual billing. On policies that
are paid monthly, the declarations page is generally not included with the monthly invoice.
Looking at examples of declaration pages for insurance policies, they can provide bodily injury coverage of
$100,000 per person, $300,000 per accident and $50,000 for property damage (a $100,000/$300,000/$50,000
liability policy). Medical payment coverage is $10,000 per person and $30,000 per accident. UM and UIM
motorist coverage are the same: $15,000 per person, $30,000 per accident. There is no provision showing
either collision or comprehensive coverage. The bells and whistles for towing, car rental, etc. are not shown
and should not be a part of the policy.
After reviewing the policy for the types of coverage and their dollar limits, discuss the results with the
client. It is not unusual for a client to think they had coverage not shown on the declarations page (and/or not
to know of coverage they do have). Any questions raised should be thoroughly investigated.
In many policies, accessory coverages like towing, car rental, additional living expenses, etc., are not
detailed on the declarations page. Often, they are shown only by a notation such as “additional coverage
(or additional endorsements)–323, 324, 368.” Some companies use letters rather than numbers to designate
additional coverage. What is important, as shown in endorsements 323, 324, and 368 above, and which are set
forth in detail in the Appendix D, Endorsements Applicable to Section III, are the details and amount of cover-
age specified in the policy. With the new insurance coverages and provisions (such as having a deductible and
co-insurance with medical payment coverage) being offered, each policy must be thoroughly examined.
Your supervising attorney should direct you on how to proceed after coverage is decided. Some firms
assist in filing related claims for towing, car rental, and so on. Others bring such matters to the client’s attention
so that they can institute the procedures and paperwork for reimbursement with the insurer.
While you are identifying and reviewing all applicable automobile insurance policies, also examine the
client’s medical insurance policies. It may be that the client can legally submit their medical expenses to both
the automobile insurer and the medical insurer. It is also possible that their medical insurance is an ERISA plan,
which is governed by federal law. ERISA plans provide for reimbursement from the insured for any medical
expenses incurred as a result of the acts of third parties if the insured is paid damages by the third party. The
client’s medical policy may also have provisions that the client should be reminded of, such as the deductible
(if any), co-insurance, dollar limits on chiropractic or other treatment, exclusion of certain types of treatment
from coverage, and so forth. Make sure that you and the client know about any insurer that may make a claim
on any portion of the proceeds from settlement or trial, as well as the amount of the claim.
Tort Teasers
Reread the introductory scenario at the beginning of this chapter to answer the following questions.
1. Pauline seeks legal advice to determine her rights in reference to the medical expenses incurred by her
and her late husband, the damages she sustained, and Perry’s wrongful death. Denise and David also see
an attorney, who says that she cannot represent both Denise and David because David may have a claim
against Denise. She then refers Denise to another attorney.
If the parties sustain the following damages, the questions before us are who has a claim against whom
and what portions of Pauline and Perry’s insurance policy are applicable.
• Perry—medical expenses of $6,000, funeral expenses of $4,000.
• Pauline—medical expenses of $15,000, personal damages of $90,000, wrongful-death claim with
respect to Perry of $250,000, property damage claim of $16,000.
• Denise—medical expenses of $500, personal damages of $3,500.
• David—medical expenses of $24,000, future medical expenses of $76,000, personal damages of $2.5
million.
• Denise’s father—property damage claim of $840.
Use this scenario to review the concepts you have learned. To resolve issues of damages you will first
need to assess the liability of the parties and determine any defenses they can raise. To assist in doing
this, you might want to review Chapters 4–8, 14, and 15.
2. How much, if any, would Perry and Pauline’s 10. Does Denise’s father have a claim against
insurance carrier have to pay of Pauline’s medi- Perry? If so, how would you evaluate Denise’s
cal expenses of $15,000, the $6,000 in medical father’s claim?
expenses incurred by Perry prior to his death,
and Perry’s funeral expenses of $4,000? 11. In terms of potential recovery, which of the
following claims would you rather be repre-
3. Does Pauline have a claim against Denise that senting? Explain why. What defenses might be
should be compensated by the UM coverage raised in each case?
of Perry’s policy? a. Pauline’s wrongful-death claim
4. If Pauline pursues a wrongful-death claim, who b. Pauline’s personal injury claim
will be the appropriate party to sue? Can Pau- c. Perry’s damages claim
line look to any coverage under her own policy d. Denise’s damages claim
for payment of all or a portion of the claim? e. David’s damages claim
f. Denise’s father’s claim
5. How much will Pauline’s insurer have to pay of
her property damage claim of $16,000? 12. Is the interspousal-immunity doctrine in effect
in your state? If so, does that change any of
6. Does Denise have a potential recovery claim your answers to the previous question? Why or
for her medical expenses and personal dam- why not?
ages? If so, against whom should the claim be
made? What defenses to her claim could be 13. Is any claim by Denise barred because of her
alleged? wrongful use of the family vehicle and lack of a
driver’s license?
7. Against whom does David have a claim?
14. Will Pauline’s wrongful-death claim be
8. Can Denise’s negligence be imputed to David? affected by the fact that Perry was not wear-
Did David assume the risk by voluntarily going ing his seat belt at the time of the accident?
with Denise? Assume that an accident reconstructionist will
testify that although Perry would have suf-
9. Do you think Pauline’s insurance carrier will fered serious injuries, he would not have been
offer to settle David’s claim for the policy limits killed had he been wearing a seat belt.
of $100,000? Why or why not?
Internet Inquiries
Your supervising attorney has asked you to find a list of possible arbitrators that could be used to arbitrate a
motor vehicle accident case in your state. Go to the Internet to find sources of arbitrators. Summarize what you
find; include web addresses of relevant sites. Are they certified in any way?
Review your own automobile insurance policy. Check the types of coverage you have purchased and make a
record of the premium (and the coverage period—monthly, quarterly, semi-annual, etc.) as well as the coverage
limits for each. Note the type of vehicle and where it is located. Compare the costs of coverage with the other
students in the class. See if you can determine why the costs vary so much. Also be sure and check your medi-
cal coverage and be aware of your deductibles, maximum limits, etc.
Chapter 18
Bad Faith
Chapter Topics
How Bad Faith Is Committed First-Party versus Third-Party Claims
Historical Development of Bad Faith Concept Declaratory Judgment Actions
Overview of Bad Faith Uninsured and Underinsured Motorist Coverage
Chapter Objectives
After completing the chapter, you should be able to • Distinguish between first-party and third-party
• Identify the elements of a bad faith claim. claims for purposes of bad faith and recognize
the importance of that distinction.
• Recognize the rationale behind the development
of bad faith actions.
O n a Labor Day weekend Jerry and a number of his fraternity brothers and sorority sisters decide to spend
their three-day holiday near a place called Rocky Point on the Gulf of California in Mexico. The entire
group has to wait in line to enter the gate that allows vehicles to enter Sandy Beach. Jerry steps up on the back
bumper of a Jeep driven by Dick when Dick suddenly accelerates his Jeep to move up in line. The sudden
movement catches Jerry unaware, and he is thrown backward, striking his head on the hard-packed sand. He is
knocked unconscious for a few minutes, and when he comes to, his fraternity brothers put him in the back of a
van to recuperate. After a few hours it becomes apparent that Jerry has suffered a serious injury, so he is taken
to a hospital. He is hospitalized for two weeks and is ultimately forced to withdraw from the first semester of his
sophomore year at the university. He suffers short-term memory loss with respect to the accident and has some
longer-term problems with his speech, reading abilities, and memory retention.
Both Dick and Jerry are insured by the same automobile insurance carrier, and each of their policies
provides liability coverage for any accident that occurs in Mexico as long as the accident takes place within
50 miles of the U.S. border. Dick’s policy was issued in Colorado, a no-fault state. It does not provide medical
payment coverage (called personal injury protection in Colorado) on Dick’s Jeep when it is outside the United
States. Jerry’s policy does provide medical payment coverage in Mexico if the accident occurs within 50 miles
of the U.S. border.
Your attorney, who represents Jerry, submits Jerry’s medical expenses to his insurance carrier, but the car-
rier neither accepts nor rejects the claim. After eight months of insurer inaction, your attorney files suit against
the carrier for breach of contract and bad faith. After the suit is filed, the carrier hires a professor who analyzes
information obtained from various witnesses (whom the carrier had not interviewed prior to the filing of the bad
CHAPTER 18 Bad Faith | 529
faith action). The professor concludes that the accident occurred somewhere between 51 and 51.5 miles out-
side the U.S. border. Your attorney hires an expert who determines that the accident occurred between 49.63
and 51 statute miles from the U.S. border.
The key issue is whether the accident occurred outside the 50-mile geographical limitation of Jerry’s
policy. The policy does not define a mile as being a statute mile (5,280 feet) or a nautical mile (6,080.1 feet).
Unquestionably, if nautical miles are used the accident occurred within the 50-mile limit. The insurance carrier
provides many of its insureds with maps indicating that the area of the accident is not more than 48 statute
miles from the U.S. border. Keep this fact pattern in mind as you read about bad faith as a cause of action.
How Bad Faith Is Committed realized that insureds rely heavily on their insurance
carriers to protect their interests. Therefore, the
Bad faith is considered an intentional tort; mere neg- courts created various mechanisms to protect
ligence on the part of the insurance carrier is not insureds’ contract rights as well as their “reasonable
actionable. Bad faith can occur if (1) the insurance expectations” regarding policy provisions.
carrier unreasonably delays payment on a policy, In accordance with their vision of insurance
(2) the carrier acts unconscionably toward its insured, contracts as adhesion contracts, courts held that
or (3) the carrier engages in unfair claims practices certain policy provisions could not necessarily be
(see Exhibit 18–1). utilized against an insured and that the insured was
not presumed to understand all the terms of the
insurance contract. Most insurance contracts are
issued as standard contracts where the policyholder
Historical Development of has limited opportunity to bargain or alter any of the
Bad Faith Concept terms of the contract. Courts later developed a rule
of law requiring contracts to be interpreted in favor
Historically courts held that insurance carriers have of the nondrafter (the insured) so that any “ambi-
an implied covenant of good faith and fair dealing guities” in a contract would be construed against
in reference to their insureds. Courts classified the carrier and in favor of the insured. This rule was
some insurance contracts as adhesion contracts. propagated in the hope that insureds would be pro-
An adhesion contract is a standardized contract tected from complex insurance contracts and that
commonly used in business (an example of which is the insurance industry would be pressured into draft-
the contract signed by consumers when financing ing contracts that are easily understandable to those
a car). Adhesion contracts are characterized by the who read them. As long as a term is ambiguous and
courts as those contracts in which the party draft- the policyholder’s interpretation is just as valid as the
ing the contract has superior bargaining power and insurer’s interpretation, the court will find in the poli-
the other party is typically unfamiliar with the terms cyholder’s favor the majority of the time.
of the contract and also has no real opportunity to
negotiate what those terms will be. Focusing on the
unequal bargaining power between insureds and
Exhibit 18–1 What Constitutes Bad Faith?
insurers, as well as the public interest in insurance
contracts, the courts scrutinized insurance contracts • Insurer unreasonably delays payment.
more carefully than many other contracts in which the • Insurer acts unconscionably toward insured.
parties were assumed to know and understand the • Insurer engages in unfair claims practices.
terms of the contracts they signed. The courts also
In the News
Articles on bad faith in the insurance industry can be found by using “bad faith insurance” as a
search term.
Interpreting contracts in favor of the nondrafter contract and pay only a minor penalty for their
eventually evolved into the modern-day rule generally indiscretions, they can afford to be rather cavalier
referred to as the reasonable expectations doctrine. in their actions toward their insureds. Accordingly,
This doctrine protects the insured’s reasonable expec- insurers have little incentive to be concerned about
tation that coverage will be provided and not defeated the majority of their insureds, who cannot afford
by provisions that would be unanticipated by the ordi- the tremendous expense involved in litigating with
nary insured and that were never negotiated between a major company.
the insured and the carrier. The court will reform the Some courts have found a fiduciary duty between
contract to the reasonable expectations of the insured the insurance carrier and the insured. Objectionable
even though a detailed review of the contract itself acts of a carrier as well as objectionable terms of an
does not support those expectations. The insured may insurance contract are then found to be a breach
not use this doctrine to obtain coverage where there is of the fiduciary duty owed the insured. As a result,
plain language to the contrary. objectionable terms can be eliminated from the
An insurance policy is a contract between the contract.
insured and the insurance company. Traditionally, Some states have restricted the strict interpre-
when the insurance company breached the policy, tation of contracts by providing the insured with
the remedy provided by contract law was expectancy standard tort remedies. For example, recovery for
damages. Expectancy damages per mit the intentional infliction of mental distress has been
non-breaching party to recover what was bargained allowed when an insurance company has committed
for in the contract, no more or less. The non-breaching especially egregious acts. In many cases, however,
party is then placed in the exact economic posi- the physical complications required for this cause
tion they would have been had the contract been of action cannot be shown in the context of an
performed as agreed by the parties. Therefore, if insurer–insured relationship.
George’s Garage enters into a contract to repair the
engine in Matthew’s car for $500 and fails to provide
the repairs, Matthew’s remedy under contract law is Overview of Bad Faith
to rescind or void the contract. They can also ask the
court to enforce the contract so that they will receive There is an inherent conflict of interest in the
the benefit of the contract or the expectancy dam- insurer’s promise to provide benefits to its policy
ages. In this case expectancy damages would be holders while at the same time seeking to maxi-
the repair of the car. Most jurisdictions also award mize profits by paying as few claims as possible.
the prevailing party in a contract dispute their attor- All contracts have an implied covenant of good
ney’s fees and associated costs. Under contract law faith and fair dealing that requires the parties to
Matthew is not entitled to receive payment for the fulfill their obligations under the contract honestly,
inconvenience and emotional distress they suffered fairly, reasonably, and in good faith. Courts have
as a result of the delay in repairing their car. Those held in some circumstances where there is a spe-
would fall under punitive damages. cial relationship between the parties that breach
In their efforts to curb the sometimes misused of the covenant of good faith and fair dealing is
discretion of insurance carriers, courts have looked a tort called bad faith, which can be pursued by
for remedies beyond those found in contract law, the non-breaching party. A special relationship is
because such remedies impose a relatively small one that has elements of public interest, fiduciary
penalty on overreaching carriers. Because insur- responsibility, and a special type of reliance pres-
ance companies know that, at the worst, they ent. When this relationship is present, damages
will have to perform their obligations under the for bad faith go beyond the expectancy damages
In the News
Use “jury verdicts in bad-faith cases” as your search term for a historical review of the development of
the concept of bad faith.
awarded in contract law. Bad faith damages insureds have allowed the insurers to recover con-
include the full range of tort damages including tractual damages only. Tort damages as well as
punitive damages and damages for emotional dis- punitive damages have been denied. Conceivably,
tress and loss of consortium. The thought here is however, comparative negligence could be used to
that regular contract damages do not adequately reduce an insured’s award of damages if an insured
compensate the injured party because the insurer acted in bad faith.
is not required to compensate for their grievous
misconduct. Contract damages will not make the
injured party “whole” in these cases.
As can be seen from this brief historical review, First-Party versus
the concept of bad faith evolved as a means of pro- Third-Party Claims
viding relief to the insured. Bad faith is a question
of fact for the jury. Only when the court determines First-party cases involve the plaintiff (insured) and
that no reasonable person could conclude that bad defendant (insurer). The insured, pursuant to a
faith has occurred can the court take the case from contractual right emanating from their insurance
the jury. contract, sues the insurer. As previously men-
Initially, bad faith applied only to third-party tioned, most bad faith claims include a breach of
claims (claims in which the insured paid damages to contract claim and, if supported by the insurer’s
a third party). Most jurisdictions now recognize the acts, a claim for punitive damages. Although the
tort of bad faith in cases of first-party claims (claims requisite conduct for punitive damages varies, the
in which an insured demands payment from their trend is to award punitive damages only when an
insurer in their own right). “evil mind guides the evil hand.” Punitive dam-
Bad faith cases also involve a breach of contract ages can include judgments in excess of the policy
claim as well. Some jurisdictions, however, recognize limits, any penalties and interest, economic losses,
that bad faith can occur even when the contract is emotional distress, and attorney’s fees.
not breached. A bad faith claim can occur without A third-party case involves a victim and the
a breach of the insurance contract when the insurer insurer. The victim is not insured by the insurer so
unreasonably denies a claim. The unreasonable is considered a third party. They can also include
denial of the claim can support a cause of action cases where you the plaintiff were subjected to a
for bad faith even when a court subsequently deter- lawsuit and the insurer defended you and either
mines that the insurer had no contractual obligation improperly defended the claim or neglected to
to provide coverage for the claim. An insurance reach a settlement. These third-party suits follow
carrier might, for example, deny coverage without a more circuitous route to the courthouse. Most
a proper investigation of the claim and later, after states do not allow those who have been injured
being sued, discover evidence that supported its by the insured and then damaged by the insurer’s
original denial of coverage. The insurer may also be actions toward its insured to file suit directly against
liable if they are not prompt in their investigation, the insurance company, because injured parties are
they delay payment, they fail to settle a lawsuit, or not in privity of contract with the insurance com-
fail to defend a lawsuit. Discovering these things pany. A third-party case usually reaches trial in the
after denial would not, however, diminish the carrier’s name of the insured only after the insured “cuts a
initial failure to act in good faith. deal” with the injured party and assigns the bad
faith claim to the third party. The assignment per-
mits the third-party claimant to stand in the shoes
Suing the Insured of the insured and pursue the bad faith claim.
Although theoretically possible, an insurance carrier
rarely sues an insured for bad faith. The duty of
good faith is an unconditional and independent Local Links
contractual obligation of the insurer, and most Does your state recognize the tort of bad
states provide relief even when the insured has faith? Is your state a comparative negligence
not fulfilled all of their contractual duties. Those state?
courts that have recognized bad faith claims against
Local Links An insurance carrier that defends its insured under

a reservation of rights initially tells its insured it will
Does your state recognize the tort of bad provide a defense to the claim. At the same time,
faith for both first-party and third-party however, the carrier reserves its rights to later deny
claims? that coverage exists, in which case it can withdraw
the defense previously offered. In most cases the
insurance carrier’s reservation of rights letter will
Resolution of Third-Party Claims advise the insured to consider employing their own
A third-party action often arises after the insurer counsel.
refuses to settle the injured party’s claim against
the insured for an amount less than or equal to the Insured’s Option When Denied Coverage
policy limits. Bad faith can occur when the insured An insured’s remedies upon being denied coverage
is required to pay an excess judgment (a judgment are often based on whether coverage was denied
for more than the policy limits), because the insurer outright or whether their position was compromised
is regarded as having gambled with its insured’s as a result of a reservation of rights. If coverage is
money by rejecting a reasonable settlement offer flatly denied, the insured has no chance of indem-
within the policy limits. Consider the case where an nity for any judgment rendered against them, and
automobile accident is covered by a $50,000 auto no opportunity to mount a defense except from their
liability policy and the insurer rejects a $50,000 own pocket.
demand to pay the insured party’s bodily injury Because of the vulnerability of an insured that
claim, which has a value of $500,000. If the injured has been denied coverage, some courts allow
party subsequently recovers a judgment against the insured to enter into an agreement with the
the negligent insured for $500,000, the insurance injured party, stipulating the amount of the judg-
company is obligated under the insurance policy to ment to be entered in favor of the injured party.
pay the policy limits of $50,000 and no more. The The injured party must still present evidence to
insured would therefore have to pay the excess substantiate the damages claimed, but with no
judgment of $450,000. The insured can file a adversary attempting to exclude evidence, the
lawsuit against the insurer for bad faith because injured party usually has little difficulty obtaining
of the unreasonable exposure to the excess judg- a large judgment. Once the judgment is entered,
ment. Alternatively, the insured can assign the bad the insured assigns all rights under the insurance
faith claim to the injured party, which will permit policy to the injured party. Then, once again in
the injured party to pursue the bad faith claim. the name of the insured, the injured party sues
Although many states prohibit the assignment the insurance carrier, seeking indemnity for the
of “pure” personal injury claims, most allow the amount of the judgment entered, or garnishes
assignment of contract rights. Because a bad faith the insurer.
claim arises out of contract, the insurance policy, When this procedure is allowed, an insurance
and therefore is not considered a pure tort, most carrier’s liability usually does not exceed the policy
courts allow its assignment. Some states also allow limits unless the carrier has denied coverage in
the assignment of any right the insured might have bad faith. In that case the injured party can recover
to punitive damages. the amount of the judgment obtained (up to the
Once the assignment is made, the injured party policy limits) for breach of contract and can also
then pursues the insurer in the name of the insured. pursue an independent bad faith claim against the
Because the lawsuit is filed in the insured’s name, as insurance carrier.
part of the assignment the insured must cooperate
in the action against the insurer. The lawsuit will in
fact be orchestrated by the injured party.
The insured may also assign their rights to the Local Links
injured party when the insurer denies coverage for Does your state have any statutes regarding
the injured party’s claim and/or agrees to defend the contents of a reservation of rights letter?
the insured only under a reservation of rights.
Insured’s Option When Insurer Defends the insurer had reserved the right to deny coverage
under a Reservation of Rights and that it was the concern of noncoverage that
If an insurer defends under a reservation of rights, motivated the insured to enter into its agreement
the insured is not left completely without recourse. with the injured party.
The insurer, in essence, gives them a rope, but at This “trial within a trial” allows the insurer to
the same time advises the insured that the rope may introduce all relevant evidence that counters any of
be recalled at any time. Under these circumstances the positions taken by the plaintiff (the injured party,
some courts have allowed the insured to enter into who is acting in the name of the insured). If the jury
an agreement with the injured party that basically determines that no coverage exists, it will enter
protects the insured if the insurer subsequently a judgment for the defendant (insurer). If the jury
denies coverage. Entering into such an agreement is determines that the judgment obtained in accor-
not considered a violation of the cooperation clause, dance with the agreement between the insured and
found in most insurance contracts, that mandates the injured party was excessive, it can award dam-
the insured’s cooperation with the insurer. ages in a lesser amount.
In a typical reservation of rights case the insured
Failure to Settle Claim
enters into negotiations with the injured party to
protect the insured from being exposed to an unin- The insurer can be subjected to bad faith even when
sured judgment. Any agreement normally provides it acknowledges coverage and provides a complete
for a judgment to be entered based on evidence defense. This type of bad faith occurs when the
presented to the court, usually without objection insurance carrier has a reasonable opportunity to
from the insured. Care must be taken to ensure settle the injured party’s claim within the policy lim-
that no fraud is perpetrated on the court when its. If the insurer refuses to settle, the insured can be
such an agreement is entered into. After judgment liable for the amount of the judgment in excess of
is entered, the insured assigns all rights under their the policy limits.
insurance contract to the injured party. Of particular concern to the insured are areas
In a reservation of rights case an insured must of liability in which the potential damages are
usually advise the insurer of the terms and condi- extremely large. In those instances, the insurer
tions of the agreement prior to entering into any might be tempted to “roll the dice” by going to
agreement. The insurer then has one last opportu- the jury in the hope of getting a defense verdict.
nity to withdraw its reservation of rights and provide Because the insurer’s liability does not exceed the
an unconditional defense to the insured. insured’s policy limits, the insurer has nothing to
The reservation of rights case is resolved when lose by going to trial. The insurer, after entry of an
the injured party files suit against the insurer in the excess judgment, can pay the amount of its policy
name of the insured. Alternatively, the injured party limits and leave the insured to deal with the injured
can garnish the insurer. Suit is considerably differ- party. The insured would then have a potential
ent from the trial of a denial of coverage case. The bad faith claim against the insurance carrier for its
injured party must prove that the insurance policy failure to settle the claim within the policy limits.
issued to the insured covers the claim and that the As the insured would probably be very happy to
agreement between the insured and the injured be relieved from having to pay the injured party,
party was not a fraud on the court. They must also they would likely assign to that party any rights they
show that the judgment entered by the court was might have against the insurer. The injured party
not fraudulent but was fair and reasonable con- would then proceed, in the name of the insured, in
sidering the issue of liability, the facts relating to a bad faith claim against the insurer.
actual damages, the advantages and risks of going Some have questioned whether an insured who
to trial, and the risks of the insurer not being liable knows the insurer has refused to settle within the
under the policy. Under this scenario the jury must policy limits is in a position to strike a deal with the
be told the terms and conditions of the agreement injured party before an excess judgment has actually
and the fact that the insured was released from lia- been entered. Most courts have held that an insured
bility. The jury would also be advised, however, that in this situation is bound to cooperate with the
insurer and may not enter into an agreement with Underpayment of Claims
the injured party until after judgment is entered. The Bad faith can occur when an insurance company
courts reason that the insured, having selected the commits acts that fall under the guise of “bad faith”.
limits of coverage, cannot shift their responsibility Nardelli v. Metropolitan Group Property and Cas.
to adequately insure themself to their insurer when Ins. Co., 277 P.3d 789 (AZ 2012) reveals the bad faith
those limits turn out to be too low to cover the risk tactics of an insurance company and how that leads
that actually occurred. to a punitive damages claim.
Case Nardelli v. Metropolitan Group Property and Cas. Ins. Co.,

277 P.3d 789 (AZ 2012)
This appeal and cross appeal arise out of a lawsuit filed On September 18, 2002, the Explorer was found
by Plaintiffs/Appellants/Cross–Appellees, Kenneth abandoned in Mexico, with slit seats, cut wires, a torn
and Tammy Nardelli (“the Nardellis”), against Defen- interior, and what turned out to be a ruined engine. The
dants/Appellees/Cross–Appellants, Metropolitan front dashboard vehicle identification number (“VIN”)
Group Property and Casualty Insurance Company and plate and the driver’s-side-door VIN sticker had also
Metropolitan Property and Casualty Insurance Com- been torn off.
pany (collectively “MetLife”), for breach of the implied MetLife arranged to have the Explorer delivered to
covenant of good faith and fair dealing. After a jury a tow yard in Ajo, Arizona. It also hired an indepen-
awarded the Nardellis $155,000 in compensatory dent appraiser to inspect the Explorer in Ajo, and the
damages and $55 million in punitive damages, the appraiser initially estimated the damage would cost
superior court upheld the jury’s award of compensa- $815 to repair. When Ken Nardelli called the Ajo tow
tory damages but reduced the punitive damages to yard, however, a tow-yard employee told him the VINs
$620,000. and the battery were missing and the appraiser had not
In their appeal, the Nardellis principally argue the even lifted the hood.
superior court should not have reduced the punitive The Nardellis then elected to have the Explorer
damages, and in its cross-appeal, MetLife principally towed from Ajo to the Earnhardt Ford body shop in
argues the evidence does not support bad-faith liability Gilbert, Arizona for an inspection. Ken Nardelli went to
or punitive damages. Alternatively, it argues we should Ajo to accompany the tow-truck driver. The tow-truck
reduce the superior court’s punitive damages award driver tried to put the Explorer in neutral and the gear
even further. shift broke off in his hand. The tow-truck driver then
In December 2001, the Nardellis, with financing from had to drag the Explorer onto the tow truck for the trip
a lender, bought a new 2002 Ford Explorer for $35,750 to Gilbert.
from Earnhardt Ford. The Nardellis obtained com- The next day, October 8, 2002, the Nardellis met with
prehensive insurance coverage for the Explorer from Earnhardt body shop manager “Mike,” who tried to start
MetLife. the engine, but quickly turned it off when it made a loud
On September 3, 2002, the Explorer was stolen. knocking noise. Ken Nardelli testified Mike told him he
The Nardellis reported the theft to MetLife and a thought the Explorer would need a new engine.
MetLife claims adjustor, Steve Simpson, told them he Three days later, Ken Nardelli, Mike, and MetLife
would be unable to adjust their claim as a total loss field appraiser Jerry Proctor inspected the Explorer
before the expiration of two weeks. According to Ken at Earnhardt. Ken Nardelli testified he was very upset
Nardelli, Simpson also advised the Nardellis they could because things were falling off the Explorer as he
“shop around,” but should not purchase a replacement touched it. Proctor, however, testified, “I wasn’t fore-
vehicle until the two weeks had expired. seeing anything else [would] come up. I could see it
(continued)
Case | Nardelli v. Metropolitan Group Property and Cas. Ins. Co., (continued)
not being a total loss,” and estimated the damages at After MetLife decided the Explorer could be repaired
this point were between $7,000 and $8,000. Relying to pre-loss condition, it issued a joint check to the
on Proctor, his supervisor wrote in the claim file, “Jerry Nardellis and their lender for $10,759.13, which was
states vehicle should not total.” Mike and Proctor then the cost to repair the truck as estimated by Proctor—
agreed Earnhardt would tear down the engine and based, in part, on information from Earnhardt—as of
make a closer inspection of the Explorer. October 25, 2002 (less a $250 deductible). The Nardellis
On October 25, 2002, after Earnhardt finished its turned the check over to Earnhardt and voluntarily
inspection and concluded the Explorer needed a new allowed the lender to repossess the Explorer.
engine and other repairs, the Nardellis again met at As discussed above, after extensive briefing, the
Earnhardt with Mike and Proctor to review the repairs court reduced the jury’s award of punitive damages to
Earnhardt had identified. To their dismay, the Nardellis $620,000—a ratio of 4:1 to the $155,000 compensa-
discovered additional damage. Ken Nardelli testified tory damages. The court subsequently denied MetLife’s
“it got a little ugly,” because, as the Nardellis pointed renewed motions for judgment as a matter of law on
out the additional damage, Proctor told Tammy Nardelli bad-faith liability and the Nardellis’ entitlement to punitive
she was “nitpicking.” At the end of the inspection, damages. The court then entered an amended judg-
Proctor estimated the cost to repair the damage was ment in the Nardellis’ favor and awarded them a total of
$11,009 and told the Nardellis MetLife would not $1,571,417.58, which included sanctions under Arizona
total the Explorer. The Nardellis disagreed vigorously, Rule of Civil Procedure 68 and post-judgment interest.
because they had found more damage each time they
DISCUSSION
saw the Explorer and believed it had been trashed.
Under their policy in the event of a loss, MetLife was Although phrasing and organizing the issues some-
required to pay the lesser of (1) the actual cash value what differently, the parties focus their arguments
of the Explorer at the time of the loss, or (2) the cost on appeal on the jury’s finding of bad-faith liability,
to repair or replace the Explorer “with other of like kind its decision to award punitive damages, the superior
and quality.” Thus, under the policy, only if the Explorer court’s reduction of the punitive damages, and the
could be repaired or replaced to its pre-loss condition court’s denial of MetLife’s renewed motions for judg-
could MetLife select the second option. ment as a matter of law. For clarity, we group the
Dissatisfied with MetLife’s decision to repair and arguments raised by the parties by subject matter,
not total the Explorer, Ken Nardelli spoke to managers rather than by appeal. Thus, we begin with whether
in MetLife’s claims department—Glenda Woolley and the superior court should have granted MetLife’s
David Oyler—by telephone on October 29, 2002. He motions for judgment as a matter of law on, first,
testified Woolley and Oyler gave him the first “official” bad-faith liability and, second, punitive damages. As
word “[t]he decision [had] been made.... That’s it. The explained below, we answer each question, “no.”
[Explorer was] not getting totaled,” and that Woolley I. Bad–Faith Liability and Entitlement to Punitive
and Oyler “were mad at [him] because [he] was ques- Damages
tioning them ... and, their agenda was set.” A. Standard of Review
Ken Nardelli called back the next day and spoke We review de novo the superior court’s denial
to Woolley and Oyler’s supervisor, Mike Maurer, who, of MetLife’s motions for judgment as a matter of
unbeknownst to Ken Nardelli, had been listening to law. See Pope, 219 Ariz. at 490, ¶ 51, 200 P.3d at
his telephone conversation with Woolley and Oyler the 987 (citing Shoen v. Shoen, 191 Ariz. 64, 65, 952 P.2d
day before. Although disputed, Ken Nardelli testified 302, 303 (App.1997)). “The superior court properly
Maurer told him MetLife was sending him an appraisal, grants [judgment as a matter of law] ‘only if the facts
a check, and a letter, and said “you take your check, presented in support of a claim have so little pro-
you take the letter, you take your truck, and you do bative value that reasonable people could not find
whatever you want.” Consistent with his testimony, Ken for the claimant.’ ” Id. “We view ‘the evidence in a
Nardelli wrote, in a diary he maintained throughout his light most favorable to upholding the jury verdict’
dealings with MetLife, Maurer told him, “The check is in and will affirm ‘if any substantial evidence exists
the mail—do whatever you want.” permitting reasonable persons to reach such a result.’ ”
(continued)
Id. (quoting Hutcherson v. City of Phoenix, 192 Ariz. 51, repairing a “theft recovery.” Repair records showed
53, ¶ 13, 961 P.2d 449, 451 (1998)). the first subsequent owner took the Explorer to a
B. Bad–Faith Liability shop nearly every month for repairs, which Mike
An insurer acts in bad faith when it unreasonably agreed fulfilled his “prediction that the [Explorer
investigates, evaluates, or processes a claim would] never be the same.” The second subsequent
(an “objective” test), and either knows it is acting unrea- owner, a retired mechanic, testified he had problems
sonably or acts with such reckless disregard that such with the transmission and alignment,4 and called the
knowledge may be imputed to it (a “subjective” test). Explorer “a lemon.” In addition to this testimony, the
Here, there is substantial evidence from which a rea- Nardellis’ forensic engineering expert testified that
sonable jury could find MetLife acted in bad faith in mak- when an engine is “abused to the degree that there
ing at least three decisions: deciding to repair rather than are parts of the piston in the oil pan”—as was the
total the Explorer, sending the Nardellis a check for an case with the Nardellis’ Explorer—repairing to pre-
amount that did not cover the repair costs, and failing to loss condition “becomes a great issue,” because
advise them of policy provisions relevant to their claim. “everything is subjected to violent realignment or
Repair Versus Total misalignment.”
During trial, MetLife claims manager Woolley Further, even assuming Earnhardt represented it
acknowledged the policy required MetLife to total could restore the Explorer to pre-loss condition, the
the Explorer if it could not be repaired to pre-loss Nardellis also presented evidence that, contrary to
condition. MetLife argues it could not have acted MetLife’s duty to “immediately conduct an adequate
unreasonably in deciding not to total the Explorer, investigation, [and] act reasonably in evaluating
however, because it was entitled to and did rely the claim,” Zilisch, 196 Ariz. at 238, ¶ 21, 995 P.2d at
on Earnhardt’s representations the Explorer could 280, it ignored other information the Explorer was a
be repaired to pre-loss condition. It points out the likely total loss.
Nardellis selected Earnhardt, Earnhardt is “a Ford At trial, MetLife claims employees explained they
dealership ... Ford factory trained ... [and] a good, considered a vehicle a total loss when the cost to repair
reputable shop,” and Earnhardt’s estimate, which to pre-loss condition, when added to the vehicle’s sal-
Proctor used in completing his estimate on October vage value, equaled or exceeded the vehicle’s actual
25, showed repair costs would be less than half the cash value, or when the repair costs came close to
actual cash value of the Explorer. 75% of the actual cash value.
We do not disagree that MetLife, in making its deci- MetLife estimated the Nardellis’ Explorer had an
sion to repair and not total the Explorer, was entitled actual cash value of $24,475. On October 29, 2002,
to consider Earnhardt’s opinions. Cf. Montoya Lopez when MetLife unequivocally decided not to total, Proctor
v. Allstate Ins. Co., 282 F.Supp.2d 1095, 1102–03 had estimated repair costs at $11,009, but also
(D.Ariz.2003) (not per se unreasonable for insurer to expected Earnhardt would discover additional damage
rely on expert’s report when not showing it ignored during the repair process that would cost at least
other evidence). But the Nardellis presented conflicting $2,000 or $3,000 to repair. Thus, the Nardellis pre-
evidence regarding whether Earnhardt actually represented evidence Proctor’s $11,009 estimate was too
sented it could repair the Explorer to pre-loss condition… low and should have been at least $13,000.
The Nardellis also presented evidence that whether
Earnhardt could repair the Explorer to pre-loss condition
was doubtful at best. Mike testified “a theft recovery is 3 The first subsequent owner bought the Explorer from Earnhardt
probably one of the worst vehicles to try and repair,” after the Nardellis surrendered it to repossession and the second
subsequent owner bought it from a dealership in Oklahoma without
because the extent of abuse to which the vehicle has
knowing “the history of the truck.”
been subjected is unclear and the vehicle “can just keep 4 At trial, the parties vigorously disputed whether the Explorer’s
coming back [to the shop] four, five, six, eight, ten times” transmission, like the engine, had been damaged. The testimony also
after the initial repairs. conflicted as to whether the problems this subsequent owner had with
Testimony from subsequent owners of the Explorer3 the engine and transmission had been caused by the owner’s son. It
was the jury’s task to sort through conflicts in the evidence regarding
confirmed Mike’s description of the difficulties in
the transmission.
(continued)
Further, although Proctor’s $11,009 estimate decision to repair and not total, the estimated repair
included the cost of an engine he described as “new” costs were climbing higher and higher, yet it never
for $3,330, Mike had advised MetLife a new engine investigated the value of a potentially substantial sal-
would cost between $4,000 and $5,000, 5 that is, vage bid to determine whether the bid, added to the
between $700 and $1,700 more than MetLife had esti- repair costs, would equal the actual cash value of the
mated. In addition, as described below, see infra ¶ Explorer and meet MetLife’s total-loss requirements.
37, Proctor’s estimate used a labor rate of $40–per– In essence, the Nardellis presented substantial evi-
hour for all repairs, but Earnhardt charged approxi- dence that could have caused the jury to find, first,
mately $73–per–hour for mechanical work, and Proctor the Explorer could not be repaired to pre-loss con-
acknowledged he knew MetLife would have to pay the dition, second, MetLife ignored other information
higher labor rate if Earnhardt repaired the Explorer.6 Thus, the Explorer was coming close to a total loss, and
even the $13,000 figure may have been too low. Indeed, third, MetLife failed to investigate a salvage bid to
from this evidence the jury could have determined that, determine exactly how “close” was close. From this
on October 29, 2002, when MetLife firmly rejected evidence, a reasonable jury could conclude it was
the Nardellis’ request that it total the Explorer, repair objectively unreasonable, under these circumstances,
and labor costs ranged from a low of $13,000 to over for MetLife to insist on repairing the Explorer.
$16,0007—from 53% to 65% of the actual cash value This brings us to the subjective requirement for a
of the Explorer. The jury could have also determined bad-faith claim. Did the Nardellis present evidence from
the repair costs would have been even greater because which the jury could reasonably find MetLife knew its
of the additional repairs that, at least, the first sub- conduct was unreasonable or acted with such reckless
sequent owner had to make and were, as discussed disregard that such knowledge can be imputed to it?
above, see supra ¶ 25, described as consistent with the Internally, MetLife employees acknowledged that,
type of damages suffered by a “theft recovery.” Thus, with recovered thefts, “as we get into the actual repair
at the high end, repair costs were approaching 75% of process with the shop, then we find other things that
the actual cash value of the Explorer and, according to we’re not aware of,” because “[w]e don’t know ...
MetLife’s own internal policies—as described by Proc- exactly what happened to the [vehicle] while it’s missing
tor—MetLife should have “start[ed] thinking differently” from our policyholder’s possession. No one knows that
about the Explorer, considered whether it might be a for sure,” and they expected to pay what they character-
total loss, and investigated a salvage bid. ized as “supplements,” that is, additional costs incurred
Yet, in adjusting the Nardellis’ claim, MetLife never to repair the Explorer. MetLife classified recovered
obtained a salvage bid, insisting it would only do so if thefts on an internal worksheet as a special category
the repair costs were close to 75% of the actual cash of “possible total losses,” and a MetLife claims man-
value of the Explorer. Although a MetLife claims depart- ager agreed “these are situations where [MetLife] feels
ment manager testified salvage bids were usually somebody needs to take a look at these particular ele-
approximately 25% of the actual cash value, Mike and ments without regard to dollar value.”
the Nardellis’ insurance expert both testified a salvage Further, Ken Nardelli testified Proctor told him he
bid in this case would have been higher than the aver- would obtain a salvage bid and, although Proctor testi-
age salvage bid because the Explorer was a “current fied, “I don’t know if I promised,” he acknowledged he
model year.” Thus, at the time MetLife made its final “might have said [he would] look into it,” but never did.
MetLife claims manager Woolley also testified if MetLife
employees had a reason to think they might have been
5 Consistent with Mike’s estimate, the Nardellis’ engineering
expert testified a new engine would have cost $4,614.75. For rea- dealing with a total loss, a salvage bid “would probably
sons no witness could explain with any certainty, Earnhardt installed be something that would be of value.”
a remanufactured engine, which cost $2,884. Although the parties Thus, the Nardellis also presented substantial
presented conflicting evidence about the cost of an engine for the evidence from which reasonable jurors could find
Explorer, it was up to the jury to decide this issue.
MetLife knew the Explorer was close to a total loss
6 Proctor’s estimate included 19.2 hours of “mechanical” labor.
and repairs would be ongoing, ignored the full range
Thus, at $40–per–hour the mechanical labor costs for this estimate
were $768, but would have been $1,401 at Earnhardt’s $73–per–hour of available information about the amount of damage
rate—a difference of $633. to the Explorer, acknowledged a salvage bid would
(continued)
be useful in calculating whether it should total but never testimony, the jury could have reasonably concluded
obtained one, and acted subjectively unreasonably MetLife issued this check “[k]nowing that [the Nar-
in refusing to total. As Zilisch teaches, the duty of “[e] dellis] disagreed with the decision to repair” and to
qual consideration of the insured requires more” than “force[ ] that decision.” At trial, Woolley acknowledged
this type of investigation and evaluation. 196 Ariz. at MetLife knew, on October 29, 2002, the Nardellis
238, ¶¶ 21, 23, 995 P.2d at 280. did not want to authorize repairs, and other MetLife
The Check employees acknowledged they anticipated the lender
As described above, on October 31, 2002, MetLife would want the Explorer repaired. On direct exam-
mailed a $10,759.13 check to the Nardellis after it ination, claims manager Oyler testified that when he
decided it would pay to have the Explorer repaired. spoke to Ken Nardelli on October 29, 2002, “Mr. Nar-
Under the Nardellis’ policy, as explained by MetLife delli made it clear he didn’t want the vehicle,” and
employees at trial, MetLife was entitled to “pay for the added, “I knew he had a lienholder .... the lienholder is
loss in money,” but if it did so, it was required to pay the probably going to make him repair the vehicle.”9
Nardellis the full amount needed to repair the Explorer Thus, the Nardellis presented substantial evidence
to pre-loss condition. But the check MetLife sent to the from which a reasonable jury could have found it
Nardellis was not for the full amount of the repair costs. was objectively unreasonable to send the Nardellis a
First, MetLife employees, asserting it was standard check that did not cover all repair costs and MetLife
practice, admitted they knew at the time they sent subjectively knew it was unreasonable yet did so to
the check to the Nardellis that it only covered a labor force the Nardellis to authorize repairs and abandon
rate which was approximately $30–per–hour less than their claim the Explorer should be declared a total loss.
the mechanical labor rate Earnhardt had estimated and
Failure to Advise of Policy Provisions
ultimately charged, see supra ¶ 29.8
Second, although MetLife presented testimony The Nardellis also presented evidence MetLife failed to
Proctor told the Nardellis Met Life would pay supple- advise them of two policy provisions that could have
ments after the check, Ken Nardelli, as discussed, provided them with additional benefits.
testified to the contrary. He testified MetLife manager The first provision, an endorsement known as
Maurer told him “[MetLife’s] obligations were met, and the “V550,” generally provided additional benefits to
they were finished with it.” the Nardellis if they had experienced a total loss.10
Third, MetLife employees admitted they knew The V550 applied if, in the event of a total loss, the
that if the Nardellis accepted the check and decided Explorer was less than one year old and had fewer than
not to repair they would never receive the full repair 15,000 miles as of the date of the theft…
costs. Further, Woolley admitted she never called Proc- Thus, a reasonable jury could find MetLife had not
tor and asked him about the possible range of supple- taken any steps to advise the Nardellis about the V550,
ments before sending the check to the Nardellis. even though, based on the information MetLife had
Finally, MetLife submitted the check with joint pay- received from the Nardellis, the V550 was in play…
ees—the Nardellis and the Nardellis’ lender—antici-
pating the lender would force the Nardellis to authorize 9 On cross-examination, Oyler softened this testimony and dis-
repairs. We acknowledge that if MetLife chose the agreed MetLife was trying to force the Nardellis’ hand, testifying, “I
repair option, the Nardellis’ policy required it to issue don’t think I said that they would have no choice to repair. I antici-
pated that they probably would have repaired the vehicle.” It was up
the check to both the Nardellis and their lender. As the
to the jury to assess his testimony.
Nardellis argue, however, given MetLife’s employees’
10 Although the parties presented confusing and conflicting expla-
nations of the exact nature of the benefits this endorsement added,
suffice it to say, according to the Nardellis’ insurance expert, under
8 Despite knowing Earnhardt’s mechanical labor rate was $73– the V550 MetLife was required to replace the Explorer with a simi-
per–hour, MetLife issued the check based on Proctor’s October lar brand-new vehicle or, if possible, repair to brand-new condition. A
25 estimate, which, as discussed, used the rate of $40–per–hour, MetLife employee testified the added benefit was that MetLife would
although Proctor insisted he would have changed the rate after replace with a new vehicle or repair under the terms of the basic pol-
Earnhardt made the repairs. Earnhardt ultimately charged two dif- icy, but without taking depreciation into account as the basic policy
ferent labor rates for different mechanical work—$73–per–hour and would. Under either scenario the benefits were greater than those in
$68.75–per–hour. the basic policy.
(continued)
The second provision MetLife failed to advise the “BASICS OF CLAIM HANDLING,” that claims handlers
Nardellis of was an appraisal provision. Under the pro- should “[t]imely ... [a]dvise insured of contract right
vision, each party could trigger an appraisal process to e.g. Appraisal.”
determine the amount of loss… Thus, MetLife’s argument it had no duty at all to
Despite the foregoing, MetLife argues it had “no advise the Nardellis of these two policy provisions is
duty to point out the two policy provisions [to the Nar- undercut by its own employees’ testimony at trial and
dellis] in the first place,” citing Chase v. Blue Cross its internal training manuals…
of Cal., 42 Cal.App.4th 1142, 50 Cal.Rptr.2d 178, Therefore, because substantial evidence permitted
186–87 (1996) (insured could not avoid arbitration the jury to find MetLife breached the implied covenant
when policy, brochures, and multiple letters contained of good faith and fair dealing, we affirm the superior
clear arbitration clause); Mt. Hawley Ins. Co. v. Fed. court’s denial of MetLife’s motion for judgment as a
Sav. & Loan Ins. Co., 695 F.Supp. 469, 480–81 (C.D. matter of law on bad-faith liability.
Cal.1987) (sophisticated party could not later use
C. Punitive Damages—Entitlement
clear, unambiguous discovery clause—which would
have permitted it to extend policy past expiration— As discussed, the superior court denied MetLife’s
by claiming it was unaware of the clause). In each of motions for judgment as a matter of law on puni-
these cases, the court held the insured was bound tive damages, thus finding the Nardellis presented
by clear policy provisions. Accordingly, these cases clear and convincing evidence they were entitled
are distinguishable, and MetLife’s reliance on them is to punitive damages. On appeal, MetLife attacks the
misplaced.18 superior court’s rulings on these motions and asserts
While we acknowledge an insurer is not required clear and convincing evidence did not support the
to explain every fact and provision without limita- jury’s finding the Nardellis were entitled to puni-
tion, see Twaite v. Allstate Ins. Co., 216 Cal.App.3d tive damages. Again, we disagree with MetLife.
239, 264 Cal.Rptr. 598 (1989) (insurer did not breach To recover punitive damages, the plaintiff must
duty of good faith and fair dealing when it offered “show ‘something more’ than the conduct necessary to
to buy insured a new vehicle, insured refused and establish the tort” of bad faith. Thompson v. Better–Bilt
accepted payment for actual cash value without Aluminum Prods. Co., 171 Ariz. 550, 556, 832 P.2d 203,
raising any dispute, then later argued insurer should 209 (1992)…
have advised him of right to appraisal), the duty of Thus, we exercise “exacting” discretion and apply
good faith encompasses some obligation to inform our “combined experience and judgment” to our care-
the insured about the extent of coverage and his or ful de novo review of constitutional principles and
her rights under the policy and to do so in a way that the record and are convinced a 1:1 ratio is appropri-
is not misleading… ate. Id. at ¶ 108 (internal quotation omitted). In mak-
At trial, Woolley acknowledged, “we all know that ing this determination, we review the evidence using
people don’t look that closely at their policies,” and the three guideposts identified by the United States
Woolley and Oyler both admitted MetLife should have Supreme Court: “(1) the degree of reprehensibility of
alerted the Nardellis to both provisions if they applied. the defendant’s misconduct; (2) the disparity between
Indeed, MetLife’s own 2001–2002 “Good Faith Train- the actual or potential harm suffered by the plaintiff
ing Scripts” taught, under a section *604 **801 titled and the punitive damages award; and (3) the difference
between the punitive damages awarded by the jury and
18 Cf. Sarchett v. Blue Shield of Cal., 43 Cal.3d 1, 233 Cal.Rptr. 76,
the civil penalties authorized or imposed in compara-
729 P.2d 267, 276–77 (1987) (affirming directed verdict on bad faith ble cases.” Id. (quoting State Farm Mut. Auto. Ins. Co.
when insurer failed to apprise insured of arbitration provision; court v. Campbell, 538 U.S. 408, 418, 123 S.Ct. 1513, 1520,
must hold insured to clear and conspicuous policy provisions even if 155 L.Ed.2d 585 (2003)).
evidence suggests insured did not read or understand them, but, “[o]
nce it becomes clear to the insurer that its insured disputes its denial A. Reprehensibility
of coverage ... the duty of good faith does not permit the insurer pas-
sively to assume that its insured is aware of his rights under the pol-
To analyze reprehensibility, we consider whether:
icy. The insurer must instead take affirmative steps to make sure that the harm caused was physical as opposed to eco-
the insured is informed of his remedial rights”) nomic; the tortious conduct evinced an indifference to
(continued)
or a reckless disregard of the health or safety of others; reprehensibility scale as described in Hudgins, 221
the target of the conduct had financial vulnerability; the Ariz. at 490, ¶¶ 52–55, 212 P.3d at 828…
conduct involved repeated actions or was an isolated Conclusion Regarding the Amount of Punitive
incident; and the harm was the result of intentional mal- Damages
ice, trickery, or deceit, or mere accident. Id. at 501, ¶ As we have acknowledged in other cases, “[s]etting
95, 200 P.3d at 998 (quoting Campbell, 538 U.S. at 419, the proper amount of punitive damages is challeng-
123 S.Ct. at 1521). ing.” Hudgins, 221 Ariz. at 492, ¶ 65, 212 P.3d at
Here, although the harm to the Nardellis resulting 830 (citing Pope, 219 Ariz. at 504, ¶ 107, 200 P.3d
from MetLife’s decision to repair was significant, it at 1001).
was largely economic. The Nardellis presented evi- On the record presented here, the reprehensibility of
dence MetLife’s handling of the claim aggravated MetLife’s misconduct was low to, at most, moderate.
Ken Nardelli’s pre-existing mental health conditions, The ratio of the punitive damages to the substantial
but did not present any evidence MetLife knew of compensatory damages was large, and the most
these conditions or acted knowing it would aggravate applicable civil penalties are far less than the puni-
them… tive damages awarded. Based on our exercise of
Here, we cannot say MetLife’s conduct was an judgment assessing the three guideposts identified
“isolated incident,” but we can say the Nardellis did by the United States Supreme Court, we conclude
not present evidence MetLife’s actions were part the $55 million in punitive damages awarded by
of a pattern of longstanding duration. The Nardellis the jury was unconstitutionally excessive. Although
showed saving money was an initiative MetLife sought the superior court reduced the punitive damages
to instill in every employee’s mind regarding every to $620,000 (a 4:1 ratio to the compensatory dam-
decision, see supra ¶¶ 64–73. Nevertheless, unlike ages), the record does not justify awarding punitive
the insurer in Hawkins, see infra ¶ 98, MetLife did damages at a ratio above 1:1 ($155,000). Thus, we
not engage in a longstanding premeditated pattern vacate the judgment of punitive damages entered
of “established company policy” in which it explicitly by the superior court and on remand direct it to
instructed its employees to automatically make pre- enter judgment awarding the Nardellis $155,000
determined arbitrary deductions and adjustments in in punitive damages.
valuing property losses. 152 Ariz. at 495, 502, 733
CONCLUSION
P.2d at 1078, 1085.
Finally, the Nardellis presented evidence that the For the foregoing reasons, we affirm the superior
way MetLife resolved their claim under the policy was court’s denial of MetLife’s motions for judgment as
not the result of “mere accident” and involved what a matter of law on bad-faith liability and the Nardel-
could be characterized as “affirmative acts”—see lis’ entitlement to punitive damages. We vacate that
prior discussion regarding appraisal and endorse- portion of the superior court’s judgment reducing
ment provisions at section I A iii supra—coupled with, the punitive damages to $620,000 and further reduce
as the superior court put it, its “desire to put profits the punitive damages to $155,000.
over the fiduciary duty they owed their insured,” see Finally, as discussed in our simultaneously issued
supra section I C… memorandum decision, we remand to the superior
Thus, considering all the evidence and looking at court to determine the accrual of post-judgment inter-
all the pertinent factors, we find MetLife’s misconduct est and enter an amended judgment consistent with
falls within the low to, at most, the middle range of the this opinion and our memorandum decision.
Damages—Third-Party Claims
The amount of damages to be awarded in third- the insured has incurred in pursuing the claim
party cases is based on four factors: (1) the amount against the insurer; (3) the emotional distress, if any,
of judgment entered against the insured in excess suffered by the insured; and (4) any other monetary
of the policy limits (i.e., the amount the insured loss or damage to the insured’s credit or reputation
must pay out of his own pocket); (2) the legal fees (see Exhibit 18–2).
Exhibit 18–2 Damage Factors—Third-Party Claim faith lawsuit to be used by the insurer to justify its
prior actions. Suppose an insurer denies coverage
• Amount of judgment entered against insured but never investigates the claim. That insurer usually
in excess of insured’s policy limits cannot later submit evidence supporting its denial
• Legal fees incurred by insured of coverage if it finds this evidence by virtue of an
• Emotional distress suffered by insured investigation conducted after the insured files a bad
• Monetary loss or damaged credit reputation faith suit.
of insured An additional basis for bad faith in first-party
cases involves fraudulent or harassing practices by
the carrier. In some states violation of state statutes
If the insurer’s actions have been sufficiently governing unfair claim-settlement procedures can
egregious, punitive damages might also be avail- result in claims for bad faith.
able. Punitive damages are intended to prevent
similar misconduct in the future rather than to Damages—First-Party Claims
compensate the plaintiff. Therefore, the amount of Determining the amount to be paid in first-party
punitive damages to be awarded is based on the cases entails consideration of elements similar to
financial condition of the insurer and the degree of those used in third-party claims (see Exhibit 18–3).
its misconduct rather than the impact of its miscon- The major difference is that first-party claims involve
duct on the insured. Because the insurance business the loss of unpaid benefits, whereas third-party
is often very lucrative, a plaintiff asking for relatively claims involve an excess judgment. Unpaid benefits
small actual damages may seek punitive damages in include the insured’s loss of the benefit of the bar-
the millions of dollars range. gain, any resulting consequential damages, and lost
interest on the unpaid amount due the insured.
Resolution of First-Party Claims In many cases, such as those involving health or
disability insurance claims, wrongful denial results in
A first-party bad faith case is more straightforward
not only the insured’s inability to pay bills but also
than a third-party case because only two parties are
the loss of their family’s credit rating. If such losses
involved. In a first-party bad faith case the insured
can be proved to stem from the wrongful acts of
is denied the benefits of their contract with their
the insurer, they also can be recovered. Care must
insurer due to the insurer’s failure to deal with them
be taken, however, in evaluating losses alleged to
fairly and in good faith. An insurer acts in bad faith
have occurred as a result of the insurer’s bad faith.
by either failing to investigate a claim made by the
Asking a jury to stretch its concept of proximate
insured or by inadequately investigating a claim. If
cause may result in a backlash against the insured if
coverage is denied as a result, or if an unreasonably
they are perceived as overreaching.
low evaluation of the damages is made, a claim for
bad faith will lie.
An insurance carrier’s delay tactics in investigat-
Exhibit 18–3 Damage Factors—First-Party Claim
ing and evaluating a claim can also lead to bad faith.
A carrier obviously benefits financially by delaying • Unpaid benefits of policy
payment of a claim as long as possible. Such a delay • Legal fees incurred by insured
allows the carrier to obtain the maximum benefits of • Lost interest on unpaid amount due insured
its investment of the insured’s premium. • Emotional distress suffered by insured
Because an insurer is obligated to properly • Any other financial losses of insured caused as
investigate its insured’s claim, many courts refuse to a result of insurer’s bad faith
allow information obtained after the filing of a bad
In the News
An interesting article on third-party bad faith cases can be found by using “third-party bad faith” as your
search term.
Standards Used to Determine Bad Local Links

Faith What are the standards used by the courts
An insured is often exposed to lesser risk in first-party of your state to determine if bad faith has
bad faith cases than in third-party matters. In first- occurred?
party cases the insurer does not have sole control of
litigation relating to the insured’s potential liability,
Because in third-party situations the insured has
which it has in third-party cases. Additionally, in first-
almost no control over the processing of the claim
party cases the insured makes their claim directly in
against them, most courts have held the insurer to
their own name and does not face losses in excess of
a higher standard of care. The courts go beyond
their policy limits.
asking whether an insurer’s position was fairly debat-
Because of these differences, many courts use
able. Many inquire whether the insurer gave as much
a different standard in a first-party case than in a
consideration to its insured’s interests as it did to its
third-party case to determine whether bad faith
own (the “equal consideration” test).
has been committed. In first-party situations the
Although the equal-consideration test varies
standard is based on the reasonableness of the
somewhat from jurisdiction to jurisdiction, the con-
insurer’s position. Some courts consider denial of a
cept is illustrated in General Accident Fire & Life
claim reasonable (and therefore not in bad faith) if
Assurance Corp. v. Little, 443 P.2d 690 (Ariz. 1968).
the claim is “fairly debatable.” Some courts require
Eight factors deemed important to the Little court in
a showing of more than mere negligent conduct
before they will find that an insurer acted in bad
faith. For those courts an unintentional mistake, Local Links
oversight, or carelessness of an insurer’s employee What is the difference in the standard for bad
does not constitute bad faith even though a jury, faith in a first-party action versus in a third-
with hindsight, could objectively determine that the party action in your state?
carrier’s actions were unreasonable.

Refer to the hypothetical scenario at the beginning of this chapter in answering these questions.
1. Does Jerry have a third-party claim? Against whom?

2. Does Jerry have a first-party claim? What portions of his automobile insurance policy would it be covered
under?
3. Why might Dick’s carrier initially defend him from any claim by Jerry under a reservation of rights? Could
a bad faith claim be made if an insurer sent out a reservation of rights letter to an insured without first
investigating the claim?
4. Assume the insurer alleges that it investigated the accident but was unable to determine its exact loca-
tion because all of the witnesses had been drinking and the accident occurred in the evening. Would that
change your opinion about the viability of a breach of contract claim? Bad faith?
5. Does the existence of a map, distributed by the insurer, affect your analysis?
6. How reasonable would it be for Dick’s attorney to argue that nautical rather than statute miles should be
used to determine the extent of coverage?
7. Would proof that Jerry had been given a copy of the map and coverage area when he purchased his pol-
icy affect your decision?
8. What if the standard usage for “miles” by all competing insurers was nautical, would that affect your
decision?
Case
Scottsdale Insurance Company v. Addison Insurance Company
448 S.W.3d 81 (Missouri 2014)
BRECKINRIDGE, Judge
Wells Trucking, Inc., and its excess insurer, Scottsdale At the time of the accident, Wells Trucking had a
Insurance Company, filed suit against Wells Trucking’s primary insurance policy with United Fire that had a
primary insurer, United Fire & Casualty Company and liability limit of $1 million. Wells Trucking also had an
its wholly owned subsidiary, Addison Insurance Com- excess insurance policy with Scottsdale with a liability
pany, (collectively United Fire), asserting United Fire limit of $2 million. The Scottsdale policy specified
acted in bad faith in refusing to settle within its policy that it would not apply unless and until the underly-
limits a wrongful death action against Wells Truck- ing United Fire policy was exhausted. The Scottsdale
ing. Scottsdale pleaded alternative theories allowing it policy also provided that if Wells Trucking had any rights
to raise the bad faith refusal to settle claim, including: to recover any payment Scottsdale made under the
(1) assignment from Wells Trucking; (2) conventional policy, those rights would be transferred to Scottsdale.
subrogation; (3) equitable subrogation; and (4) a duty of The decedent was survived by his wife and two chil-
good faith owed directly to Scottsdale. dren. After the accident, the decedent’s family and United
The trial court sustained United Fire’s motion for sum- Fire entered into negotiations to settle any claims the
mary judgment on Wells Trucking’s and Scottsdale’s decedent’s family might have against Wells Trucking and
claims, finding that an excess insurer cannot recover the employee involved in the accident. The decedent’s
from a primary insurer under a claim of bad faith refusal family eventually filed a wrongful death lawsuit against
to settle and that bad faith refusal to settle could not be Wells Trucking and the employee, but settlement nego-
proven because United Fire settled the claim against tiations continued. In October 2009, United Fire, Scotts-
Wells Trucking and paid its policy limits and Wells dale, and the decedent’s family participated in mediation,
Trucking did not suffer an excess judgment. On appeal, which resulted in United Fire and Scottsdale each ten-
this Court finds that an insurer’s ultimate settlement dering $1 million to settle the case for a total of $2 million.
for its policy limits does not negate the insurer’s ear- Wells Trucking then assigned to Scottsdale its rights
lier bad faith refusal to settle and that an excess judg- to pursue a bad faith refusal to settle claim against
ment is not essential to a bad faith refusal to settle action. United Fire and agreed to pursue a bad faith fail-
Therefore, because United Fire failed to negate essential ure to settle claim for the benefit of Scottsdale.
elements of a bad faith refusal to settle action, it was not Wells Trucking and Scottsdale filed suit against
entitled to judgment against Wells Trucking. United Fire United Fire for bad faith refusal to settle. Scottsdale
was also not entitled to judgment against Scottsdale raised five alternative theories by which it could bring
because Scottsdale could pursue Wells Trucking’s a bad faith refusal to settle claim: its assignment from
claim for bad faith refusal to settle under the theories of Wells Trucking; conventional subrogation;1 equitable
assignment, conventional subrogation, and equitable subrogation; breach of United Fire’s direct duty of good
subrogation. The judgment is reversed, and the case is faith to Scottsdale; and as a third-party beneficiary of
remanded. the United Fire policy. Wells Trucking and Scottsdale
also asserted that United Fire committed a prima facie
Factual and Procedural Background
tort and requested a declaratory judgment…
In August 2007, a Wells Trucking employee was operating On August 30, 2012, United Fire filed a motion for
a truck pulling a flatbed trailer when he was involved in summary judgment on all counts in Wells Trucking
an automobile accident that resulted in the death of and Scottsdale’s petition. In its suggestions in support of
another motorist. An accident reconstruction report pre- summary judgment, United Fire asserted that Scottsdale,
pared by the Missouri State Highway Patrol identified
multiple factors that contributed to the accident, including
1 Scottsdale and Wells Trucking’s petition labeled this doctrine
the employee’s speed, the employee’s failure to drive in as “contractual subrogation,” but it is more commonly referred to as
the proper lane, and the decedent’s failure to yield to the “conventional subrogation.” See Missouri. Pub. Entity Risk Mgmt.
employee’s right of way. Fund v. Am. Cas. Co. of Reading, 399 S.W.3d 68, 74 (Mo.App.2013).
(continued)
Case | Scottsdale Insurance Company v. Addison Insurance Company (continued)

as an excess carrier, could not bring a bad faith refusal because Missouri law permits an excess insurer to sue
to settle claim on its own or through Wells Trucking. It a primary insurer for bad faith refusal to settle under the
further asserted that Scottsdale and Wells Trucking theories of assignment, conventional subrogation, equi-
could not establish all the elements of a bad faith refusal table subrogation, and a direct duty of good faith from
to settle claim because United Fire did settle the wrong- primary insurers to excess insurers; (2) the trial court
ful death claim within its policy limits and because Wells erred in granting summary judgment because United
Trucking never suffered an excess judgment. Fire did not show it was entitled to judgment as a matter
The deadline for filing a response to the summary of law based on facts supported by “legally cognizable
judgment motion under Rule 74.04(c)(2) was October evidence”; (3) the trial court erred in failing to recognize
1, 2012.2 Wells Trucking and Scottsdale did not file a its authority to enlarge the time to respond to a sum-
response by the deadline or seek leave from the court mary judgment motion due to excusable neglect; and
to file a response beyond the deadline. Instead, Wells (4) the trial court erred in not treating Wells Trucking and
Trucking and Scottsdale twice obtained consent from Scottsdale’s motion for reconsideration as a motion for
United Fire to extend the deadline for filing a response relief from a judgment due to excusable neglect.3
and filed with the trial court memorandums reflecting
Untimely Response to Summary Judgment Motion
United Fire’s consent to the extensions. The first mem-
orandum was filed on October 2, and the second was Because Wells Trucking and Scottsdale’s fourth point
filed on October 5. Wells Trucking and Scottsdale filed relied on affects the scope of the record for summary
their response on October 11. judgment, it will be considered first. Wells Trucking
On November 1, the trial court entered an interlocu- and Scottsdale assert that the trial court erred in fail-
tory order finding that Wells Trucking and Scottsdale’s ing to recognize its authority to enlarge the time for
response to United Fire’s summary judgment motion Wells Trucking and Scottsdale to respond to United
was untimely. It deemed all allegations in United Fire’s Fire’s summary judgment motion and in not treating
summary judgment motion admitted, pursuant to Rule their motion for reconsideration of its interlocutory
74.04(c)(2), and directed United Fire to submit a pro- order as a motion for relief from the late filing of their
posed form of judgment. response due to excusable neglect. A court’s decision
Wells Trucking and Scottsdale filed a motion for on a party’s request for additional time is reviewed for
reconsideration of the interlocutory order in which they an abuse of discretion. Crabtree v. Bugby, 967 S.W.2d
asserted the trial court should have exercised its dis- 66, 72 (Mo. banc 1998), overruled on other grounds by
cretion under Rule 44.01(b) to enlarge the time for them Templemire v. W & M Welding, Inc., 433 S.W.3d 371,
to file a response to United Fire’s motion for summary 373 (Mo. banc 2014).
judgment. They further asserted that summary judg- In its judgment, the trial court found “that the
ment should be denied because, in its motion for sum- requirements in Rule 74.04(c)(2) are mandatory” and
mary judgment, United Fire relied solely on allegations that Wells Trucking and Scottsdale “never requested
in Wells Trucking and Scottsdale’s petition instead of an extension of time to file [their] response[ ] ... until
producing legally cognizable evidence. Wells Trucking doing so orally on Dec. 4, 2012, during the hearing
and Scottsdale also raised a variety of objections to on [their] motion for Reconsideration.” The court then
United Fire’s proposed form of judgment… declined to enlarge the time period for Wells Trucking
Wells Trucking and Scottsdale appealed. After an and Scottsdale to respond, stating that the court had
opinion by the court of appeals, the case was trans- no authority to do so.
ferred to this Court. Mo. Const. art. V, sec. 10. Wells The trial court misstated the law when it found it had
Trucking and Scottsdale assert four points on appeal: no authority to enlarge the period for Wells Trucking
(1) the trial court erred in granting summary judgment and Scottsdale to respond. Rule 74.04(c)(2) requires
the non-moving party to file a response to the summary
2 In its interlocutory order finding Wells Trucking and Scotts-

dale’s response to United Fire’s summary judgment motion untimely, 3 Scottsdale and Wells Trucking do not assert on appeal that the
the court stated that the response was due on September 29, 2012. trial court erred in granting summary judgment on their prima facie tort
Because that day fell on a Saturday, the deadline was the following claim, their claim for declaratory judgment, or Scottsdale’s claim that
Monday, October 1, 2012. See Rule 44.01(a). it was a third-party beneficiary.
(continued)

judgment motion within 30 days. There is another rule, This Court first recognized a bad faith refusal to set-
however, that gives the trial court authority to expand tle action in Zumwalt v. Utilities Insurance Co., stating:
the time period. Rule 44.01(b) provides: [W]here the insurer in a liability policy reserves the
When by these rules or by a notice given thereunder exclusive right to contest or settle any claim brought
or by order of court an act is required or allowed to against the insured, and prohibits him from voluntarily
be done at or within a specified time, the court for assuming any liability or settling any claims without
cause shown may at any time in its discretion (1) with the insurer’s consent, except at his own costs, and
or without motion or notice order the period enlarged the provisions of the policy provide that the insurer
if request therefor is made before the expiration of may compromise or settle such a claim within the pol-
the period originally prescribed or as extended by a icy limits, no action will lie against the insurer for the
previous order or (2) upon notice and motion made amount of the judgment recovered against the insured
after the expiration of the specified period permit the in excess of the policy limits, unless the insurer is guilty
act to be done where the failure to act was the result of fraud or bad faith in refusing to settle a claim within
of excusable neglect; but it may not extend the time the limits of the policy…
for taking any action under Rules 52.13, 72.01, 73.01, For the purpose of damages, United Fire argues
75.01, 78.04, 81.04, 81.07, and 84.035 or for com- that Zumwalt and other Missouri cases require that
mencing civil action… there be a judgment against the insured for an amount
Nevertheless, once the original time period has in excess of the policy limits. United Fire notes lan-
expired, there must be a motion upon which the court guage in Zumwalt stating that where a bad faith refusal
can act. Rule 44.04(b). The trial court found that Wells to settle action lies, the insurer will be liable “for the
Trucking and Scottsdale did not request an exten- amount of the judgment recovered against the insured
sion of time until it did so orally at the hearing on their in excess of the policy limits.” Id. In making this
motion to reconsider… statement, the Court was ruling on the facts of that
United Fire Failed to Negate Essential Elements case because the plaintiff in Zumwalt was seeking to
of Bad Faith Refusal to Settle Claim. Despite Wells recover the amount of the excess judgment as its dam-
Trucking and Scottsdale’s failure to respond timely, ages. Id. at 752. Similarly, in other cases discussing an
United Fire bore the burden of showing that it was insurer’s liability for the excess judgment, there was
entitled to summary judgment. See DeBaliviere Place an excess judgment against the insured. See Shobe
Ass’n v. Veal, 337 S.W.3d 670, 674 (Mo. banc 2011). v. Kelly, 279 S.W.3d 203, 207 (Mo.App.2009). United
Summary judgment is appropriate only when the mov- Fire interprets the holdings of these cases to require an
ing party demonstrates there is no genuine dispute excess judgment rather than as ruling on the facts of
regarding material facts and, under the undisputed damages present in those cases.
facts, the moving party is entitled to judgment as a This Court has described bad faith as “the inten-
matter of law. Rule 74.04(c)(6); ITT Commercial Fin. tional disregard of the financial interest of [the] insured
Corp. v. Mid–Am. Marine Supply Corp., 854 S.W.2d in the hope of escaping the responsibility imposed
371, 380 (Mo. banc 1993)… upon [the insurer] by its policy.” Zumwalt, 228 S.W.2d at
In its motion for summary judgment, United Fire 754 (emphasis added). The insurer’s duty is to protect
asserted that Wells Trucking and Scottsdale could not the insured’s financial interests, which are impacted by
prove a bad faith refusal to settle claim because the an insurer’s breach of duty whether the breach results in
essential elements of the claim were not met. Specif- an excess judgment or an excess settlement. Requiring
ically, United Fire asserted that because it ultimately an excess judgment would force the insured to go to
tendered its $1 million policy limits to settle the claim trial after its insurer wrongfully refuses to settle instead
against Wells Trucking, Wells Trucking and Scottsdale of permitting the insured to protect itself from further
could not prove that United Fire refused to settle or liability by settling…
that it acted in bad faith and, because the wrongful Further, an insurer’s obligation to act in good faith
death action was settled, United Fire and Scottsdale when settling a third-party claim is part of what the
could not prove that Wells Trucking suffered an excess insured pays for with its premiums. Truck Ins. Exch., 162
judgment… S.W.3d at 93. “When the insurer refuses to settle, the
(continued)

insured loses the benefit of an important obligation even where the opposing party has failed to file an
owed by the insurer.” Id. This loss is suffered regardless appropriate response.” Labor Disc. Ctr., Inc. v. State
of whether there is an excess judgment or settlement. Bank & Trust Co. of Wellston, 526 S.W.2d 407, 429
Therefore, an excess judgment is not required to main- (Mo.App.1975). Because the uncontroverted facts in
tain an action against an insurer for bad faith refusal United Fire’s summary judgment motion do not show
to settle. that Wells Trucking would be unable to prove the
Just as the absence of an excess judgment is not essential elements of a bad faith refusal to settle the
fatal to a bad faith refusal to settle action, neither is action, United Fire was not entitled to judgment as a
United Fire’s ultimate settlement for its policy lim- matter of law.
its. In its motion, United Fire argued that United Fire’s
Scottsdale May Pursue a Bad Faith Refusal
tendering of $1 million at the mediation negates the
to Settle Claim
required elements that it refused to settle and that it
acted in bad faith. United Fire’s argument misses the While Wells Trucking, as the insured, has a claim against
point. A bad faith refusal to settle action arises from an United Fire for bad faith refusal to settle, the remaining
insurer’s breach of its duty to settle third-party claims question is whether Scottsdale also can assert such
in good faith. Shobe, 279 S.W.3d at 209. An insurer a claim. In its motion for summary judgment, United
“may be liable over and above its policy limits if it acts Fire asserted Scottsdale was unable to prove the ele-
in bad faith ... in refusing to settle the claim against its ments of a cause of action for bad faith refusal to settle
insured within its policy limits when it has a chance to because Missouri law does not recognize an action
do so.” Landie, 390 S.W.2d at 563 (emphasis added). for bad faith refusal to settle between a primary insurer
The crux of Wells Trucking’s and Scottsdale’s and an excess insurer.
claims is that United Fire had numerous opportunities It is well established that an insurer owes to its
to fully settle the wrongful death claim against Wells insured a duty to act in good faith in settling a claim
Trucking for United Fire’s policy limits of $1 million against the insured and that the insurer may be liable
but that United Fire wrongfully refused to do so. Wells to the insured when it breaches this duty. Zumwalt, 228
Trucking and Scottsdale have claimed that it was not S.W.2d at 753. When an insured has a policy provid-
until after United Fire acted in bad faith in refusing ing excess coverage, however, the excess insurer may
to settle that United Fire finally agreed to tender its be obligated to pay the excess judgment or settlement
$1 million policy limits. By that time, however, the amount caused by the primary insurer’s bad faith refusal
decedent’s family would not settle for $1 million, and to settle…
United Fire’s $1 million policy limits could no longer
A. Assignment
fully settle the wrongful death claim. If, as Wells
Trucking and Scottsdale allege, United Fire’s failure Scottsdale asserts that it may bring a bad faith refusal
to act on the decedent’s family’s earlier settlement to settle claim because Wells Trucking assigned to
demands was in bad faith and caused Wells Trucking Scottsdale its right to bring a bad faith refusal
to lose its opportunity to fully settle the claim within to settle claim against United Fire. An action for
United Fire’s policy limits, United Fire should not bad faith refusal to settle is a tort. Id. at 756. “[C]hoses
be able to evade liability by later agreeing to pay its in action for torts may be assigned, provided they arise
policy limits… from wrongs causing injury to real or personal property,
While it is undisputed that United Fire ultimately or from frauds, deceits and other torts by which an
settled the claim against Wells Trucking for its pol- estate, real or personal, has been injured, diminished,
icy limits, Wells Trucking and Scottsdale’s petition or damaged.” State ex rel. Park Nat. Bank v. Globe
alleged that United Fire acted in bad faith in refusing Indem. Co., 332 Mo. 1089, 61 S.W.2d 733, 736 (1933).
to settle earlier, which United Fire did not negate in Conversely, actions “for torts for personal injuries,
its summary judgment motion. “[S]ummary judgment and for wrongs done to the person, the reputation, or
may not be granted in a case where the evidentiary the feelings of the injured party, and those based on
facts set forth in the matters supporting the motion contracts of a purely personal nature, such as promises
fail to negate a material issue raised by the pleadings, of marriage” are not assignable. Id.
(continued)

An insurer’s duty to act in good faith in settling C. Equitable Subrogation
third-party claims arises from the insurer’s reser-
In addition to its right to subrogation arising out of the
vation in the policy of the exclusive right to contest
insurance contract, Scottsdale asserts it has a right to
and settle third-party claims. Zumwalt, 228 S.W.2d at
equitable subrogation. “Subrogation exists to prevent
753. An action for the breach of that duty, while a tort,
unjust enrichment.” Keisker v. Farmer, 90 S.W.3d 71, 75
arises from a contract of insurance, which is not of a
(Mo. banc 2002). It is used:
purely personal nature. Therefore, a bad faith refusal
[W]henever the person making the payment stands
to settle action falls within the category of assignable
in such relations to the premises or to the other parties
torts. See Globe Indem., 61 S.W.2d at 736…
that his interests, recognized either by law or by equity,
Because an action for bad faith refusal is assign-
can only be fully protected and maintained by regarding
able and because Wells Trucking has an action
the transaction as an assignment to him, and the lien
of bad faith refusal to settle, Scottsdale may pursue
of the mortgage as being kept alive, either wholly or in
a bad faith refusal to settle claim under its assignment
part, for his security and benefit.
from Wells Trucking.
Anison, 282 S.W.2d at 503. Determination of whether
B. Conventional Subrogation a party has a right to equitable subrogation depends
on the facts of the case. Ethridge v. TierOne Bank, 226
Scottsdale also asserts that the trial court erred
S.W.3d 127, 134 (Mo. banc 2007)…
in concluding that an excess insurer cannot raise
Here, the question is whether an excess insurer
a bad faith refusal to settle claim against a primary
who pays a third-party claim on behalf of its insured
insurer by way of conventional subrogation. Subrogation
after a primary insurer refuses in bad faith to settle the
is the substitution of another in the place of a creditor “so
claim has a right to equitable subrogation to obtain the
that the party in whose favor subrogation is exercised
amount paid from the primary insurer. A right to equi-
succeeds to the rights of the creditor.” Messner v. Am.
table subrogation belongs to “one, not a volunteer,
Union Ins. Co., 119 S.W.3d 642, 648 (Mo.App.2003); see
who pays another’s debt, to recover the amount paid,
also 16 Couch 3d, section 222:5…
which in good conscience should be paid by the one
Scottsdale’s policy with Wells Trucking states:
primarily responsible for the loss.” Id. at 74 (quoting 4
If [Wells Trucking] has rights to recover all or part of
New Appleman Law of Liability Ins. sec. 42.01 (2012)).
any payment [Scottsdale has] made under this Cover-
Scottsdale paid $1 million to settle the claim against
age Part, those rights are transferred to [Scottsdale].
Wells Trucking. Scottsdale did not do so as a volunteer
[Wells Trucking] must do nothing after loss to impair
but because it was obligated to do so under its policy
them. At [Scottsdale’s] request, [Wells Trucking] will
with Wells Trucking. See id. at 75.
bring “suit” or transfer those rights to [Scottsdale] and
Additionally, good conscience requires that United
help [Scottsdale] enforce them.
Fire, not Scottsdale, be the party to suffer the loss. The
This provision grants Scottsdale a right to sub-
excess settlement amount was allegedly caused by
rogate any recovery by Wells Trucking of payment
United Fire’s bad faith. Normally, United Fire would face
Scottsdale made under the policy. There is nothing in
liability for this loss in an action brought by the insured
the nature of the relationship between primary insurer,
on its own behalf because United Fire breached its duty
the insured, and the excess insurer that precludes
to act in good faith. See Zumwalt, 228 S.W.2d at 753.
application of conventional subrogation. Because
An insurer’s duty to act in good faith does not simply
Scottsdale paid $1 million toward the settlement of
disappear when a prudent insured has obtained excess
the wrongful death claim under the policy, it has a
coverage. Regardless of the existence of an excess
right under the policy to recover that amount through
insurer, a primary insurer should be held liable when it
Wells Trucking and, therefore, is able to invoke the
acts in bad faith in refusing to settle within its policy
doctrine of conventional subrogation. See Anison
limits. Therefore, Scottsdale, as the party that actually
v. Rice, 282 S.W.2d 497, 504 (Mo.1955). The trial
paid the loss caused by United Fire’s bad faith, should
court erred in finding Scottsdale could not bring
be equitably subrogated to the rights of Wells Trucking
a bad faith refusal to settle claim under the doctrine
of conventional subrogation.
(continued)

and able to bring a bad faith refusal to settle action in and, therefore, might give excess insurers greater rights
the name of Wells Trucking.9 to recover than an insured. Truck Ins. Exch. of Farm-
ers Ins. Grp., 887 P.2d at 460. Because this Court finds
D. Direct Duty
that a bad faith refusal to settle action may be assigned
Lastly, Scottsdale invites this Court to recognize a cause and that an excess insurer may recover for an insurer’s
of action for breach of a primary insurer’s independent breach of its duty to the insured under contractual and
duty to settle in good faith to an excess insurer. The duty equitable subrogation, the Court declines to find pri-
to settle in good faith arises from the insurance con- mary insurers owe a duty directly to excess insurers.
tract between the insured and the insurer, Zumwalt, 228
Conclusion
S.W.2d at 753, but there is no contractual relationship
between primary and excess insurers. While an excess Because an excess judgment is not an essential element
insurer’s bad faith claim under equitable subrogation and because an insurer’s ultimate payment of its policy
subjects the excess insurer’s claim to any defenses the limits does not negate an earlier bad faith refusal to settle,
primary insurer could assert against the insured, a direct United Fire failed to show that it was entitled to judgment
cause of action between primary and excess insurers as matter of law on Wells Trucking’s bad faith refusal
would not necessarily be subject to those defenses to settle claim. United Fire also was not entitled to judg-
ment on Scottsdale’s bad faith refusal to settle claim
9 In Ethridge, this Court stated that equitable subrogation is “usually based on equitable subrogation because Scottsdale
allowed only in extreme cases bordering on if not reaching the level of could properly pursue Wells Trucking’s bad faith refusal
fraud.” 226 S.W.3d at 134 (internal quotations omitted). Ethridge was to settle claim under the theories of assignment, contrac-
not an insurance case but involved a lender who sought to place a tual subrogation, or equitable subrogation. Scottsdale
lien on proceeds from the sale of real estate. Id. Assuming, without
cannot, however, maintain a bad faith refusal to set-
deciding, that Ethridge applies in other contexts, application of equi-
table subrogation to allow an excess insurer to sue for bad faith refusal
tle claim based on a duty owed directly to Scottsdale.
to settle is not inconsistent with Ethridge because bad faith constitutes Therefore, this Court reverses the trial court’s judgment
conduct “bordering on ... the level of fraud.” Id. and remands the case.
determining whether the insurer had given equal con- 9. A third-party bad faith claim does not have to
sideration to its insured were (also see Exhibit 18–4): have elements of each of these considerations.
Read the Little case before you do Putting It into
1. The relative strength of the injured party’s claim
Practice 18:2.
in reference to the issues of liability and dam-
ages against the insured.
2. The insurer’s failure to properly investigate the Declaratory Judgment
claim so as to determine the availability of rele-
vant evidence. Actions
3. The insurer’s failure to advise its insured of an Insurance carriers will often institute a declaratory
offer to settle within policy limits. judgment action to determine if coverage exists. In a
4. The insurer’s failure to follow the advice of its declaratory judgment action, the court renders an
own attorney or agent. opinion with respect to a matter of law or with regard
to the rights of the parties but orders no action to be
5. The extent of the financial risk to its insured if
taken. Such an action can serve both defensive as
the insurer refused to settle.
well as offensive purposes. Offensively, a declaratory
6. Any attempt by the insurer to get the insured to
judgment action can serve to determine that no cov-
contribute to the settlement.
erage exists, and that the insurer need not defend or
7. Any action by the insured that might have influ- compensate its insured. Defensively, such an action
enced the insurer to reject any compromise set- allows a carrier to dispute coverage, as well as to go
tlement offers. before a court hoping that the potential for a bad
8. Any other factors that might support or disprove faith claim will be minimized by its efforts to obtain a
bad faith on the part of the insurer. judicial determination of its position.
Exhibit 18–4 Equal-Consideration Factors for Third-Party Claims
• Relative strength of injured party’s claims in reference to issues of liability and damages against insured
• Insurer’s failure to properly investigate claim so as to determine availability of relevant evidence
• Insurer’s failure to advise insured of offer to settle within policy limits
• Insurer’s failure to follow advice of its attorney or agent
• Extent of financial risk to insured if insurer refused to settle
• Attempt by insurer to get insured to contribute to settlement
• Action by insured that might have influenced insurer to reject any compromise settlement offers
• Any other factors that might support or disprove bad faith on the party of insurer

1. Does the Little court appear, at first, to favor the position of the insurer?
2. At the time Little was decided, contributory negligence was a complete defense; comparative negligence
was not in existence. Do you believe that the insurer really thought that there was only a 40 percent
chance for a plaintiff’s verdict? (The insurer admitted that the plaintiff could make out a prima facie case.)
3. What was the court really saying when it stated, “General and its attorney were being less than realistic
when they estimated a potential verdict at a low of $3,000 and a high of $10,000”?
4. Does the outcome of Little turn on the court’s perception of the credibility of the insurer and its attorney in
evaluating the case? If so, is mere negligence, in this case, grounds for a finding of bad faith?
Most UM and UIM policies prohibit the insured

Local Links
from suing their carrier over the issue of damages.
Where are the rules for declaratory actions If an insurer and its insured cannot reach agreement
found in your state? Are they statutory, rules with respect to damages, the matter is submitted to
of procedure, or both? If they are statutory, arbitration. The issue of coverage, however, is not
what is the statute number? subject to arbitration in most UM and UIM policies.
Coverage is determined in a separate lawsuit.
Because many states require automobile policies
Uninsured and Underinsured to provide UM and UIM coverage, some argue that
Motorist Coverage carriers should have to meet the standard appropri-
ate for third-party claims. Most courts, however, view
Uninsured motorist (UM) and underinsured motor- UM and UIM claims as first-party claims. As first-
ist (UIM) coverage have characteristics of both party claims, the maximum benefit due an insured as
first-party and third-party claims. One first-party a result of an insurer’s breach of its contractual obli-
characteristic is that the insurer is obligated to make gations is the policy limits. If a UM or UIM claim is
payment directly to the insured. A third-party char- fairly debatable, most courts hold that the insurer is
acteristic is that the insurer stands in the shoes of the not liable to its insured on the basis of bad faith.
allegedly responsible party. As such the insurer can UM and UIM carriers have tried to convince the
assert any defense that the responsible party might courts that because they stand in the shoes of the
have, including comparative or contributory negli- allegedly responsible party, an adversarial relationship
gence, assumption of risk, and denial of liability. exists between them and their insureds. This argument,
for the most part, has been rejected. The courts have,
Local Links however, reasoned that bad faith has not occurred if
Are UM and UIM claims treated as first-party the liability of the allegedly responsible party is reason-
claims in your state? ably in question and the amount of damages that must
be paid the insured is reasonably disputed.

1. Why might Dick and Jerry’s insurer want to file a declaratory judgment action and seek a court ruling find-
ing no coverage for the accident?
2. Would the value of the declaratory judgment action be the same if the insurer waited until after Jerry filed
suit against it or Dick?
3. Does the fact that Jerry may be underinsured affect anything in this case?
4. The insurer has the burden of proof in a declaratory judgment action. Does that burden affect your analy-
sis of whether the insurer should file such an action? On its timing?

1. Does Jerry have a first-party claim? More than one?
2. What if Jerry has medical coverage that covers his injury separate from his automobile policy?
3. If Dick is denied coverage, most states (and insurance policies) would deem him an uninsured motorist.
Does that fact influence how the insurer would react to a claim by Jerry (i.e., denial of coverage, defend
under a reservation of rights, or tender an unconditional defense)?
4. If Jerry eventually went to trial and it was determined that Dick’s policy provided coverage for the acci-
dent, could Jerry then make an underinsured motorist claim?
Summary
Bad faith is an intentional tort that occurs when a party its own. In most jurisdictions something more than
to an insurance contract breaches its implied cove- mere negligence is required before the courts will
nant of good faith and fair dealing. Most cases of bad find that the insurer has violated its implied covenant
faith involve allegations against the insurance carrier. of good faith and fair dealing.
Bad faith arises when the insurer (1) wrongly refuses The position of an insured varies depending on
to provide coverage for a client, (2) fails to adequately whether the insurer denies coverage or defends the
investigate a claim before making its decision to deny insured under a reservation of rights. The insured is
coverage or pay only a portion of the insured’s claim, able to negotiate an agreement more freely with an
or (3) unreasonably refuses to settle a third-party claim injured party when coverage of the claim is denied.
within the limits of the insured’s policy. They may still be able to work out an agreement with
In most jurisdictions the standard of care owed the injured party when the insurer is defending them
to an insured by the insurer depends on whether under a reservation of rights. The insured does, how-
the case is a first- or third-party claim. In first-party ever, have greater obligations to the insurer, includ-
claims, some jurisdictions use the “fairly debatable” ing a duty to advise the insurer of the agreement so
standard. Under that standard, if a claim submitted that the insurer can withdraw its reservation of rights
by an insured is fairly debatable the insurer’s actions before the agreement becomes effective.
in refusing to pay the claim will not constitute bad UM and UIM coverage has aspects of both
faith. For third-party claims, most courts impose a first- and third-party claims. Most jurisdictions treat
higher duty on the insurer. This higher duty, some- UM and UIM claims as first-party claims. UM and
times referred to as an “equality of consideration” UIM policies generally prohibit suit over the issue of
standard, requires the insurer to give the same con- damages, but the issue of coverage is often resolved
sideration to the insured’s interests as it does to in a declaratory judgment action.
Key Terms
adhesion contract the parties but does not order any action to be
Standardized contract characterized by the taken
unequal bargaining power of the parties and excess judgment
the lack of negotiation regarding the terms of Judgment for more than the insured’s policy
the contract limits
declaratory judgment action
Action in which the court renders an opinion as
to a matter of law or in reference to the rights of
Review Questions
1. How is bad faith committed? 9. What damages can be awarded in a third-party
bad faith action?
2. What are the characteristics of an adhesion
contract? 10. What damages can be awarded in a first-party
bad faith action?
3. What is the reasonable expectations doctrine?
11. “Fairly debatable” is a standard in what type of
4. What are the two types of bad faith, and how bad faith action?
do they differ?
12. “Equal consideration” is a standard in what
5. What part of an excess judgment is the insured type of bad faith action?
liable for?
13. When and for what purpose would an insurer
6. Why are remedies in contract law sometimes file a declaratory judgment action against its
insufficient? insured?
7. What is a reservation of rights? 14. Are UM and UIM actions considered first-party
or third-party actions?
8. What might an insured do to protect themself
from an excess judgment?
Practice Exam
True-False
1. The tort of bad faith is an intentional tort. 5. A contract provision that can be reasonably
interpreted in more than one way is considered
2. The tort of bad faith is always based on a
“ambiguous.”
breach of a contract.
6. Where there is a special relationship between
3. An adhesion contract results from uneven bar-
the parties a breach of covenant and good faith
gaining power between the parties concerning
and fair dealing becomes a tort called bad faith.
specific, negotiated provisions.
7. A third-party claim occurs when there are at
4. In response to contracts of adhesion the courts
least three plaintiffs.
developed a rule of law that the contract be
interpreted in favor of the party that did not 8. A first-party claim involves only the one plaintiff
draft the contract. and one defendant.
9. An excess judgment occurs when the jury 12. A defendant against whom an excess judg-
awards too much money to the plaintiff. ment has been awarded often assigns their
rights against their insurer to the plaintiff.
10. Some courts require a showing of more than
mere negligence before they will find an 13. The insurer is held to a higher standard of care
insurer acted in bad faith. in third-party cases than in first-party cases.
11. There are six factors in the equal consideration test.
Fill-in-the-Blank
1. A(n)________________________ is characterized 4. When an injured party obtains a verdict that is
by uneven bargaining power and lack of nego- more than the insured’s policy limits, it is called
tiation of terms. a(n)________________________.
2. Damages for bad faith go beyond the ________ 5. First-party claims involve _________ whereas
damages of contract law. third-party claims involve _________.
3. An insurer will file a(n)____________ 6. In a first-party case the standard is ___________
____________ action to have the court deter- position.
mine if there is coverage under an insurance
7. Fraudulent or harassing practices by the insurer
contract.
can result in a _______ case.
Multiple Choice
1. Which of the following acts constitute the tort a. first-party claim.
of bad faith? b. bad faith claim.
a. The insurance carrier unreasonably delays c. breach of contract action.
payment. d. none of the above.
b. The insurance carrier acts unconscionably 5. A reservation of rights is
toward its insured.
a. found in the Fourteenth Amendment to the
c. The insurance carrier engages in unfair
U.S. Constitution.
claims practices.
b. the act of an insured in a first-party claim.
d. All of the above.
c. the act of an insurer in initially providing a
2. Under the “reasonable expectations” doctrine, defense to its insured but advising the insured
a. the court expects both parties to be it may withdraw the defense at a later time.
reasonable. d. none of the above.
b. the court will reform the contract to meet 6. Bad faith can occur even if an insurer acknowl-
the reasonable expectation of the non- edges coverage and provides a defense if
drafter of the contract.
a. it refuses to settle for policy limits.
c. the court will interpret the contract to give
b. it evaluates the case as having a value
the nondrafter what they expected they
above policy limits but refuses to settle and
were getting.
then will not pay the excess judgment.
c. it requires the insured to allow a deposition
3. An action in which the insured is seeking pay- to be taken and demands the insured’s
ment from their insurer is called a presence at trial.
a. class action suit. d. none of the above.
b. first-party claim. 7. Damages in third-party cases include
c. bad faith claim.
a. the amount of the judgment in excess of
d. breach of contract action.
policy limits.
4. An action in which an injured party makes a b. the legal fees incurred by the third party in
claim against an insured for damages covered the name of the insured.
by the insured’s policy is called a
c. other provable, monetary losses that caused c. insurer’s failure to advise its insured of an
the insurer’s actions. offer to settle within policy limits.
8. Damages in first-party cases include 11. In a declaratory judgment action, the court
a. the amount of the judgment in excess of a. determines what the amount of the judg-
policy limits. ment should be.
b. the legal fees incurred by the third party b. declares judgment for or against a third party.
making the claim. c. in the insurance context makes a determina-
c. unpaid benefits provided in the contract. tion as to whether there is or is not coverage.
d. all of the above. d. none of the above.
9. The general standard of care in third-party 12. An uninsured motorist coverage claim is gener-
cases is that ally treated as a
a. the claim must be “fairly debatable.” a. first-party claim.
b. the insurer must give equal consideration to b. third-party claim.
its insured. c. second-party claim.
c. the insurer must give greater consideration d. none of the above.
to its insured than to its own self-interest.
13. Uninsured and underinsured motorist claims
are usually
10. Factors in the equal consideration test include a. mediated.
a. insurer’s failure to properly investigate the claim. b. litigated in court.
b. the extent of the financial risk to its insured c. arbitrated.
if insurer refused to settle. d. none of the above.
Practice Pointers
Bad faith cases are very fact-intensive. What the insurer did and when it did it is as important as what the insurer
knew at the time it took action. Most insurers maintain what is known as a claims file. The claims file should contain
all notes and memoranda prepared by the adjuster, along with copies of all correspondence and attachments. Care
must be taken when documents are requested from an insurer. Because each company has its own way of handling
claims, merely requesting the claims file may not result in the production of all of the documents you want. If, for
example, an adjuster’s case evaluation and the amount of reserve set aside for a claim is maintained in a special file,
a request for the claims file, and its subsequent production, will not contain all relevant information.
Another large area of dispute is trial preparation materials. Because an insurance carrier is often involved
in litigation, it can and often does argue that everything it does in handling a claim is in preparation for trial.
That argument has not been completely successful. Because the insurance business deals, to a great extent,
with handling claims, the courts have rejected the position that all acts in adjusting a claim are in preparation
for trial. Once it becomes clear that litigation will result, subsequent documents may not be subject to discov-
ery. If your jurisdiction follows the Federal Rules of Civil Procedure, review Rule 26.
Review some of the reported bad faith cases for the past few years in your jurisdiction. Try to find a case that
refers to a discovery dispute relating to trial preparation or attorney–client materials. Go to the trial court file and review
the arguments submitted by each side. There will probably be a motion for a protective order or a motion to compel
discovery. The documents that were requested, and that created the dispute, should be set out in the pleadings.
Tort Teasers
Review the hypothetical scenario at the beginning of this chapter and answer the following questions.
1. What is the significance of the insurer providing its insureds with maps showing that the Rocky Point area
is within 48 statute miles of the U.S. border?
2. How does custom apply to the case (example: what do other insurers use to define a “mile”)?
3. Can Jerry use these maps to prevent the insurer from alleging that the accident occurred more than 50
statute miles from the U.S. border?
4. Would your answer to the preceding question be different if Jerry testified that not only was he unaware
of the maps issued by his insurer, but he was also unaware at the time of the accident that he had cover-
age for medical payment expenses and UM in Mexico?
5. How do the insurer’s actions in obtaining an expert to determine the location of the accident affect your
analysis of whether bad faith has been committed?
6. If the insurer hires experts and denies coverage prior to a bad faith suit being instituted, does that
change your evaluation of Jerry’s claim?
7. If the insurer institutes a declaratory judgment action before Jerry files his bad faith action, does that
affect your opinion as to whether the insurer acted in bad faith?
8. The insurer argues that because it neither accepted nor denied Jerry’s claim, it cannot be found to have
acted in bad faith. How would you respond?
9. The insurer has determined that the accident occurred more than 50 statute miles from the U.S. border,
so it has denied liability coverage to Dick and UM coverage to Jerry. Suppose Dick loses his coverage
argument in the suit he institutes in the Colorado courts against his insurer. Is it possible that at the same
time Jerry could win his case in the Arizona courts regarding his UM benefits?
10. What type of agreement could Dick enter into with Jerry upon denial by Dick’s insurer that he had liability
coverage for the accident?
11. With respect to each of the possible claims that Jerry and Dick may have, determine what type of cover-
age the claim would be made under and whether it would be a first- or third-party claim.
Internet Inquiries
George Mason University has a wonderful free site to search for U.S. Supreme Court and circuit court deci-
sions, federal legislation, federal regulations, Law Review articles, and law professionals all at the same site.
This site does more than provide links; it actually does searches for you. This site includes a lot of popular legal
resources that you will not find on other free sites. Go to the site at www.gmu.edu/library/freelegalresearch
and answer the following questions:
1. How many circuit court cases can you find in your jurisdiction relating to bad faith of insurance
companies?
2. Find Law Review articles relating to bad faith and give the citation of one that you find.
3. Find federal legislation relating to medical malpractice. Give the title and bill number of one of the bills
you find as well as the date it was introduced.
Your firm has agreed to represent Scott, an insured of XYZ Insurance Company. Scott was sued by a per-
son injured in an automobile accident that Scott was responsible for. Scott’s policy limits were $15,000
per person, $30,000 per accident. The jury returned a verdict against Scott for $50,000. XYZ paid for
the defense of the suit and paid the plaintiff $15,000 after the verdict was entered. Scott wants to know
what options he has. He will have to file for bankruptcy if he has to pay the excess judgment of $35,000.
Your supervising attorneys want to find out if XYZ committed bad faith in not settling Scott’s case.
1. What will you have to prove to show XYZ acted in bad faith?
2. Is an excess judgment always caused by bad faith?
3. What evidence will need to be presented if you are going to establish a cause of action for bad faith?
4. Would this be a case for a contract action for bad faith or a tort action?
Chapter 19
Workers’ Compensation
Chapter Topics
What Is Workers’ Compensation? Today’s Systems
Historical Background Filing a Workers’ Compensation Claim
The Statutory Framework Current Issues in Workers’ Compensation
Chapter Objectives
• Explain the historical basis for the workers’ • Identify the requirements for filing a workers’
compensation system. compensation claim.
• Explain the statutory and administrative • Identify current workers’ compensation issues.
procedures followed in workers’ compensation
cases.
J im Smith was a farm worker. While he was operating a small farm tractor in a cotton field near Phoenix,
Arizona, a rock became lodged in a piece of equipment he was towing. Jim got off the tractor and
attempted to dislodge the rock. He was unsuccessful in doing so manually and asked a co-worker to back up
the tractor a few inches. The co-worker, who was not familiar with the tractor, pulled forward, causing Jim’s right
foot to be run over by a tire on the equipment being pulled.
Jim was a 65-year-old diabetic who had returned to work only five weeks prior to the accident. He had been out
of work for seven months while recovering from a vascular bypass in his right leg, necessitated by his diabetes. The
accident occurred at the height of the harvest season when Jim was working 80 to 90 hours per week.
The accident occurred late Sunday evening; on Monday Jim went to a doctor recommended by his employer
and was treated for a swollen foot and minor abrasions. On Tuesday, the foot became very painful, and Jim went
to the emergency room. On Friday Jim had the toenail removed from the big toe on his right foot. Four weeks
later his big toe was amputated. Two months after that, his right leg was amputated just below the knee.
Jim’s medical expenses totaled $84,000. His postoperative care, including prosthesis, came to $28,000.
The initial physician charged $45 for the office visit and billed Jim’s employer’s workers’ compensation carrier.
Because Jim did not know what workers’ compensation was, or that he had sustained an employment-related
injury, his hospital and related expenses were charged to, and paid by, his personal medical insurer.
Jim was denied workers’ compensation benefits for the loss of his leg. The carrier took the position that it
was his diabetes, not the accident, that caused the loss of his leg. Jim’s unfortunate experience affords us an
opportunity to explore the intricate functioning of the workers’ compensation system.
What Is Workers’ Several common law defenses were available to the

employer, such as contributory negligence, assump-
Compensation? tion of risk, and the fellow-servant rule (which
rendered an employer nonliable for an injury inflicted
Workers’ compensation is a concept conceived to
upon an employee through the negligence of a fellow
circumvent certain problems of the tort system and
employee but made every employee liable to their
to protect workers who sustain job-related injuries
fellow workers for their own negligence). Because of
or disease, whether or not due to their own negli-
these defenses and the employer’s superior financial
gence. It is a necessary safeguard for workers to pro-
position, injured workers had little chance to obtain
tect them from risking their health and safety for the
compensation through the courts.
job. It also relieves employers from tort responsibility
Even when the courts began to relax enforce-
for on-the-job injuries to their employees. Workers’
ment of the common law defenses, the injured
compensation systems were intended to provide fast
worker, with no income and mounting medical
and efficient relief to injured workers without regard
expenses (if they were able to get treatment),
to fault. In theory, an injured worker gave up their
stood in such an inferior financial position to their
right to sue their employer in negligence (and the
employer as to preclude an effective legal remedy.
right to a jury) in return for the implied promise that
Employees (including those injured) were not eager
their reasonable medical expenses would be taken
to testify against their employers and face potential
care of and that they would be compensated for the
unemployment.
lost wages, medical care, and possible vocational
Beginning in Germany in the mid-1800s, in
rehabilitation they incur as a result of the injury.
response to a growing public outcry about the way
What has actually evolved is a system that rivals
workers were treated, a system began to develop
the entire tort system in cost and has become so
to take the issue of fault out of the workplace
complicated that many states recognize workers’
and provide benefits for injured workers. England
compensation as a legal specialty. Just as tort reform
adopted a “faultless” system in the late 1800s, and
preoccupies legislative bodies on a regular (if not con-
the United States, beginning in the early 1900s,
tinuous) basis, rarely does a year go by that legislators
followed suit. Although the new concept initially
do not tinker with workers’ compensation statutes.
faced, and lost, constitutional challenges, the issue
was resolved in favor of a new, noncompulsory sys-
tem by the U.S. Supreme Court in New York Central
Historical Background Railroad v. White, 243 U.S. 219 (1917). An earlier,
compulsory version had been held to violate due
Workers’ compensation systems arose out of the process. Shortly thereafter, the vast majority of
industrial revolution of the nineteenth century. states adopted their own doctrines of workers’
Hard physical labor with machines and equipment compensation. Today all states have some form of
designed to perform tasks without regard for the pro- a workers’ compensation system for part-time and
tection of operators resulted in numerous injuries. full-time employees.
The tort system of the time was ill-equipped, from The two major types of workers’ compensation
the employee’s standpoint at least, to handle the are mandatory coverage and voluntary coverage.
medical expenses and lost wages of injured workers. As of the writing of this text, all states except Texas

1. Would Jim be deemed to have opted in to the workers’ compensation system in your state?
2. What might you need to know to determine if Jim was covered under worker’s compensation laws?
3. Does your state have voluntary or compulsory coverage?
CHAPTER 19 Workers’ Compensation | 557
require businesses to carry workers compensation Local Links

insurance separate from their general liability cov-
erage. Whether it is required for a sole proprietor- In your state does voluntary intoxication
ship and what the minimum number of employees act as a complete bar to recovery under the
is before requiring coverage in determined by state workers’ compensation statutes?
laws. In these mandatory-coverage jurisdictions, the
employee has no alternative other than to accept the
benefits and restrictions imposed by the statutory
framework adopted in their state. Some states have accident, even though the decedent’s inexperience
a minimum number like Alabama which requires at in driving the vehicle actually caused the accident.
least five regularly employed employees before Wyoming has a statute, similar to those of many
workers compensation is required. In jurisdictions other states, that prohibits recovery if intoxication of
like Louisiana, certain types of employees like a sole the worker is involved.
proprietor or corporate officer or LLC member may Workers’ compensation injuries are either
be included, but may also opt out of the system and scheduled or non-scheduled. Scheduled injuries
retain their right to sue the employer in state court. have a fixed method of determining the amount of
Because most workers are unaware of what the sys- compensation to the worker be devised. In many
tem does or how it actually works, voluntary opting states, injuries such as loss of an eye, total blind-
out is more illusory than real. Additionally, in most ness, or loss of an appendage are classified as
states if one accepts any benefits (medical expenses scheduled injuries, that is, a fixed benefit (usually
or lost wages), one is conclusively deemed to have a set number of months’ compensation) is paid for
opted in. the injury without regard to lost wages or medi-
cal expenses. Some injuries, such as back injuries,
produce varying types of symptoms and could not
be scheduled as easily as, for example, the loss of
The Statutory Framework an eye or a limb. New rules for these unscheduled
injuries had to be created. Notice requirements
What appears to be a straightforward goal—
and specialized forms were devised, and failure to
compensation of injured workers without regard
use them (or to use them correctly) had potentially
to fault—has not been easily implemented. To
drastic implications for both the employer and the
process disputed or questioned claims outside
employee.
of the court system, an entire administrative hier-
A new insurance industry was created to allow
archy had to be created. Judges and juries were
the employer to spread the risk of the new sys-
replaced with administrative law judges or hearing
tem. Employers who chose not to be insured (rules
officers. The rules of civil procedure were replaced
and regulations determined who could and could
and/or supplemented by administrative rules and
not self-insure) risked the loss of their businesses,
regulations.
as they became personally liable for the costs to
Exceptions to coverage for intentional or self-
which injured workers would become entitled. To
inflicted injuries and those caused by intoxication
cover that situation, most jurisdictions developed a
were grafted onto the framework. For example,
fund that stepped in to cover the worker when their
in Coleman v. Wyoming Workers’ Compensation
employer lacked insurance or the funds (or willing-
Division, 915 P.2d 595 (Wyo. 1996), the deceased
ness) to pay the statutory sums due or when the
worker’s family was denied benefits based on the
employer’s insurance carrier became insolvent.
finding that his intoxication contributed to the
In the News
The workers’ compensation laws, together with administrative rules and forms for the 50 states and the
District of Columbia, as well as for federal employees, are available at www.workerscompensation
.com.

How would your state treat Jim’s injuries? Would the loss of his leg be a scheduled or non-scheduled injury?
Today’s Systems existing in the State of Arizona, and producing

uncertain and unequal compensation
A typical constitutional and statutory scheme for t h e re f o re , s u c h e m p l o y e e , e n g a g e d i n
workers’ compensation is found in Arizona. The state such private employment, may exercise the
constitutional provision enabling the workers’ compen- option to settle for compensation by failing
sation statutes is article XVIII, § 8, which states, to reject the provisions of such Workmen’s
Compensation Law prior to the injury, except
T h e L e g i s l a t u re s h a l l e n a c t a Wo r k e r s ’ that if the injury is the result of an act done
Compensation Law applicable to workmen by the employer or a person employed by
engaged in manual or mechanical labor in all the employer knowingly and purposely with
public employment whether of the State, or the direct object of injuring another, and the
any political subdivision or municipality thereof act indicates a willful disregard of the life,
as may be defined by law and in such private limb or bodily safety of employees, then such
employments as the Legislature may prescribe employee may, after the injury, exercise the
by which compensation shall be required to option to accept compensation or to retain
be paid to any such workman, in case of their the right to sue the person who injured them.
injury and to their dependents, as defined by
The percentages and amounts of compensation
law, in case of their death, by their employer,
provided in House Bill No. 227 enacted by the
if in the course of such employment personal
Seventh Legislature of the State of Arizona, shall
injury to or death of any such workman from
never be reduced nor any industry included
any accident arising out of and in the course
within the provision of said House Bill No.
of, such employment, is caused in whole, or in
227 eliminated except by initiated or referred
part, or is contributed to, by a necessary risk
measure as provided by this Constitution.
or danger of such employment, or a necessary
risk or danger inherent in the nature thereof, The U.S. Supreme Court has held that workers’
or by failure of such employer, or any of its compensation statutes do not violate the due
agents or employees to exercise due care, process clause. Nevertheless, each state has had to
or to comply with any law affecting such look to its own constitution to determine if a consti-
employment; provided that it shall be optional tutional amendment was necessary to allow imple-
with any employee engaged in any such private mentation. In Arizona, an original constitutional
employment to settle for such compensation, provision prohibited abrogation of the right to sue. If
or to retain the right to sue said employer the workers’ compensation provision had not been a
or any person employed by said employer, part of the original state constitution, a constitutional
acting in the scope of their employment, as amendment to legalize the workers’ compensation
provided by this Constitution; and, provided statutes would have been required.
further, in order to assure and make certain In most jurisdictions, a governmental entity has
a just and humane compensation law in the been created to administer the new laws. The Arizona
State of Arizona, for the relief and protection Industrial Commission, for example, administers the
of such workmen, their widows, children or workers’ compensation system in Arizona. These
dependents, as defined by law, from the rules, which supplement the statutory framework,
burdensome, expensive and litigious remedies must be followed by employee and employer alike.
for injuries to or death of such workers, now Failure to follow the rules often results in the loss of
benefits or the right to contest the award. Some of Local Links

the rules modify the normal procedure for obtain-
ing witnesses (R20-5-141), the use of interrogatories What is the maximum wage benefit paid to
(R20-5-144), and independent medical examinations an injured worker in your state?
(R20-5-144).
To get a feel for the complexity of the statutory
framework and the vastness of rules promulgated Most states limit employees’ compensation by
in workers’ compensation statutes, go to putting a cap on the monthly wage they can be
www.workerscompensation.com and select your paid. The injured employee is paid only a percent-
state. Review the statutes and rules regulating your age of what their average monthly wage was before
workers’ compensation system. the accident. Most states then use a percentage
of their average monthly wage to determine ben-
Is Workers’ Compensation a Fair efits. The compensation rate is often 66.66% of
their average wage. Because no state or federal
Deal? taxes (including Social Security and Medicare)
The theoretical benefits anticipated by advocates are withheld from payments made to the injured
of workers’ compensation have not always been worker, a reduction of one-third of the employee’s
realized. Many of the roadblocks that existed in gross wage appears reasonable on the surface. For
the early 1900s are no longer part of the American wage earners with a family, however, whose state
legal system. Unsafe working conditions, machinery and federal tax rate is very low or non-existent, the
without safety devices, and an employer-friendly reduction results in a real loss of disposable income
tort system are not prevalent problems in today’s of as much as 25 percent.
workplace. Many major injuries are scheduled. Loss of an
The bureaucracy that was created to solve the arm or leg is worth a set number of months’ com-
problems of the injured worker has created many pensation, in addition to payments received for
new problems. To illustrate, state legislatures control being unable to return to work due to an accident.
the benefits to be paid and how they are to be cal- For example, in some states, loss of the dominant
culated. Therefore, today’s employers may have as arm is worth an additional 60 months’ compensa-
much control over their employees as they did before tion; loss of a leg is worth 50 months’ compensation
the onset of workers’ compensation. Although out- (compensation is at 55 percent of the injured work-
dated wage scales and artificial maximum benefits er’s average monthly wage).
may spur injured employees to return to work as For example, an administrative worker making
soon as possible, they do not necessarily provide $7.50 per hour would earn $1,300 per month, calcu-
adequate compensation for injured employees with lated as follows:
valid claims. Furthermore, fraud is rampant amongst
$7.50 per hour
employees, and insurance carriers have resorted to
× 40 hours
“hardball” tactics to counteract this deception. Such
× 4.33 weeks
responses to workers’ compensation have created a
$1,300 per month
climate of fear and distrust between employees and
employers. If they lost their leg due to a work-related acci-
The system does not always fairly compensate dent, they would receive an additional benefit of
injured employees. An injured worker is generally 55 percent of their average monthly wage ($715) for
not entitled, for example, to continued employer 50 months. That monthly benefit would be paid for
contributions for retirement benefits while they are the prescribed period (50 months) in addition to any
off work because of an injury. Furthermore, they may other benefits to which they might be entitled (which
lose their job, seniority, and/or job advancement would be a maximum of $866.67 per month [66.7
opportunities. The compensation they are paid is percent of $1,300]). For an executive earning $3,000
almost always less than their earnings prior to the per month, the respective benefits would be $880
accident even though the employer remains liable (loss of leg at 55 percent) for 50 months and $1,600
for their medical expenses. (66.7 percent of maximum monthly wage of $2,400)
Local Links allowed in states where the employer can require

the employee to be treated by an approved workers’
How is the maximum wage benefit compensation physician.) When disputes occur, they
determined (i.e., maximum allowed wage are heard by administrative law judges. The hearings
and percentage multiplier) in your state? are often bifurcated to allow the physicians to tes-
tify at times convenient for them. These procedural
requirements slow down the resolution process.
If the employee wants to get a second opinion
while they are temporarily permanently disabled.
regarding their condition, they must usually pay for
The $1,600 monthly payment, but not the $880 for
it. The procedures for getting a new treating physi-
the loss of their leg, will cease when they can return
cian vary but usually require the acquiescence of the
to work.
employer or an order from the agency overseeing
If the loss of their leg resulted in them being
the workers’ compensation system.
unable to earn the same amount of income after
Employees have caused many of the problems
recovering from the injury, they would be entitled (in
with a system designed to ensure fast and efficient
Arizona) to payments equal to 66.7 percent of the
resolution of claims. Outright fraud and attempts to
difference between their post-injury earning capacity
continue receiving benefits after recovery are wide-
and their pre-injury average monthly income. They
spread. In California, for example, it is estimated that
would also be entitled to post-injury training and
10 percent of all claims and 25 percent of all pay-
rehabilitation.
ments are the result of fraud (G.T. Schwartz, “Waste,
In most jurisdictions, the statutory monthly wage
Fraud, and Abuse in Workers’ Compensation:
is not tied to the cost of living index or the state’s
The Recent California Experience,” Md. L. Rev. 52
actual average monthly wage. It is changed, if at all,
[1993]: 983, 988). Surveillance of claimants to catch
only by legislative action.
them performing physical acts of which they are sup-
The elaborate statutory framework and rules
posedly incapable is one way to help curb fraudulent
associated with workers’ compensation have not
claims. Posting videos or livestreams of oneself out
gone unchallenged. Around 5% of all workers com-
partying or participating in physical activities while
pensation cases are challenged and can go on to
claiming they are incapable are all too common with
independent medical reviewers. To appeal to an
social media. The results appear to justify the money
appellate court, a petition to review the decision
spent on such surveillance tactics.
must be made to the Industrial Commission in most
Employees’ attempts to circumvent the system
states.
rarely result in criminal prosecution. The most the
employee stands to lose is benefits to which they
The Adversarial Part of “No Fault” are not entitled. Hardball insurance carriers also have
All workers’ compensation systems provide for res- little fear of predatory practices. Bad faith claims in
olution of disputed claims. The employer’s premium workers’ compensation cases are difficult to prove.
is based on its claims history. It is, therefore, in the Many states have statutes protecting insurers from
employer’s best interest to minimize the number liability for their actions in workers’ compensation
of claims and get the injured worker stabilized and cases. Many of those activities, if they occurred in other
back to work (or able to get back to work) as soon contexts, such as with homeowners or automobile
as possible. The employer’s insurance carrier acts insurance claims, could subject the carrier to general
as a watchdog, monitoring the claims it processes tort damages, including punitive damages.
to check for and weed out malingerers and fraud In most states employers are not permitted to
perpetrators. ask their employees to waive their rights to workers’
This adversarial aspect of the system causes the compensation or to require their employees to pay
greatest delays in claims resolution. The employer, any part of the insurance premium. With limited
usually acting through its insurance carrier, can exceptions agreements to waive workers’ compen-
require the injured employee to submit to an inde- sation claims or that the employees will pay any
pendent medical examination (IME) by a doctor of portion of the workers’ compensation insurance
the employer’s choosing. (An IME is sometimes not premium are void.

1. How would you calculate Jim’s average wage for benefit purposes if he made $8 an hour? If Jim worked
only eight months a year, would that make a difference?
2. What is the average monthly wage for a legal assistant who is paid $12 per hour for a 40-hour work
week? In your state, what is the dollar value for the loss of their dominant arm?
Filing a Workers’ If the injury results in lost work time greater than
the minimum time period prescribed, the employer
Compensation Claim will normally submit information to the agency to
establish the employee’s average monthly wage.
The first requirement for filing a workers’ compen-
The rules and procedures (and case law) in this
sation claim is that the employee be injured “on the
area are quite complicated. Rules vary, for exam-
job.” Whether an employee was on the job is the
ple, depending on whether the claimant is a new
subject of many of the reported cases. The answer
hire or an employee who has just received a raise.
is not as easy as it might first appear. For example,
To illustrate, imagine the difficulty in computing the
is an employee on the job when they are on their
average monthly wage for a new employee who had
way to work? When they are parking their car in the
been on the job for only a week before the accident
employee parking lot? Leaving the parking lot to go
and had not worked previously.
home? On a personal errand but on company time?
In most cases the average monthly wage is
Dropping off a package for their boss on their way to
determined by the prior year’s income. Separa-
lunch? Dropping off an item to their boss’s child at
tion from employment for illness or family emer-
their school while on duty?
gency confuses the issue. A recent increase in pay
Once an on-the-job accident has occurred, the
may be averaged in with the prior year’s income.
employer and employee have independent obligations
Such a computation effectively reduces the aver-
to report it. The employee must report to the employer,
age monthly income to less than that actually being
and the employer must notify the agency overseeing
earned by the employee at the time of the accident.
the workers’ compensation system (and the employer’s
Once the monthly wage for benefit purposes has
insurance carrier). Depending on the nature of the
been established, the payments to the employee are
accident and the amount of time lost by the injured
generally made on a monthly basis. When the injury
employee, the system reacts in different ways. A minor
has stabilized, a decision is made regarding the per-
injury might result in no medical expenses and little or
manency of the injury and whether the employee
no lost time for the employee. The amount of lost time
has suffered a loss of earning capacity. The rules
is important because compensation is usually not paid
for payment of permanent partial disability vary but
for the first few days (generally five to seven days) that
are usually based on a percentage of the difference
the employee misses work. Medical expenses are paid
between an employee’s pre-injury earning capacity
from the time of the accident. The treating physician is
and their post-injury earning capacity (which requires
usually required to give notice if the physician believes
a whole category of expert testimony). Compensa-
the injury to be job-related.
tion is not allowed for permanent impairment that
does not affect job ability. For example, an employee
with a permanent limp will not be compensated if
Local Links the limp does not affect earning capacity. The same
In your state what is the longest time period is usually true for nonvisible scarring.
a worker can wait after an industrial injury to If an injury is caused by a co-employee, no
make a claim before it is barred? claim can be made by the injured worker. If a third
party caused the injury on the job, the employee
can assert any tort claims they may have against the Local Links
third party. The laws of most jurisdictions, however,
provide that the employer (or its insurance carrier) Does your state have an automatic subroga-
has subrogation rights to the extent of any medical tion of the injured worker’s third-party claim
or wage payments made to the employee. In many to the workers’ compensation carrier? How
states the claim is actually assigned by operation of long after the accident is it reassigned to the
law to the employer or its carrier if the employee carrier by law?
does not assert their rights against the responsible
party.
The subrogation claim that might have to be does not become infected? Do the psychological
paid from the settlement or litigation of any lawsuit stresses caused by the fear of possibly contracting
against a third party could be an impediment to the the disease, which could result in a person being
employee asserting their rights. In the third-party unable to work, constitute a work-related injury?
context, the employee would be subject to all tort Psychological incapacity due to sexual harassment
defenses, including contributory negligence, com- and/or hostile work environments must also be
parative negligence, assumption of risk, and so on. addressed. Many systems are having problems as
Most attorneys would not take an employee’s tort well in dealing with purely psychological injuries that
claim if, due to the amount of the carrier’s lien, only have no physical cause.
the attorney and the insurer would get paid. In states In one case, the New York Court of Appeals
where the employee’s third-party rights are trans- held that the psychological injury caused to an office
ferred to the employer, the employer could pursue worker by the psychic trauma of finding her boss’s
the employee’s claim against the responsible third body right after he had committed suicide was com-
party in the name of the employee. pensable to the same extent as any physical injury
(Wolfe v. Sibley, Lindsay & Curr Co., 330 N.E.2d 603
[N.Y. 1975]). The dissent in Wolfe expressed concern
about allowing compensation for “pure” psycho-
Current Issues in Workers’ logical injuries arising out of an occurrence in which
Compensation the claimant was not a participant. Would you, for
example, approve of a Social Security system that
Just as society has grappled with workplace issues provided benefits when an individual experienced
such as sexual harassment, creation of a hostile envi- everyday mental trauma, such as the loss of a family
ronment, equal rights, and employee rage, so too member? Where do you draw the line?
has the workers’ compensation system. Many sys- Furthermore, the Americans with Disabilities
tems are still searching for the appropriate ways to Act of 1990, 42 U.S.C. § 12101 et seq. (ADA), has
handle issues supposedly addressed by federal and created some potential problems. In the past most
state legislation. states did not require an employer to keep an injured
For example, is potential exposure to a commu- worker on as an employee after they recovered from
nicable disease a compensable injury if the worker their injury. The ADA may affect what an employer

1. What ethical problems might arise for those representing the employer in pursuing an employee’s third-
party claim?
2. If Jim did not know he had a workers’ compensation claim, would the system get notice of his accident
without his input?
3. How long do workers’ compensation benefits get paid in your state? Is there an offset for Social Security
benefits? What if the worker lives to be 95? What if they retire and draw a pension and Social Security?
In the News
At www.workerscompresources.com you can find access to various reports and upcoming seminars,
including reports comparing workers’ compensation provisions in the 50 states, the District of Columbia,
and American territories, as well as for federal employees, to the most recent recommendations of the National
Commission on State Workmen’s Compensation Laws.
can do if an employee suffers a recognized disability employer at home. This is going to be a huge issue
as a result of an industrial accident. as so many millions telecommuted during Covid.
Telecommuting has also raised new issues In at least one case, compensation was awarded
regarding workers’ compensation. Generally, work- when the employee was injured at home as a result
ers’ compensation statutes provide compensation of work-related fatigue. In Schwindt v. Red Roof
for injuries that “arise out of” and “in the course Delivery, Inc., a restaurant manager was injured when
of” employment. Some jurisdictions have held that they fell down the stairway in their home at 4:30 a.m.
employees can be compensated for injuries that after falling asleep while working on employee work
occurred while performing work required by the schedules.

1. Does your state’s workers’ compensation law allow recovery for purely psychological injuries, such as
those in Wolfe?
2. How does your state deal with communicable diseases? Does it have a statute addressing the issue?
3. Etta worked in an ammunitions factory. They were constantly harassed by fellow employees, who
would throw things at them and make noises like a bomb exploding. They had a son who had been
injured in training during the Persian Gulf War. Their co-employees would put depictions of dead and
mutilated soldiers on their workstation. They twice attempted suicide as a result of the harassment
and insults they faced at work. Shortly after their second discharge from a hospital’s psychiatric unit,
they filed a claim for benefits for psychiatric impairment. Should their claim be allowed? What would
the claim fall under?
Summary
Workers’ compensation is a system that was statu- legislative action. Worker fraud is prevalent as
torily implemented in the early 1900s to protect well and provides support for both aggressive
injured workers from poverty. The employer agreed claims-handling processes and payment of benefits
to be responsible for all work-related injuries, and the that do not return the injured worker to her preinjury
employee gave up their right to sue and to a jury trial. financial condition.
Today’s systems are either mandatory or voluntary. Communicable diseases, psychological
Many of the reasons underlying establishment of impairment, and the ADA have generated difficult
workers’ compensation no longer exist. questions for the workers’ compensation system.
With today’s artificially low payments and The adversarial nature of the system, the delay in
aggressive claims handling, the injured worker can processing claims, and the current disputes regarding
easily fall below today’s poverty level if they become compensable and noncompensable injuries, as well
unable to return to work due to a job-related injury. as the continued viability of workers’ compensation,
Increases in benefits can be obtained only through remain issues that must be addressed.
Key Terms
fellow-servant rule scheduled injuries
Doctrine that shields employers from liability for Injuries, such as loss of sight or of an append-
damages incurred for injuries to an employee age, for which stated benefits are paid
due to the negligence of a co-worker
Review Questions
1. What was the cause for the creation of workers’ 7. How is the amount of compensation to be paid
compensation laws? to an injured worker limited?
2. What is the fellow-servant rule? 8. How are appeals often governed in workers’
compensation laws?
3. What types of injuries are exempt from
compensation? 9. What is the name of the judicial figure that
often presides over workers’ compensation
4. How do things like self-inflicted injuries and hearings?
intoxication fit into workers’ compensation
claims? 10. How does the adversarial nature of the system
cause the greatest delays in claim resolution?
5. How do scheduled injuries differ from unsched-
uled injuries? 11. What effect does subrogation have on an
employee asserting a claim against a third party?
6. What types of benefits are generally not
compensated for in workers’ compensation 12. How might the ADA affect workers’ compensa-
systems? tion laws?
Practice Exam
True-False
1. Workers’ compensation is often thought of as a 5. For an injured worker to receive compensation,
no-fault system. they must be injured while working at the place
of their employment.
2. The underpinnings of workers’ compensation
as we now know it began to take shape in the 6. The fellow-servant rule renders an employer
nineteenth century. nonliable for injury inflicted upon an employee
by the negligence of a fellow employee.
3. Britain was the European country where the
underpinnings of workers’ compensation as we 7. An injured worker’s compensation is always
now know it began to take shape. based on their income at the time of the injury.
4. An IME is an independent medical 8. Compensation paid while on leave for a work-

examination. ers’ compensation claim is almost always the
same as the regular salary.
9. Permanent scarring is always, by itself, a basis 12. The Americans with Disabilities Act is often
for an award of compensation. referred to as the ADA.
10. Psychological damages, without physical injury, 13. For an injured worker to get an independent
are always subject to a compensation award. medical evaluation from a doctor of their
choosing, they must usually pay for it or
11. Both the employee and employer have get permission from the agency overseeing
obligations to report the accident for workers workers’ compensation.
compensation.
Fill-in-the-Blank
1. The ________________________ rule protects 3. Most states put a ______ on the monthly wage
employers from suit by employees injured by that an injured employee can be paid.
coworkers.
2. Injuries that provide a fixed sum for compen-

sation based on a workers’ monthly wage are
called ____________ injuries.
Multiple Choice
1. The fellow-servant rule helped protect employ- 4. The difference between a scheduled and an
ers from claims from their employees by unscheduled injury is that
a. preventing lawsuits against fellow workers. a. a scheduled injury provides a fixed amount
b. making the responsible employee solely of compensation.
liable for damages caused by a fellow b. an unscheduled injury provides a fixed
worker. amount of compensation.
c. prohibiting all servants from filing suit. c. a scheduled injury provides for more
d. none of the above. compensation.
2. The primary difference between voluntary and
mandatory workers’ compensation systems is 5. States limit the amount of compensation paid
that to injured workers by
a. in mandatory systems the employee must a. fixing a maximum wage on which compen-
accept the benefits. sation is paid.
b. in voluntary systems the employee may b. providing for payment of a percentage of
retain the right to sue the employer. the maximum monthly wage.
c. a and b. c. not indexing the maximum monthly wage to
d. none of the above. an inflationary index.
3. The name of the U.S. Supreme Court case that
upheld noncompulsory workers’ compensation 6. The injured workers’ rights against a liable third
systems in 1917 was party are subrogated to
a. Miranda v. Arizona. a. the party causing the injury.
b. Roe v. Wade. b. the employer or its insurer.
c. New York Central Railroad v. White. c. the employee.
d. Brown v. Board of Education. d. none of the above.
7. In the early 1900s the factors that led to 8. Telecommuting has raised new issues regard-
adoption of workers’ compensation laws ing workers’ compensation laws in that
were a. employees are technically on the job while
a. unsafe working conditions. at their home.
b. the fellow-servant rule. b. an employee who falls at home while techni-
c. an employer-friendly tort system. cally working can be considered on the job.
d. all of the above. c. there is no line between being on the job or
being “at home” while telecommuting.
Practice Pointers
In many workers’ compensation cases it will be the legal assistant’s duty to review the file. Most states have an
administrative body (such as Arizona’s Industrial Commission) that maintains the file. The administrative body
where the transcript of proceedings and all filings must be made is the official repository.
As in the court system, documents filed at the central repository can usually be reviewed without court
order. The administrative body often contracts with court reporters, so it may not be possible to make copies
of all of the documents in the file. If you want a copy of the transcript for review, you may have to contact the
reporter who was present at that proceeding and pay for the copy.
All medical records, billings, doctors’ reports, and notices that were sent to the employer, employee,
or treating physician are in the file. Many states require the treating physician to file regular progress reports.
Notices of any change in status are in the file, such as termination-of-benefits notices, return-to-work notices,
and the like. The calculation of the monthly wage is also in the file.
Due to the volume of workers’ compensation cases, many states maintain a paper file for only a short
period of time, after which the documents are transferred to microfiche or electronic storage. It is import-
ant to understand and be able to search the storage media, to ensure that all important documents you
need to review can be found and that any relevant documents that you may not know about will not be
overlooked.
Review some of the reported workers’ compensation cases from the past five years in your jurisdiction.
You want to find a case that refers to documents that should be in the file and, preferably, a case that refers to a
transcript, perhaps the testimony of a doctor. Once you have reviewed and briefed the case, go to the deposi-
tory of the file. Your task will be to locate all documents referred to in the reported case.
If the case you choose is in paper form and your jurisdiction uses other storage media for older cases,
review one of those case files to see how the documents are handled. In some jurisdictions the filings are cop-
ied chronologically, some with and some without an index. If electronic media are used, check to see the type,
if any, of indexing that is used. What kind of searches can be made? If the electronic storage is graphic rather
than text-based, you need to be sure that you do not miss an important document during your review of the
file. Without an index or the ability to search the database, you will have to physically review each document in
the file, much like the procedure with court files.
Tort Teasers
1. If Jim came to your office for advice, what additional, factual information would you need to give your
supervising attorney in order for them to make a decision regarding representation of Jim?
2. Review the statutory framework for your state’s workers’ compensation system. How does it compare
with Arizona’s?
3. How would you argue that Jim’s seven-month break in employment should not be considered in
determining his average monthly wage?
4. Calculate Jim’s average monthly wage according to the laws of your state, assuming that Jim usually
works 45 hours per week (six months of the year) and overtime (80 to 90 hours per week) for two months
of the year. Also assume Jim has never worked more than eight months a year.
Julie was a courier for a law firm in your state carrying workers’ compensation insurance. While in the
scope and course of their employment they were hit, head-on, by a negligent driver. Julie lost part of their
right leg, below the knee, as a result of their injuries. They were salaried, making $18,000 per year at the
time of the accident. Julie has come to your office (their office said it would be a conflict of interest for
them to represent them) for legal advice. Your supervising attorney has requested that you calculate the
following:
1. Julie’s maximum monthly benefit.
2. The amount of compensation they will receive solely as a result of losing part of their right leg.
3. Julie’s vocational rehabilitation benefits if they cannot return to their position as a courier.
4. The amount of benefits paid to Julie that would have to be repaid from any legal action against the
driver of the vehicle that caused their injuries.
Appendix A
Suggested Responses to “Putting It

into Practice” Exercises and Answers to
Practice Exams
Putting It into Practice manager’s reaction to stress and his request for
Valium put his employer on notice that he was not
someone of “ordinary temperament” and that he
Chapter 3 would probably not be able to endure the stress-
ful situation to which he had been subjected. This
notice to the employer provided the basis for a jury
3:1 Assault/Battery question of extreme outrage.
If the actress believes that the photographers had
the intent to contact her and they had the ability 3:4 Trespass
to carry out the threatened contact, then an assault
In Copeland v. Hubbard Broadcasting, Inc., 526
would have been committed even if she were not
N.W.2d 402 (Minn. 1995), from which these facts
afraid.
were taken, the court found that a claim for trespass
could exist. The district court concluded that the
3:2 False Imprisonment television station was entitled to summary judgment
These facts are based on an actual case, May because the student did not exceed the boundaries
Department Stores Co., Inc. v. Devercelli, 314 of the Copelands’ consent—they did not expressly
A.2d 767 (D.C. 1974). The jury concluded that limit their consent to her educational goals. The
the officer lacked probable cause to apprehend appellate court, however, recognized trespass as a
the plaintiff, and the majority found that the evi- remedy when secret cameras are used for gathering
dence supported their conclusion. The dissent, in news and held that newsgathering does not create
contrast, believed that probable cause existed as a license to trespass into a private home. The court
a matter of law and that despite the conflicting remanded the case to the jury to determine the
testimony, no disagreement existed regarding the nature of the Copelands’ consent to the student.
material facts.
3:5 Trespass to Chattels/
3:3 Intentional Infliction of Conversion
Emotional Distress These hypotheticals are taken from the Restatement
These are the facts of Tandy Corp. v. Bone, 678 (Second) of Torts § 222A, illus. 5, 6, 12, 25, and 26.
S.W.2d 312 (Ark. 1984). The court held that the No conversion is committed when Matthew puts
570 | Appendix A Suggested Responses and Answers
the furniture in storage and changes the locks, but 3. The “duty to retreat” doctrine makes clear
Matthew does convert John’s property when he that a person confronted with deadly force is
moves it to a distant warehouse that greatly inconve- not justified in using deadly force in response
niences John. John does not convert Matthew’s car if they can retreat with complete safety, unless
when he drives the extra 10 miles, but he does con- they are in their dwelling or its curtilage and
vert it when he gets into an accident. are not the initial aggressor. The exception to
the duty to retreat is premised upon the notion
3:6 Consent that when a person is in their own home or its
curtilage, there is no safer place to which to
In Berthiaume v. Pratt, 365 A.2d 792 (Me. 1976),
retreat. LaFave, supra § 5.7, at 660–61 n. 68
the court found no grounds for consent. The sur-
(1986). Given the rationale for this exception,
geon argued that the medical importance of the
we agree with the defendant that it applies
photographs overrode any apparent objections
even when the assailant is a cohabitant of the
of the patient, but the court refused to create
dwelling
any medical exception to the rules surrounding
consent. 4. In summary, we hold that RSA 627:4, II(d) does
not justify the use of deadly force against an
assailant when the assailant is a cohabitant of
3:7 Self-Defense the home.
Some facts are lacking, such as the man’s distance
5. The exception to the duty to retreat is pre-
from George and Sandy, but as long as a rea-
mised upon the notion that when a person
sonable person in George’s situation would have
is their own home or its curtilage, there is no
believed deadly force was immediately necessary
safer place to which to retreat. LaFave, supra §
to protect himself and another, George would be
5.7, at 660–61 n. 68 (1986). Given the rationale
justified in defending himself and Sandy. Because
for this exception, we agree with the defen-
the man is threatening with deadly force (a knife),
dant that it applies even when the assailant is
George would be justified in responding with
a cohabitant of the dwelling.
deadly force. The fact that the man is mentally
ill does not change the answer unless his mental
illness and the harmlessness of the knife would 3:9 Regaining Possession
have been apparent to a reasonable person in that of Chattel
situation.
The officers did appear to exceed their author-
ity in detaining the man for more than an hour, in
3:8 Katko v. Briney their attempts at intimidation (refusing his request
1. The defendant argued that the jury needed to to make phone calls and slapping the gun), and in
be instructed that he could use deadly force in their use of duress to induce him to sign a release.
self-defense if he reasonably believed that the The court found that the officers lacked probable
injured party was likely to use unlawful force In cause to arrest the man and should have kept him
the commission of a felony. under surveillance longer before detaining him for
2. The value of human life outweighs property questioning.
rights if there Is a threat to personal safety.
It is not inconsistent to hold: (1) that a person 3:10 Private/Public Necessity
is not entitled to use deadly force to repel a These hypotheticals are taken from the Restatement
non-deadly attack in the person’s home where (Second) of Torts § 262, illus. 1, and § 263, illus. 1.
the assailant is a cohabitant, see RSA 627:4, Both the fireman and Liz are privileged. The fireman
II(d); and also (2) that a person may, rather is not liable for damages to Maryann’s car, but Liz is
than retreat, use deadly force to repel a deadly liable for damages to the scarf. It is doubtful that
attack in the person’s home where the assailant Maryann has any valid defense if Liz was about to
is a cohabitant. bleed to death.
Appendix A Suggested Responses and Answers | 571
Chapter 4 4:2 Invitees/Licensees/Trespassers

1. According to the Restatement (Second) of
Torts § 332, from which these examples were
4:1 Attractive-Nuisance Doctrine taken, the appropriate classifications are
1. A subjective standard is used with this
a. licensee (comment b).
doctrine, because the age, intelligence, and
b. licensee (comment d).
experience of the plaintiff are taken into
c. invitee (comment d).
consideration.
d. invitee (comment e).
2. According to the Restatement (Second) of e. loses invitee status when she goes behind
Torts § 339(i), illus. 5, the company is not liable, counter where she does not have permis-
because the attractive-nuisance doctrine does sion to go; becomes a trespasser (com-
not apply when the defendant is maintaining ment l).
“normal, necessary and usual implements” that f. licensee.
are essential to a business and that “reckless 2. Because the child is a licensee (a social guest),
children can use to their harm in a spirit of bra- the homeowners owe her a duty to warn her
vado or to gratify some other childish desire” of hidden danger. The court in this case grap-
with full perception of the risks involved. The pled with whether a pool was a hidden peril
fact that Jed accepted the dare indicates that to a 19-month-old child and decided that it
he was aware of the risk. was a matter of fact for the jury to determine.
3. The second hypothetical is taken from The court noted that even if the homeowners
illustrations 6 and 7 in § 339(i) of the made the parents aware of the pool, they did
Restatement. The pond owner owes a duty not necessarily fulfill their duty to the child.
to Marie if she is three but not if she is ten, Shaw v. Peterson, 821 P.2d 220 (Ariz. Ct.
because the 10-year-old is expected to be App. 1991).
aware of the dangers of the pond whereas 3. The store has a duty to inspect the premises
the 3-year-old is not. If Marie was not able to for hidden dangers. The store owner might
appreciate the dangers of drowning because reasonably expect that customers’ attention
of some unique mental or physical disability, will be diverted by the displays and that
the owner could owe her a duty even if she they will not discover what is obvious. The
was ten. It would not change if it were a pool owner has a duty to take reasonable steps to
instead of a pond unless there was a require- protect customers from what is otherwise an
ment for fences around pools, etc. obvious condition. Perhaps the store could
4. The third hypothetical is taken from put up a warning sign at the entrance warn-
illustration 9 of § 339(i) of the Restatement. ing of the racks. Restatement (Second) of
The railroad company could be liable if it Torts § 343A, illus. 2.
could have easily installed a locking device,
but would not be liable if the locking device
would have seriously interfered with its 4:3 Hemmings v. Pelham Wood Ltd
business. The difference in answers arises
Liability
out of a balancing test—balancing the risk to
the children against the utility of the danger- 1. This case was to decide whether a landlord
ous condition (the turntable). The company has a duty to repair a known dangerous or de-
would probably not be liable, however, if fective condition under its control to prevent
Micki had been forewarned about the dan- a foreseeable third-party criminal attack upon
gers of the turntable (illustration 8), because a tenant within a leased apartment unit, and
he was aware of the risks involved and chose whether there is sufficient evidence of such
to ignore those risks out of recklessness or condition to make summary judgment inap-
bravado. propriate.
2. The tenant maintains, the landlord must main- be sued. No, the court did not buy into the
tain the areas under its control to prevent an “crushing burden” argument.
attack upon a tenant within the apartment 3. No municipality has gone bankrupt because
unit. it was held liable for negligent police actions.
2a. Once a landlord takes reasonable security The burden on the city’s budget for tort claims
measures to eliminate conditions that con- in other areas has not been burdensome.
tribute to criminal activity on the premises, Under a negligence standard the police are
all of its duties with respect to those mea- held to a standard of reasonableness, not
sures have not been fulfilled necessarily. perfection. In the instant case the plaintiff
Rather, a landlord has a continuing obli- would not have been able to recover under a
gation to properly carry out the security negligence standard if she had been attacked
measures it provides. We believe that, to after her first visits to the police station. The
properly perform the security measures police were negligent only after failing to
provided, the landlord has a duty to main- provide her protection after verifying her
tain and regularly inspect the devices im- claims that her life was in danger.
plemented to deter criminal activity. That 4. This case had nothing to do with a decision
is, if the security devices that the landlord regarding the allocation of resources or man-
provides require regular maintenance or power. Furthermore, courts frequently review
inspection for them to properly function, administrative practices in other types of tort
the landlord must do what is reasonable claims involving municipalities and in so doing
to maintain or inspect the devices. This they routinely apply the principles of vicarious
obligation is analogous to a landlord’s duty liability. If an injury is a result of failure to allo-
to “exercise ordinary care and diligence to cate sufficient funds, agencies can opt either
maintain [areas under its control] in a rea- to improve their administrative practices or to
sonably safe condition. accept the cost of compensating those who
b. Not necessarily. The landlord must use have been injured.
reasonable care to prevent foreseeable
5. It has often resulted in the adoption of bet-
injuries.
ter and more considered procedures just as
c. No.
workmen’s compensation resulted in improved
3. Private persons have no duty, but innkeepers
industrial safety practices.
do. The difference in duty is due to the nature
of the innkeeper-guest relationship. Guests’ 6. No, the appellate division did not adopt the
entrustment of their safety to the innkeeper no duty theory but did say there was no negli-
entitles guests to expect innkeepers to use gence here because the danger was not
reasonable care to protect them from attack. imminent.
4. The break-in here was not foreseeable and

there was a working lock and sliding door.
4:5 Duty to Protect
The landlord had not been negligent in pro- The court in this case (Figueroa v. North Park College,
viding working parts to prevent a foreseeable 879 F.2d 1427 [Ill. 1998]) concluded that the plaintiff
break-in. was not an invitee. The court used a three-part test:
1. Did she enter the premises by express or
implied invitation?
4:4 Riss v. City of New York
1. “Because we owe a duty to everybody, we 2. Was her entry connected with an activity
owe it to nobody.” the owner conducted or permitted to be
conducted on the land?
2. Holding the state liable will result in a finan-
cial disaster for New York City, because every 3. Was there a mutuality of benefit or a benefit to
time a crime is committed, inadequate police the owner?
protection will be claimed and the city will
The court determined that the first two parts of 6. Merchants Bank installed video surveil-
the test could be subject to reasonable dispute but lance equipment at its other branch night
concluded that as a matter of law the plaintiff failed depositories, but not at the Entrance Road
to meet the third part of the test, finding that any branch, which was the only branch in the high
“public relations benefit” to the defendant was “too crime area and the only branch which had
remote to confer invitee status.” already experienced two armed robberies. It
The court also used a voluntary-undertaking is apparent that the bank did not investigate
analysis and found that North Park had voluntarily crime statistics, consider its own history, or up-
undertaken to provide security measures and that date its equipment, which the CEO admitted
it had an obligation to provide reasonable protec- was antiquated, on a greatest-need-first basis.
tion to the plaintiff. The court further found that 7. Yes.
North Park had not been negligent in preventing
8. Yes Merchants Bank breached that duty
the crime against the plaintiff, as the plaintiff had
because it failed to perform the duty in a
failed to prove that the assault against her had been
reasonable and prudent manner. If the duty
foreseeable. No that would not make a difference
was breached, the breach is the legal cause of
since it was still not foreseeable.
Jesse’s injuries.
Chapter 5 5:2 Using the Restatement to

Determine Reasonableness of
5:1 Pinsonneault v. Merchants & Conduct
Farmers Bank & Trust Company The utility of the state’s inaction must be weighed
1. Merchants Bank expressly assumed this duty against the risk to those who might be harmed by div-
when, based upon the FDIC regulations, ing into shallow waters. Although the state’s failure to
Merchants Bank developed a security plan warn could certainly result in harm to those unaware
of its own in April of 1992. Based upon of the dangers of shallow water, the question is “the
the bank’s invitation to Sambino’s Pizza to extent of harm likely to be caused,” the chance that
bring money to the depository, the bank’s such harm would occur, and “the number of persons
experience with prior shooting and criminal whose interests are likely to be invaded if the risk
attacks, the foreseeability of future criminal takes effect in harm.” The utility to the state pertains
conduct, and the bank’s assumed duty of se- to the feasibility of the state inspecting the terrain of
curity pursuant to its written plan, Merchants the park for hidden dangers, considering the size and
Bank was duty-bound to provide security to nature of the park. In balancing the risk against the
its patrons. They had already had 2 armed utility of the state’s conduct one would have to con-
robberies at this point. sider (1) the size of the park, (2) the extent of use of
2. No. The “duty of protection voluntarily the lake and of the cove in question, (3) the accessi-
assumed” should be reserved for those cases bility of the cove, (4) the extent to which the park was
where the business owner expressly or tacitly and could reasonably be patrolled, (5) the time and
assumes the duty of protection ... businesses resources that would have to be expended in taking
such as banks or innkeepers where security is the requisite precautions, and (6) the obviousness of
considered to be an intrinsic part of the service the danger the cove presented. After weighing the
offered. magnitude of the risk of the cove against the utility
of the state’s conduct, one might expect the state to
3. Banks and Innkeepers
inspect locations such as the cove for hidden dangers
4. The FDIC, under the Bank Protection Act of and either remove them or post warnings regarding
1968, mandated a security officer designation their existence, or one might find such an inspection
and a security plan implementation within thir- impracticable; or, alternatively, that inspections were
ty days of membership in the FDIC. unreasonable but that reasonable care required post-
5. Comparative negligence. ing signs prohibiting diving. For the court’s analysis of
a similar case, see Markowitz v. Arizona Parks Board, She would have been held to a reasonable
706 P.2d 364 (Ariz. 1985). person standard unless this was sudden in-
sanity.
5:3 What the Reasonable Person Is 2. The minor could be held to an adult standard
of care if a court concluded that hunting is a
Expected to Know dangerous activity engaged in by adults and
1. Yes. The dangerous nature of icy roads is not children. But if a court concluded that mi-
common knowledge in the community. nors commonly hunt, the minor would be held
Restatement (Second) of Torts § 290, illus. 4. to the standard of care of a child of the
It would make it an even stronger argument defendant’s age, intelligence, and experience.
because he of all people would have had com-
3. If the driver had never experienced a seizure
mon knowledge of the icy roads.
previously, they would not, as a reasonable
2. Yes. The danger of explosion is common person, be expected to take any precautions
knowledge in the community. Restatement to prevent an accident. But having been treat-
(Second) of Torts § 290, illus. 3. Her guests ed for epilepsy, they would be held to the
would most likely be held to a reasonable standard of a reasonable epileptic. According
person standard and be expected to have to the Restatement (Second) of Torts § 283C,
recognized the odor of gas. cmt. c, it might be negligence for such a
3. Yes. Susan is charged with knowledge of the person to drive at all, although the fact that
ordinance and should expect the trolley to stop. the driver had been seizure-free for more than
Restatement (Second) of Torts § 290, illus. 7. A 10 years makes that unlikely.
reasonable person in this instance would have
knowledge of the local ordinances.
4. The court in Dolezal v. Carbrey, 778 P.2d 1261
5:5 Negligent Per Se
(Ariz. 1989) concluded that reasonable minds 1. According to the Restatement (Second) of Torts §
could differ as to whether it was “foreseeable 286, reasonable persons should know that walk-
that an otherwise gentle horse might bolt in ing on a highway is dangerous. He would not be
reaction to out-of-the-ordinary cues” from an protected by negligence per se unless the driver
inexperienced rider. The questions the court was speeding or driving recklessly when they hit
believes should be considered in assessing the him. The driver would be negligent if they broke
reasonableness of Frank’s conduct are whether the law but probably not otherwise if it were not
Frank should have let an inexperienced rider reasonable to see the walker.
ride an animal accustomed to proper and subtle 2. The purpose of the statute is to protect the
cues, whether he sufficiently instructed Carole public from incompetent physicians. The de-
before she rode, and whether he adequately fendant’s violation of the statute does not by
supervised her riding and dismount. itself establish negligence; the plaintiff must
prove that the defendant was incompetent
(that he fell below the standard of care of a
5:4 Standard of Care in Special reasonable physician). Brown v. Shyne, 151
Circumstances N.E. 197 (N.Y. 1926).
1. In Breunig v. American Family Insurance Co., 3. Marjorie can, but Helena cannot, because the
713 N.W.2d 619 (Wis. 1970), the court did statute was designed to protect employees,
not allow the defendant to claim insanity as not visitors. Restatement (Second) of Torts §
a defense. The court noted, however, that if 286, illus. 1.
the defendant had not experienced similar 4. This would not fall under negligence per se. The
delusions previously, it would have allowed standard would be a reasonable person stan-
the insanity defense, because if insanity dard. Would a reasonable person have had a
strikes suddenly with no forewarning, indi- belief that the mail carrier was a trespasser and
viduals cannot do anything to avoid liability. been allowed to use deadly force against them?
Probably not. The force was not justified as there 2. No, the court found no causal connection
was no perceived threat. The driver should have between the association’s sponsorship and the
had his vehicle clearly marked since it was not a plaintiff’s loss. According to the court, “The
government issued one. Would that have justi- only connection between the conduct of [Ford]
fied the deadly force? Probably not. and plaintiff’s injury was an aura of legitimacy
given to the race by the participation of a
nationally-known sponsor.” McCulloch v. Ford
Chapter 6 Dealers Advertising Ass’n, 234 Cal. App.
3d 1385 (1991). It would have to be proven
that Ford knew about the advertising and
6:1 Mohr v. Grantham sponsorship in order to be held liable. Were
1. Yes. We hold that lost chance claims apply they paying the Advertising Association for
where the ultimate harm is some serious promotional materials? Were they a principal
injury short of death. The court also formally for the Advertising Association?
adopts the reasoning of the Herskovits 3. Because most diseases can be tied to a
plurality. Under this formulation, a plaintiff number of causal factors, they will have dif-
bears the burden to prove duty, breach, and ficulty proving with a reasonable degree of
that such breach of duty proximately caused a medical certainty that Agent Orange was in
loss of chance of a better outcome. fact the precipitating cause of the plaintiffs’
2. Yes. The court found that the Herskovits plurality injuries. The defendant will scrutinize the
has withstood the broad policy criticisms raised medical histories of the plaintiffs, looking for
against it and comports with the medical mal- signs of cigarette smoking, alcohol abuse,
practice statute. drug use (prescription and nonprescription),
3. Instead, the loss of a chance is the compensa- family history, exposure to other toxic chem-
ble injury. icals and to pathogens (such as bacteria and
parasites), and any other factors connected
4. No. We find no meaningful basis to distinguish
with the diseases in question. The plaintiffs will
permanent disability from death for the pur-
have to present strong expert testimony and
poses of raising a loss of chance claim.
epidemiological evidence (and to a lesser
5. No.
degree animal studies) to establish causation.
6:2 Actual Causation 6:3 Palsgraf Again

1. No. Although the plaintiff may argue that but 1. Yes. No.
for the misrepresentation, she would not have 2. A duty.
bought the condo (and she can certainly claim 3. She must show a “wrong to herself, i.e., a
damages for that misrepresentation), she can- violation of her own right.” It is defined in
not apply the but-for test to the broken pipes “terms of the natural or probable.”
because the representation by the broker made 4. Risk imports relation means it is risk to another
no reference to the plumbing. Therefore, there or to others within the range of apprehension.
is no causal link between the broken pipes and Negligent the act is, and wrongful in the sense
the misrepresentation. Were the plaintiff’s dam- that it is unsocial, but wrongful and unsocial
ages reasonably foreseeable as a consequence in relation to other travelers, only because the
of the defendant’s conduct? It is possible the eye of vigilance perceives the risk of damage.
plaintiff could prove that the defendant’s lack
5. When “it results in the commission of a wrong,
of information and their reliance on the broker’s
and the commission of a wrong imports the
statement caused them to purchase the condo.
violation of a right.”
If they had not purchased the condo based on
the false statements, then they never would 6. A duty to “protect society from unnecessary
have had to pay for the broken pipes. danger, not to protect A, B, or C alone.”
7. No. Negligence is in relation to the plaintiff and No. they would need to go after the driver of
entails liability for any and all consequences, the truck.
however novel or extraordinary. No. The train company was not negligent.
8. To “refrain from those acts that may unreason- Yes - their negligence caused the entire chain
ably threaten the safety of others.” No. of events. Just like in Palsgraf. This bizarre
chain of events shows how proximate cause
9. “Because of convenience, of public policy,
can often be confusing.
of a rough sense of justice, the law arbitrarily
2. Yes. Under the “eggshell skull” rule, even if a
declines to trace a series of events beyond a
normal person in Helen’s position would have
certain point.Negligence entails liability for
recovered after leaving the plant, Helen’s psy-
any and all consequences. If the harm is not
chological vulnerability would not break the
willful, did the plaintiff show that the acts had
chain of causation. In fact, the court (in what
possibilities of danger that they should be
the appellate court refers to as the case of
protected.
the “dynamite heart”) found that Helen failed
10. Because the chauffeur’s negligence was not to prove actual causation and denied her
the proximate cause of their injuries, a prudent recovery for her hypochondriacal injuries on
person would not have foreseen these conse- that basis. Stoleson v. United States, 708 F.2d
quences. Because he should be responsible for 1227 (7th Cir. 1983).
what might reasonably be expected to follow
from an explosion.
11. No. A question of judgment. The act was 6:6 Patterson v. Thunder Pass Inc.
negligent and for its proximate consequences 1. The supreme court held that a tavern owner is
the defendant must be liable. under a duty, imposed both by common law
12. Yes. Not necessarily. principles and statute, to exercise affirmative,
reasonable care in serving intoxicants to
patrons who might later injure themselves or
6:4 Actual Cause versus Proximate
an innocent third party, whether on or off the
Cause premises.
The court found that reasonable people could find the 2. Yes. Roque’s decision to return that night to
state’s failure to post warning signs to be the cause of retrieve her vehicle while she was still intoxicat-
Susan’s injuries because they could have concluded ed was unforeseeable and extraordinary and
that Susan would have been more cautious when walk- thus constituted a superseding, intervening
ing the trails if an adequate warning had been given. event of independent origin that negated any
The question of actual causation revolves around negligence on the part of the tavern or its em-
whether the state’s inaction in fact caused Susan’s ployees.
injury; in other words, can it be argued that but for
3. No.
the state’s failure to warn, Susan would not have been
injured, or that the state’s inactivity was a substantial 4. If “an injury is produced by an intervening
factor leading up to Susan’s injury? The question of and superseding cause, even though the
proximate cause is a question of foreseeability: was original negligence may have been a sub-
Susan’s injury a reasonably foreseeable consequence stantial factor in bringing about the injury,
of the failure to post warning signs, or was the connec- the original actor is not legally responsible
tion too remote to find proximate cause? therefor” because the necessary proximate
causation is lacking.
6:5 Exceptions to Cardozo Rule 5. Ontiveros v. Borak and Brannigan v. Raybuck.
1. No. The driver of the car had no negligence 6. A.R.S. § 4–311

in the case. The driver of the truck full of rocks 7. Possibly. It must be affirmative and reasonable
was negligent. care.
6:7 Intervening versus Superseding rehabilitation and counseling he would need. In

assessing his pain-and-suffering award, the court
Causes considered the daily humiliation he endured, his
1. Yes, as long as Lucinda was being reasonably physical pain, his depression, his loss of sexual
careful in learning to use her crutches. Her powers, and his disfigurement and anxiety, as well
behavior in walking across the narrow walk- as the ongoing mental and physical distress he
way was probably unreasonable and would would continue to suffer. A “day in the life” video
be considered an abnormal consequence of would be helpful in such a case and, in fact, in
the original broken leg, making her actions a considering pain-and-suffering damages, the court
superseding cause. Restatement (Second) of alluded to one incident that required the plaintiff
Torts § 460, illus. 1 and 2. to be “washed down with a hose” after having an
2. The earthquake would be an intervening and involuntary bowel movement while on an outing
superseding cause. The elevator company may with friends.
be successful in arguing such, however, if the
area was known to have a lot of earthquakes
and the company not having a proper working
7.2 Phillip Morris USA v. Williams
elevator led to his injuries then they may lose 1. The Due Process Clause forbids a State to use
the argument. a punitive damages award to punish a defen-
dant for injury inflicted on strangers to the
3. No, because the extraordinary and gross
litigation.
negligence of the ship’s captain would be
considered a superseding cause. The trial 2. Excessiveness decision depends upon the rep-
court found that the “captain’s failure to plot rehensibility of the defendant’s conduct, wheth-
fixes . . . was entirely independent of the fact er the award bears a reasonable relationship
of breakout.” Exxon Co. v. Sofec, Inc., 116 S. to the actual and potential harm caused by the
Ct. 1813 (1996). defendant to the plaintiff, and the difference
between the award and sanctions “authorized
or imposed in comparable cases.
Chapter 7 3. Yes. The Constitution’s Due Process Clause for-
bids a State to use a punitive damages award
7:1 Damages in Case of VA Patient to punish a defendant for injury that it inflicts
upon nonparties or those whom they directly
These facts are taken from Christopher v. United
represent, i.e., injury that it inflicts upon those
States, 237 F. Supp. 787 (E.D. Pa. 1965). The plaintiff
who are, essentially, strangers to the litigation.
was awarded damages for lost wages, future lost
earnings (reduced to present value), future medical 4. As the preceding discussion makes clear, the
expenses, and pain and suffering. He received no court believed that the Oregon Supreme Court
compensation for past medical expenses because applied the wrong constitutional standard
those had been paid for by the government. The when considering Philip Morris’ appeal.
court deducted past disability payments from his They remanded this case so that the Oregon
award because the government had already paid Supreme Court can apply the standard we
these sums to the plaintiff, and under the service- have set forth.
men’s benefit laws he could not recover twice for the
same injury.
The court looked at the plaintiff’s past salary, the 7:3 Punitive Damages
wages he had lost since his operation, the projected 1. Punitive damages are not justified accord-
salaries he would have earned had he been able ing to this court in this case. Woolstrum v.
to work until he was 65 (his proven earning ability Maillioux, 141 Cal. App. 3d Supp. 1 (1983).
along with his prospects for future employment), The defendants were negligent, not willful
the operations he would probably need, and the and wanton. The evidence did not show that
the “defendant knew his fence was danger- resulting from a misdiagnosis of AIDS is fore-
ously weak . . . and that he consciously disre- seeable and that such distress is serious or
garded the probability (not possibility) that a severe. . . . The significance of a false
cow would lean against it and that, if it did, imputation of AIDS is unquestionable.”
the cows would escape and probably (not
possibly) cause a serious accident.” Since
primates are not normal farm animals and
Chapter 8
may require a higher level of containment.
It would definitely be a different standard of 8:1 Contributory Negligence
care to contain a dog or cat than a danger-
1. Jeff can recover for the initial damages to his
ous mountain lion or monkey.
car because his negligence in speeding did
2. The court held that as a “matter of law the not cause the accident; however, because his
evidence of the plaintiff fell far short of negligence did result in him losing control of
showing a wanton disregard by defendant of a his car, he cannot recover for his personal inju-
probable” injury. ries or the damages resulting from going into
the ditch. Restatement (Second) of Torts § 465,
7:4 Wrongful-Death/Survival illus. 1. Last clear chance would only apply if
he had an opportunity to prevent the damages
Claims
that occurred and did not. It does not appear
These facts are taken from Bendalin v. Valley National that was the case here.
Bank, 540 P.2d 194 (Ariz. 1975).
2. Yes, under the last-clear-chance doctrine.
a. The last-clear-chance doctrine still applies.
7:5 Damages for Mental Suffering b. The last-clear-chance doctrine does not
1. In Sinn v. Burd, 404 A.2d 672 (Pa. 1979), the apply because Corinne’s negligence
court allowed a claim of infliction of emotional preceded her encounter with Geral-
distress because the plaintiff was “located near dine. Therefore, she did not have a “last
the scene of the accident, the shock resulted clear chance” to avoid the accident.
from a direct emotional impact upon the plain- Restatement (Second) of Torts § 479,
tiff from the sensory and contemporaneous ob- illus. 1–3.
servance of the accident, and the plaintiff and c. If Corinne had stopped and was injured
victim were closely related.” The same would by the wreckage from Geraldine’s car then
apply if he dies. she may have a case against Geraldine
2. In Mazzagatti v. Everingham, 516 A.2d 672 for damages. It depends on whether she
(Pa. 1986), the court reasoned that “where the stopped after she hit Geraldine’s car or be-
close relative is not present at the scene of the fore.
accident, but instead learns of the accident 3. No, because the last-clear-chance doctrine
from a third party, the close relative’s prior does not apply. Christy’s prior negligence pre-
knowledge of the injury to the victim serves as vented her from discovering Margaret’s car.
a buffer against the full impact of observing Restatement (Second) of Torts § 479, illus. 4.
the accident scene. By contrast the relative
who contemporaneously observes the tortious 8:2 Children’s Wish Foundation
conduct has no time in which to brace his or
Intern Inc. v. Mayer Hoffman
her emotional system.” Here, the child lying in
the street was not the plaintiff’s own, so there McCann P .C.
would be no claim for infliction of emotional 1. This Court reviews de novo, as a question of
distress. law, whether a jury was properly instructed.
3. In allowing the emotional-distress claim, the 2. First, plaintiff erroneously stated to defen-
court in Chizmar v. Mackie, 896 P.2d 196 dant Mayer Hoffman McCann, P.C. that its
(Alaska 1995), held “that the emotional distress accounting records reflected the gifts-in-kind
plaintiff had received, or plaintiff provided to 5. The court found that the contributory negli-
defendants Mayer Hoffman McCann, P.C. and gence rule yields unfair results which can no
CBIZ Accounting, Tax & Advisory of Kansas longer be justified.
City, Inc. erroneous shipping records to Ronald
McDonald House, and Second, plaintiff, in one
or more of the respects submitted in Para-
8:4 Contributory Negligence,
graph First, was thereby negligent, and Third, State Law
such negligence of plaintiff directly contribut- [Answers depend on the laws of your state.]
ed to cause its injury.
3. CWF argues that the jury should have been
8:5 Assumption of Risk
instructed on comparative fault.
1. The ticket holder might not read the waiver
4. Matters like economic loss resulting from
and thus may claim lack of notice; because the
a tort such as negligent misrepresentation,
printing is so small, notice of the waiver is un-
or interference with contractual relations or
likely. No signature is required, so any agree-
egregious falsehood, or harm to reputation
ment on the part of the ticket holder is hard to
resulting from defamation. But failure to
prove.
include these harms specifically in the Act
is not intended to preclude application of 2. Yes, according to the court in Wertheim v.
the general principle to them if a Court de- United States Tennis Ass’n, 150 A.D.2d 157
termines that the common law of the state (N.Y. 1989), which held as a matter of law that
would make the application. being hit by a tennis ball is a risk normally
associated with the sport.
5. The Court concludes that principles of com-
parative fault that to date have been applied 3. No. the plaintiff is not negligent by doing their
in negligence actions involving personal job and did not decide to entertain a risk.
injury also should be applied in profession- There were few other options available than
al negligence actions that allege economic doing their job at that moment. .
loss.
6. To reverse on grounds of instructional error, 8:6 Immunity
the party claiming the error must establish 1. No, according to the court in Lovitt v.
prejudice because the instruction misdirected, Concord School District, 228 N.W.2d 479
misled, or confused the jury. (Mich. 1975), because the program was
7. That negligence actions are fault-driven. It is a governmental rather than proprietary
just like a broken leg from a car accident. function. The fact that the school charged
admission to football games did not
8. Yes. Remanded
influence the court’s analysis. However, in
reference to the claims against the coaches,
8:3 Kaatz v. State the court found that the “liability of the
teachers is not based upon negligence
1. Systems of comparative negligence can take
imputed to them as public functionaries, but
several forms. The court dealt with one facet
rather it arises from their individual conduct.
of the comparative negligence rule at this
. . . [E]ven if it is assumed that the teachers
time: the status of the doctrine of “last clear
. . . could be considered ‘public officers’
chance.” Since they found no further use for
otherwise sharing in the protection of
contributory negligence, the last clear chance
governmental immunity, they would still be
doctrine is obsolete.
subject to liability because they invaded the
2. Nothing rights of specific persons.”
3. It is obsolete since the court found 2. The U.S. Supreme Court has prohibited
contributory negligence no longer applies. section 1983 claims against public defenders
4. The pure system of comparative negligence. by ruling that they do not act “under color of
state law.” Most courts have refused to grant 2. It is well-established that the proper standard
immunity to public defenders in malpractice for proximate causation in a negligence action
claims, arguing that the public defender is is that the negligence must be “a proximate
not like a judge or prosecuting attorney, but cause” not “the proximate cause.” A plain-
rather like a private attorney whose only duty tiff prove that he or she suffered an injury
is to the client, and that it would be unfair to that more probably than not was proximately
deprive indigent defendants of this remedy. caused by the negligence of the defendant or
Others have granted immunity relying on defendants, in the context of this case.
policy arguments regarding the limited 3. In order to be a proximate cause, the negli-
funds and heavy caseloads that face public gent conduct must have been a cause of the
defenders, the possible “chilling effect” that plaintiff’s injury and the plaintiff’s injury must
liability would have on the public defender’s have been a natural and probable result of
defense strategies, and the problems that the negligent conduct.
liability would have on recruiting attorneys to
4. Fulton subtracted the statistical likelihood of
work as public defenders. They distinguish
a better outcome without treatment from the
public defenders and private attorneys
statistical likelihood of a better outcome with
on the basis that public defenders cannot
treatment to determine if the resulting number
decline clients, even those with meritless
is greater than 50. Fulton’s simplistic subtrac-
cases. Barner v. Julie Leeds, 13 P.3d 704
tion formula is not an accurate way to deter-
(Ca. 2002).
mine whether a defendant’s malpractice
3. In Schultz v. Roman Catholic Archdiocese, 472 is a proximate cause of the injury.
A.2d 531 (N.J. 1984), the court held that the
5. We emphasize that we hold that the second
Charitable Immunity Act prevented a charity
sentence of § 2912a (2) applies only to medi-
from being found liable for negligence. The
cal malpractice cases that plead loss of oppor-
dissent, however, argued that statutory charita-
tunity and not to those that plead traditional
ble immunity does not apply to intentional torts
medical malpractice; we do not address the
and that the “negligent hiring, supervision and
scope, extent, or nature of loss-of-opportunity
retention of potentially harmful employees by
claims as that issue is not before us.
the entity constitutes an exception to the rule of
charitable immunity.”
4. Not if the state in which he resides has 9:2 Malpractice Claim
adopted, by statute or judicial decision, 1. The court found that the estate had failed to
parent-child immunity. For an exemplary case, establish a prima facie case of malpractice
see Richards v. Richards, 604 So. 2d 487 because the medical expert’s testimony failed
(Fla. 1992). to express the requisite degree of medical cer-
tainty. “An expert fails this standard of certain-
ty if he testifies ‘that the alleged cause “pos-
8:7 Statutes of Limitations
sibly,” or “could have” led to the result, that it
[Consult the applicable statutes in your state.] “could very probably account” for the result,
or even that it was “very highly probable” that
Chapter 9 it caused the result.’” Hoffman v. Brandywine
Hospital, 661 A.2d 397 (Pa. 1995).
2. Yes.
9:1 O’Neal v. St. John Hospital and 3. No. It would still be malpractice.
Medical Center 4. Notified the patient immediately of the con-
1. Defendants brought a motion for summary dis- traction of Hepatitis and given her treatment
position challenging the sufficiency of plaintiff’s options as well as general Information.
expert testimony on the issue of proximate 5. The appellate court concluded that the expert
causation. testimony failed to establish a causal link
between the anesthesiologist’s actions and Chapter 10

Herman’s myoclonus. The court characterized
the expert’s conclusion regarding proximate
cause as “mere speculation.” Because
10:1 Intentional Misrepresentation
Herman was unable to prove the underlying
medical malpractice claim, his legal 1. The doctor’s representations regarding the
malpractice claim must fail. Stanski v. Ezersky, results of the operation are not fraudulent. Lu-
644 N.Y.S.3d 220 (N.Y. 1996). He would have cille’s scar was in fact lowered, and the surgery,
to have a stronger cause of causation in order except for the blistering, accomplished the
to succeed. results she expected. His promises to fix the
problem were not misrepresentations in that
he did continue to treat her and never
9:3 Informed Consent refused to see her. Lucille opted to consult
1. The court found a lack of informed consent other doctors, so she did not rely on the
in that the hospital’s silence as to the risks doctor’s representations and suffered no dam-
“amounted to an assurance that there were ages as a result of these postsurgical promises.
none whereas its own questions to patients Stone v. Foster, 164 Cal. Rptr. 901 (Ct. App.
regarding reactions to this specific procedure 1980). As far as her implant surgeon, unless
demonstrate[d] that [it] . . . recognized the sub- they misrepresented the fact that there were
stantial possibility of complications.” Keel v. no risks involved with her original surgery,
St. Elizabeth Medical Center, 842 S.W.2d 860 there is probably not a claim for misrepresen-
(Ky. 1992). This would probably be professional tation there either.
negligence since malpractice usually involves 2. The agent here did have a duty to disclose this
some type of intent. fact, especially since it was a latent defect and
2. The court found a lack of informed consent not visible to the buyers. This nondisclosure
because the doctors failed to describe the could be considered concealment. This fact
advantages and disadvantages of the var- would have been essential to the transaction
ious replacement valves and to disclose and the buyers would most likely never have
the recognized risks of the Beall valve. The purchased the land if they had knowledge of it.
court explained that doctors must discuss 3. An annulment was granted. Although the
alternative valves when they “represent trial court opined that “if there were false
medically recognized alternatives.” Stover representations, the plaintiff condoned them,”
v. Association of Thoracic & Cardiovascular the appellate court concluded that Maria’s
Surgeons, 635 A.2d 1047 (Pa. 1993). The actions had to be considered in light of her
cardiologist would be held to the standard background and the atmosphere in which she
of care of the average cardiologist, not the was living and that she “was no more capa-
average physician. ble of ‘condoning’ defendant’s false repre-
sentations than would be an infant or one of
9:4 Battery versus Negligence unsound mind.” Zmyslinski v. Zmyslinski, 151
Because Patricia is claiming that she was harmed by N.Y.S.2d 774 (App. Div. 1956). No. There are
the drug, not by the insertion of the needle, the court no defenses for him. He was committing rape
refused to find a battery. The fact that the doctor against his wife.
or nurse had to touch Patricia in order to insert the 4. The court refused to allow Peter to recover
needle was not sufficient to invoke the battery doc- because he failed to prove the element of reli-
trine. The court agreed with the plaintiff, however, ance, noting that the plaintiff had “elected to
that it was time to adopt a negligence standard, stand upon [the complaint] without exercising
because “[a] patient’s decision to undergo drug his leave to amend.” Peter W. v. San Francisco
therapy should be no less informed than a decision Unified School District, 131 Cal. Rptr. 854
to undergo surgery.” Wu v. Spence, 605 A.2d 395 (Ct. App. 1976). The school did not misrepre-
(Pa. 1992). sent a fact with the intent of inducing the plain-
tiff’s reliance on it. They did not make a false 4. No

statement knowing it was false. The fact that 5. The Courant claims that the trial court improp-
the plaintiff suffered “damages” in this case by erly refused to set aside the jury verdicts as to
not learning all he could have would not be the the negligent misrepresentation claims
fault of the school. His parents would have had because the alleged oral misrepresentations do
to have some responsibility to ensure he was not support claims of negligent misrepresenta-
learning as well. If the school was not holding tion. The Courant argues that such a claim does
him back when they should have or disregard- not exist between “two sophisticated com-
ing policies regarding such actions, they may mercial parties with full access to information
have grounds for that. concerning a business transaction,” and that
5. The court found no misrepresentation. The a “special relationship” between the parties is
court saw no more in Kaiser’s literature than a necessary predicate to liability for negligent
a “generalized puffing” to the effect that the misrepresentation. The court disagreed. One
foundation’s doctors would exercise good judg- who, in the course of his business, profession
ment in their care. The court also concluded or employment ... supplies false information
that the “incentive” plan used by Kaiser was for the guidance of others in their business
recommended by professional organizations as transactions, is subject to liability for pecuniary
a means of reducing unnecessary medical costs loss caused to them by their justifiable reliance
and that it was not evidence that any doctors upon the information, if he fails to exercise
had acted negligently or that they had refrained reasonable care or competence in obtaining or
from recommending necessary diagnostic communicating the information.
procedures or treatments. Pulvers v. Kaiser 6. A remedy on the contract is independent of a
Foundation Health Plan, 160 Cal. Rptr. 392 (Ct. remedy for negligent misrepresentation. The
App. 1980). The facility is not required to reveal dealerships were not barred from pursuing
it is a non-profit if that fact would not influence a negligence claim solely because they also
whether they received medical care there. might have had a breach of contract claim.
7. No. The Courant concedes that General Stat-
10:2 Negligent Misrepresentation utes § 52–572h(b) has eliminated this rule
The court concluded that William had a claim for in favor of comparative negligence for “dam-
negligent misrepresentation because he relied (to ages resulting from personal injury, wrongful
his detriment) on the doctor’s misrepresentations death or damage to property,” but argues
regarding his experience as well as the lack of risk of that this statute does not apply to purely
amputation. The court suggested that William had commercial losses.
a viable claim for lack of informed consent as well. 8. No. The record does not support a conclusion
Bloskas v. Murray, 646 P.2d 907 (Colo. 1982). that the Courant’s negligence constituted an
“immoral, unethical, oppressive or unscru-
10:3 Williams Ford, Inc. v. Hartford pulous” practice. Moreover, because the jury
Courant Co. found that the dealerships were 10 percent
contributorily negligent, the dealerships have
1. Automobile dealership groups brought action not proved that they “could not reasonably
against newspaper to recover damages for in- have avoided” any injury.
tentional misrepresentation or fraud, negligent
misrepresentation, and violation of Connecti-
cut Unfair Trade Practices Act (CUTPA) in con- 10:4 Innocent Misrepresentation
nection with newspaper’s sale of advertising
The court affirmed a judgment for the Ballards
space to dealership groups.
against the broker on the grounds that brokers
2. No have a duty to know about the property they
3. No are selling and that as professionals possessing
superior knowledge, buyers should be expected 10:6 Nuisance

to rely on their representations. Brokers, the court
1. Yes; the court found that the landlords had not
suggested, could protect themselves “by investi-
acted reasonably in dealing with the problem.
gating the owner’s statements, or by disclaiming
Lew v. Superior Court, 25 Cal. Rptr. 2d 42
knowledge, by requiring the seller to sign at the
(Ct. App. 1993).
time of listing a statement setting forth represen-
tations which will be made, certifying that they 2. Yes on private nuisance. The neighbors must
are true and providing for indemnification if they show that their use and enjoyment of their
are not.” The facts supported a misrepresenta- land was substantially interfered with and that
tion claim, in that the listing, which mentioned a the defendant’s conduct was intentional. There
100-foot well, would reasonably lead buyers to would be no public nuisance since the public
assume the well was good; the listing misrepre- at large was not injured from exposure to the
sented the well; and the Ballards relied on that noise.
misrepresentation. Bevins v. Ballard, 655 P.2d 757 3. No. The court refused to find a private nuisance
(Alaska 1982). The broker could try and argue on the basis that publicity concerning the con-
that the sellers told them it was in good working tamination of groundwater in the area (not the
order. It is doubtful this would hold up since it is plaintiffs’ groundwater) had caused a diminution
the responsibility of the broker to only make true in property value. The court observed that “neg-
representations about the property, and if they did ative publicity resulting in unfounded fear about
not have proof about the well, they should have dangers in the vicinity of the property does not
ordered an inspection. The buyers also should constitute a significant interference with the
have asked for an inspection as well. use and enjoyment of land.” Although property
depreciation is an element of damages in a nui-
sance action, such an allegation by itself does
10:5 Wood v. Picillo not establish a claim of private nuisance. Adkins
1. The odors of chemicals were obvious, as was v. Thomas Solvent Co., 487 N.W.2d 715 (Mich.
visual evidence of chemicals in a trench and 1992). No other possible claims are evident.
chemicals flowing from barrels. Trucks from 4. Damages for injuries resulting from the noise,
chemical companies were seen entering according to the court in Griggs v. Allegheny
the property. Soil samples were tested and County, 369 U.S. 84 (1962).
found to contain a number of toxic chemicals.
Testimony showed that the chemicals were
traveling from the dump site to waters inhabit-
10:7 Interference with Business
ed by fish and used by humans. Relations
2. Nuisance requires a showing of unreasonable 1. The court granted summary judgment to
injury rather than unreasonable conduct. Pro-Image on the interference with existing
contractual relations claim because the evi-
3. The neighbors showed signs of exposure to
dence showed that Pro-Image was acting to
toxic chemicals, and testimony showed that
protect its own legitimate business interests
the chemicals found on the defendants’ prop-
rather than to harm University Graphics. The
erty threatened wildlife and human life with
court also granted summary judgment on the
possible death, cancer, and liver disease.
prospective contractual relations claims, noting
4. The science of hydrology has grown since that when a “defendant acts at least in part
1934, when Rose was decided, and societal for the purpose of protecting some legitimate
concern for environmental protection has interest which conflicts with that of the plaintiff,
grown considerably since that time, so that the a line must be drawn and the interests eval-
scientific and societal considerations that gov- uated” and that interferences that “are sanc-
erned Rose no longer apply. tioned by the ‘rules of the game’ which society
5. No. has adopted” are regarded as privileged.
Pro-Image’s expression of its concerns regard- kicked him. The jury found for the defendant.
ing University Graphics “falls within the ‘rules Deardorff v. Burger, 606 A.2d 489 (Pa. 1992).
of the game’ permitted by society” and was 2. The owner owns a dog whose breed has a pro-
justified as a means of protecting its own pensity to be territorial. The leash law gener-
interests. University Graphics, Inc. v. Pro-Image ally means when outside of the house or fence
Corp., 913 F. Supp. 338 (C.D. Pa. 1996). they must be on a leash so they were in vio-
2. The court granted summary judgment to the lation of that. That should not preclude Jerry
attorney, because as a legal adviser to the from damages in this case. See your state laws
students, he was privileged to advise them for specifics to your jurisdiction.
to breach their contracts with the school. As
an attorney, he “was required to make a full
and complete investigation of his clients’ al-
11:2 City of Neodesha v. BP Corp.
legations”; he was also justified in contacting North America, Inc.
witnesses and in giving legal advice regarding 1. Because of groundwater and subsurface soil
the enforceability of contracts. The court noted contamination caused by the now dismantled
that “an attorney who in good faith counsels oil refinery facility.
a client to breach a contract with a third party 2. Because there were so many people affected
must not be hindered or impeded by fear of by the damages.
retaliatory lawsuits.” Brown Mackie College
3. City, individually and as class representative
v. Graham, 768 F. Supp. 1457 (D. Kan. 1991).
for landowners, filed class action in state court
It would depend if a particular person at the
against the owners of a former oil refinery,
school had intentionally or negligently misrep-
alleging groundwater and subsurface soil
resented something to the students for there
contamination caused by the now dismantled
to be a possible misrepresentation claim.
facility.
4. The class argues that a defendant is per se lia-
10:8 Misuse of Process ble for any water contamination.
1. A jury found the defendant firefighter liable 5. No, because the class argued that it was chal-
and awarded Robert $500,000 in damages, but lenging BP’s current conduct, not activities
the appellate court reversed because it found barred by the statutes of repose or limitations,
the defendants, who were public employees because BP had assumed “ ‘full responsibility’
acting within the scope of their employment, for the current management of the refinery
to be immune. Tur v. City of Los Angeles, 59 wastes and [is] currently engaged in that
Cal. Rptr. 2d 470 (Ct. App. 1997). activity.”
2. Yes. He used certain litigation devices for 6. Yes. That strict liability claims in tort alleging
improper purposes of simply threatening the water contamination are governed by
store. Using a subpoena to harass someone the abnormally dangerous activity test
can be considered abuse of process. from the Restatement (Second) of Torts §§
519 and 520.
Chapter 11 7. No. If a jurisdiction adopts the Restatement’s

abnormally dangerous test, then it should con-
tinue to be followed.
11:1 Animals 8. Reversed and remanded with directions to
1. The court refused to instruct the jury that the district court that the jury verdict be
Smokey had unmistakable vicious propensities reinstated, and final judgment entered for
based on Smokey’s having bitten the man who the defendants.
11:3 Abnormally Dangerous 11:4 Defenses

Activities 1. The trial judge accepted the defense expert’s
1. The court found fire-eating acts to be opinion that the damage to the transformer
“foolhardy” but not abnormally dangerous, was incurred as an act of nature (lightning),
noting that fire-eating acts are performed precluding the plaintiff from recovering.
throughout the world without incident. Boyd v. Washington–St. Tammany Electric
Thomalen v. Marriott Corp., 880 F. Supp. 74 Cooperative, 618 So. 2d 982 (La. 1993).
(C.D. Mass. 1995). 2. The manufacturer could (and did) raise the
defense of assumption of risk and argued that
2. Based on the Restatement of Torts, Virginia
the plaintiff’s conduct was the proximate cause
case law, and case law from other jurisdictions,
of his injuries. In refusing to admit evidence
the court found that the operation of a railway
of Kramer’s conduct, the court noted that
is not an abnormally dangerous activity. War-
although his conduct was a but-for cause of
ner v. Norfolk & Western Railway Co., 758 F.
his injuries, such evidence had little probative
Supp. 370 (Va. 1991).
value; “the fact that Kramer’s conduct was a
3. The court found that the contamination of the ‘but for’ cause [did] not give the jury reason
Fletchers’ property created a high degree of to conclude that the forklift defect—also a
risk of great harm, that disposal of PCB-laden
‘but for’ cause—was not a proximate cause of
waste by dumping it onto land or into a drain-
Kramer’s injuries.” Such evidence did, however,
age system was not a matter of common
have a “significant potential to mislead the jury
usage, that it was inappropriate in any
into thinking that Kramer should not recover if
location, and that it was not essential to
he was negligent.” Because the manufacturer
Tenneco’s gas transmission and thus was of failed to show that Kramer was aware of the
no value to the community. The Fletchers also forklift defect, the court ruled as a matter of
sued on the basis of nuisance and trespass.
law that Kramer had not assumed the risk.
Fletcher v. Tenneco, Inc., 1993 (E.D. Ky. 1993).
Kramer v. Raymond Corp., 840 F. Supp. 333
4. Probably not strict liability. Since riding a (C.D. Pa. 1993).
scooter is not an abnormally dangerous 3. No, because Martin was obviously aware of
activity, it would more than likely be a case of the danger, he assumed the risk. Restatement
negligence. (Second) of Torts § 523, cmt. d. The load was
5. The court found strict liability inapplicable abnormally dangerous so he would have to
because it considered the storing and assume the risks involved with that. There may
removing of gasoline from commercial be a negligence claim for the truck owner not
underground gasoline storage tanks to be maintaining it properly.
widespread and routine and noted that 4. No, Lynn’s negligence does not bar her
having service stations in residential areas was estate from recovering under strict liability.
appropriate because they provide a necessary Restatement (Second) of Torts § 524A, illus. 1.
resource for residents. In this case the tanks
were dangerous only because they were in a
defective condition and not because they were Chapter 12
dangerous in their “normal or nondefective
state.” If the risk of harm can be avoided
by reasonable care, the court observed 12:1 Warranty
that negligence is the appropriate remedy. 1. a. Express warranty.
Arlington Forest Ass’n. v. Exxon Corp., 774 F. b. The court remanded the case to the trial
Supp. 387 (C.D. Va. 1991). court to determine whether “the time and
place availability to Elite of normal working is not allowed, then negligence for maintaining
hours services at a Carrier facility” provi- the coaster would be a possibility.
sions of the warranty were met. If a jury 3. The court agreed with the manufacturer and
found that Carrier was unavailable to Elite found that “foreseeability . . . plays no part
in a meaningful way prior to Elite’s arrival in the initial determination of defect in strict
in California, the essential purpose of the liability.” In analyzing the negligence issue,
remedy accorded by the warranty would the court observed that even though “foresee-
have failed. Elite Professional, Inc. v. Carrier ability is an integral part of the duty analysis
Corp., 827 P.2d 1195 (Kan. 1992). in negligence,” it is not in strict liability; thus,
2. They might argue breach of implied warranty “holding ‘no duty’ in strict liability does not per
on the ground that the drug was not “fit for se eliminate consideration of the duty factor
the ordinary purposes” for which it was intend- in negligence law.” In applying a risk-utility
ed. If the manufacturer made any claims about analysis to the facts presented, the court con-
the medication, the plaintiffs might argue cluded that failure to childproof the lighter was
breach of express warranty and submit proof unreasonable if “the high social value placed
that the drug did not conform to those on the safety of people and property threat-
promises. ened by childplay fires, the high gravity of risk,
3. No. The court said statements made by the the considerable probability of risk, and the
companies could not be “considered warranties likelihood of a reasonably available alternative
against adverse health effects since the dangers . . . outweigh[ed] BIC’s interest in producing its
of cigarette smoking ha[d] long been known to lighters without childproofing features.” Griggs
the community.” No, although the court never v. BIC Corp., 981 F.2d 1429 (3d Cir. 1993). Such
reached this question because of its finding that evidence is generally inadmissible to prove
the statements were not express warranties. defectiveness. The rationale behind this is that
Marks v. R.J. Reynolds Tobacco Co., 1997 allowing admission of this evidence would in-
(W.D. La.). The statute of limitations for strict li- hibit manufacturers from redesigning products
ability cases begin when the injury occurs, so as to make them safer.
long as the suit is brought within that amount of 4. The court contrasted the facts of Griggs with
time it would stand. this case and concluded that it was not clear
from the record whether the intended user
recommendation on the box pertained to
12:2 Strict Liability
children who were chronologically
1. No, as long as the vaccine is properly prepared one-and-one-half to five years old or to
and is accompanied by proper directions and those who were developmentally within
warning. It is considered an unavoidably un- that age range. Noting that “although
safe product. foreseeability is not a term that should be
2. The court held that selling tickets to the public associated with strict liability, the concept,
for roller coaster usage constituted providing to the extent it implies an objective test,
access to a product, not a service. The court is not entirely foreign to a strict liability
suggested several public policy reasons to analysis, although it is applied in a more
support a strict liability claim: the owner of narrow sense than in negligence law.” The
the roller coaster was in a better position to court explained that “unless the use giving
bear the cost of the injury; because the roller rise to a strict liability cause of action is a
coaster owner profited from the public’s use of reasonably obvious misuse, or the user a
the roller coaster, the cost of injury should be reasonably obvious unintended user, as was
imposed on him; placing liability on the owner the case in Griggs, or unless the particular
would ensure that he would use care in select- use or user is clearly warned against, the
ing responsible roller coastermanufacturers to manufacturer is not obviously exonerated.”
minimize the risks of operation If strict liability The court concluded that the “intended
user” should be determined in the “context broadest range of plaintiffs (extending to

of the knowledge and assumptions of bystanders in some cases). Warranty has the
the ordinary consumer in the relevant broadest range of damages and is the theory
community.” Metzgar v. Playskool, Inc., 30 of choice when economic losses are unac-
F.3d 459 (3d Cir. 1994). Most likely there is companied by personal injury or property
not another remedy unless the manufacturer damage. Negligence is harder to prove than
was negligent. strict liability and is less liberal than the UCC
5. Under the consumer-expectation standard, the as far as damages, but should still be pleaded
question is whether the reasonable consumer whenever possible, especially when the court
would consider the drug defective. The defen- for policy reasons is likely to deny a claim for
dants in this case argued that the “consumer” strict liability. Of course, plead all three
was the physician, not the person who pur- theories if possible.
chased the drug, because the manufacturer’s
warnings were directed to physicians. 12:3 Losses
The risk-utility test balances the risks and ben- 1. Because Elite did not seek to recover for the
efits of having such a drug. The defendants argued refrigeration unit itself, the court character-
that this test could not be applied to prescription ized the loss of meat as property damage.
drugs, because they could not be “redesigned” but It defined “pure economic losses” as those
instead are created in accordance with a scientific “including loss of use of the
formula. The court disagreed because it believed defective product, cost of replacing the
that the plaintiff might be able to demonstrate that product, loss of profits to plaintiff’s business,
the drug could be reformulated to be safer or that or damage to plaintiff’s business reputation
other, less harmful drugs were available without such from use of the product.” Elite Professionals,
severe side effects. . Inc. v. Carrier Corp., 827 P.2d 1195 (Kan.
The court declined to apply a strict liability 1992).
standard to prescription drugs because “public 2. No, they are a property loss.
policy favors the development and marketing of ben-
3. If there are sufficient damages available under
eficial new drugs, even though some risks, perhaps
contract law, the court will require the case to
serious ones, might accompany their introduction,
be brought under that instead of tort law. If
because drugs can save lives and reduce pain and
there was an intentional tort committed by the
suffering.” Being subject to strict liability, the court
boat manufacturer, then perhaps tort remedy
explained, could intimidate drug manufacturers and
would be a better option. However, here there
deter them from developing new drugs or distribut-
are no other economic losses except the value
ing existing drugs, and could elevate prices to the
of the boat. The plaintiff may try negligence as
point that drugs were no longer affordable to some
well if there was negligence by the boat manu-
consumers. In support of this argument, the court
facturer in the manufacturing of the boat.
cited drugs and vaccines that manufacturers refused
to market because of fear of anticipated lawsuits,
pointing out that only two vaccine manufacturers 12:4 Turner v. GMC
remain in the market. To illustrate, the court cited 1. Can a manufacturer and retailer be held strictly
the cost of one vaccine as having risen from 11 cents liable for a defectively designed vehicle that
in 1982 to $11.40 in 1986, $8 of which was for an enhances injuries but does not cause acci-
insurance reserve, with the price increase paralleling dents?
the increase in lawsuits from one in 1978 to 219 in
2. A roof structure that provides inadequate pro-
1985. .
tection to occupants in the event of a rollover.
6. Consider (a) who you can sue, (b) what dam-
3. The issue of crashworthiness.
ages you can recover, and (c) whether you
are in a position to sue. Strict liability is gen- 4. Yes.
erally the easiest to prove and includes the 5. No. No.
6. No. Unreasonable risk of injury in the event of against “the seriousness of the condition
a collision. for which the drug is indicated.” Shanks v.
7. Intended use. Upjohn Co., 835 P.2d 1189 (Alaska 1992).
2. Obviousness of danger. The district court
8. Yes.
reasoned that the risk of a small child choking
9. The court did not consider it. They found the on one of Playskool’s smaller blocks was so ob-
GM automobile to be unreasonably unsafe jectively obvious as to preclude the necessity
even though no American car had ever been of a warning, but the appellate court remand-
manufactured with the roll bar recommended ed the issue for jury deliberation. Metzgar v.
in the case. Playskool, Inc., 30 F.3d 459 (3d Cir. 1994). It is
10. Yes. doubtful design defect would apply since the
11. Courts lack the expertise to deal with such design was not unreasonably dangerous in
complex matters; sporadic court decisions will light of availability of a different design. Blocks
result in wrong and contradictory standards; are shaped like blocks and the age recom-
Congress has already begun to set safety mendation is what is to be considered as far as
standards. danger of swallowing.
3. The court allows Wilma’s claim to stand; it finds
12. No. The industry custom was unreasonably
the reasoning in Brown to be inapplicable
dangerous.
because “unlike strict liability for design
defects, strict liability for failure to warn does
12:5 Defects not potentially subject drug manufacturers to
1. a. Negligence, warranty, and strict liability liability for flaws in their products that they
(being in a defective condition, have not, and could not have, discovered.
unreasonably dangerous). Drug manufacturers need only warn of risks
that are actually known or reasonably scientifi-
b. Defective design, failure to warn.
cally knowable.” Carlin v. Upjohn Co., 920 P.2d
c. The court relies on the doctor’s expecta-
1347 (Cal. 1996).
tions rather than the consumer’s.
4. State-of-the-art defense. Sternhagen v. Dow
d. The court, in opposition to the Brown court
Co., 935 P.2d 1139 (Mont. 1997). They would
(discussed in “Putting It into Practice” 13:2),
have to prove there was no reasonable alter-
finds “it consistent with the purposes underly-
native design available and the risk created by
ing strict products liability that manufacturers
producing such an item outweighed its utility.
should be deterred from marketing certain
products and that the cost of the defense 5. Argue foreseeable misuse. The court found
of strict products liability litigation and any that injuries to children were a foreseeable risk
resulting judgments should be borne by the and that this risk was known or should have
manufacturer who is able to spread the cost been known to the manufacturers. Hall v. E.I.
through insurance and by charging more for DuPont de Nemours & Co., 345 F. Supp. 353
its products.” In applying a “risk/benefit” (E.D.N.Y. 1972). Yes.
analysis to the facts at hand, the court 6. The court granted the defense motion because
explained that the fact finder should consider the plaintiff failed to introduce expert testimo-
“the seriousness of the side effects or reac- ny to show that a feasible alternative cigarette
tions posed by the drug, the likelihood that design existed at the time the plaintiff’s wife
such side effects or reactions would occur, was smoking, that she would have availed her-
the feasibility of an alternative design which self of this design, that this design would have
would eliminate or reduce the side effects prevented her illness, and that such a design
or reactions without affecting the efficacy of would have been reasonable under a risk-ben-
the drug, and the harm to the consumer in efit test. Marks v. R.J. Reynolds Tobacco Co.,
terms of reduced efficacy and any new side 1997 (W.D. La.). The fact that the wife did not
effects or reactions that would result from an actually read the warnings had no effect in this
alternative design” and balance those factors case.
12:6 Defenses 13:3 Opinion

1. Causation (failure to prove who the manufac- In Huggins v. Povitch, 1996 (N.Y. Sup. Ct. 1996),
turers of the blasting caps that caused injury the court considered the context in which the state-
were and failure to prove that the lack of warn- ments were made (on a talk show organized around
ings caused the children’s injuries); no duty to controversial topics and designed to encourage
children (unforeseeable users; unreasonable public debate) and concluded that reasonable lis-
cost of taking precautions [cost/benefit analy- teners would know they were listening to the “sub-
sis]); misuse of product. Check statute of lim- jective opinion of Ms. Moore upon the emotionally
itations also. Evidence of subsequent warnings charged topic of her divorce and its financial con-
would not absolve the defendant of liability. sequences.” The court pointed out that “both the
2. Assumption of risk; contributory negligence; host and other guests repeatedly pointed out, and
comparative negligence. Yes. Moore confirmed, that her statements were her own
personal views and that her ex-husband denies her
3. Disclaimer; limited remedy.
‘charges’ or ‘allegations.’”
4. The court held that the action accrued when In examining the quoted excerpts, the court
Joseph knew or reasonably should have found that the statements were “vague and con-
known of his illness and a possible causal tain[ed] loose figurative language that [did] not refer
connection between his illness and his use to verifiable acts of criminal conduct.” The court
of cigarettes, in this case no later than 1988, explained that her belief that she “should share in”
when he was diagnosed with COPD. The property does not mean her husband committed
court was not persuaded by his argument, a crime but “merely expresses her dissatisfaction
because the discovery about the research with the distribution approved by the court.” Moore
came in November 1995, four months after used the fact that her ex-husband failed to share
the complaint was filed (July 1995), and be- partnership assets to support her opinion about him
cause Joseph knew in 1988 that he was ad- and “[o]pinions, false or not, are constitutionally pro-
dicted to and had been injured by cigarettes tected if the facts supporting them are set forth.”
and was thereby in possession of sufficient
information to commence an action. Arnold
v. R.J. Reynolds Tobacco Co., 956 F. Supp. 13:4 WFAA-TV v. McLemore
110 (D.R.I. 1997). 1. Whether a media plaintiff, one of only a few
5. Express preemption. journalists to report live from the scene of
the raid, whose reports were rebroadcast
Chapter 13 worldwide, and who willingly gave numerous
interviews about his role in the failed raid, is
a public figure.
13:1 Libel or Slander 2. Since McLemore presented no proof contro-
1. Libel. Restatement (Second) of Torts § 568A. verting these specific assertions, WFAA estab-
lished as a matter of law that it did not act with
2. Libel. Restatement (Second) of Torts § 568,
actual malice in reporting the ATF’s investiga-
illus. 3. If the exhibit harmed Sam’s reputation
tion into why the Branch Davidian raid failed,
and the defendant at the very least acted neg-
and therefore WFAA was entitled to summary
ligently Sam may prove defamation.
judgment on McLemore’s defamation claim.
3. Slander. Restatement (Second) of Torts § 568,
3. WFAA defamed him by displaying footage of
illus. 4.
his coverage from the scene of the compound
during the raid, while reporting that federal
13:2 Defamatory Statements officials believed a member of the local media
No. There was no identification of her in the book, informed the Branch Davidians about the ATF
so there can be no defamation. She was not able to raid. Therefore, the alleged defamation
prove her reputation being harmed since it was not directly relates to McLemore’s participation in
evident it was her that he was writing about. the controversy.
4. In considering a libel plaintiff’s role in a pub- who undertake to represent clients in difficult,
lic controversy, several inquiries are relevant unpopular, high profile, or sensational types of
and instructive: (1) whether the plaintiff actually cases. . . . Free speech cannot equate with the
sought publicity surrounding the controversy freedom to intimidate, destroy and defame an
(2) whether the plaintiff had access to the advocate seeking to represent a client.”
media, and (3) whether the plaintiff “voluntarily
engaged in activities that necessarily involve[d]
13:6 Review of Defamation
the risk of increased exposure and injury to
reputation. 1. Libel
5. Yes 2. No
6. By choosing to engage in activities that neces-
3. No. The facts depicted as a joke in the paper
sarily involved increased public exposure and
could not reasonably be understood as de-
media scrutiny, McLemore played more than a
scribing actual facts or events.
trivial or tangential role in the controversy and,
therefore, bore the risk of injury to his reputa- 4. If they are not clearly parodies and a reason-
tion. able person could take them as facts then
they should be protected.
7. WFAA met its burden of negating actual mal-
ice and McLemore did not negate it.
8. The news channels depicted the media in a 13:7 Privileges
negative light. They stated that the media had 1. The attorney general enjoys an absolute priv-
set them up and in turn caused their raid to ilege; the privilege of the district attorney is
fail. qualified even if the press release is within the
scope of his official duties. Restatement (Sec-
ond) of Torts § 591, illus. 3–4.
13:5 Public Figure
2. No. Restatement (Second) of Torts § 586.
1. She will have to prove actual malice, because
she is considered a public figure. There is still absolute privilege so it does not
matter.13:8 Minnifield v. Ashcraft
2. He must show that he enjoyed greater access
1. Client brought action against tattoo artist and
to the channels of effective communication
tattoo studio alleging invasion of privacy aris-
and a more realistic opportunity to counteract
ing out of photographs of tattoo on client’s
false statements than private individuals nor-
upper breast that artist submitted for
mally enjoy.
publication in national tattoo magazine.
3. In Spence v. Flynt, 816 P.2d 771 (Wyo. 1991),
2. No
Hustler argues that in taking on the fight
against pornography, Spence thrust himself 3. The elements of Alabama’s commercial appro-
into a public controversy, thereby casting him- priation invasion of privacy tort, which bases
self as a public figure. Alternatively, Hustler liability on commercial, rather than psychological,
argues that by virtue of writing about his case interests, cf. McCarthy, McCarthy on Trademarks
against Hustler he became a public figure. and Unfair Competition § 28:6, do not differ
The court points out that Spence’s book was significantly from those of the tort of violation of
published after his litigation involving Hustler the right of publicity. The court read Alabama
and so he was not a public figure on that basis law to permit a cause of action for invasion
for purposes of this litigation. The court also of privacy when the defendant appropriates with-
notes that a “professional person, who may out consent the ‘plaintiff’s name or likeness to
be a ‘public figure’ for some purposes, should advertise the defendant’s business or product, or
be free to offer his services to a client as a pri- for some other similar commercial purpose.
vate professional without being subjected to 4. In the present case, the language of the antic-
public-figure defamation. To hold otherwise ipatory release purporting to exempt Ashcraft
would have a chilling effect upon attorneys and Skin Worx is ambiguous. We hold that
reasonable minds could differ as to whether the newspaper.” Eastwood v. National

the anticipatory release discharged liability for Enquirer, 198 Cal. Rptr. 342 (Ct. App. 1983).
the intentional tort of invasion of privacy. 2. Unreasonable intrusion. Restatement (Second)
5. The Restatement (Third) of Unfair Competi- of Torts § 652B, illus. 1.
tion § 46 cmt. b (1995) recognized the types 3. Slander.
of damages claimed as the basis for the differ-
4. Although disclosure of a crime is generally not a
ence between the two torts; damages for com-
tort, when the disclosure is made several years
mercial appropriation are intended to compen-
later and the revelation destroys the life of a
sate for the personal harm to one’s dignity and
reformed criminal, the tort of public disclosure
integrity while damages for a violation of the
of private facts may have been committed. Re-
right to publicity address the economic interest
statement (Second) of Torts § 652D, illus. 26.
in one’s name or likeness.
5. No. Possibly public disclosure of private facts,
6. The commercial appropriation right of priva-
but since the issues that were aired were already
cy is similar, but not identical, to the right of
known by the public, this would likely not stand.
publicity recognized in a number of jurisdic-
tions. Whereas judicial acceptance of the four
distinct torts that comprise the general right 13:10 Injurious Falsehood
of privacy is ‘universal. The court dismissed the case (and the appellate
7. Construing the release against Ashcraft court affirmed the dismissal) on the grounds that the
and Skin Worx, the drafters of the release, growers failed to prove that the claims were “verifi-
Minnifield’s commercial-appropriation inva- ably false.” In response the growers in several states
sion-of-privacy claim is not “based upon inju- introduced the so-called “veggie libel laws,” which
ries or property damage to, or death arising authorize damages for “the disparagement of any
from [Minnifield’s] decision to have tattoo or perishable agricultural product.” Auvil v. CBS “60
piercing related work done. Minutes,” 800 F. Supp. 941 (E.D. Wash. 1992), aff’d,
8. Of the four categories of invasion 67 F.3d 816 (9th Cir. 1995).
of privacy, Minnifield asserts a commercial-
appropriation claim (i.e., that Ashcraft and
Skin Worx used her likeness without her Chapter 14
authorization to obtain some commercial
benefit and that she was damaged as a result). 14:1 Scope of Liability of Employer
Ashcraft and Skin Worx’s appellate brief fails
1. Yes. The court observed that picking up
to discuss invasion of privacy and instead
customers to try to sell them cars, even on
addresses defamation. However, Minnifield did
off-hours, was considered commonplace for
not allege defamation in her complaint.
salesmen; Mr. Stone had done business with
9. Where no ambiguity exists, a court’s only func-
Mr. Urban on previous occasions; the route
tion is to interpret the meaning and intentions
Mr. Stone had taken was the route to Mr. Urban’s
of the parties as found within the four corners
house. Ray Korte Chevrolet v. Simmons, 571
of the document.
P.2d 699 (Ariz. Ct. App. 1977).
2. No. Although the accident occurred during
13:9 Invasion of Privacy Richard’s hours of employment and at a place
1. The Enquirer did not contest the false-light where he was authorized to be, his display of
claim. In finding that the Enquirer had com- his gun was not related in any way to his em-
mercially exploited Eastwood’s name, the court ployment. Olson v. Staggs-Bilt Homes, 534
observed that the magazine had used East- P.2d 1073 (Ariz. Ct. App. 1975).
wood’s fame and personality to its commercial 3. Yes, because the employer had an obligation
advantage and “to generate maximum curios- to control the janitor’s behavior. Restatement
ity and the necessary motivation to purchase (Second) of Agency § 230, illus. 2.
4. No. The employee was not acting within the Additionally, Pulitzer may terminate the
scope and furtherance of their employment. Agreement for any conduct on the part of a
5. Possibly if the errand from his boss was a re- carrier, or any employee, subcontractor, or
quirement and not an option in which he could other person under the control of the carrier
refuse. The other driver – same answer. If they which would constitute fraud, misrepresen
can prove that Bob was acting in furtherance tation, theft, conversion, or dishonesty with
of his job since his boss had told him to drop respect to Pulitzer or its subscribers.
off the paper then possibly. Respondeat 6. The burden of proof on a summary judgment
superior would apply if it were determined the movant is to establish a legal right to judg-
errand was “part of the job” for Bob. ment flowing from facts about which there is
6. No. The court explained that his possession no genuine dispute.
of his employer’s papers was merely incidental 7. A “defending” party may establish a right to
and did not, in itself, convert his travel to work judgment by showing: (1) facts that negate
into a part of his employment. S.&W. Construc- any one of the claimant’s elements; (2) that the
tion Co. v. Bugge, 13 So. 2d 645 (Miss. 1943). nonmovant has not been able to produce, or
will not be able to produce, evidence sufficient
to allow the trier of fact to find the existence of
14:2 Lee v. Pulitzer Publishing Co.
any of the claimant’s elements; or (3) that there
1. No. is no genuine dispute as to the existence of
2. The contract stressed that the newspapers be facts necessary to support the movant’s prop-
delivered promptly to various carriers and that erly pleaded affirmative defense.
Haggard “make such delivery, distribution and 8. Restatement (Second) of Agency Section
collection of funds according to his own means 220(2) (1958).
and methods of conveyance, which shall be-
9. Yes. An employer has a duty to select a “skilled
long to him and be in the exclusive charge and
and competent” contractor. Therefore, when
control ..., and shall not be subject to the con-
the contractor chosen is in fact competent, the
trol or supervision in any manner by [The Star],
employer will not be liable for the contractor’s
except as to the results of said work.
negligence despite any lack of care used in
3. What control does Pulitzer have over the carri- the selection. It is well recognized that a con-
ers? ANSWER: The Agreement makes it clear tractor’s negligence in conducting the work it
that Pulitzer has no control or supervisory pow- was hired to do creates no presumption that
ers over such persons. the employer was negligent in selecting the
4. Yes. It states that the carriers have “the right contractor.
to sell and assign all or any portion of its rights 10. No. In this case, Lee presented no evidence
and obligations under this Agreement at any that would prove the prerequisite element of
time to any person for such compensation or incompetence on Medrano’s part.
payment as may be agreed upon between the
Carrier and the assignee ...” with some
caveats. 14:3 Independent Contractors
5. Initially, this section states that the Agreement 1. No. A judge is not an employee or agent
shall remain in effect until Pulitzer ceases pub- of the county; the independence of judges
lication of the St. Louis Post–Dispatch, unless is “based on the constitutional doctrine of
otherwise terminated. Should Pulitzer the separation of powers and the lack of a
determine that a carrier has failed to perform principal-agent relationship between elected
fully any of its obligations set forth under officials and other governmental bodies
the Agreement, it may terminate the Agree- 2. Yes, because the snakes are inherently
ment by providing the carrier with written dangerous. Restatement (Second) of Torts §
notice detailing the reasons for termination. 427A, illus. 1.
3. Yes, because the hotel was aware of the driver’s Chapter 15

lack of experience. Yes, the hotel would not
be liable if the accident was due to unforeseen
negligence on the part of the driver. Restatement 15:1 In Re Stutsman
(Second) of Torts § 411, illus. 3 and 4. 1. Two.
4. The court said that the determination is a 2. Schueler is the first defendant who rear-ended
factual one and remanded the case to the plaintiff’s vehicle and Peoples is the second
trial court for a jury’s deliberation. Fisher v. defendant who rear-ended plaintiff 11 days
Townsends, 695 A.2d 53 (Del. 1997). later.
5. Yes. Jose and Susan were not entitled to dele- 3. No.
gate their responsibility to exercise care when
4. A severance splits a single suit into two or
dealing with a product that created a grave
more independent actions, each action result-
risk of serious bodily harm. They were the ones
ing in an appealable final judgment.
that primarily benefited from the fireworks dis-
5. Stutsman argued that by reason of the force
play, and they could protect themselves from
and violence of the two (2) crashes, Plaintiff has
liability by selecting a qualified independent
sustained bodily injuries which are inseparable
contractor. Ramsey v. Marutamaya Ogatsu Fire-
in that the injuries were to the same area of
works Co., 140 Cal. Rptr. 247 (Ct. App. 1977).
Plaintiff’s body.
6. Yes. The court found Kennecott liable under
6. Where the tortious acts of two or more wrong-
the retained control exception of section 414
doers joined to produce an indivisible injury,
of the Restatement. Welker v. Kennecott Cop-
that is, an injury which from its nature cannot be
per Co., 403 P.2d 330 (Ariz. Ct. App. 1965).
apportioned with reasonable certainty to the in-
dividual wrongdoers, all of the wrongdoers will
14:4 Bailments be held jointly and severally liable for the entire
damages and the injured party may proceed to
1. No. The family-purpose doctrine is inappli- judgment against any one separately or against
cable because the father had not furnished all-in-one suit.
the vehicle for general family use and did not
7. If the injury cannot be separated with reason-
exercise control over the car. “Mere ownership
able certainty to individual wrongdoers.
demonstrated by record titleholder status is
not conclusive on the issue of liability under 8. It is apparent from Stutsman’s pleadings that
the family purpose doctrine.” Madrid v. she was treated five times for injuries sustained
Shyrock, 745 P.2d 375 (N.M. 1987). in the first accident before she was involved in
the second accident.
2. Yes. The court reasoned that “parents cannot
blind themselves to the realities of youthful 9. The trial court could have concluded that
behavior, the universal proclivity of young Stutsman’s claims against Schueler and her
people for joyriding, and the inclination of claims against Peoples, having originated
young people to permit friends to drive their from two different automobile accidents
automobiles.” Granley v. Crandall, 180 N.W.2d more than one week apart, were not in such
190 (Minn. 1970). She would be liable if a close temporal proximity to cause proof
neighbor had hit the child as well under the of damages in each case to have been
automobile consent statute. interrelated to the extent that Schueler and
Peoples would be jointly and severally
3. No, because no pecuniary interest existed on
liable for those damages.
the part of the hikers. Farmers Insurance Ex-
change v. Parker, 936 P.2d 1088 (Utah 1997). 10. It is apparent from Stutsman’s pleadings that
she was treated five times for injuries sustained
4. [Consult the applicable law in your state.] in the first accident before she was involved in
5. [Consult the applicable law in your state.] the second accident.
11. No. Because we conclude that the entry of the Mercy for any claims against it arising out of
severance order did not constitute a clear abuse the Occurrence.
of discretion, we deny the requested relief. 4. Dr. Julian filed a claim in the HCADRO, seek-
ing contribution from Mercy for the damages
15:2 Joint and Several Liability award it paid as a result of the verdict in the
Primary Action.
1. No, because a physician who calls in another
physician is not liable for the other’s malprac- 5. No. The court went on to find that, because
tice if there are no concerted actions by the the Release Agreement satisfied the require-
two physicians. Stovall v. Harms, 522 P.2d 353 ments of C.J.P. § 3–1405, Mercy was relieved
(Kan. 1974). from liability to make contribution to Dr. Julian.
2. If the cause of her death was determined to be 6. No. We hold that, where a release conditions
exclusively from bleeding to death due to the a reduction of damages on an adjudication
administering of the blood thinner, then the of joint tortfeasor status of the settling defen-
physician who prescribed it may be held liable. If dant, and where there is no such adjudication
she did in fact have a blood clot and the blood in the underlying litigation, the release does
thinner was actually used to treat that, then the not provide for a reduction pursuant to C.J.P. §
physician would most likely not be liable. The 3–1405.
issue was an undiagnosed stage IV tumor in her 7. No. As indicated, however, there is no require-
stomach. Unless she was having issues with that ment that the nonsettling defendant proceed
before, then there was no way for the physician with a claim against the settling defendant in
to know of the risks from taking blood thinners. the plaintiff’s case against it.
The pharmacist would not be liable since there
was nothing listed in her medical history that she 15:4 Contribution, Releases, and
could not take blood thinners.
Indemnification
3. Yes, if this jurisdiction has adopted the
1. They could seek contribution and indemnifica-
doctrine of joint and several liability. Walt Dis-
tion (both contractual and based on the em-
ney World v. Wood, 515 So. 2d 198 (Fla. 1987).
ployer-employee relationship).
4. Yes, because the parties performed separate
2. A covenant not to sue. Hall v. Schulte, 836 P.2d
acts that combined to produce a single,
989 (Ariz. 1992).
indivisible economic injury. Unless the plaintiffs
3. They can seek contribution and indemnifica-
could separate their economic injuries then
tion. The court concluded that as long as the
they could all be jointly and severally liable.
settlement was in “good faith,” the non-set-
tling defendants were barred from contribution
15:3 Spence v. Julian but not from indemnification.
1. Before trial, Mercy and the Spences entered 4. No, because the agreement is collusive and
into a Confidential Settlement Release Agree- therefore not in “good faith.” International
ment (the “ Release Agreement”), which pro- Action Sports, Inc. v. Sabellico, 573 So. 2d 928
vided that no other person would be entitled (Fla. 1991).
to a reduction of damages by reason of the 5. The court adopted this rule in reference to
settlement “unless and until” Mercy was “ad- Mary Carter agreements:
judicated to be [a] Joint Tortfeasor” with the
When a settlement agreement is entered into
other person.
between the plaintiff and one or more, but not
2. The Spences’ claim proceeded to trial solely all, alleged defendant tortfeasors, the parties
against Dr. Julian, and a jury found him liable entering into such agreement shall promptly
for Caleb’s injuries. inform the court in which the action is pend-
3. Yes. The Release Agreement also contained ing and the other parties to the action of the
an indemnity and hold harmless clause. It existence of the agreement and its terms. If the
provided that the Spences would indemnify action is tried to a jury and a defendant who is
a party to the agreement is a witness, the court your own insurer and pay the deductible than
shall, upon motion of a party, disclose the exis- to deal with the other party’s carrier. Because
tence and content of the agreement to the jury there is a right of subrogation, if your insurer
unless the court finds in its discretion such dis- pays and it is determined the other party was
closure to the jury will create substantial danger responsible, your insurer will pay you back
of undue prejudice, of confusing the issues, or the deductible when it collects from the other
of misleading the jury. (Ratterree v. Bartlett, 717 insurance company. If you do not prevail on
P.2d 1063 [Kan. 1985]) liability, your insurer may treat the accident as
your fault.
3. Replacement-cost coverage means that there
Chapter 16 will be sufficient proceeds to buy a new item
rather than a used item. Many items depreci-
16:1 State Farm Mut. Auto Ins. Co. ate very quickly (cars, computers, clothes, etc.).
If there is a deductible, the money received
v. Campbell from an actual cash-value policy may be insuf-
Argument: Defendant’s conduct did not justify puni- ficient.
tive damages; award was windfall to plaintiff; award
will encourage others to sue.
Rebuttal: Defendant’s greed and callous indif- 17:3 Termination
ference toward its policyholders warranted punitive It should. Most arbitrators are attorneys. The hourly
damages; award will offset costs of litigation for charges for arbitrators can quickly exceed the total
plaintiff; awards like these deter businesses from value of a small claim. You may also have your
engaging in similar conduct. own attorney’s costs in addition to those for the
arbitrators.
The policy provision in Appendix D regarding
16:2 Joint and Several Liability
arbitration provides that local rules of law regarding
Consider reasons for adopting joint and several arbitration apply. Does your jurisdiction have appli-
liability and whether those needs still exist when cable arbitration statutes? Does your court have
comparative negligence is operative. Arguments rules of mandatory arbitration for lawsuits?
are made that based on the plaintiff or defendant’s
percentage of fault, the remaining parties should be
held accountable for that uncollected share based Chapter 18
on their fault percentage.
18:1 First-Party versus Third-Party

Chapter 17 Claims
1. Yes, he has a liability claim against Dick.
17:1 Subrogation 2. Yes, he can make a claim under his medical
1. $300,000/$50,000. payments coverage.
2. [Answer will vary; fact-specific.] 3. When a carrier defends under a reservation

of rights while it investigates the claim, the
insured is not left without a defense. Because
17:2 Underinsured Motorist the insurer is providing a defense (but might
refuse to indemnify), even though the defense
Coverage
may be withdrawn, the chances of the insurer’s
1. It could pay your deductible and co-insurance being subjected to a bad faith claim are
costs. substantially lessened. An insurer that denies
2. If there is a question of liability, Denise’s carrier coverage and refuses to provide a defense
may refuse to pay to repair the vehicle until faces tremendous exposure if it is later deter-
after judgment. It is often easier to deal with mined that there is coverage.
Insurers are in the business of investigating and 4. It appears that it does. It also appears that the
settling claims. The failure of an insurer to investi- court did not look at the unrealistically low
gate a claim before sending a reservation of rights evaluation of the case as mere negligence.
letter is almost per se bad faith. Rather, it appears that the court did not
4. It is the insured’s duty to prove that the believe that the values stated were the true
policy was in effect at the time of the values as determined by the attorney or the
accident. It is the insurer’s obligation to insurer.
prove lack of coverage. If it does not have
sufficient evidence to deny coverage, it must
18:3 Declaratory-Judgment
either provide coverage or do an investiga-
tion that is thorough enough to show where Actions
the accident occurred. 1. If the insurer truly believes that there is no cov-
5. The map may be important to show that the erage for the accident, a declaratory-judgment
insurer had no reasonable basis to deny cov- action would confirm the lack of coverage.
erage or defend under a reservation of right. Seeking prompt declaratory-judgment relief
The fact that the company sent out the map would also save the insurer the majority of the
does not necessarily bind it to any errors in the cost of defending the claims, even if a defense
map. was tendered under a reservation of rights. A
court ruling that there was no coverage would
6. Although the argument has some initial appeal,
also greatly reduce the possibility of a bad
it is unlikely that nautical miles would win out. If
faith action being filed.
we look at the reasonable expectations of the
parties, it is hard to argue that nautical miles 2. Possibly. Until suit is filed, technically there is
(that most people do not even know exist) no duty to defend. However, most claims are
were expected. If it is alleged that the lack of settled before suit is filed. The insurer could
specificity creates an ambiguity that must be be in a very poor position if it handled the
resolved in favor of the insured, it will still be claim as though there were coverage (i.e.,
difficult to argue that a term that is foreign to negotiated with Jerry or his attorney) and then
most insureds (and insurers) should be used later claimed there was no coverage.
rather than the commonly used statute mile. 3. The maximum benefit due an insured as a result
7. No. The handing out of the map does not bind of an insurer’s breach of its contractual obliga-
the company to any errors on the map. tions is the policy limits. If a UIM claim is fairly
8. It would have to be proved that a reasonable debatable, most courts hold that the insurer is
person would expect nautical miles to be the not liable to its insured on the basis of bad faith.
standard used. 4. Timing would be very important. Until the
claim had been investigated and evidence
18:2 Resolution of First-Party found that there is a basis for a filing of no
coverage, any court action would be to the
Claims
insurer’s detriment.
1. Yes. Not until late in the opinion does the
court state that the insurer’s evaluation of the
case was “less than realistic.” 18:4 Uninsured and Underinsured
2. Contributory negligence was a complete de- Motorist Coverage
fense that, if found by the jury, would bar any 1. Jerry has his claim for medical payments under
recovery by the plaintiff. The defense of con- his automobile insurance policy. If his insurer
tributory negligence was seldom the basis of a denied coverage for Dick, Jerry could also
jury verdict. put in a claim under his uninsured motorist
3. The court did not believe that the attorney or coverage. If his insurer did not deny coverage
his client could legitimately value the life of a for Dick, Jerry may have a claim under his
17-year-old boy so low. underinsured motorist coverage.
2. That will not affect his automobile coverage employment may be taken into account, as
from having to pay damages resulting from the well as unusual, nonrepetitive wages (such as
accident. overtime).
3. Yes. Because denial of coverage to Dick would [Use your state’s statutes and rules in deter-
almost have to result in coverage for Jerry, mining Juan’s average wage if he works only eight
it would be prudent for the insurer to file a months per year$12.00 per hour × 40 hours per
declaratory-judgment action. The insurer week × 4.33 weeks per month = $2,078.40 per
would have to have completed its investigation month. [Use your state’s statutes and rules to
before filing suit. calculate this answer.]
4. Yes, if his damages were greater than Dick’s
liability coverage. 19:4 Filing a Workers’
Compensation Claim
Chapter 19 1. Who would the real client be? What
obligations would there be to maximize re-
covery if your “true” client wanted to get
19:1 Historical Background back only the benefits that were paid? How
1. [Use your state’s statutes and rules to deter- would you deal with the injured employee?
mine if Juan is deemed to have opted in.] Would there be a conflict of interest between
2. [Use your state’s statutes and rules to determine what the employer wants and what the em-
what worker’s compensation laws cover.] ployee would want? In the standard case, the
3. [Use your state’s statutes and rules to deter- attorney would attempt to negotiate a lower
mine if your state has voluntary or compulsory payment to the employer (if representing the
coverage.] employee). Would you have to advise the
employee that it would be in her best interest
to retain an attorney to pursue her claim? What
19:2 The Statutory Framework would happen if the claim had already been
[Answer will vary by state.] assigned to the employer by operation of law?
In Arizona the employer takes the employee as he 2. [Use your state’s statutes and rules to
is (i.e., the eggshell plaintiff). If the industrial injury determine who is required to give notice of an
contributed to Juan’s hospitalization and subsequent industrial injury.]
treatment, the injuries would be compensable. Juan’s
[Use your state’s statutes and rules in determining
loss of his leg would be compensable under Ariz. Rev.
how long benefits are paid.]
Stat. § 23-1044(B)(15) for 50 months compensation at
55 percent of his average monthly wage.
19:5 Current Issues in Workers’
19:3 Is Workers’ Compensation a Compensation
Fair Deal? 1. [Use your state’s statutes and rules in deter-
mining if purely psychological injuries are com-
1. [Use your state’s statutes and rules in deter-
pensable.].
mining Juan’s average wage.] In Arizona, Ariz.
Rev. Stat. § 23-1041 provides that the monthly 2. [Use your state’s statutes and rules in
wage is the average wage paid during and determining how communicable diseases are
over the month in which the injury occurs. If dealt with.]
the injured worker has not been employed for 3. Etta’s claim was allowed in Conley v. Workers’
a month, different methods of determining Compensation Division, 483 S.E.2d 542 (W. Va.
the average wage are used. Because Juan 1997). The law was changed after she filed her
had been working for five weeks, his average claim (in 1991) to preclude any claims based
wage would be: $8.00 per hour × 85 hours on injuries that were caused by nonphysical
per week × 4.33 weeks per month . Seasonal means and did not involve any physical injury.
Practice Exams 3. d
4. b
Chapter 1 5. c
6. d
True-False 7. a
1. T 8. c
2. T
3. T
4. F
Chapter 2
5. T
True-False
6. T
1. T
7. F
8. T 2. F
9. F 3. F
10. F 4. T
11. F 5. F
12. T 6. F
13. F 7. T
14. F 8. T
15. F 9. T
16. T 10. F
17. T 11. F
18. T
12. F
19. T
13. F
20. F
14. T
21. T
15. T
22. T
16. T
23. F
17. F
24. T
25. F 18. T
26. F
Matching
Fill-in-the-Blank Group 1: 1 with d, 2 with b, 3 with a, 4 with c
Group 2: 1 with c, 2 with e, 3 with d, 4 with b, 5 with
1. public policy
a, 6 with f
2. slippery-slope Group 3: 1 with c, 2 with d, 3 with b, 4 with a, 5 with e
3. crime; tort Group 4: 1 with d, 2 with e, 3 with a, 4 with b, 5 with c
4. preponderance of the evidence
5. blood feud; moot Fill-in-the-Blank
6. action in trespass; trespass on the case 1. demand
7. strict liability 2. verification
3. default judgment
Multiple-Choice 4. affirmative defense
1. a 5. motion
2. b 6. interrogatories
7. deposition 9. T
8. request for production of documents 10. T
9. request for medical examination 11. F
10. disclosure statement 12. T
11. motion for summary judgment 13. T
12. motion in limine 14. F
13. factual; legal; bench 15. T
14. voir dire 16. F
15. challenge for cause; peremptory challenge 17. T
16. overrules 18. T
17. charge 19. F
18. general; special 20. T
19. judgment notwithstanding the verdict 21. T
20. appeal; cross-appeal 22. F
21. res judicata 23. T
24. T
Multiple-Choice 25. T
1. d 26. F
2. d 27. T
3. a 28. T
4. c 29. F
5. a 30. T
6. d 31. F
7. b 32. T
8. c 33. F
9. b 34. F
10. d 35. T
11. a 36. T
12. d 37. T
13. c 38. F
39. F
Chapter 3 40. F
41. T
True-False 42. T
1. F 43. F
2. F 44. F
3. T 45. F
4. F 46. F
5. T 47. T
6. F 48. T
7. F 49. F
8. F 50. F
51. T 5. F
52. F 6. T
53. F 7. T
54. F 8. F
55. T 9. T
56. T 10. T
57. T 11. T
58. F 12. F
59. T 13. T
14. T
Matching 15. F
1 with e, 2 with d, 3 with b, 4 with a, 5 with c, 6 with e 16. T
17. T
Fill-in-the-Blank
18. T
1. transferred intent
19. F
2. battery
20. T
3. false imprisonment
21. F
4. extreme; outrageous
22. T
5. trespass
23. F
6. conversion
24. T
7. private necessity; public necessity
25. T
8. severity; likelihood
26. F
27. F
Multiple-Choice
28. F
1. b
29. F
2. d
30. T
3. c
31. F
4. c
32. F
5. d
6. c Matching
7. a Group 1: 1 with b, 2 with c, 3 with d, 4 with a, 5 with e
8. b Group 2: 1 with c, 2 with b, 3 with c, 4 with b, 5 with
9. b a, 6 with a
10. d
Fill-in-the-Blank
11. b
1. licensee; invitee
Chapter 4 2. attractive nuisance

3. voluntary undertaking
4. family purpose
True-False
5. vicariously
1. T
2. F Multiple-Choice
3. F 1. a
4. T 2. c
3. b 3. objective or reasonable person

4. b 4. reasonably
5. c 5. higher
6. a 6. automobile guest
7. d 7. res ipsa loquitur
8. defendant’s negligence
Chapter 5 Multiple-Choice
1. a
True-False 2. c
1. T 3. b
2. F 4. b
3. F 5. c
4. F 6. a
5. T
6. T Chapter 6
7. T
8. F True-False
9. F 1. F
10. F 2. T
11. T 3. T
12. F 4. F
13. F 5. F
14. T 6. T
15. T 7. F
16. T 8. T
17. F 9. T
18. T 10. T
19. T 11. F
20. T 12. T
21. T 13. F
22. T 14. F
23. T
24. T Matching
25. T
Group 1: 1 with e, 2 with d, 3 with a, 4 with b, 5 with
26. T f, 6 with c
27. T Group 2: 1 with b, 2 with a, 3 with b, 4 with b, 5 with
28. F b, 6 with a
Group 3: 1 with d, 2 with d, 3 with b, 4 with a
Fill-in-the-Blank Fill-in-the-Blank
1. gravity; probability (likelihood) 1. but-for
2. age, experience, intelligence 2. market share liability
3. concerted action 24. T

4. foreseeability 25. F
5. actual causation 26. T
6. direct 27. F
7. eggshell skull 28. T
8. intervening; superseding 29. T
30. F
1. a 32. T
2. d 33. T
3. c 34. F
4. c 35. T
5. a 36. F
6. c 37. F
38. F
Chapter 7 39. T
40. T
True-False 41. F
1. F 42. T
2. F 43. T
3. F 44. T
4. F 45. F
5. F 46. T
6. F 47. T
7. T 48. F
8. T 49. T
9. T
10. T
Matching
11. F Group 1: 1 with d, 2 with e, 3 with b, 4 with a, 5 with c
Group 2: 1 with b, 2 with e, 3 with a, 4 with c, 5 with d
12. T
Group 3: 1 with c, 2 with b, 3 with a
13. T Group 4: 1 with d, 2 with c, 3 with a, 4 with e, 5 with b
14. T
15. T Fill-in-the-Blank
16. F 1. special
17. T 2. punitive
18. T 3. per diem
19. F 4. collateral source
20. T 5. contingency fee
21. F 6. fair market
22. F 7. punitive
23. F 8. derivative
9. personal valuation; compendiums 19. F

10. vocational rehabilitation 20. T
11. wrongful death 21. T
12. structured settlement 22. T
13. unavoidable consequences 23. T
14. parasitic 24. T
25. F
Multiple-Choice 26. F
1. c 27. T
2. d 28. T
3. b 29. F
4. a 30. T
5. c 31. T
6. d 32. T
7. b 33. F
8. d 34. F
9. a 35. F
10. d 36. F
37. T
Chapter 8 38. T
39. T
40. F
True-False
41. T
1. T
42. T
2. F
43. T
3. T
44. T
4. T
5. T
Matching
6. F
Group 1: 1 with e, 2 with d, 3 with c, 4 with b, 5 with a
7. F
Group 2: 1 with c, 2 with b, 3 with a, 4 with e, 5 with d
8. T Group 3: 1 with c, 2 with d, 3 with a, 4 with b
9. F
10. F Fill-in-the-Blank
11. F 1. comparative
12. T 2. last clear chance
13. T 3. 70 percent
14. F 4. not as great as
15. F 5. subjective; objective
16. T 6. contributory negligence
17. T 7. not as great as
18. F 8. governmental
9. proprietary 17. F
10. 1983 18. T
11. charitable 19. F
12. implied waiver 20. F
13. immunity 21. T
14. statute of limitations 22. T
15. accrues 23. T
16. statute of repose 24. F
17. discovery 25. T
26. F
1. c 28. F
2. d 29. F
3. b
4. d Fill-in-the-Blank
5. b 1. fiduciary
6. d 2. informed consent
7. a 3. negligence; battery
8. a 4. assumed the risk
9. d 5. battery or negligence
10. b
Multiple-Choice
Chapter 9 1. c
2. b
True-False 3. d
4. c
1. F
5. d
2. T
6. a
3. F
7. b
4. F
8. d
5. T
9. a
6. T
10. c
7. F
11. d
8. F
12. d
9. T
13. a
10. F
14. b
11. T
15. d
12. F
16. b
13. T
17. d
14. F
18. a
15. T
19. c
16. T
20. a 24. F
21. d 25. T
22. a 26. F
23. d 27. T
24. b 28. T
25. c 29. F
26. d 30. T
27. b 31. T
28. d 32. T
29. a 33. T
30. c 34. F
31. c 35. T
32. d 36. T
33. d 37. F
38. T
Chapter 10 39. T
40. F
41. F
True-False
42. F
1. T
43. T
2. T
44. T
3. T
45. T
4. F
46. T
5. F
47. T
6. T
48. F
7. T
49. T
8. T
50. F
9. F
51. F
10. F
52. T
11. F
53. F
12. T
54. T
13. T
14. T
15. T
Matching
Group 1: 1 with e, 2 with c, 3 with d, 4 with b, 5 with a
16. T
Group 2: 1 with c, 2 with e, 3 with b, 4 with a, 5 with d
17. T
18. T
Fill-in-the-Blank
19. F
1. trespass; nuisance
20. T
2. substantial
21. T
3. special injury
22. F
4. came to the nuisance
23. F
5. CERCLA Multiple-Choice
6. interference with existing contractual relations 1. d
7. malicious prosecution 2. a
8. wrongful institution of civil proceedings 3. c
9. abuse of process 4. b
5. a
Multiple-Choice
1. b
Chapter 12
2. c
3. c
True-False
4. b
1. T
5. a
2. F
6. b
3. F
7. d
4. F
8. d
5. T
9. d
6. T
10. a
7. T
8. T
Chapter 11 9. F
10. T
True-False 11. T
1. F 12. T
2. T 13. T
3. T 14. F
4. T 15. T
5. F 16. T
6. T 17. T
7. T 18. F
8. F 19. F
9. T 20. T
10. F 21. F
11. T 22. F
12. T 23. T
13. F 24. F
14. F 25. F
26. T
Fill-in-the-Blank 27. F
1. strictly liable 28. T
2. fencing in; fencing out 29. F
3. wild 30. F
4. six 31. T
32. T 3. d
33. T 4. a
34. F 5. d
35. T 6. c
36. F 7. d
37. T 8. c
38. F 9. d
39. T 10. b
40. F 11. b
41. T 12. c
42. T 13. d
43. F 14. b
44. T 15. c
45. F 16. a
46. F 17. a
47. T 18. d
48. T 19. b
49. F 20. d
50. T 21. d
51. T 22. a
52. F 23. d
24. b
Matching 25. a
Group 1: 1 with e, 2 with d, 3 with c, 4 with a, 5 with b
Group 2: 1 with d, 2 with c, 3 with e, 4 with b, 5 with a Chapter 13
Group 3: 1 with c, 2 with a, 3 with b, 4 with e, 5 with d
True-False
Fill-in-the-Blank
1. T
1. merchantable
2. F
2. sealed container
3. F
3. strict liability
4. F
4. unavoidably unsafe
5. F
5. state of the art
6. T
6. structural
7. F
7. number; severity
8. T
8. as is
9. F
9. statutes of repose
10. T
10. preemption
11. F
11. express
12. F
13. F
Multiple-Choice
14. T
1. d
15. F
2. b
16. F 8. actual malice

17. T 9. absolute or qualified
18. F 10. public figure
19. F 11. unreasonable intrusion, public disclosure of
20. F private facts, appropriation, and false light
21. T 12. retraction
22. T 13. abused
23. F
24. F
Multiple-Choice
25. T 1. b
26. T 2. a
27. T 3. d
28. T 4. b
29. T 5. d
30. T 6. a
31. F 7. a
32. F 8. a
33. T 9. c
34. T 10. b
35. F 11. d
36. T 12. a
37. T
38. T Chapter 14
39. F
40. T True-False
1. F
Matching 2. F
Group 1: 1 with e, 2 with d, 3 with a, 4 with b, 5 with c 3. F

Group 2: 1 with e, 2 with c, 3 with d, 4 with a, 5 with b 4. F
Group 3: 1 with c, 2 with b, 3 with a, 4 with e, 5 with d 5. T
6. F
Fill-in-the-Blank 7. T
1. status; subject matter 8. F
2. 2 of the 4: plaintiff engaged in criminal behavior, 9. T
plaintiff suffers from some type of venereal or
10. F
other loathsome and communicable disease,
plaintiff is unfit to conduct their business, trade, 11. T
or profession and plaintiff has engaged in sexual 12. T
misconduct 13. T
3. libel; slander 14. F
4. presumed 15. T
5. defamatory and published 16. F
6. single publication 17. F
7. strict liability 18. T
19. F 7. T
20. F 8. T
21. T 9. T
22. F 10. T
11. T
Matching 12. F
1 with c, 2 with d, 3 with f, 4 with a, 5 with b, 6 with e 13. F
14. F
Fill-in-the-Blank 15. F
1. vicarious liability 16. T
2. respondeat superior 17. F
3. within the scope and furtherance 18. F
4. independent contractor 19. F
5. frolic and detour 20. F
6. retained control 21. T
7. bailor; bailee 22. T
8. family purpose 23. T
9. automobile consent 24. T
10. omnibus clause 25. F
11. imputed
Matching
Multiple-Choice Group 1: 1 with c, 2 with d, 3 with e, 4 with b, 5 with a
1. a Group 2: 1 with e, 2 with d, 3 with a, 4 with b, 5 with c
2. d
3. a Fill-in-the-Blank
4. b 1. indivisible
5. d 2. joint; concurrent
6. c 3. deep pocket
7. a 4. satisfaction
8. b 5. Mary Carter; Gallagher

6. Release
7. Indemnified
Chapter 15
8. Equitable indemnity
True-False Multiple-Choice
1. F
1. c
2. T
2. a
3. F
3. c
4. F
4. a
5. T
5. d
6. T
6. d
7. b 33. T
8. a 34. T
9. d 35. F
10. b 36. T
37. F
Chapter 16 38. T
True-False Matching
Group 1: 1 with d, 2 with e, 3 with c, 4 with b, 5 with a
1. F
Group 2: 1 with d, 2 with c, 3 with e, 4 with b, 5 with a
2. F
3. F Fill-in-the-Blank
4. T
1. defendants; plaintiffs
5. F
2. comparative negligence
6. T
3. defensive
7. F
4. collateral source
8. T
5. common sense reform
9. T
10. T
Multiple-Choice
11. T
1. c
12. F
2. b
13. F
3. a
14. F
4. a
15. T
5. d
16. T
6. b
17. T
7. b
18. T
8. a
19. F
20. F
21. T
Chapter 17
22. T
23. F True-False
24. F 1. T
25. F 2. F
26. T 3. T
27. T 4. F
28. T 5. F
29. T 6. F
30. T 7. F
31. T 8. T
32. F 9. T
10. F 3. c
11. T 4. d
12. F 5. c
13. F 6. c
14. F
15. F Chapter 18
16. F
17. F
True-False
18. T
1. T
19. T
2. F
20. T
3. T
21. F
4. T
22. T
5. T
23. F
6. T
24. F
7. F
25. F
8. F
26. T
9. F
27. T
10. T
28. T
11. F
29. T
12. T
30. T
13. T
31. F
32. T
Fill-in-the-Blank
33. F
1. adhesion contract
34. F
2. expectency
3. declaratory judgment
Matching
4. excess judgment
Group 1: 1 with b, 2 with a, 3 with d, 4 with e, 5 with c
5. loss of unpaid benefits, excess judgments
Group 2: 1 with e, 2 with c, 3 with d, 4 with b, 5 with a
6. bad faith
Fill-in-the-Blank
1. reform Multiple-Choice
2. no-fault 1. d
3. secondary; primary 2. b
4. replacement; actual cash 3. b
5. uninsured motorist 4. d
6. de novo 5. c
6. b
Multiple-Choice 7. d
8. c
1. b
9. b
2. d
10. d 11. T
11. c 12. T
12. a 13. T
13. c
Fill-in-the-Blank
Chapter 19 1. fellow; servant
2. scheduled
True-False 3. cap
1. T
2. T
Multiple-Choice
3. F 1. b
4. T 2. c
5. F 3. c
6. T 4. a
7. F 5. d
8. F 6. b
9. F 7. d
10. F 8. d
Appendix B
Interviewing
Johnny and Susie are lovers. Johnny has just bought suit, as he may have been wholly or partially to blame
a new red Corvette and, of course, he wants to im- for her injuries. Caution and conservatism are now
press Susie with his acquisition, so he picks her up your best attributes. You should either get assistance
at her house to take her to a very expensive French from your supervising attorney to guide you accord-
restaurant. While en route, he enters the intersection ing to your firm’s policy or take the risk that further
at Seventh Avenue and Primrose Lane at the same investigation of this potential conflict may preclude
time that Harriet, driving to the weekly meeting of the firm from representing either Johnny or Susie.
the local Library Preservation Society in her 14-year- Be forewarned that Susie is likely to protest that
old Chrysler, turns in front of him. Neither sees the she could never consider suing Johnny because it
other vehicle until a few split seconds before impact. was all Harriet’s fault. Also, Susie herself saw that the
No one is permanently injured, but the Corvette light was green and that Johnny was not speeding.
suffers extensive damage, and Harriet’s car, although Do not be pacified by this assertion. Before getting
relatively unscathed, needs minor repairs. Within a any information from Susie or even discussing the
month of the accident, Johnny comes into your office case further with the two of them together, you must
with Susie in tow. Your supervising attorney asks you determine whether Susie’s claim is so inconsistent
to interview them. What do you do? with Johnny’s that they need separate representation.
Potential Conflict
Exhibit B–1 Diagram of Accident
of Interest
Suppose that as you escort Johnny and Susie into
your office. Johnny impulsively blurts out that the
investigating officer and two of the witnesses are
liars and are out to get him. In this spontaneous dia- A
tribe he further alleges that Harriet was drunk and
that three witnesses will testify that the other two
witnesses are lying when they said Johnny ran a red A
light. Without taking a breath, he assures you that Seventh Ave. B
the witnesses are also prepared to testify that the
A = Harriet’s
officer was incorrect when he concluded that Johnny vehicle
was speeding at the time of the accident. B = Johnny's
Having heard this capsulized version of Johnny’s B vehicle
defense, you are now alerted to the potential conflict
that may exist between Johnny and Susie. Susie, if
Primrose Lane
she was injured, may have to name Johnny in her
613
614 | Appendix B Interviewing
If you conclude that Susie’s and Johnny’s claims he has with you as it is to conversations he has with
are so at odds that they cannot be represented by the attorney. Also advise him that the privilege is
the same attorney, you must advise Susie accordingly applicable even if he and the firm do not enter into
and then ask her to wait in the reception area. Note a contractual relationship. Try to interview him in the
that Susie and not Johnny is asked to leave because privacy of an office or relatively small room. Your
it is Johnny who made statements to you with respect assurances regarding the confidentiality of the infor-
to the case. Because Susie has said nothing at this mation he gives you will have little meaning if strang-
point, your firm can still represent Johnny. Susie, ers pass through while you are interviewing him.
however, needs to seek alternate counsel. You can help create a relaxed environment by
the way in which you arrange the furniture. Relegat-
Setting the Stage ing Johnny to a low-backed reception chair while you
stare at him from behind a palatial desk, seated in an
imposing high-backed chair, will not promote trust-
Typically your first contact with Johnny will be after
ing, uninhibited communication. You can appear
he has spoken with the attorney who will handle the
more approachable if you position your chair along-
case. Interviewing Johnny will be far easier if he has
side his. Be careful, however, that you do not get
already met with the attorney, because the basic
so close that you make him feel uncomfortable by
cause(s) of action already will have been determined
“invading his space.”
by the attorney and you can narrow your questions to
You can also offer him a cup of coffee, glass of
those particular claims. Your role as a legal assistant
water, or some soda to help break the ice. Devoting
in this case will have been explained by your attorney
a few minutes to small talk will give him an oppor-
prior to your meeting with Johnny. Nevertheless, it is
tunity to get used to you and his surroundings. Tak-
imperative that Johnny understand from the outset
ing time to create a comfortable setting will be time
what your duties and limitations are.
well spent and will certainly reap more benefits than
If you are the first person to talk with Johnny,
immediately bombarding him with questions.
remember that in the opening moments of your con-
versation you will establish the tenor of his relation-
ship with your firm. His decision on whether to use
the firm may be determined by this initial contact. How to Ask and How
Furthermore, you must not only obtain essential
biographical and background information but also to Listen
ascertain the potential claims he may have. You need
to glean sufficient information so that the attorney Once you have succeeded in relaxing Johnny, you
can decide whether Johnny has a cause of action, should try to determine as soon as possible why he
whether the claim is the type your firm would pur- came to the office. Although he may be unable to
sue, and, if not, to whom Johnny might be referred. articulate the precise legal basis of his concern, he
You may also be expected to field some of Johnny’s can probably convey the general nature of his claim,
questions regarding his case. i.e., personal injury, trespass, nuisance, slander, and
Before you start asking questions, you should so on. Of course, regardless of what he believes the
try to establish a rapport with Johnny so that he will claim to be, the facts as they unfold may not sup-
feel free to speak openly and frankly to you about port his claim as he perceives it, or may support addi-
his case. Remember that you may need to ask very tional claims that will become apparent when subject
personal questions about, for example, injuries sus- to appropriate legal analysis.
tained, emotional damage, sexual dysfunction, and Rather than asking for directed responses at the
scarring. Such information is not easily revealed to beginning of an interview, allowing a client to give a
friends, let alone complete strangers, so you must free-flowing narrative of his version of what happened
put Johnny at ease if you are going to elicit such sen- is often better. Therefore, you might start by letting
sitive disclosures. Johnny tell his side of the story. Then you can follow
At the outset, you should impress upon Johnny up with more directed questions to fill in the gaps and
that anything he says to you is privileged and that clarify any points of confusion you might have. You
this privilege is just as applicable to conversations might consider structuring these follow-up questions
using the five Ws demanded of a good journalist— Remember that interviewing is a two-way street.
who, what, where, when, and why. Who are the key Just as you are assessing Johnny, so he is assessing
actors involved? What did they do? Where and when you. Be conscious of the messages you are send-
did they do it? Why did they do it? Making sure you ing. Are you acting bored? Incredulous? Impatient?
can answer these key questions will minimize your Condescending? You must communicate a sense of
chances of forgetting to ask relevant questions. receptivity and warmth if you want him to trust you
Using notes and prepared questions to organize and cooperate with you fully.
your thinking will be helpful if you know in general
what you will be discussing with Johnny. You can use
your notes to refresh your memory about key points
you want to explore. Do not, however, become so
Gathering Background
dependent on your notes that you are unable to devi- Information
ate in any way. Be flexible; adapt your questions to
Johnny’s statements. Do not fail to hear what Johnny In almost all cases you need to obtain relatively
is telling you. Free yourself of any preconceived detailed background information. For example, sup-
notions, and be willing to explore avenues that you pose a minor is involved in the case. The non-client
had not previously considered. parent may be the primary custodial parent and the
Most importantly, listen carefully to Johnny. Pay one who has actual authority to institute litigation on
attention to the details. Note any omissions in his behalf of the minor. If a shared custody agreement
story. Be aware of his body language and the pace, exists providing that the parents are jointly respon-
volume, and pitch of his speech. These subtle clues sible for decisions made on behalf of the child, one
may reveal more than his verbal communication. parent alone may be unable to select the child’s
When you think you have gathered all the pertinent attorney. You may find yourself in an embarrassing
information, summarize to him what you think he has situation if you involve your employer in litigation
said. You may be surprised at how many discrepan- only to find out that your client is not authorized to
cies exist between what you think you heard and institute the suit. Consequently, you should obtain
what he thinks he said. relatively detailed background information, includ-
An awareness of basic human nature comes in ing residential address, marriages, children, employ-
handy when conducting interviews. Some people will ment history, medical history, and the like. In any tort
provide you with only the sketchiest of details. They case, but especially in a personal injury case such as
will treat each piece of information you extract from Johnny’s, this information is essential.
them as if it were some kind of valuable ore. Oth- Any tort case also requires that a complete
ers will inundate you with details, digressing into so insurance profile be constructed. First, determine
many subplots of their story that you will begin to lose if Johnny has automobile insurance for the vehicle
sight of their central theme. Some will re-experience and, if so, whether it provides medical-payment and
the emotional trauma of the events and become so collision coverage. If he has such coverage, assure
distraught that they will be unable to recount what Johnny that, except for the deductible, the collision
happened to them. coverage will repair his new Corvette. The medical-
Although you must distance yourself emotionally payment coverage, as you should point out, will help
enough to be objective regarding the legal claims, pay for his medical expenses as well as Susie’s, even
you must remain sensitive to the emotional needs if she subsequently submits a claim against him.
and psychological defenses of those you interview. Note that if Johnny had been a pedestrian or a bicy-
A certain amount of detachment is necessary to clist who had been injured in an accident involving
do your job, but divorcing yourself from your own a motor vehicle, some coverage would be available
humanity is neither necessary nor desirable. You from his homeowner’s policy.
must develop your own means of cajoling informa- Review any applicable insurance policies very,
tion from the reclusive, channeling the storytellers, very thoroughly in the context of state statutes and
and reassuring the distressed. And you must do this court decisions. Be particularly concerned with the
as you are clinically evaluating their potential causes enforceability of clauses in the policies. The mere fact
of action—a formidable task! that an insurance policy appears to deny coverage
does not mean that that provision is necessarily firm accepts this case, you will need to ascertain
enforceable. (We discuss this problem in Chapter 18.) the weather and road conditions at the time of the
Obtain basic information from Johnny, such as his accident. For example, was there any construction?
date of birth, Social Security number, the addresses Was the road made of dirt, granite, asphalt, or con-
of his residence and place of employment, the iden- crete? How many lanes of traffic were there in each
tity of his insurance carrier, and, to the extent known, direction?
his coverage and its limits. Then ask for detailed In piecing together the events that preceded
information regarding the nature and extent of his the accident you will need to take Johnny back to
injuries. If his injuries could potentially interfere with the time he woke up that morning. What time did he
his relationships with third parties, such as parents, get up? Where had he been the night before? Did
children, and perhaps even brothers and sisters, con- he have breakfast? What did he do prior to the acci-
sider the possibility of filing a separate loss-of-con- dent? Did he have lunch? Did he have anything to
sortium claim against Harriet. drink during the afternoon? Was he with friends who
Inquire about Johnny’s prior medical history. could confirm his whereabouts and activities? Did
Who is his family physician? What injuries or diseases he have a good night’s sleep, or was he overtired?
has he had? What physical examinations has he had, Did he have dinner Saturday evening? Did he go to
including those for obtaining employment, for school Susie’s to pick her up, or was she with him to begin
attendance, or for other activities? This information is with? Do they live together? Did he have anything to
important because Johnny’s medical history prior to drink prior to the accident?
the accident may have a significant impact on the You will also want to question Johnny regard-
amount of damages he will be entitled to receive. ing his new Corvette. Had he had it for a long time?
Find out if Johnny was taken to an emergency Was he accustomed to driving it? Had he had prior
room and, if so, whether he was taken by ambulance traffic violations? Were his headlights on? Was the
or if he drove himself. Identify Johnny’s treating phy- car functioning properly? What was he doing prior to
sicians, if any, since the accident, and find out how the accident? Was he talking to Susie? Was he look-
many times he has seen them and for what reasons. ing forward or to the left or right? Did he see Harriet
Note whether Johnny has been unable to work or before she made the turn? Did he see Harriet mak-
has been able to do only those jobs characterized ing the turn? What evasive actions did either Johnny
as “light duty.” In many instances, an injury does not or Harriet make prior to the collision? You will want
prevent the client from working but may preclude to find out how much traffic was on Primrose Lane
him from working in certain activities or force him to and on Seventh Avenue that night at 8:00 p.m. How
forgo certain benefits, such as overtime. well lit was the intersection? Were Harriet’s head-
You also need to determine the nature and lights on? Had Harriet turned on her turn signal? Did
extent of the damages to Johnny’s vehicle. Depend- Harriet appear to hesitate and then speed up, or did
ing on your firm’s policy, you might become involved she make the left-hand turn as though there were no
in assisting Johnny with his property-damage claim. oncoming traffic? Were Johnny and Susie wearing
seat belts? Was Harriet wearing a seat belt?
Scene of the Accident Then you need to zero in on what happened at
the scene of the accident. Does Johnny recall slam-
When you first ask Johnny to describe the accident ming on the brakes and hearing any sounds asso-
he may want to relate what happened in a conclusory ciated with skidding tires? Did the brakes of the
fashion. He may say, for example, “I was obeying the Corvette lock up? Where exactly was the point of
law, and this drunk turned in front of me on a green impact? Could Johnny or Susie get out of the vehicle
light.” Let him ventilate. Once he has done that, you immediately after the accident? Were they coherent?
need to piece together the chain of events leading Was anyone cut? Was blood evident anywhere? Did
up to the accident and to verify the validity of what the vehicle itself remain secure (i.e., did the seats
he has given you. Suppose, for example, that Johnny break their mountings or did the backs collapse)?
tells you that the accident occurred at 8:00 p.m. on How much damage was done to Harriet’s old Chrys-
Saturday evening, April 9, one month ago. You need ler? Who was the first person on the scene? Did
to confirm that April 9 was a Saturday. Later, if your Johnny, Susie, or Harriet speak to that person? Did
Johnny or Susie speak to Harriet? Did they speak to who is 99 percent responsible for those injuries, has a
any of the other witnesses? Where were the other $1,000 case, not a $100,000 case (in a comparative-
witnesses at the time of the accident? Did any of negligence state). The recoverable damages would
them almost collide with Harriet or Johnny? Did any not justify a firm’s investment in such a case.
of them actually collide with either? Did any other
accidents occur as a result of the collision between
Harriet and Johnny?
Statute-of-Limitations
Johnny indicated that an officer eventually Problems
came to the scene, so you should determine what
law enforcement agency the officer worked for. Did Clients often “sit” on their claims for some time before
Johnny speak to the officer? What was the nature of acting on them, and when they do finally get around
their conversation? What was Johnny’s attitude at the to pursuing their claims, they may be barred because
time, i.e., was he angry, subdued, crying, in pain? Did the statute of limitations has expired. Be aware of
the officer speak with Susie or Harriet? Does Johnny the appropriate statute, and act in a timely fashion
know whether the officer spoke with any of the other both to protect the client’s claim and to protect your
witnesses and, if so, which ones? Did the officer make firm from being sued for malpractice for inadequate
any measurements at the scene of the accident that representation. If the expiration of the statutory time
Johnny is aware of? period were imminent in Johnny’s case, the attorney
Johnny made several allegations during his ear- might opt to draft a bare-bones complaint naming
lier soliloquy. Now you need to follow up on those. Johnny as his own attorney. This would prevent the
Johnny indicated to you that Harriet was drunk. How attorney from having to evaluate the case too hastily
does he know that? Did he speak with Harriet or and would still protect the interests of all involved.
smell her breath? Did the officer indicate that he was If the client serves as her own attorney, no paperwork
citing Harriet for driving under the influence? Johnny will have to be filled out for substitution of attorney if
said that the officer cited him for speeding. Did the your firm decides to decline representation.
officer tell him the basis for making that determina-
tion? Johnny also stated that other witnesses said he
ran a red light. Was he cited for running a red light?
Where were those alleged witnesses when they saw
Investigating Officer
Johnny run the red light? In which direction were Interview
they facing?
Having determined Johnny’s side of the story, you
Discovering the must now interview the third parties involved to find
out their recollections of the events. The first person
Weaknesses to start with is the investigating officer. Although in
most cases the officer has no personal firsthand infor-
As you conduct the interview, do not become so mation other than the measurements taken, she may
wrapped up in the tale that is being told that you fail have talked to some of the witnesses. In some states
to notice any time gaps or apparently inconsistent the actual investigation with respect to skid marks,
statements. The appropriate time to discover any point of impact, estimated speed of travel, and so
problems with your case is when you first become forth is left to civilian employees of the police depart-
involved, not after a great deal of time, money, and ment. Therefore, you must determine which individu-
effort have been expended in pursuit of the claim. als actually investigated the accident scene and what
Remember that not everyone who is involved in an their training, job classification, and responsibilities
automobile accident is entitled to compensation, were.
and even if a victim is entitled to compensation it Should your jurisdiction be one of those in which
may well be that problems with respect to liability the police officer does the actual investigation,
(i.e., who was at fault and to what extent) will discour- including making measurements and interviewing wit-
age the firm from representing that person. Some- nesses, interview the officer as soon as possible. The
one with $100,000 worth of injuries, for example, notion that police officers can recall specific details
of every investigation they conduct by simply review- and strive to earn the officer’s respect, but you must
ing their notes is erroneous. Remember, they are do so without sacrificing his ego. You will undoubt-
involved in numerous incidents on a daily basis, and edly encounter the arrogant officer who will test your
substantial time has usually passed between the acci- capacity to control your tongue. Before you suc-
dent in question and your interview. Nothing is as cumb to the temptation to engage in verbal repar-
important as fresh, firsthand information. tee, remember that an officer who dislikes your style
Any attempt to interview the investigating offi- of questioning could become a liability rather than
cer should begin with the Police Liaison Unit. This an asset to your case. Prudence is often the wisest
unit, which exists in one form or another in most course of action.
jurisdictions, is primarily involved in ensuring that the All basic background information, such as time
officers involved in a criminal case are aware of the on the force, experience in accident investigation,
events that are occurring and the times when they and training, is important. Focus, however, on the
must appear in court. You can also use this unit to information contained in the report the officer pre-
make arrangements to interview the officer about the pared. Determine what information in the report
strictly civil portions of an incident. It is often pos- came from the officer’s firsthand observations at the
sible for the officers to be paid for the time involved accident scene, which information came from wit-
in meeting and discussing the case with you, so it is nesses the officer deemed credible, and which infor-
imperative, at the outset at least, to work with the mation the officer rejected because she thought the
Police Liaison’s office. Certainly officers will be far witnesses were not credible.
happier talking with you if they know they are get- The officer writing the report may not have inter-
ting paid or being given release time for the time viewed some of the witnesses, so you need to ascer-
spent with you, rather than receiving only the stan- tain which officers spoke to which witnesses and, if
dard jurisdictional witness fee. necessary, interview each of those officers. You need
Additionally, because police officers frequently to find out, for example, if there was a backup unit
encounter attorneys in an adversarial context, they that assisted the investigating officer and if those offi-
are often prepared to do battle. Therefore, make cers talked to witnesses, if statements were taken by
sure you are well prepared for the interview. Do not any other officers, and if measurements were made
create the impression of wasting the officer’s time by a different officer or by a civilian accident investi-
with irrelevant or nonsensical questions. When you gator. You need to get the names of these individuals
interview a police officer, you should have a detailed and establish the relevance of the information they
outline of your questions. may have to offer to determine if you should also
Prior to interviewing the officer, mentally retrace interview them.
the events leading up to, during, and after the acci- At this juncture you must determine whether
dent in as much detail as possible, noting the names the officer has any independent recollection of the
of any witnesses that you are aware of. Using precise accident. Then you must distinguish what the officer
questions will not only enhance your credibility with knows by virtue of independent recollection versus
the officer but will also greatly reduce the amount of what he remembers by reviewing the police report
time necessary to complete the interview. and other documents that you brought to the inter-
If departmental procedures allow it and the view. Knowing when and where to give information
officer has no objections, tape-record the interview. to the officer comes from experience and intuition.
Transcribe the interview as soon as possible and send What you should do will vary on a case-by-case and
it to the officer, asking him to make appropriate cor- officer-by-officer basis.
rections. Let the officer know about this procedure at
the beginning of the interview if you intend to tape it.
Never “talk down” to an officer or try to contra- Lay Witness Interviews
dict her. Establishing a good rapport will serve you
well later in the case, whereas being patronizing will As soon as possible after the incident and, with luck,
result in an adversarial rather than a cooperative rela- before they are spoken to by the adverse party,
tionship. You should maintain control of the interview contact all lay witnesses. Many people are very
concerned about the perceived hazards of having to driver who was behind a vehicle that was involved
testify in court, and you should do everything pos- in an accident may state that he saw the driver of
sible to allay their fears. It is not unusual for someone the other vehicle lose physical control of the auto-
to “not recall” an event to ensure that her testimony mobile. In reality, all he could see was the back of
will not be required. Meeting the person at his home the other driver’s head. If later he saw paramedics
after work or for lunch can make a reluctant wit- remove somebody from the driver’s seat of the vehi-
ness feel more comfortable and less “put out” than cle, he would assume, quite logically, that the person
requesting that he come to your office. he observed being removed from the driver’s side of
Once you know whether the witness will either the car was the person he had observed driving the
support or negate your client’s position, you will car, which is not necessarily true. Consequently, his
need to decide whether to tape-record the interview, statement regarding the driver’s identity could be
assuming the witness will allow it. If the witness’s honest but false.
recollections are supportive of your client’s position, What if the witness is hostile and alleges, for
you might want to provide a copy of the tape to example, that the accident was all your client’s fault
opposing counsel in the hope of speeding up and that he should be punished for what he did? In
settlement. Note, however, that the presence of a tape such a case you will have to summon all of your inter-
recorder makes many people very uncomfortable personal skills to get an in-depth and accurate inter-
and may therefore be counterproductive. If you view. Pin down a hostile witness with as many specific
opt to record the interview, be sure the witness facts and details as possible. You need to find out
feels comfortable and at ease before starting. Be exactly where the witness was standing, what she
forewarned that several evidentiary obstacles must was doing, who was at the scene, what they were
be overcome before tape-recorded statements can wearing, who was doing what to whom, and so on.
be used in court, even for impeachment purposes. If nothing else, by restricting the witness to exacting
Once again, you must explain, at the begin- factual details, she may be more easily impeached at
ning of an interview, who you are, why you want to a later date should other witnesses or physical evi-
talk to the witness, and what the potential ramifica- dence conflict with her statements.
tions of talking with you could be. You should also Witnesses may ask to review the transcription
advise witnesses that the opposing parties’ attorney of the tape recording, obtain a copy of the tape,
or legal assistant may also want to interview them. or review your notes. Be aware of your firm’s policy
Any attempts to influence the testimony of witnesses in this regard. In most instances there would be no
or to discourage them from speaking with opposing problem in allowing a witness to review the tran-
counsel could, and should, result in your being fired. scribed interview or taking a copy of the actual tape
Such overt attempts to influence witnesses could recording itself. Problems arise, however, if the tape
also, in many jurisdictions, result in criminal charges recording or its transcription is discoverable when in
being filed against you. the hands of the witness but not discoverable when
Typically one begins questioning by allowing in the possession of one of the party’s attorneys. It
the witness to give a free-flowing narrative of the may be prudent to advise witnesses that the tape
events he observed. Note that the ability to make recording or its transcription is available for review
these observations depends on conditions at the at the attorney’s office but that legal procedural rules
time of the incident. For example, the witness may prohibit a copy being given to them.
be wearing glasses at the time of the interview, but Do not assume that only personal, firsthand infor-
that does not mean that he had his glasses on as he mation is of any value. A witness may be able to pro-
observed the events. His observations may therefore vide you with useful information that leads to legally
be suspect. admissible evidence. She may, for example, advise
Try to pinpoint the exact location of the witness you that a photographer from one of the local news-
at the time the events occurred to determine whether papers took photographs of the scene, that other
the observation was possible. It is not uncommon for individuals in the vicinity observed the accident, or
witnesses to make materially false statements and that she was accompanied by friends whose names
be honestly unaware of their falsity. For example, a are not on the police report. This information might
allow you to obtain additional collaborative evidence to you. If you irritate them, they may terminate the
to support your client’s story or to impeach the recol- interview. You cannot afford to burn bridges at the
lections of a hostile witness. initial stages of an investigation only to find out later
Finally, and most importantly, always be gra- that the witness you alienated is the one you most
cious. An interview is not the place for aggressive, need.
hard-hitting questions. Witnesses do not have to talk
Appendix C
Overview of Insurance
Types of Insurance Coverage Specific Types
Available of Insurance
Learning about all the different types of insurance
coverage would be too time-consuming to be of The types of insurance available are many and varied.
practical value. Suffice it to say that for the required Some policies are designed for business (commer-
premium the occurrence of almost any contingency cial lines) and some for individuals (personal lines). In
can be insured. Those contingencies that are not many cases the coverage overlaps. One of the most
insurable generally are due to public policy concerns prevalent types of insurance is fire insurance.
that allowing certain events to be insured would
encourage wrongful behavior. A brief synopsis of Fire Insurance
the more common types of insurance coverage is set
Fire insurance may be found in different types of
forth in Exhibit C–1.
policies but is most often encountered in the standard
Exhibit C–1 Overview of Types of Insurance Coverage Available
FIRE INSURANCE Covers rebuilding, repair, and replacement of property damaged by fire.
ACCIDENT INSURANCE Provides fixed benefits in event of accidental injury.
HEALTH INSURANCE Reimbursement for expenses resulting from sickness or accidental injury.
HOMEOWNERS’ INSURANCE Reimbursement for losses related to damage to one’s residence (excludes losses stemming
from use of automobile).
LIABILITY INSURANCE Reimbursement for losses for which insured is liable (usually excluding intentional and criminal
acts).
LIFE INSURANCE Payments to insured’s estate or beneficiaries in event of insured’s death.
MARINE INSURANCE Reimbursement for losses incurred in shipping of goods.
MALPRACTICE INSURANCE Reimbursement for losses stemming from professional negligence.
PRODUCT LIABILITY Reimbursement for losses stemming from defective products.

INSURANCE
PROPERTY INSURANCE Reimbursement for losses sustained to property.
TITLE INSURANCE Coverage for losses resulting from defective title to property.
AUTOMOBILE INSURANCE Coverage relating to the use of an automobile.
621
622 | Appendix C Overview of Insurance
homeowners’ policy. The 1943 New York Standard health insurance policies provide for a deductible
Policy provides the pattern for the standard coverage in that must be paid by the insured before benefits
today’s homeowners’ policies. This insurance prototype become payable.
has been extensively reviewed by the courts, and its In addition, most health insurance policies require
contents are familiar to insurance regulators in all states. the insured to be responsible for a percentage of the
One of the important provisions of the 1943 medical expenses incurred above the deductible, up
policy is the right given to the insurer to rebuild the to what is called the co-insurance limit. Above the
damaged structure, repair it, or if necessary replace co-insurance limit the insurer is totally responsible
it. An insurer will obviously select the most economi- for payment of expenses. Suppose the insurer is
cal option available. These options, which are similar responsible for 80 percent of the medical expenses
to those available to the insurer under automobile incurred above the deductible of $1,000, to a total
collision coverage, often result in disputes between of $5,000 above the deductible (the co-insurance
the insured and the insurer as to whether the option limit). If $10,000 in medical expenses were sus-
selected by the insurer was appropriate. Quite pos- tained, the insured would have to pay the deduct-
sibly, for example, a residence that is rebuilt because ible of $1,000 plus 20 percent of $5,000 ($1,000).
of severe fire damage may have a stigma attached to The insurer would then be totally responsible for the
it that results in a substantial reduction of its fair mar- remainder of the expenses ($4,000) and would have
ket value. One vital prerequisite to recovery under to pay 80 percent of the $5,000 above the deduct-
any fire insurance policy is that the insured must not ible, for a total of $8,000.
have intentionally caused the damage or conspired Most health insurance policies have a maximum
with another to intentionally cause the damage. figure for which the insurer will be responsible for
Irrespective of the amount of fire insurance obtained medical expenses as the result of any one claim.
by an insured on a particular piece of property, the Once the policy limits are met by the insurer, the
amount to be paid by the insurer will not be greater insured is responsible for the payment of any short-
than the property’s fair market value or replacement fall. Depending on the policy, that maximum might
cost, depending on the type of insurance purchased. be reinstated if the insured were to sustain medical
The mere fact that an insured purchases fire insur- expenses as a result of a different cause. Some poli-
ance for $100,000 on a building worth only $50,000 cies also have lifetime maximums that will be paid
does not allow her to collect $100,000 in the event of irrespective of the number of claims.
the total loss of the structure. The standard health insurance policy provision
requires that the insured remain treatment-free as
Accident Insurance a result of any preexisting conditions for a fixed
period of time after the policy is issued. A pre
Accident insurance is designed to provide the
existing condition is any medical condition suffered
insured with specified coverage in the event of an
by the insured prior to securing a policy from the
accidental injury. A policy might provide a fixed
insurer. The time period required varies from policy
amount for the loss of one eye, a greater amount
to policy but can be as short as 90 days or as long
for the loss of both eyes, a fixed sum for the loss of a
as 2 years. Any medical expenses incurred or treat-
leg, and so on. Often the accident insurance policy
ment begun prior to expiration of the period set
provides a fixed benefit in the case of an acciden-
forth in the policy will not be covered. The insurer
tal death. Accident insurance, unlike health insur-
may also provide specific exclusions for preexist-
ance, does not reimburse the insured for expenses
ing conditions. For example, a policy could con-
incurred as the result of an accident. Rather, it pro-
tain an exclusion precluding payment for expenses
vides an agreed-upon payment if an accidental
relating to any injury to the insured’s knee. Such an
injury covered by the policy should occur.
exclusion would be required by the insurance car-
rier because of prior problems with or treatment of
Health Insurance the insured’s knee.
Health insurance is designed to provide reimburse- One problem that often arises in health insur-
ment for medical expenses incurred by the insured ance policies is an allegation by the insurer that
as a result of sickness or accidental injury. Most the insured failed to give a full and complete
disclosure of a prior medical condition on the health Many homeowners’ insurance policies provide
insurance application. How the courts deal with for medical payment insurance. They also frequently
such nondisclosure varies, but most policies allow require that the insured specifically list (and pay an
for cancellation if the insurer refunds the premiums extra premium for) items of unusual value such as
paid. If an insured can show that the insurer would works of art, musical instruments, jewelry, excessive
have issued a policy with only an exclusion for the cash, and weapons.
type of injury that was not disclosed and that the
injury he sustained was not related to any misrep-
resentation on the application, some courts will
Liability Insurance
require the insurer to pay the expenses despite the Liability insurance is one of the more comprehensive
misrepresentation. Other courts look to the mate- types of insurance available. Under this policy the
rial misrepresentation and allow the insurer to avoid insurer must reimburse (indemnify) the insured for
its contractual obligations, even though the misrep- any loss covered by the policy for which the insured
resentation was unrelated to the injury or sickness may be responsible. Liability insurance covers dam-
actually sustained by the insured. ages the insured may be required to pay as a result
of bodily injury or property damage caused by the
insured’s negligence.
Homeowners’ Insurance Illegal or intentional acts of the insured are not
Homeowners’ insurance policies have been designed covered in a standard liability policy. Most policies,
for the owner-occupant of a single-family residence. either by their specific language or by court interpre-
These policies may provide either basic or extended tation, do not provide coverage for punitive damages.
coverage. Basic coverage provides for protection Liability insurance is written either in single-
against loss due to fire, lightning, windstorm, or limit or split-limits coverage. Under the single-limit
hail. Extended coverage provides personal liability approach, a set amount is all that is available to
protection as well as “all risk” coverage, which is injured third parties, irrespective of the total amount
coverage for all risk of physical loss to insured prop- of the injuries they sustain. For example, a $300,000
erty except for exclusions specifically listed in the single-limit policy provides coverage for damages
policy. Most lenders require, at the minimum, that up to a maximum of $300,000 no matter how many
a homeowner/insured maintain coverage for fire, claimants apply and no matter how great their actual
windstorm, hail, vandalism, and malicious mischief. losses are. Potentially, one claimant could recover
The purpose of this requirement is to ensure that $300,000 and the other claimants could be left with
any losses sustained that might affect the security of nothing under this type of policy.
the lender will be reimbursed by the homeowner’s Under split-limits coverage a fixed amount is
insurance carrier. set for each individual claim, along with a different
The standard homeowners’ policy specifically fixed amount for the total of all claims arising out
excludes any liability that might be imposed on the of the same incident. The split-limits coverage of a
insured arising out of the operation of a motor vehi- $100,000/$300,000 policy, for example, would allow
cle. It may, however, provide liability coverage for the a maximum recovery of $100,000 for each person
insured and the insured’s family for acts that occur at injured and a maximum recovery of $300,000 for all
locations other than the residence insured under the persons injured. This type of coverage would prevent
policy. One fertile field of litigation with respect to the one claimant from usurping all of the $300,000 by
standard homeowners’ policy is the issue of liability for putting a $100,000 cap on individual recovery.
the death of minor children in a homeowner’s swim- As mentioned previously, liability insurance is a
ming pool. Injuries caused to others by the insured standard part of the homeowners’ insurance policy.
or members of her family are also hotly litigated. If, In most cases it is also a required part of the automo-
for example, the insured’s son injures his friend while bile insurance policy.
engaging in unreasonably rough horseplay while on
the premises, or if the insured’s dog bites a guest, Life Insurance
the insured’s homeowners’ policy should provide Unlike the other types of insurance we have dis-
coverage. cussed, life insurance does not indemnify the insured
for any losses sustained. In essence, a life insurance guaranteed to be paid his estate or beneficiary at the
contract is an agreement by the insurance carrier to insured’s death. Some ordinary life insurance policies
pay the insured’s estate or the named beneficiary a are set up so that premiums are prorated through a
fixed amount upon the insured’s death. Unlike liabil- certain age such as 60, 65, or 75, at which time the
ity insurance or, for that matter, most other forms of policy is considered fully paid.
insurance, the event insured against (death) is certain Typically the ordinary life insurance policy pro-
to happen. vides for the building of a cash value, which occurs
Life insurance carriers have devised a variety of after the first few years. Initially the payments pro-
life insurance plans because of the perceived diverse vide the means for the agent to be paid a commis-
needs of the American public (see Exhibit C–2). They sion. As a result, the insurer pays the insured the
have also attempted to capitalize on the tax benefits cash value of the policy if the policy is canceled prior
that have been granted to the life insurance indus- to her death. Alternatively, the insurer could loan the
try. These tax benefits, which arguably stem from insured monies in an amount equal to the loan value
Congress’s perception of life insurance as a type of of the policy, as determined by the insurance con-
savings, have provided life insurance carriers with tract. The loan value of a policy varies depending
sales pitches unavailable to other types of insurers. on the number of years the policy has been in effect
For example, insurers can offer policies that allow and the internal rate of return of the insured. If the
the insured to accumulate tax-free interest during insured takes a loan on the policy, the policy stays in
the term of the policy and to pay taxes only upon effect as long as premiums and loan payments are
actually receiving the funds. When the monies are paid on a timely basis.
received, the insured is typically in a much lower tax
bracket, according to the insurance carrier, usually as Term Insurance
a result of retirement. Individual life insurance premi-
Term insurance has a fixed term, usually a year, and
ums are not tax deductible, and the face amount of
provides for payment only if the insured dies during
the policy paid to the beneficiary upon the insured’s
that term. Unlike ordinary life insurance, the rates of
death is generally not taxable.
term insurance vary on a periodic basis, depending
The most common types of life insurance now
on the age of the insured at the time the policy is
available are ordinary life, term life, joint life, and sur-
taken out. Term insurance is more like other types of
vivorship insurance.
insurance in that the risk insured against (death dur-
ing the term of the policy) is not certain to occur. Term
Ordinary Life Insurance insurance is often the insurance of choice for younger
An ordinary life insurance policy has a fixed monthly couples who want to provide for their dependents in
or yearly premium based on the age of the insured at the event of their own demise but who are unable
the time the policy is taken out. This premium is paid to afford the higher premiums demanded by ordi-
during the life of the insured in consideration of the nary life insurance. Some term policies, while allow-
payment (based on the face amount of the policy) ing the premium to vary with the age of the insured,
Exhibit C–2 Types of Life Insurance
ORDINARY TERM
Insured pays fixed premium with benefits paid to Insured pays fixed premiums with benefits paid to
estate or beneficiaries in event of insured’s death. estate or beneficiaries in event of insured’s death.
JOINT SURVIVORSHIP
Benefits payable upon death of one or more insureds. Benefits payable only to survivors of two or more
insureds.
guarantee insurability to the insured. Many waive sixteenth century. The preeminent insurer in this
the need for a physical examination as long as the area, Lloyds of London, issues the industry standard,
insured renews the policy prior to the expiration of called the “English Lloyds policy.”
every term, so that no break in the coverage occurs.
Malpractice Insurance
Joint Life Insurance Malpractice insurance is analogous to the errors
With joint life insurance the benefits become pay- and omissions policy used to protect officers and
able upon the death of one of the insureds covered directors of major corporations. Malpractice insur-
by the policy. Joint life insurance requires at least ance applies to professionals, who are held to the
two insureds, although a limitless number of insureds standard of care reasonably expected of similar
could theoretically be covered. professionals in the geographic area in which they
Joint life insurance is particularly advantageous practice. The major distinction between errors and
when a small group of individuals, each of whom is omissions insurance and malpractice insurance lies
vital to the group, begins a joint enterprise. Because in the standard of care. As previously noted, negli-
the death of any group member could adversely gence is measured in terms of the standard of care
affect the success of the endeavor, a joint life pol- of a “reasonable person.” The standard of care for
icy provides a fund from which the survivors can be malpractice, however, is based on the expectations
compensated for the loss of one of their members. of a reasonable professional in a particular field and
Term insurance, taken in the name of each individual, geographic area. Malpractice insurance is available
can result in premiums that exceed the enterprise’s for medical and dental practitioners, including phar-
ability to pay. Joint life insurance, in contrast, pro- macists, hospitals, and nurses, as well as for lawyers,
vides reimbursement to the enterprise at a minimal psychologists, veterinarians, and other professionals.
cost. Subsequent to the death of one of the group One of the factors that differentiates malpractice
members, the survivors could obtain a second policy insurance from errors and omissions insurance is that
covering the survivors. malpractice insurance requires state licensure, whereas
errors and omissions insurance generally does not. Licens-
Survivorship Insurance ing is one of the first things to consider when determin-
A survivorship policy is the mirror image of a joint life ing what type of insurance might be available, although
policy. Joint life insurance provides benefits when it is not a consistent requirement. Most real estate sales-
one of the insureds dies; survivorship insurance people, for example, are required to be licensed, and
provides benefits when all but one of the insureds yet their coverages are still considered errors and omis-
has died (i.e., it pays the last survivor). Survivorship sions policies rather than malpractice policies.
insurance might be preferable to term insurance for One fairly recent change in malpractice policies
a married couple when one spouse is considerably lowers the amount of coverage available to a claim-
older than the other. Although a survivorship policy ant by including the cost of his defense as part of the
would cost more than a term policy issued on the insurance coverage. Including defense costs is an illu-
eldest spouse, it would cost less than purchasing sory attempt to lower premiums while maintaining the
term policies for both of them. This type of policy same face value of coverage. In the past the cost of
might also be advantageous to a group in which the defending a lawsuit was not considered part of the
efforts of individual deceased members could be policy. Under these terms, a claimant could avail him-
duplicated but a lone survivor would be unable to self or herself of a sum equal to the face value of the
carry on the enterprise. policy minus the deductible. Under the new policy
the amount available to the claimant is the face value
Marine Insurance of the policy minus the malpractice carrier’s cost of
defending the insured.
Marine insurance, the oldest form of insurance, pro-
tects against losses incurred in shipping goods. It
covers the loss itself as well as lost profits. Modern- Product Liability Insurance
day marine insurance traces its beginning to the Product liability insurance is a creation of the twenti-
emergence of England as a maritime power in the eth century. Manufacturers and producers of goods
obtain product liability insurance to protect them- depreciated value). Therefore, most replacement-
selves against claims by the ultimate users and/or cost policies require higher premiums than actual-
handlers of their products. Because most product lia- cash-value policies.
bility cases are based on strict liability, the potential
for loss is very high. In some industries, such as the Title Insurance
airline industry, a single incident can result in numer- The primary purpose behind title insurance is to pro-
ous multimillion-dollar claims. vide coverage to the insured for any loss that may
Because of this exposure, product liability insur- result due to a defect in the title to property (not
ance is very expensive but, from a practical standpoint, losses due to defects in or damage to the property
necessary to any entity that either manufactures or itself). An insured is obligated to prove the nature
produces products. Problems arise when the cost of and amount of the loss incurred, and the insurer
product liability insurance results in the production or then indemnifies the insured against only that loss.
manufacture of the product no longer being economi- In many instances, a problem with a title results in no
cal. At that point the maker of the goods must decide damages or only insubstantial ones.
whether to go uninsured and hope that no claims are Suppose a title insurer issues a policy of title insur-
made, or to discontinue manufacturing the product ance for a parcel of land but fails to disclose an ease-
altogether. ment over the southern 10 feet of the property. If the
Testing of new products and modification of old title policy insured ownership of the entire parcel to
products is often required by providers of product the policyholder, the policyholder would be e ntitled to
liability insurance. Underwriters Laboratory’s “seal of indemnification for only the loss in value due to the
approval,” for example, allows manufacturers pro- existence of the unknown easement. Very likely an
motional advantages by being able to prominently easement for 5 or 10 feet would be relatively insig-
display the “UL” symbol. But, more importantly, test- nificant with respect to the total value of the property.
ing may be a prerequisite to the obtaining of product In contrast, if such an undisclosed easement divided
liability insurance. the property in half, the value of the remaining parcels
In the marketplace the cost of product liability might be dramatically affected.
insurance unquestionably inhibits the introduction of Title insurance comes in a variety of forms,
new products. Many hope this cost will spur manu- including the owner’s policy, the lender’s policy, and
facturers to exhibit greater concern for consumers, the American Land Title Association (ALTA) policy.
but the cost/benefit ratio is still difficult to deter- The owner’s policy tries to meet the needs of real
mine. The question remains whether the high cost estate buyers, the lender’s policy protects the inter-
of admission to the marketplace has created artificial est of the financing entity in a real estate transaction,
barriers to the introduction of new and innovative and the ALTA policy provides the maximum protec-
concepts. tion to the insured. Because of its extensive coverage
the ALTA policy is substantially greater in cost per
Property Insurance dollar of coverage than other title policies.
Property insurance is an agreement by the insurer
to indemnify the insured for any losses sustained to Workers’ Compensation
his or her property. Property insurance is included Workers’ compensation, like unemployment insurance,
in many different types of coverage, including is highly regulated. All states have regulatory agen-
homeowners’ coverage. Fire insurance and flood cies whose purpose is to ensure that employees have
insurance are both types of property insurance. a source of compensation for work-related injuries.
Property insurance, however, covers far more In most instances, the acceptance of workers’ com-
perils than fire and flood and frequently includes pensation benefits provided by statute precludes the
windstorm, lightning, rain, hail, and similar natural employee from suing the employer for negligence.
catastrophes. Workers’ compensation, in general, provides benefits
Property insurance generally comes in two forms— without regard to fault of the injured party. In other
actual cash value (the initial cost minus accrued words, even though the employee was negligent in
depreciation) or replacement cost (the cost of replac- not abiding by the safety rules and regulations estab-
ing the article at the date of loss rather than at its lished by the employer, she is still entitled to workers’
compensation benefits in the event of injury. As with the application, she may be denied any coverage
unemployment insurance, the statutory framework in whatsoever and may be relegated to, at most, reim-
reference to workers’ compensation claims must be bursement of the premiums paid to date. Many poli-
extensively analyzed in light of relevant court deci- cies provide that after two years have elapsed since
sions. Workers’ compensation insurance is discussed issuance of the policy, the insurer cannot use any
in Chapter 19. error or misrepresentation on the application to void
the insurance contract.
Automobile Insurance
Perhaps nothing in our court system is more litigation- Failure to Abide by Terms of Policy
threatened or initiated than in reference to liability A policy can also be voided by the insured’s failure to
arising out of motor vehicle accidents. Automobile abide by the terms of the policy. Insureds are most
insurance, with all its variations, possesses most of the likely to be at odds with their insurance company
attributes of the other types of insurance. Automobile in one of two ways. The first involves the insured’s
insurance is discussed in some detail in Chapter 17. duty to cooperate with the insurer in dealing with
the claim. The second involves the policy’s provisions
Defenses an Insurance requiring the insured to give prompt notice of any
potential claim.
Company can Raise
Against Its Insured Failure to Cooperate
An insured potentially violates the duty to cooper-
The issuance of an insurance policy begins when an ate if he refuses to give a statement to the insur-
insured or his agent fills out an application. The pri- ance company, refuses to make books and records
mary purpose of the application is to answer certain available (where applicable), or refuses to allow
relevant questions surrounding the issuance of the the insurance company to enter his premises for
policy. A health insurance application, for example, inspection purposes in the case of a fire or property
deals primarily with the applicant’s previous medical damage claim. The insured also violates the duty
history. The insurer needs this information to deter- to cooperate when she is sued and fails to partici-
mine whether any preexisting conditions should be pate in the discovery process by refusing to attend
excluded from the policy as well as to assess the depositions, answer interrogatories, respond to
overall insurability of the applicant. requests for admissions, or assist in the production
of documents.
Misrepresentations
Failure to Notify
If an applicant makes any material misrepresenta-
Failure to notify an insurance company of a claim
tions relating to any risks that are insured, the insurer
is a second potential point of contention between
may be able to void the policy should the insured
insureds and their insurance companies. Although
make any claim relating to those risks (see Exhibit
most policies require reasonable notice, some
C–3). If the applicant attempts to conceal material
attempt to set an outer time limit by which any claim
facts or deliberately misrepresent material issues in
must be reported. Before an insured can be said to
have violated the duty to give notice, he must know
or have reason to know that a claim is forthcom-
Exhibit C–3 Defenses Insurer Can Raise
ing. What might appear, for example, to be a minor
• Insured makes material misrepresentation in motor vehicle collision with no property damage
application. and no personal injury could nevertheless result in a
• Insured fails to cooperate with insurer in subsequent claim. If the insured reasonably believes
dealing with claim. that no damage occurred and no claim will be made,
• Insured fails to give timely notice to insurer failure to advise the carrier about the accident will
of potential claim. not give the insurance company grounds for denying
• Insured commits intentional act.
coverage.
In a similar vein, the insured has a duty to advise Here the insurer advises the insured that cover-
the insurance company of any suit that is actually age may not be available but promises to defend
filed against him. If the carrier is unable to answer the insured until that determination is made. In
the complaint because of the insured’s failure to many cases the insurer will institute a declaratory-
notify it in a timely manner and a default judgment is judgment action seeking a court determination
entered, the insurer can attempt to deny coverage. regarding the issue of coverage. If an insurer pro-
Alternatively, the insurer might seek reimbursement ceeds under a reservation of rights, it may later
for the damages it sustained as a result of the default withdraw from representation of the insured and
judgment against the insured. Suppose an insured, seek reimbursement for its defense costs.
through his own inaction, allows a default judgment
to be entered against him. The carrier may then be
relieved of the responsibility of paying the judgment, Insurer’s Actions
or may be allowed to attempt to set aside the judg- An insurance carrier can by its own actions lose its
ment as far as it relates to its duty to indemnify the right to assert a defense against an insured. In such
insured. cases the insurer will be deemed to have waived its
rights to contest the policy and may, in some circum-
Intentional Acts stances, be estopped (prevented) from asserting
defenses because of its prior acts.
Most insurance policies exempt coverage for inten-
As with all areas of insurance, court rulings and
tional acts of the insured. Such acts include intention-
statutory enactments affecting the policy in question
ally setting fire to insured property, suicide (although
must be carefully researched. In some instances the
many life insurance policies cover suicide if commit-
plain wording of the policy and the insurer’s actions
ted after a fixed period of time following the issuance
have been deemed wrongful and in violation of
of the policy), intentionally using a motor vehicle to
“public policy.” Public policy attempts to reconcile
cause damage, or intentionally assaulting a third
legislative enactments, prior court decisions, and the
party.
public good in overriding provisions perceived as
inequitable. Public-policy requirements will be read
Reservation of Rights into an insurance policy, and terms and conditions
An insurer may find it difficult to immediately deter- conflicting with public policy will either be ignored
mine whether it has a right to deny coverage under or deemed unenforceable. Provisions in a policy that
the policy. Therefore, most insurance carriers, until exclude members of an insured’s family from cover-
they are sure they have a right to deny coverage, age, for example, may be deemed in violation of pub-
will defend the insured under a reservation of rights. lic policy and therefore unenforceable by the insurer.
Glossary
A battery Intentional infliction of a harmful or offensive contact
upon a person.
abnormally dangerous activity Activity for which a defendant bench trial Trial before a judge.
is strictly liable if someone is injured; characterized as an activ- beyond a reasonable doubt Standard of proof requiring a
ity having a high degree of risk of serious harm that cannot be showing of almost absolute certainty for each element.
eliminated with due care and whose value is outweighed by its black-letter principles (also known as black-letter law) Legal
dangerous attributes. principles generally accepted by the legal community.
absolute privileges Absolute defense to defamation, regard- breach of duty Failure to conform to the required standard of
less of defendant’s motives. care.
abuse of process Use of litigation devices for improper business invitee One who enters the land for a purpose con-
purposes. nected with the business dealings of the possessor.
accrual Time at which a statute of limitations begins to run, but-for test If the plaintiff’s injuries would not have occurred
usually at the time the plaintiff is injured. but for the defendant’s negligence, the defendant will be
action in trespass (vi et armis) Early cause of action involving deemed the actual cause of the plaintiff’s injuries.
serious, forcible breaches of peace that evolved to encompass
even minor physical contact; no showing of fault was required.
actual cause Cause in fact of the plaintiff’s injuries.
actual malice Acting with knowledge of the falsity of one’s
statement or with reckless disregard as to the truth or falsity of
C
one’s statement.
case law Case-by-case decision making by the court.
additur When the trial court increases a jury award or orders a
certification of a class Court’s agreement to allow one or
new trial because the jury’s award of damages is inadequate.
more members of the class to serve as representatives for the
adhesion contract Standardized contract characterized by the other members of the class.
unequal bargaining power of the parties and the lack of negotia-
challenge for cause Request to remove a potential juror
tion regarding the terms of the contract.
because of his alleged inability to decide the case impartially.
affirmative defense Any defense that a party asserts for which
charging the jury Process in which the judge instructs the
it bears the burden of proof.
jurors in rules of law they are to apply.
answer A pleading in which the defendant responds to the chattel Personal property.
plaintiff’s complaint.
class action Suit in which representative members of a class
appeal Formal request by a party asking a higher court to sue on behalf of other members of the class.
review the decision of a lower court.
clear and convincing evidence Clear and convincing evidence
appropriation Use of the value of plaintiff’s name or picture for requires a higher burden of persuasion than “preponderance
defendant’s financial gain. of the evidence” but less than that required by “proof beyond
assault Intentional causing of an apprehension of harmful or a reasonable doubt.” In most states the standard requires the
offensive contact. judge or jury to find the evidence submitted is substantially more
assumption of risk Defense that the plaintiff voluntarily con- likely to be true than not true.
sented to take the chance that harm would occur if they engaged closing argument Final statement made by an attorney that
in certain conduct. summarizes the evidence.
at-will employee Employee who, because of the nature of their collateral-source rule The collateral-source rule precludes the
employment contract, can be discharged at any time for any reason. admission of evidence to the jury regarding payment of benefits
attractive nuisance Dangerous condition on the defendant’s such as Social Security, Medicare, pension payments, and vaca-
property that is likely to induce children to trespass. tion and/or sick pay to the injured party from a source other than
the tortfeasor. The rule allows the plaintiff the ability to recover
automobile-guest statutes Laws holding a driver of a vehicle
twice for certain damages.
liable to a guest in their car only under circumstances of extreme
misconduct. comparative negligence Defense that the plaintiff’s recovery
should be reduced in direct proportion to the plaintiff’s percentage
avoidable-consequences rule Obligation of a plaintiff to mini-
of contribution to their own injuries.
mize (mitigate) their damages.
compensatory damages Damages designed to compensate
the plaintiff; consist of both general and special damages.
complaint An initial pleading filed on behalf of the plaintiff, the
B purpose of which is to provide the defendant with the material
elements of the plaintiff’s demand.
bailee One who is temporarily entrusted with the custody of concurrent tortfeasors Tortfeasors who independently cause
goods. the plaintiff injury.
bailor One who entrusts her goods to the temporary custody contribution Partial reimbursement of a tortfeasor who has
of another. paid more than their pro rata share of the damages.
630 | Glossary
contributory negligence Defense that the plaintiff contributed to discretionary function Act of a government employee requir-
their own injuries and should therefore be barred from recovery. ing the use of judgment.
conversion Substantial interference with another’s property to duty Legal obligation to act reasonably that arises out of our
the extent that justice demands payment for the full value of the relationship to others.
property.
coordination of benefits provision Policy provision that
p recludes payment to the insured if the insured has other
insurance available.
counterclaim A claim presented by a defendant in opposition
to the plaintiff’s claim.
E
covenant not to sue Promise by a plaintiff not to sue a partic- economic loss Diminution in the value of a product.
ular defendant. eggshell skull rule If a plaintiff suffers any foreseeable injury,
cross-appeal Appeal filed after an appeal is filed by the the defendant is also liable for any additional unforeseen physical
opposing party. consequences (take the plaintiff as you find them).
cross-claim A claim brought by a defendant against a co-de- excess judgment Judgment for more than the insured’s policy
fendant in the same action. limits.
cross-examination Examination of a witness called by the exemplary damages Damages designed to punish the defen-
opposing party. dant and to deter similarly situated wrongdoers (also known as
punitive damages).
custodian of the records The person in an organization who
knows about its filing system and records. express warranty Express representation by a seller that a
product possesses certain qualities.
D
deadly force Force likely to cause death or serious bodily injury.
deceit Common law cause of action equated with intentional
F
misrepresentation; also referred to as fraud. fair market value Amount property could be sold for on the
declaratory judgment action Action in which the court renders open market.
an opinion as to a matter of law or in reference to the rights of false imprisonment Intentional confinement of another.
the parties but does not order any action to be taken.
false light Representing the plaintiff to the public in a way that
defamation Statement that tends to harm the reputation of would be highly offensive to a reasonable person.
another, encompassing both libel and slander.
family-purpose doctrine Doctrine that makes the owner of a
default judgment Judgment entered due to lack of opposition car liable for the tortious acts of immediate family members com-
on behalf of the opposing party. mitted while driving.
defective warning Defect arising out of a manufacturer’s failure fault insurance Automobile insurance coverage where the
to give adequate warnings or directions for use; in other words, it insurance carrier of the vehicle pays for damages to the vehicle’s
is the warning that is defective rather than the product. occupants and others only if the driver of the vehicle was respon-
demand letter A letter detailing a client’s damages and setting sible for the injuries sustained.
forth the reasons for their demand. fellow-servant rule Doctrine that shields employers from liabil-
demurrer Motion for dismissal based on a defect in the form or ity for damages incurred for injuries to an employee due to the
content of a complaint. negligence of a co-worker.
deposition Oral examination of a witness under oath. fiduciary relationship Relationship based on trust and
derivative claim Claim derived from an underlying claim (e.g., confidence that imposes an obligation to act in good faith; an
loss of consortium). example is the attorney-client relationship.
design defect Defect arising out of a manufacturer’s use of an
unreasonably dangerous design.
direct causation A defendant is liable for all consequences of
their negligent acts, no matter how unforeseeable those conse-
quences may be. G
directed verdict Dismissal of a case because of the opposing
general damages Damages that generally result from conduct
party’s failure to meet the requisite burden of proof.
engaged in by the defendant.
direct examination Examination by the attorney that called the
general verdict Verdict in which a jury decides issues of liability
witness.
and damages.
disclosure statement A document each party is required to
Good Samaritan statutes Law providing that anyone who pro-
prepare and serve on opposing parties shortly after a lawsuit
vides medical assistance is not liable for damages arising from
commences. This document must contain certain categories of
that assistance as long as care is provided in good faith and does
information about that party’s case.
not constitute gross negligence.
discounting an award Reducing an award to its present value.
governmental function Tasks typically performed by a govern-
discovery Process through which parties try to find out as much mental entity.
as possible about the other side’s case.
Glossary | 631
I M
immunity Absolute defense derived from the defendant’s sta- manufacturing defect Defect arising out of a deviation in the
tus (e.g., a government official) or relationship to the plaintiff manufacturing process.
(e.g., spouse or child of the plaintiff). motion for a new trial Motion requesting a new trial based on
implied warranty Representations as to a product’s quali- an alleged error committed by the trial judge.
ties that are implied by virtue of the product being offered motion for a protective order Motion that protects a party
for sale. from having to disclose privileged information.
imputed negligence Negligence that is charged or attributed motion for summary judgment Motion requesting that the
to another. court enter a judgment on the party’s behalf because there is no
indemnification Total acceptance of financial responsibility by material fact at issue.
one tortfeasor for another. motion in limine Motion to prevent evidence from being pre-
independent contractor Someone hired to do a job who works sented to the jury.
at his own pace, in his own way, under his own supervision. motion to compel Motion to force the opposing party to com-
informed consent Knowledgeable consent based on disclo- ply with a request for discovery.
sure of all relevant facts that allows one to make an informed
decision.
injurious falsehood False disparagement of a plaintiff’s busi-
ness, product, or property rights.
innuendo Use of extrinsic facts to convey the defamatory N
meaning of a statement.
necessity Privilege that justifies the defendant’s harming of
intentional tort Tort in which the tortfeasor intends to bring the plaintiff’s property in an effort to prevent great harm to the
about a particular consequence or knows with substantial cer- defendant or others.
tainty that a result will occur.
negligence Conduct that creates an unreasonable risk of harm
interrogatories Written questions submitted to the opposing to another.
party that the party must answer in writing and under oath.
no-fault insurance Automobile insurance coverage where the
intervening cause Act that contributes to the plaintiff’s injuries insurance carrier of the vehicle pays for damages to the vehicle’s
but does not relieve the defendant of liability. occupants regardless of whether or not the driver of the vehicle
invitees Persons invited by possessor of land onto their prop- was responsible for the injuries sustained.
erty for the purpose of conducting business. nolo contendere Pleas of “no contest”; not an admission of
guilt.
nominal damages Damages awarded when liability is shown
but no actual damages are proven.
J nuisance Substantial and unreasonable interference with a

plaintiff’s interest; includes public and private nuisance.
joint and several liability Liability for an entire loss if the loss
is indivisible.
joint enterprise Two or more persons who agree to a common
goal or purpose, share a common pecuniary interest, and have an
equal right to control the direction of the enterprise. O
joint tortfeasors Those who act together to cause the plaintiff’s objective standard Comparison of a defendant’s conduct to
injury. that of a reasonable person.
judgment notwithstanding the verdict (JNOV) A decision that opening statements Statements made by counsel to the jury
the verdict reached was contrary to the evidence and the law. at the beginning of trial.
jurisdiction Power to hear a particular kind of case. overrule To deny an objection.
L P
last-clear-chance doctrine Doctrine that allows the plaintiff to parasitic damages Damages attached to physical injury (e.g.,
recover in a contributory-negligence system despite the plaintiff’s mental suffering).
negligence.
patent defect Defect that is visible or readily discoverable.
latent defect Defect that is invisible or not readily discoverable.
pecuniary Monetary; that which can be valued in terms of
libel Written defamatory statements. money.
licensee Person who has possessor’s consent to be present on peremptory challenge Request to remove a potential juror for
land such as a social guest. no articulated reason.
loss of consortium Loss of services, including companionship, preempts Prohibits a state tort law claim due to a federal
sex, and earnings outside of the home. enactment.
632 | Glossary
preponderance of the evidence Standard of proof requiring

a showing that each element is more probable than not. Higher R
than probable cause but less than clear and convincing evi-
reformation of a policy Construing a policy to provide the min-
dence. .
imum coverage required by statute.
present value Value of money paid now to compensate for
release Agreement to absolve a defendant of all liability.
future earnings, based on the assumption that money received
today is worth more than money received in the future because remitted When the trial court lowers the jury’s award of dam-
of its investment potential. ages or orders a new trial because the damages awarded were
excessive.
presumed damages Damages that ordinarily stem from a
defamatory statement and that do not require the showing of request for medical examination Request that the opposing
actual harm. party be examined by a physician chosen by the party making
the request.
pretrial conference Conference involving the judge and par-
ties where issues and procedures for the trial are clarified and request for production of documents Request for document
efforts are made at a settlement. in possession of the opposing party.
primary coverage Insurance providing initial coverage for all requests for admissions Request by one party asking the
damages up to the limits of the policy. other party to admit certain facts.
private necessity Privilege that justifies the defendant’s harm- res judicata Legal principle stating that issues litigated cannot
ing of the plaintiff’s property in order to protect his own interests be relitigated at a later time once a final judgment is entered and
or those of a few private citizens. all appeals are exhausted.
privity Requirement that the plaintiff must contract directly with rescue doctrine Doctrine under which anyone who negli-
the defendant in order to recover for losses. gently causes harm to a person or property may be liable to
one who is injured in an effort to rescue the imperiled person
product liability The liability of a manufacturer, seller, or other
or property.
supplier of a chattel which, because of a defect, causes injury to
a consumer, a user, or in some cases a bystander; liability can respondeat superior Doctrine that makes an employer liable
be based on any of three theories of recovery: (1) negligence, for the tortious acts of employees committed in the scope and
(2) warranty, or (3) strict liability. furtherance of their employment.
professional rescuer doctrine Limits or bars the liability restitution Compensation for a crime that is given to the victim.
of tortfeasors to professional rescuers such as police officers
and firefighters who sustained injuries as a result of ordinary
negligence.
proprietary function Function performed by the government
that could just as easily be performed by a private entity.
S
proximate cause Legal cause of the plaintiff’s injuries; empha- satisfaction Payment of a judgment.
sis is on the concept of foreseeability. scheduled injuries Injuries, such as loss of sight or of an
publication Hearing or seeing of a defamatory statement by appendage, for which stated benefits are paid.
someone other than the plaintiff. secondary coverage Insurance that provides coverage for
public disclosure of private facts Publicizing facts about damages incurred but that does not do so until the limits of the
a person that are of a type that would be highly offensive primary policy have been exhausted.
to a reasonable person and not be of legitimate concern for single-limit coverage Insurance coverage providing a single
the public. amount of recovery that is available for damages.
public figure One who has achieved persuasive fame or notori- slander of title False disparagement of the plaintiff’s property
ety or who becomes involved in a public controversy. rights.
public invitee One who enters the land for the purpose for slander Oral defamatory statements.
which the land is held open to the public.
slander per se Slander in which pecuniary harm can be
public necessity Privilege that justifies the defendant’s harm- assumed.
ing of the plaintiff’s property in an effort to prevent great harm to
slippery-slope argument Argument that once you take a first
the public as a whole or to a substantial number of persons.
step in allowing something in one instance, you are in danger
public policy Policy of the public or a community that dictates of sliding the “slippery slope” into a bottomless pit of circum-
the norms of the community based on its beliefs and values stances requiring comparable treatment.
regarding justice, fairness, and equality.
special damages Damages that are unique to the plaintiff.
punitive damages Damages designed to punish the defendant
special harm Harm of a pecuniary nature.
(also known as exemplary damages) and to deter others from
engaging in reckless or egregious misconduct. special verdict Verdict in which the jury is required to answer
special interrogatories, which the judge must review to deter-
mine the prevailing party after a review.
split-limits coverage Insurance coverage that sets forth a
maximum amount an individual can recover for damages and an
Q aggregate amount available for damages independent of the
total claims involved.
qualified privileges Privilege that applies only when a defen- stacking of policies Using one or more policies to provide cov-
dant acts on the basis of certain well-defined purposes. erage for the same incident.
Glossary | 633
statute of limitations Statute that limits the time period in trespass to land Intentionally entering or wrongfully remaining
which a claim can be filed. on another’s land.
statute of repose Statute of limitations in product liability
cases that limits the time period during which a suit can be filed.
strict liability Liability imposed without a showing of intent or
negligence. U
structured settlement Agreement to pay damages in install-
ments rather than a lump sum. umbrella policy Policy that provides a secondary source of cov-
subjective standard Use of the defendant’s own subjec- erage after the deductible has been paid, usually coordinated
tive perceptions to determine whether the defendant behaved with the limits of the underlying policy.
reasonably. unavoidably unsafe products Products incapable of being
subrogation The right of an insurer to institute suit in the name made safe for their ordinary and intended use.
of the insured against the responsible party to collect for monies unforeseeable intervention If an intervention was not foresee-
paid by the insurer to the insured; right of party making payment able but, in fact, led to the same type of harm as that threatened
on plaintiff ’s behalf to be reimbursed out of judgment plaintiff by the defendant’s negligence, the courts find the intervention
receives. not to be a superseding cause.
substantial-factor test Test that asks whether the defendant unreasonable intrusion Intentional intrusion upon the seclu-
was a substantial factor in producing the plaintiff’s injury. sion of another if the intrusion is considered highly offensive to a
superseding cause Act that contributes to the plaintiff’s inju- reasonable person.
ries to the extent that the defendant is relieved of liability.
survival action Action that remains available after the dece-
dent’s death.
sustain To grant an objection. V
verification Affidavit indicating that the plaintiff has read the
complaint and to the best of their knowledge believes it to be
true.
T vicarious liability Liability for the tortious acts of another.
tort Civil wrong for which victim receives compensation in the

form of damages.
tortfeasor
trade libel
One who has committed a tort.
False disparagement of the plaintiff’s goods or
W
business. warranty of fitness for a particular purpose Implied warranty
transferred-intent doctrine Intent with respect to one person that goods are suitable to be used for a particular (noncustomary)
(or tort) is transferred to another person (or tort). purpose.
trespasser One who has no right or permission to be on a pos- warranty of merchantability Implied warranty that goods are
sessor’s land. fit for the ordinary purpose for which they are used.
trespass on the case Early cause of action involving injuries wrongful-death action Action brought by third parties to
inflicted indirectly and requiring some showing of fault. recover for losses they suffered as a result of the decedent’s death.
trespass to chattels Intentional interference with another’s use
or possession of chattels.
Index
A primary coverage, 514
primary versus secondary
Abnormally dangerous activities, 337, 341–349
coverage, 516
crop dusting, 348
reformation of policy, 513
poisonous gases, 348
secondary coverage, 514
Absolute liability, 337
single-limit coverage, 512
Absolute privileges, 407–408
split-limits coverage, 512
Abuse of process, 324, 325
stacking of policies, 517
Accrual, 248
subrogation, 513
Action in trespass, 8, 9. See also vi et armis
termination, 518
Active interference, 315
types of coverage, 513
Activities considered not abnormally dangerous by courts
umbrella policy, 513
airline crash, 349
underinsured motorist coverage (UIM), 513, 517
falling tree, 349
uninsured motorist coverage (UM), 513, 515–517
irrigation dam, 349
Automobile liability coverage, 512–514
Acts of God, 160, 351
Automobile-guest statutes, 131
Actual cash value, 515
Avoidable-consequences rule, 201
Actual cause, 141, 142–144
Awareness of contact, 35
Actual malice, 396, 397, 400
Additur, 181
Adhesion contract, 529 B
Adler, Barish, Daniels, Levin & Creskoff v. Epstein, 315 Bad faith, 528–550
Affirmative defense, 20 adhesion contract, 529
Alternate liability, 142, 144, 367 components of, 529
American Bar Association (ABA), 285, 286, 497 declaratory judgment actions, 548–549
American Golf Corp. v. Superior equal-consideration factors for third-party claims, 542, 548,
Court, 235 549
Americans with Disabilities Act of 1990, 562–563 excess judgment, 532
America Online v. IMS, 42 failure to settle claim, 533–534
Ancier v. State Dept. of Health, 262 first-party claims, 531, 541
Anderson v. Sears, Roebuck & Co., first-party claims versus third-party claims, 531–534
176–177, 179 historical development, 529–530
Andrews rule, 155–156 insured’s options when denied coverage, 532
Answer, 20 insured’s options when insurer defends under a reservation of
Appeal, 25 rights, 533
Appropriation, 412 overview, 530–531
Arbitration, 517–518 reasonable expectations doctrine, 530
Arm’s length, 302 standard used to determine bad faith, 542, 548
Assault, 34, 35–36 suing the insured, 531
Assessment of damages, 196–197 third-party claims, 531, 532, 540–541
Assumption of risk, 217, 218, 233–237, 283, 284, 352 underpayment of claims, 534
Assumption of risk versus contributory negligence, 233, 236 uninsured and underinsured motorist coverage, 549–550
Atlanta Journal-Constitution v. Jewell, 401–402 way of committing, 529
Attorneys’ Liability Assurance Society, 285 Bailee, 444
Attractive nuisance doctrine, 70, 71 Bailments, 444–446
At-will employee, 315 Bailor, 444
Automobile consent statutes, 445–446 Bartlett v. New Mexico Welding Supply, Inc., 502
Automobile insurance, 511–521 Battery, 34, 35
arbitration, 517–518 Battery versus negligence, 272–273
automobile liability coverage, 512–514 Belli v. Orlando Daily Newspapers,
characteristics of policies, 512 Inc., 398
collision insurance, 515 Bench trial, 23
comprehensive coverage, 513, 515 Benefits-of-the-bargain measure, 304
coordination of benefits provision, 514, 516–517 Beyond a reasonable doubt, 6
fault insurance, 512 Bickler v. The Raquet Club Heights Associates, 142
medical payment coverage, 513, 514–515 Black-letter principles, 6
miscellaneous coverage, 515 BMW of North America, Inc. v. Gore, 501
no-fault insurance, 512, 518–520 Booth v. Mary Carter Paint Co., 465–474
overview, 512 Bourque v. Louisiana Health System Corp., 367
personal injury protection (PIP), Brandeis, Lewis, 411
514, 519 Breach of duty, 106–134
Index | 635
automobile-guest statutes, 131 City of Neodesha v. BP Corp. North America, Inc., 343–347
children, and, 118–119 Civil Rights Act of 1871, 246
contributory negligence, lack of, 132–133 Claims file, 553
custom, 121 Class actions, 380–382
defined, 107 Clear and convincing evidence, 7
emergencies, 119, 121 Closing argument, 24
learned hand formula, 107–108 Coleman v. Wyoming Workers’ Compensation Division, 557
negligence per se, 122–124 Collateral-source rule, 180, 514
objective standard, 116 Collision insurance, 513, 515
professions, 121–122 Colson v. Standard Oil, 195
reasonable conduct, and, 107 Common law no-duty rule, 82
reasonable-person standard, Common Sense Reform bills, 497
116–117, 123 Communication Decency Act of 1966 (CDA), 422
res ipsa loquitur, 131–133 Comparative negligence, 217, 218, 220–222, 227–228, 236, 491
Restatement position, 115 Compensatory damages, 176
special characteristics, defendants with, 117–118 Complaint
subjective standard, 116 defined, 19
Brimelow v. Casson, 323 elements of, 19
Brown v. Keill, 503 initiating, 18–19
Burden of proof, 142, 143, 144 Comprehensive coverage, 513, 515
Burden of proving truth, 398–399 Comprehensive Environmental Response, Compensation and
Burns v. Bakelite Corp., 88 Liability Act (CERCLA), 312–313
Business invitee, 74 Concerted-action theory, 142, 144
Business relations, interference with, 314–323 Concurrent causes, 142
active interference, 315 Concurrent tortfeasors, 457
contract, type involved, 315–316 Conduct
existing contractual relations, 314–323 extreme and outrageous, 37–39
privileges, 323 reasonable, 107
prospective contractual relations, Confinement, 37
314, 323 Conflict preemption, 379, 380
remedies, 316 Consent, 43–45
But-for test, 142 as a defense, 43, 44
capacity to, 44–45
C scope of, 45
Cafazzo v. Central Medical Health Services, 365 voluntariness of, 45
Cahill v. Ski Liberty Operating Corp., 234 Consortium, loss of, 194
Campbell v. Weathers, 74, 75 Contact, defining, 35
Cardozo rule, 155–156, 157–159 Contemporary systems, 558–561
Case law, 5–6 Contingency-fee agreement, 176, 180–181
Castro v. Melchor, 95–99 Contribution, 463–464
Causation, 141–166 Contributory negligence, 217, 218–220, 233, 236, 283–284
actual cause, 142–144 exceptions to, 218–220
direct, 156–157 lack of, 132–133
duty versus proximate cause, 157 Conversion, 40, 42–43
foreseeability, 149 Cooper v. Roberts, 272
intervening causes, 159–160, 164 Cooperation clause, 533
jury question, 164 Coordination of benefits provision, 514, 516–517
legal cause, 148 Cordas v. Peerless Transportation Co., 119–121
mass tort cases, 143 Corey v. Havener, 143
proof of actual cause, 143–144 Corley v. Lewless, 447–448
proximate cause, 141, 148–149, 155–157 Coulter v. American Bakers Co., 258
requirements, 491 Counterclaim, 20
superseding cause, 159, 160 Country recorder’s office, 257
Caveat emptor, 301 County of Santa Clara v. Atlantic Richfield Co., 369
Central Alarm v. Ganem, 160 Court clerk’s office, 257
Certification of a class, 381 Covid-19, 563
Challenge for cause, 23 Cox v. Northwest Airlines, Inc., 132
Charging the jury, 24 Cox Broadcasting Corp. v. Cohn, 412
Charitable immunity, 244, 247 Crocker v. Winthrop Laboratories, 361
Chattel, 41 Cross-appeal, 25
Children, and reasonable-person standard, 118–119 Cross-claim, 20
Children’s Wish Foundation Intern., Inc. v Mayer Hoffman Cross-examination, 24
McCann, P.C., 222–226 Cuc Thi Ngo v. Queen’s Medical Center, 273–283
Christy Bros. Circus v. Turnage, 202 Custodian of the records, 171–172
Cipollone v. Liggett, 379–380 Custom, 121
636 | Index
D publication, 400
qualified privileges, 407, 408–409
Dalehite v. United States, 244
reasonable interpretation, 398
Damages, 175–205, 304–305, 402–407
retraction statutes, 407
assessment of, 196–197
slander, 395, 396, 397, 419, 421
avoidable-consequences rule, 201
caps on, 497–502 special harm, 397
collateral-source rule, 180 trade libel, 419–421
compensatory, 176 unreasonable intrusion, 412
discounting future, 199–200 web, on the, 409–411
equitable compensation of Defamatory statement, 397–402
victims, 179 Default judgment, 20
exemplary, 181 Defective condition unreasonably dangerous, 366
general, 176 Defective conditions, 366
illustration of, 176–179 Defective warning, 370, 375–376
impact rule, 202 Defects, 373
impaired earning capacity, 179 defined, 369–370
loss of consortium, 194 design, 370, 372–376
lost wages, 196 manufacturing, 372
medical expenses, 196 and time of detection, 368–369
mental suffering, 201–203 types of, 369–376
mitigation of, 201 warning, 370, 375–376
in negligence cases, 360 Defendants
nominal, 176 ability to carry out threat, 36
pain and suffering, 177–179, 197 belief, 45–46
parasitic, 201–202 in control or cause of injuries, 131–132
physical-harm requirement, attempts at circumventing, damages and, 177
202–203 evidence available to, 133
physical harm to property, 181 relationship with third parties, 83
product liability cases, 181 response, 19, 20
proof of, 305 with special characteristics, 117–118
property, 196 state of mind, 305
punitive, 176, 181–188 Defenses, 43–53, 217–250, 283–284, 312, 376–378
recovery for past earnings, 179 assumption of risk, 217, 218, 233–237
recovery for prospective future assumption of risk versus contributory negligence, 233, 236
losses, 179 comparative negligence, 217, 218, 220–222,
shortened life expectancy, 179 227–228, 236
special, 176 consent, 43, 44
wrongful death, 197–199 contributory negligence, 217, 218–220, 233, 236
Davies v. Mann, 219 expressed assumption of risk, 234–235
Day-in-the-life videos, 177 governmental immunity, 243–246
Deadly force, 46 immunities, 218, 243–247
Deceit, 301 implied assumption of risk, 235–236
Declaratory judgment actions, 548–549 interspousal immunity, 246
Deep pocket theory, 246 last-clear-chance doctrine, 219–220
Defamation, 395–422 medical records, 257
absolute privileges, 407–408 mistake, 43
actual malice, 396, 397, 400 negligence, 376
appropriation, 412 of others, 47
burden of proving truth, 398–399 of property, 45, 47–51
damages, 402–407 parent-child immunity, 244, 246–247
defamatory statement, 397–402 preparation of, 256–257
defined, 395 in product liability claims, 377
elements of, 398 statutes of limitations and repose,
false light, 411, 412, 419 218, 248, 378
harm to reputation, 397–398 strict liability, 378
injurious falsehood, 419–421 to professional negligence, 283–284
innuendo, 399 Defensive medicine, 493, 494
intent, 400–402 Delegation of authority or rights, 434
invasion of privacy, 411–419 Demand letter, 18–19
law, summary of, 407 Demurrer, 20
libel versus slander, 395–397 Deposition, 21
opinion, 399–400 Derdiarian v. Felix Contracting Corp., 160
pecuniary, 397 Derivative claim, 194
presumed damages, 397 Design defect, 372–376
privileges, 407–409 Direct causation, 156–157
public disclosure of private facts, 412 Direct examination, 24
Index | 637
Directed verdict, 24 photographs, 355–356

Disclaimers, 376 witness statements, 355
Disclosure statement, 21 Exceptions to bailor nonliability, 445–446
Discounting an award, 200 Exceptions to no duty rule for
Discounting future damages, 199–200 trespassers, 70
Discovery, 19, 20–23, 25 Exceptions to non-liability rule for independent contractors, 435,
Discovery doctrine, 248 442–443
Discretionary function, 244 Excess judgment, 532
Douglas v. Irvin, 74 Exemplary damages, 181
Downs v. Steel & Craft Builders, Inc., 443 Existing contractual relations, 314–323
Duda v. Phatty McGees, Inc., 258 Express preemption, 379, 380
Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 402 Express warranty, 308, 361
Dunham v. Kampman, 503 Expressed assumption of risk, 234–235
Duren v. Suburban Community Hospital, 498 Extent of liability, 35, 41
Duty Extraordinary risks, 443
attractive nuisance doctrine, 70, 71 Extreme and outrageous conduct, 37–39
business invitee, 74
of care, 82 F
common law no-duty rule, 82
defendants relationship with third parties, 83 Failure to settle claim, 533–534
defined, 69 Fair market value, 181
emergency assistance, 83, 88 False imprisonment, 34, 36–37
family-purpose doctrine, 99 False light, 411, 412, 419
Good Samaritan statutes, 88 Family-purpose doctrine, 99, 445
invitees, 74–76 Fault insurance, 512
landlord tenant liability, 76–78 Federal Tort Claims Act (FTCA), 243–244, 250
licensees, 74 Fee-shifting, 504
outside the possessor’s property, 76 Fellow-servant rule, 556
overview, 69 Felonies, prevention of, 47
possessors of land, 70 Fiduciary relationship, 271, 302
professional rescuer doctrine, 82 Field preemption, 379
public entities, 89 Filing a claim, 561–562
public invitee, 74 First-party claims, 531, 541
rescue doctrine, 70, 72–73 resolution of, 541
respondeat superior, doctrine of, 99 versus third-party claims, 531–534
sellers of land, 82 Forbidden acts, 434
special relationships, and, 82–83 Force
to protect or aid others, 82–89 action in trespass, 8
trespassers and, 70–74 deadly, 46
unborn children, 94–95 reasonable, 46, 51
vicarious liability, 99 Fordham v. Oldroyd, 88
voluntary-undertaking doctrine, 89 Foreseeability, 149
Duty versus proximate cause, 157 Foreseeable misuse, 373–375
Dyals v. Hodges, 73 Foster v. Preston Mills Co., 351
Fresh pursuit, 51
E Frivolous lawsuits, 504
Frolics and detours, 434
Earnings Future medical expenses, 212–213
impaired earning capacity, 179
loss of earning capacity, 213–214
present value of future, 200
G
Economic loss, 369 Gallagher agreements, 465–474
Edwards v. Tardif, 298 General Accident Fire & Life Assurance Corp. v. Little, 542
Eggshell skull rule, 156–157, 170 General damages, 176
Elmore v. American Motors Corp., 368 General verdict, 24
Elbaor v. Smith, 473–474 Gertz v. Robert Welch, Inc., 397, 400–401
Emergencies, 83, 88, 119, 121, 284 Good Samaritan statutes, 88
Employer-employee relationship, 433–435 Gortarez By & Through Gortarez v. Smithy’s Super Valu, Inc., 52
Employers-independent contractors, 435, 442–443 Governmental function, 245
Environmental law, 312–313 Governmental immunity, 243–246
Equal-consideration factors for third-party claims, 542, federal, 243–244
548, 549 local, 244, 245
Equitable compensation of victims, 179 public official, 244, 245–246
Equitable indemnity, doctrine of, 477 state, 244–245
Estate of McCall v. United States, 289 Graham v. Oppenheimer, 411
Evidence collection and preservation, 354–356 Gray v. Washington Power Co., 178
638 | Index
Greenman v. Yuba Power Products, deadly force, 46

Inc., 365 defendant’s ability to carry out
Grimshaw v. Ford Motor Co., 182, 184, 187, 498 threat, 36
Gruber v. YMCA of Greater Indianapolis, 338–341 defendant’s intent, 40
defense of property, 45, 47–51
H defenses, 43–53
Hardy v. General Motors Corp., 495–496 defined, 34
Harm to reputation, 397–398 extent of liability, 35, 41
Haumerson v. Ford Motor Co., 198 extreme and outrageous conduct, 37–39
Hemmings v. Pelham Wood Ltd. Liability Ltd., 78–81 false imprisonment, 34, 36–37
Henningsen v. Bloomfield Motors, fresh pursuit, 51
Inc., 372 harm suffered, type of, 39
Hidalgo v. Cochise County, 122 indicia of conversion, 42–43
Holcombe v. Whitaker, 36 infliction of mental distress, 34, 37–39
Holdover tenant, 52 necessity, 52–53
Horne v. Peckham, 298 persons, intentional torts
Howard v. Spradlin, 44 against, 35–40
Hudson v. St. Paul Mercury Insurance private necessity, 45, 52, 53
Co., 298 property, intentional torts
Hunn v. Windsor Hotel, 236 against, 40–43
public necessity, 45, 52, 53
I public servants, 39
reentry on land, 45, 52
Illegal acts, 443
regaining possession of chattels,
Immunity, 218, 243–247
45, 51–52
Impact rule, 202
removal and transfer of goods, 43
Impaired earning capacity, 179
Implied assumption of risk, 235–236 revocation of permission to enter, 41
Implied preemption, 379 self-defense, 45–47
Implied warranty, 361–362 shoplifting, 37
Implied-waiver theory, 247 transferred-intent doctrine, 34,
Imputed contributory negligence, 446–447 36, 39
In re Polemis, 156 trespass to chattels, 40, 41, 42
In Re Stutsman, 459–462 trespass to land, 40–41
Indemnification, 476–477 Interrogatories, 21, 453
Indemnitee, 476 Interspousal immunity, 244, 246
Indemnitor, 476 Intervening causes, 159–160, 164
Independent contractors, 435 Invasion of privacy, 411–419
Independent medical examination Invitees, 74–76
(IME), 560 nature of duty to, 75–76
Indicia of conversion, 42–43 status, losing, 75
Infliction of mental distress, 34, 37–39 Ixchel Pharma LLC. v. Biogen, Inc., 316–321
Informed consent, 271–272
Inhibition of medical and business communities, 493–495 J
Injurious falsehood, 419–421
Jackson v. Housing Authority of City of High Point, 348
Injury
James v. Bessemer Processing Co, Inc., 143
cause of, defendant in control, 131–132
Joint and several liability, 457–459, 502–504
as a consequence of negligence, 132
Joint enterprise doctrine, 446
Innocent misrepresentation, 308, 309
Innuendo, 399 Joint liability, 456–478
Insurance. See Automobile insurance; concurrent tortfeasors, 457
Workers compensation contribution, 463–464
Insured’s options, 532–533 harm that cannot be apportioned, 457–458
Intent, 400–402 indemnification, 476–477
Intentional and unreasonable interference, 311 joint and several liability, 457–459
Intentional misrepresentation, 301–305 joint tortfeasors, 457
Intentional torts, 33–55, 433 Mary Carter/Gallagher agreements, 465–474
assault, 34, 35–36 release, 464–465
awareness of contact, 35 satisfaction, 463
battery, 34, 35 status of, 458–459
confinement, 37 Joint tortfeasors, 457
consent, capacity to, 44–45 Judgment notwithstanding the verdict (JNOV), 25
contact, defining, 35 Jurisdiction, 19
conversion, 40, 42–43 Jury instruction, 100
conversion of intangibles, 43 Jury question, 164
damages, 53 Justifiable reliance, 303, 305
Index | 639
K M
Kaatz. v. State, 228, 229–233 MacPherson v. Buick Motor Co., 360, 372
Kentucky Fried Chicken National Management Co. v. Majority rule, 156
Weathersby, 38 Malicious prosecution, 324
Kinegak v. State Dept. of Corrections, 258 Malpractice, 260–290
Known trespassers, 70, 73 assumption of risk, 283, 284
battery versus negligence, 272–273
L causes of professional negligence suits, 285–286
contributory negligence, 283–284
Land
defenses, 283–284
possessors of, 70
emergency situations, 284
reentry on, 45, 52
informed consent, 271–272
sellers of, 82
medical malpractice crisis, 288–289
trespass to, 40–41
nature of risk involved, 272
Landlord tenant liability, 76–78
preventing professional malpractice suits,
Langan v. Valicopters, Inc., 348
286–288
Last-clear-chance doctrine, 219–220
Latent defect, 302 professional negligence, and, 261–262
Learned hand formula, 107–108 reasonable care, 261
Lee v. Pulitzer Publishing Co., 436–441 records, maintaining adequate, 284–285
Legal assistants, role of, 287–288 specialists, and, 271
client relations, 288 Manufacturing defect, 372
confidentiality, 287 Market-share liability, 142, 144
filing and court date, 288 Martindale-Hubbell Law Directory, 428
maintenance of documents and files, 288 Mary Carter agreements, 465–474
select and prepare expert witnesses, 391–392 Mass tort cases, 143
trust accounts, 288 McIntyre v. Balentine, 227
unauthorized practice of law, 287–288 McNeill v. United States, 179
Legal cause, 148 McNutt Oil & Refining Co. v. D’Ascoli, 316
Lerman Bros. v. Lewis, 75 Medical authorization release, 171–172
Lessors, real estate agents, and sellers of services, 360 Medical expenses, 196, 212–213
Li v. Yellow Cab Co., 221 Medical malpractice, 288–289. See also Malpractice
Liability Medical payment coverage, 513, 514–515
alternate, 142, 144, 367 Medical practice guidelines, 289
automobile liability coverage, 512–514 Mental distress, infliction of, 34, 37–39
battery, 35 Mental suffering, 201–203
and defendants, 159 Mikolajczyk v. Ford Motor Co., 366
intervening causes, 159–160, 164 Milbert v. Wells Township Haunted House, Inc., 124–130
joint and several, 457–459 Minnifield v. Ashcraft, 412, 413–418
landlord-tenant, 76–78 Minority rule, 156
market-share, 142, 144 Miscellaneous coverage, 515
product (See Product liability) Misrepresentation, 300–327
strict (See Strict liability) caveat emptor, 301
trespass to land, 40–41 damages, 304–305
vicarios (See Vicarious liability) deceit, 301
Libel, 396–397 defendant’s state of mind, 305
Libel versus slander, 395–397 definition of, 305
Licensees, 74 development of, 301
Life Insurance Co. v. Johnson, 498, 501 elements of, 301, 302
Limitations, 350–352 fiduciary relationship, 302
Limited trespass, 70, 73–74 innocent, 308, 309
Litigation, expenses of, 180–181 intentional, 301–305
Litigiousness, 491–492 justifiable reliance, 303, 305
Locality rule, 261, 283 latent defect, 302
Loiland v. State, 88 negligent, 305–307
Lord Campbell’s Act, 197, 198 opinion implying facts, 304
Loss of consortium, 194 opinion of disinterested party, 303–304
Loss of earning capacity, 213–214 patent defect, 302
Losses predictions, 304
economic, 369 proving damages, 305
loss of consortium, 194 proximate cause, 304
loss of earning capacity, 213–214 puffing, 303
product liability, 369 relationship to other torts, 301
types of, 369 reliance on the misrepresentation, 303
Lost chance of recovery, 144 required state of mind, 303
Lost wages, 196 statement of intentions, 304
Lumley v. Gye, 315 to whom is it made, 302, 305
640 | Index
Mistake, as a defense, 43, 51–52 Ontiveros v. Borak, 142

Misuse of legal process, 324–325 Opening statements, 23
abuse of process, 324, 325 Opinions, 303–304, 399–400
malicious prosecution, 324 Orcutt v. Miller, 271
wrongful institution of civil proceedings, 324–325 Overrules, 24
Mohr v. Grantham, 144, 145–148
Morality of conduct, 5 P
Morgan v. County of Yuba, 89
Pain and suffering, 177–179, 197, 214
Motions
Palsgraf v. Long Island Rail Co., 69, 149, 150–155, 203
for a new trial, 25
Parasitic damages, 201–202
for a protective order, 22
Parent-child immunity, 244, 246–247
for summary judgment, 22
Parental liability, 447–448
in limine, 23
Past medical expenses, 212
to compel, 22
Patent defect, 302
Mutual release agreement, 483–484
Patterson v. Thunder Pass, Inc., 160, 161–164
Myrick v. Freightliner, 379, 380
Patton v. Hutchinson Wil-rish Mfg. Co., 376
Peck v. Tribune Co., 397
N Pecuniary, 397
Naccarato v. Grob, 271 Pellham v. Let’s Go Tubing, Inc., 237–243
Nader, Ralph, 412 Penley v. Honda Motor Co., 258
Nader v. General Motors Corp, 412 Peremptory challenge, 23
Nalwa v. Cedar Fair, LP., 258 Perrysburg v. Toledo Edison Co., 53
Nardelli v. Metropolitan Group Property and Cas. Ins. Co., Personal injury, 369
534–540 Personal injury protection (PIP), 514, 519
Necessity, 52–53 Persons, intentional torts against, 35–40
Negligence, 10–11, 68–101, 150–155, 359–360 Petrucelli v. Wisconsin Patients Compensation Fund, 498
breach of duty, 106–134 Philadelphia Newspapers v. Hepps, 399
comparative, 491 Philip Morris USA v. Williams, 188–193
contributory, lack of, 132–133 Physical
damages (See Damages) examination, demand for, 296–297
defenses (See Defenses) harm to property, 181
defined, 69 harm requirement, attempts at circumventing, 202–203
imputation of, 446–447 Physicians, 443
injury as a consequence of, 132 Pierce v. New York Central Rail Co., 200
per se, 122–124 Pile v. City of Brandenburg, 258
Negligent misrepresentation, 305–307 Pinsonneault v. Merchants & Farmers Bank & Trust Company,
Nelson v. Superior Court, 369 108, 109–114
Nelson v. Union Wire Rope Corp., 89 Plaintiff
New York Central Railroad v. White, 556 attitude of, 36
New York Times Co. v. Sullivan, 395–396, 400, 422 and damages, 177
Noble v. Cavalier Restaurant, 132 member of foreseeable class, 158–159
No-fault (strict liability), 490–491 orientation, 490–491
No-fault insurance, 512, 518–520 questions about damages, 177
Nolo contendere, 7 Poisonous gases, 348
Nominal damages, 176 Police records, 257
Nondelegable duties, 442–443 Poole v. Alpha Therapeutic Corp., 367
Nontrespassing animals, 338 Possessors of land, 70
Nuisance, 300–327 duty and, 70
defenses, 312 invitees, 74–76
defined, 308–309 landlord/tenant liability and, 76–78
environmental law, 312–313 licensees, 74
intentional and unreasonable interference, 311 trespassers, 47, 48–50, 70–74
nuisance versus trespass, 310–311 Post-trial procedures, 19, 25
private, 309, 310–312 Practice guidelines, medical, 289
public, 309, 310 Predictions, 304
remedies, 311–312 Preemption, 378–380
conflict, 379, 380
substantial interference, 311
field, 379
Nuisance versus trespass, 310–311
implied, 379
Preempts, 378
O Preexisting conditions, 171–172
Objective standard, 116 Preparing a defense, 256–257
Official records, 257 Preponderance of the evidence, 6
Olsen v. United States, 244 Prescott v. United States, 143
Omnibus clause, 446 Present value, 200
O’Neal v. St. John Hospital and Medical Center, 262, 263–269 Presumed damages, 397
Index | 641
Pretrial conference, 23 R
Pretrial procedures, 19, 23
Ragsdale v. Kennedy, 304
Preventing professional malpractice
Reasonable care, 261
suits, 286–288 Reasonable conduct, 107
Primary coverage, 514, 516 Reasonable expectations doctrine, 530
Private necessity, 45, 52, 53 Reasonable interpretation, 398
Private nuisance, 309, 310–312 Reasonable-person standard,
Privileges, 323, 407–409 116–117, 123
Privity, 491 Reasonableness of conduct, 4
Product liability, 349–350, 358–382 Reckless disregard, 400
causation, 367 Records, maintaining adequate, 284–285
certification of a class, 381 Recovery
class actions, 380–382 considerations for theories of, 371
conflict preemption, 379, 380 for past earnings, 179
defects and, 366, 369–376 for prospective future losses, 179
defenses, 376–378 theories, 359–369
disclaimers, 376 types allowed, 198
economic loss, 369 Reentry on land, 45, 52
expert witnesses, 391–392 Reform of, tort law, 11
foreseeable misuse, 373–375 Reformation of policy, 513
lessors, real estate agents, and sellers of Regaining possession of chattels, 45, 51–52
services, 360 Regents of University of California v. Superior Court, 83
losses, types of, 369 Release, 464–465
negligence, and, 359–360, 376, 377 problems with, in light of contribution, 464–465
overview, 359 three approaches to the problem of, in context of
personal injury, 369 contribution, 465
privity and, 360 versus a covenant not to sue, 464
property damage, 369 Reliance measure, 304–305
recovery theories, 359–369 Reliance on the misrepresentation, 303
retailers, 359 Remarriage, disclosure of, 199
safety feature, 373 Remedies, 311–312
sale of a product, 365–366 Remitted, 181
Section 402A of the Restatement, 365 Remittur, 498
strict liability, 363–369, 378 Removal and transfer of goods, 43
structural defect, 373 Replacement cost, 515
unsafe products, 366–367 Request
users and makers of component for admissions, 21
for medical examination, 21
parts, 359
for production of documents, 21
warranties and, 360–361, 376–378
Required state of mind, 303
Product Liability Legal Reform Act, 501
Res ipsa loquitur, 131–133, 368
Professional rescuer doctrine, 82
Res judicata, 25
Proof of actual cause, 143–144
Rescue doctrine, 70, 72–73
Property
Residential Rental Agreements Act, 348
damage, 197, 369
Resolution, of first-party claims, 541
intentional torts against, 40–43
Respondeat superior, 99, 433, 434, 449
wrongfully taken, 51
Restatement position, 6, 115
Proprietary function, 245 Restitution, 6
Prospective contractual relations, 314, 323 Retailers, 359
Proximate cause, 141, 148–149, 155–157, 304, 350–351 Retraction statutes, 407
Public Reutzel v. Hunter Yes, Inc., 474–476
disclosure of private facts, 412 Revocation of permission to enter, 41
entities, 89 Risk-contribution theory, 143
figure, 400–401 Riss v. New York, 89, 90–93
invitee, 74 Rogers v. Louisville, 38
necessity, 45, 52, 53 Runaway verdicts, 492–493
nuisance, 309, 310 Rush v. Commercial Realty Co., 235
policy, 4–5
Publication, 400 S
Puffing, 303
Safety feature, 373
Punitive damages, 176, 181–188, 498–502
Santiago v. Phoenix Newspapers, Inc., 435
Purcell v. Breese, 262
Satisfaction, 463
Scheduled injuries, 557
Q Schultz and another v. Frank, 8, 9–10
Qualified privileges, 407, 408–409 Schurk v. Christensen, 448
642 | Index
Schwindt v. Red Roof Delivery, Inc., 563 proximate cause, 350–351

Scottsdale Insurance Company v. Addison Insurance Company, rationale justifying, 363–365
543–548 trespassing animals, 337
Sczyrek v. County of Essex, 258 Stroda v. State Highway Commission, 349
Secondary coverage, 514, 516 Structural defect, 373
Section 402A of the Restatement, 365 Structured settlement, 200–201
Seebold v. Prison Health Services, Inc., 83, 84–88 Stump v. Sparkman, 245
Self-defense, 45–47 Subjective standard, 116
defendant’s belief, 45–46 Subrogation, 180, 513
defense of others, 47 Substantial interference, 311
defense of property, 46–47 Substantial-factor test, 142–143
prevention of felonies, 47 Suing the insured, 531
Sellers of land, 82 Summers v. Tice, 142, 144
Shipley v. Williams, 203 Superfund Amendments and Reauthorization Act (SARA),
Sholtis v. American Cyanamid Co., 143 312–313
Shoplifting, 37, 52 Superseding acts, 159, 160
Shortened life expectancy, 179 Superseding cause, 159, 160
Shuck v. Means, 446 Supreme Beef Packers Inc. v. Maddox, 123
Sindell v. Abbott Laboratories, 142, 144, 367, 491 Survival action, 197–199
Sine qua non test, 142 Survival statutes versus wrongful-death statutes, 198
Single-limit coverage, 512 Sustains, 24
Single-publication rule, 400
Slander, 395, 396, 397 T
Slander per se, 397
Slander of title, 419, 421 Tarasoff v. Regents of University of California, 83
Slippery-slope arguments, 5 Telecommuting, 563
Smith v. Johnson and Johnson Co., 375 Termination, 518
Smith v. Wade, 501 Termite cases, 302
Solomon v. National Enquirer, 398–399 Texaco, Inc. v. Pennzoil Co., 315
Sovereign Pocohontas Co. v. Bond, 303 Third-party claims, 531, 532, 540–541
Special characteristics, defendants Thomas v. Mallett, 143
with, 117–118 Threat, defined, 36
Special damages, 176 Time, Inc. v. Hill, 419
Special harm, 397 Tort, 3–4
Special verdict, 24 classification of, 11–12
Spence, Gerry, 428–429 versus crime and contract, 6–7
Spence v. Julian, 466–472, 476 history of laws of, 7–11
Split-limits coverage, 512 Tort law, 2–12, 18–25
Spur Industries, Inc. v. Del E. Webb Development Co., 312 Tort reform, 488–505
St. Amant v. Thompson, 400, 405 business community and, 495
Stacking of policies, 517 causation requirements, 491
Standard used to determine bad faith, 542, 548 comparative negligence, 491
State Farm Mut. Auto Ins. Co. v. Campbell, 501 criticisms of the tort system, 495–496
State v. Schallock, 434 damage caps, 497–502
State v. Warren, 47, 48–50, 51 federal courts, 492
Statement of intentions, 304 focus of, 490–495
Statutes frivolous lawsuits, 504
of limitations, 218, 248, 378 goals of the tort system, 488–489
of repose, 218, 248, 378 historical roots, 489–490
Statutory framework, 557 inhibition of medical and business communities, 493–495
Stocking v. Johnson Flying Service, 53 joint and several liability, 502–504
Stratton Oakmont, Inc. v. Prodigy Services Co., 410 litigiousness, 491–492
Straub v. Fisher and Paykel Health Care, 368 measures implemented, 500–501
Strict liability, 336–352, 363–369 no-fault (strict liability), 490–491
abnormally dangerous activities, 337, 341–349 objectives of, 497
absolute liability, 337 pendulum swing of, 490
assumption of risk, 352 plaintiff orientation, 490–491
crop dusting, 348 in practice, 497–504
and damages, 369 privity, 491
and defendants, 368 punitive damages, 498–502
defined, 337 runaway verdicts, 492–493
doctrine of Rylands v. Fletcher, 341–342 state courts, 491–492
elements of a claim, 366 statistics, 492, 493, 495
limitations, 350–352 Tortfeasor, 6
nontrespassing animals, 338 Torts versus contracts, 7
overview, 337 Torts versus crimes, 6–7
and plaintiffs, 368–369 Toxic tort cases, 143
poisonous gases, 348 Trade libel, 419–421
product liability, 349–350 Transferred-intent doctrine, 34, 36, 39
Index | 643
Trespass Vogler v. Dominguez, 132

by animals, 337–338 Voir dire, 23
on the case, 9, 10 Voluntary-undertaking doctrine, 89
to chattels, 40, 41, 42 Vulcan Metals Co. v. Simmons Manufacturing Co., 303
by known trespassers, 70, 73
to land, 40–41
Trevino v. Union Pacific R. Co., 89 W
Trial, 19, 23–25 Wagner v. International Railway Co., 72
Trial preparation materials, 553 Wal-Mart Stores, Inc. v. Odem, 35
Trust agreement, 513
Warranty, 360–361
Trust-fund theory, 247
Turcotte v. Fell, 235 combination of tort and contract law, 360–361
Turner v. General Motors Corp., 374 defenses, 376–378
TXI Operations, LP v. Perry, 76 disclaimers, 376
express, 361
U of fitness for a particular purpose, 362
Umbrella policy, 513 implied, 361–362
Unauthorized practice of law, 287–288 limitations of remedies, 376–378
Unavoidably unsafe products, 366–367 of merchantability, 362
Unborn children, 94–95 time limits, 378
Underinsured motorist coverage (UIM), 513, 517 versus strict liability claims, 363
Underpayment of claims, 534
Warren, Samuel, 411
Unforeseeable intervention, 160, 164
Watson v. Rinderknecht, 157
Unforeseeable negligence of others, 159
Uniform Commercial Code (UCC), 308, 360, 362, 363 WFAA-TV v. McLemore, 402–406
Uniform Comparative Fault Act, 378 Wheatland Irrigation District v. McGuire, 349
Uniform Correction or Clarification of Defamation Act, 407 Whittington v. Mason, 298
Uninsured and underinsured motorist coverage, 513, 515–517, Williams v. Emerson Elec. Co., 368
549 Witnesses, expert, 391–392
Uninsured motorist, 516 Wolfe v. Sibley, Lindsay & Curr Co., 562
Uninsured motorist coverage (UM), 513, 515–517
Wood v. Picillo, 312, 313
United States Patent Office, 354–355
Unreasonable intrusion, 412 Wood v. United Air Lines, Inc., 349
Users and makers of component parts, 359 Woolstrum v. Mailloux, 183
Workers compensation, 555–563, 566
V contemporary systems, 558–561
VanWagner v. Mattison, 228 current issues, 562–563
Verification, 19 definition of, 556
Vi et armis, 8. See also Action in trespass fellow-servent rule, 556
Vicarious liability, 99, 432–449 filing a claim, 561–562
automobile consent statutes, 445–446 historical background, 556–557
bailee, 444 independent medical examination (IME), 560
bailments, 444–446
is it a fair deal?, 559–560
bailor, 444
“no fault,” adversarial nature of, 560
defined, 433
delegation of authority or rights, 434 scheduled injuries, 557
employer-employee relationship, 433–435 statutory framework, 557
employers-independent contractors, 435, 442–443 Wrongful death action, 197–199
examples of, 433 Wrongful institution of civil proceedings, 324–325
exceptions to non-liability rule for independent contractors, Wrongful-death statutes versus survival statutes, 198
435, 442–443 Wrongful institution of civil proceedings, 324–325
extraordinary risks, 443
Wu Tut Revue, 323
family-purpose doctrine, 445
forbidden acts, 434 Wyeth v. Levine, 494
frolics and detours, 434
illegal acts, 443
Y
imputed contributory negligence, 446–447
Yania v. Bigan, 82
independent contractors, 435
intentional torts, 433 Ybarra v. Spangard, 132, 133
joint enterprise doctrine, 446 Yukon Equipment, Inc. v. Fireman’s Fund Insurance Co., 342–343
nondelegable duties, 442–443
omnibus clause, 446
overview, 433 Z
parental liability, 447–448 Zeran v. America Online, Inc., 410–411
physicians, 443 Zerby v. Warren, 228
respondeat superior, 433, 434, 449 Zone of danger test, 155, 203
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Tort Law. Seventh Edition J. Stanley Edwards, Traci Cull

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Tor t Law

J. Stanley Edwards, J.D.

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Chapter 1 Overview of Tort Law | 2

Chapter 2 Overview of a Tort Case | 17

Chapter 3 Intentional Torts | 33

Chapter 4 Negligence: Duty | 68

Chapter 5 Negligence: Breach of Duty | 106

Chapter 6 Negligence: Causation | 141

Chapter 7 Negligence: Damages | 175

Chapter 8 Negligence: Defenses | 217

Chapter 9 Malpractice and Professional Negligence | 260

Chapter 10 Misrepresentation, Nuisance, and Other Torts | 300

Chapter 11 Strict Liability | 336

Chapter 12 Product Liability | 358

Chapter 13 Defamation and Related Torts | 395

Chapter 14 Vicarious Liability | 432

Chapter 15 Joint Liability | 456

Chapter 16 Tort Reform | 488

Chapter 17 Automobile Insurance | 511

Chapter 18 Bad Faith | 528

Chapter 19 Workers’ Compensation | 555

Appendix B Interviewing | 613

Appendix C Overview of Insurance | 621

Overview of Tort Law 2

Overview of a Tort Case 17

Possessors of Land | 70 Unborn Children | 94

Trespassers | 70 Case: Castro v. Melchor | 95

Trespassers as Rescuers | 72 Vicarious Liability | 99

Licensees | 74 Practice Pointers | 100

Invitees | 74 Summary | 100

Common Law Distinctions Today | 76 Key Terms | 101

Outside the Possessor’s Property | 76 Review Questions | 102

Landlord/Tenant Liability | 76 Practice Problem | 103

Case: Hemmings v. Pelham Wood Ltd. | 78 Tort Teasers | 104

Sellers of Land | 82 Practical Ponderables | 105

Duty to Protect or Aid Others | 82 Internet Inquiries | 105

Case: Seebold v. Prison Health Service, Inc. | 84

Negligence: Breach of Duty 106

Chapter Objectives | 106 Case: Opinion | 109

Reasonable-Person Standard—Objective versus Automobile-Guest Statutes | 131

Negligence: Causation 141

Negligence: Damages 175

Negligence: Defenses 217

Malpractice and Professional Negligence 260

Misrepresentation, Nuisance, and Other Torts 300

Strict Liability 336

Product Liability 358

Defamation and Related Torts 395

Vicarious Liability 432

Joint Liability 456

Tort Reform 488

Automobile Insurance 511

Bad Faith 528

Historical Development of Bad Faith Concept | 529 Summary | 550

Overview of Bad Faith | 530 Key Terms | 551

First-Party versus Third-Party Claims | 531 Review Questions | 551

Case: Nardelli v. Metropolitan Group Property and Practice Exam | 551

Workers’ Compensation 555