TORTS I - CASE BRIEFS - LONG [FALL 2011]

I. INTENTIONAL TORTS

1. BATTERY

A. REQUIRING FAULT

Van Camp v. McAfoos

Brief Fact Summary. Van Camp (Plaintiff) sued, alleging that Mark McAfoos (Defendant), while riding his tricycle

collided with Plaintiff causing injury to her achilles tendon. The trial court sustained a motion to dismiss. Plaintiff

appealed.

Synopsis of Rule of Law. Where an essential element of the cause of action is missing, the question is not what may

be shown under the pleading but whether a cause of action has been pled.

Facts. Plaintiff alleged that three year-old Defendant was riding his tricycle on a sidewalk, and without warning

drove it into the rear of the Plaintiff injuring her Achilles tendon. She contended that Defendants’ behavior was the

proximate cause of her injury, which required surgery. The thrust of Plaintiff’s claim, the court observed, was that

she was entitled to recovery regardless of the presence of fault or wrongdoing.

Issue. Did Plaintiff plead a cause of action?

Held. The decision of the trial court was upheld, the Supreme Court of Iowa maintained that, while a child of

“tender years: may be held liable in tort, the relevant precedents have fault as an essential element.” That element

was absent in this case.

Discussion. McAfoos is illustrative of the factors to be examined with respect to evaluating the bases or grounds for

liability. In other areas of tort law, such as medical malpractice, toxic torts, and product liability, the “net” may be

considerably broader, not requiring the intentionally wrongful or negligently wrongful behavior of the Defendant.

The court in McAfoos was not inclined to extend such liability to a child on a tricycle.

B. ELEMENTS OF BATTERY

Snyder v. Turk

Brief Fact Summary. Snyder, a nurse, (Plaintiff) brought an action against Turk, a doctor, (Defendant) for

intentional infliction of emotional distress, civil battery, and slander. The trial court (Ohio) dismissed her complaint

with prejudice and granted a directed verdict. The Plaintiff sought review.

Synopsis of Rule of Law. An actor is subject to liability to another for battery if (a) he acts intending to cause a

harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a

contact, and (b) an offensive contact with the person of the other directly or indirectly results.

Facts. The Defendant was performing an operation to remove a patient’s gall bladder. The Defendant became

increasingly frustrated with the Plaintiff’s performance, raising his voice and castigating her for being incompetent.

When Plaintiff handed Defendant the incorrect surgical tool, he grabbed her by the shoulder and gown and pulled

her face toward the patient’s open surgical wound. The Plaintiff did not suffer any physical injury. She later filed an

action against him for intentional infliction of emotional distress, civil battery, and slander. The trial court granted

the Defendant’s Motion for a Directed Verdict and dismissed the Plaintiff’s complaint. The court reversed the order,

holding that the Defendant was not entitled to a directed verdict. The court held that reasonable minds could have

concluded that he was guilty of battery, and that he intended to commit an offensive contact with the Plaintiff.

Issue. Could a reasonable jury conclude that there was intent to commit a battery?

Held. Yes. Since a reasonable mind could infer intent on the Defendant’s part, the issue was one of fact for a jury.

The lower court thus erred in its directed verdict. The court reversed and remanded the lower court’s order.

Concurrence. The concurrence merely summarizes the majority’s reasoning, stating: “I believe the evidence in the

record was sufficient for a reasonable juror to conclude that the Defendant had committed a battery when he

allegedly grabbed the Plaintiff and brought her down to within twelve inches of the surgical wound.”

Discussion. Snyder v. Turk draws the fine distinction between the intent to cause actual harm and the intent to cause

either harmful or offensive contact. The element of intent becomes an issue for the trier of fact thus rendering a

directed verdict improper.

Cohen v. Smith

Brief Fact Summary. Patricia Cohen and her husband (Plaintiffs), filed suit against Robert Smith, nurse, and St.

Joseph’s Memorial Hospital (Defendants) in the Circuit Court of Jackson County (Illinois) after Smith observed and

touched her naked body in violation of her religious beliefs. The complaints alleged battery, intentional infliction of

emotional distress. The court granted Defendants’ Motions to Dismiss. Plaintiffs appealed.

Synopsis of Rule of Law. When considering a motion to dismiss, the court must view all properly pleaded facts in

the light most favorable to the plaintiff; a court may only dismiss for failure to state a cause of action, based solely

on the pleadings, only when it is clear that the alleged set of facts cannot be proven.

Facts. Ms. Cohen was admitted to St. Joseph’s Memorial Hospital (Hospital) to deliver her baby. She was examined

and informed of the necessity for a Caesarian Section delivery. She and her husband told their doctor, who informed

the hospital staff, that such a procedure was in violation of their religious beliefs as it would require Ms. Cohen to be

seen naked by a male. Their doctor gave assurances that their beliefs would not be violated. During the procedure

Roger Smith, a male nurse, allegedly viewed and touched Ms. Cohen’s naked body. The Plaintiffs filed suit.

Issue. Is the conduct in question sufficiently harmful and offensive to rise to the level of battery?

Held. The battery and the intentional infliction of emotional distress counts were properly alleged, and thus the court

erred in its dismissal of Plaintiffs’ causes of action. With regard to the Defendant’s having sufficient notice, the court

concluded that when Ms.Cohen made her wishes known to the hospital, the latter implicitly agreed to provide her

with treatment within the restrictions placed by her religious beliefs. The decision was reversed and remanded.

Discussion. As noted in Snyder v. Turk, “A person may be held liable for battery when he or she intends to cause

harmful or offensive contact and harmful or offensive contact results.” Further, courts have drawn fine distinctions

between conduct that results in bodily harm and conduct that violates a plaintiff’s personal integrity. The court notes

that the “application of battery the remedy offensive and insulting conduct is deeply ingrained in our legal history.”

Specifically with regard to religious beliefs and medical treatment, the court observed that, while people in modern

society generally accept the various intrusions on one’s privacy as a necessity, the determination of bodily integrity

is ultimately the purview of the person alleging improper contact. The court in Cohen v. Smith concluded also: “The

fact that the Plaintiffs hold deeply ingrained religious beliefs which are not shared by the majority of society does

not mean that those beliefs deserve less protection than more mainstream religions.” Finally, quoting Justice

Cardozo, the court observed: “Every human being of adult years and sound mind has the right to determine what

shall be done with his own body.” Thus, when a physician violates a patient’s right of consent concerning medical

procedures, that physician may be liable for damages.

Mullins v. Parkview Hospital, Inc.

Brief Fact Summary. During Plaintiff Mullins’ surgery, a medical student performed an intubation that lacerated

Mullins esophagus, requiring additional surgery and recovery time.  Mullins had not consented to student

involvement in her surgery.  She sued for battery and lost.

Synopsis of Rule of Law. Battery requires a harmful or offensive touching, without consent, with the intent to cause

the resulting harm or offense.

Facts. Plaintiff Mullins, before undergoing a hysterectomy at a teaching hospital, crossed out the portion of the

consent form that consented to “the presence of healthcare learners” and received assurance from the attending

anesthesiologist that she would personally handle the anesthesia.  During the surgery, as soon as Mullins was

unconscious, the anesthesiologist permitted a student, VanHoey, to practice intubation.  It was VanHoey’s first day

practicing on a live patients and she lacerated Mullins’ esophagus.  As a result, Mullins required additional surgery

and recuperation time.  Mullins sued VanHoey, the gynecologist, the anesthesiologist, and both doctors’ practices for

battery, among other claims.   The trial court granted summary judgment for all defendants on all counts, the Court

of Appeals held that Mullins had an actionable battery claim, and the Indiana Supreme Court reversed, finding that

Mullins did not have an actionable battery claim.

Issue. Whether the tort of battery requires the intent to cause harm in addition to the intent to touch or make contact.

Held. Yes.  Although VanHoey “touched Mullins in a harmful and offensive manner without permission”, Mullins

could not show that VanHoey “acted intending to cause” harm.  VanHoey had no reason to suspect that Mullins had

not consented to the touching.  As a student, she properly relied on her previous experience and the doctor’s

authority in believing that she had permission to perform the intubation.  In addition, she was under no obligation to

obtain consent herself or to inquire into the consent under which the anesthesiologist was acting.  Accordingly, the

court found that there was no genuine issue of material fact as to VanHoey’s intent to cause a harmful contact, and

that VanHoey was entitled to summary judgment on Mullins’ battery claim.

Discussion. This opinion shows that an actor’s intent to touch or make contact, such as his decision to put his arm in

motion throwing an object, is not enough to give rise to battery.  The actor must have specifically intended to cause

the harm or offense which results from the touching.

C. DEFINING INTENT

Garratt v. Dailey

Brief Fact Summary. Five year-old Brian Dailey (Defendant) visited Naomi Garrett Plaintiff at her sister Ruth’s

home. The later contends that as she was about to sit on a lawn chair, Dailey pulled it out from under her causing her

injury. The Superior Court for Pierce County (Washington) found in favor of defendant in an action for assault and

battery and Plaintiff appealed.

Synopsis of Rule of Law. Intentionality is central to the tort of battery, and while a minor who has committed a tort

with force is liable as any other would be, a plaintiff must establish that the defendant committed his or her act for

the purpose of causing the harmful contact or with substantial certainty that such contact will result.

Facts. Plaintiff alleged that she came out into the backyard to talk with her sister and that, when she was about to sit

down in a wood and canvas lawn chair, five year-old Dailey (Defendant) deliberately pulled the chair out from under

her. The trial court accepted found Defendant’s version of the events that he was attempting to move the chair

toward Plaintiff to help her in sitting down in the chair. He maintained that, due to his small size and lack of

dexterity, he could not get the chair under Plaintiff in time to keep her from falling. Plaintiff was injured in the fall.

The trial court ruled for the Defendant. On appeal, the Supreme Court of Washington remanded for a factual

determination of Defendant’s intention.

Issue. In an action for battery, what constitutes willful and unlawful intent?

Held. The Supreme Court for Washington remanded for clarification, with instructions to make definite findings on

the issue of whether Defendant knew with substantial certainty that Plaintiff would attempt to sit down where the

chair had been. If so, the court was to change the judgment.

Discussion. The concept of “intent” denotes a defendant’s desires to cause the consequences of his actions, or his

belief (with substantial certainty) that the results will follow. The distinction to be drawn is not merely whether the

defendant intends to commit the act in question, but whether he intends to cause the consequences of his act.

White v. Muniz

Brief Fact Summary. Shortly after having taken residence at Beatrice Hover Personal Care Center, an adult assisted

living facility, eighty-three year-old Helen Everly (Defendant) struck Sherry Lynn Muniz (Plaintiff), a professional

caregiver at the center. Plaintiff subsequently brought suit against Barbara White, Everly’s granddaughter, and

Everly (Defendants). The jury found in Defendants’ favor having concluded that Everly lacked the requisite intent to

sustain a cause of action. This case is a challenge to the decision of the Court of Appeals of Colorado, which

determined that a mentally incapacitated adult should be held liable for her intentional tort even if she was unable to

appreciate the wrongfulness of her actions.

Synopsis of Rule of Law. A jury, as trier of fact, may conclude that a mentally deficient person is liable for tortious

conduct; however, in so doing the jury must find that the actor intended offensive or harmful consequences.

Facts. Everly, an elderly woman who was placed in a personal care center, began to exhibit erratic behavior. She

became easily agitated, and would occasionally act aggressively toward others. An examination by a physician

revealed that Everly was suffering from Alzheimer’s disease. In one instance, she struck Plaintiff in the jaw. In

Plaintiff’s actions for assault and battery, the trial judge instructed the jury that Everly’s suffering from Alzheimer’s

did not prevent a finding that she acted intentionally, even if her reasons or motive were irrational.

Issue. At issue, is whether an intentional tort requires some proof that the tortfeasor not only intended to contact

another person, but also intended that the contact be harmful or offensive to the other person.

Held. The court reversed the judgment and remanded, having found that the jury determined that alleged tortfeasor

did not intend to cause offensive or harmful consequences by her act.

Discussion. Intentional torts may be committed in one of two ways: 1) when the defendant intends to cause the harm

resulting from his or her actions; and 2) when the defendant has substantial certainty that harm will result.

* Mental illness is not a defense to an intentional tort, however it may, like other mental states (such as infancy), be

viewed as one factor in the totality of circumstances upon which a jury relies to make its determination. With respect

to battery, an actor is generally subject to liability when he or she acts intending to cause harmful or offensive

contact to another, or place the other in apprehension of such contact. Further, such harmful or offensive contact

must result. However, the actor does not have to intend the harm that actually results. If, for example, a blow to the

victim was intended to simply bruise the victim but serious trauma resulted, the actor would be held liable for any

resulting injuries.

2. ASSAULT

Cullison v. Medley

Brief Fact Summary. Plaintiff Cullison met a 16 year old girl in a parking lot then invited her to his home for a

soda, which she declined.  That night, she and her family came to Cullison’s home, surrounded him, and verbally

threatened him with bodily harm if he did not leave the girl alone while her father was armed with a holstered

revolver.  Cullison experienced mental trauma and distress as a result of the incident and sued for assault. 

Synopsis of Rule of Law. Assault is found where one intends to cause a reasonable apprehension of imminent

harmful or offensive contact in another.

Facts.  Plaintiff Cullison met 16-year-old Sandy Medley in a grocery store parking lot, invited her to have a soda

with him and to come to his home to talk further.  A few hours later he was awoken by a knock at his door.  He was

confronted by Sandy Medley, her father Ernest, her brother, brother-in-law, and mother.  Ernest had a revolver in a

holster strapped to his thigh.  Sandy called him a “pervert” and her mother berated him.  Ernest kept grabbing and

shaking the gun while still in the holster and threatening to “jump astraddle” of him if he did not leave Sandy alone. 

Although no one ever touched Cullison, he feared he was about to be shot because Ernest kept grabbing the gun as if

to draw it from the holster while threatening him.  As a result of this incident, Cullison sought psychological help to

deal with nervousness, depression, sleeplessness, inability to concentrate, and impotency.  He sued the Medleys for

assault, among other torts.  The trial court granted summary judgment in favor of defendants on all claims, the

appeals court affirmed, and the Indiana Supreme Court reversed on the assault count.

Issue.  Whether threatening language coupled with a holstered pistol rises to the level of assault.

Held. Yes.  Assault occurs when one intentionally creates the reasonable apprehension of imminent harmful or

offensive contact in another.  It is a touching of the mind, if not the body, and as such, the damages which are

recoverable are for mental trauma and distress.  It is assault to shake a fist under another’s nose, to aim or strike at

him with a weapon or to hold it in a threatening position, or to surround him with a display of force.  Additionally,

the apprehension must be one that would be aroused in the mind of a reasonable person.  In this case, a jury could

reasonably conclude that the Medleys intended to frighten Cullison by surrounding him in his trailer and verbally

threatening him with bodily harm while one of them was armed with a holstered revolver.  Accordingly, the Indiana

Supreme Court reversed the summary judgment on the assault count.

Discussion.  It is important to note that typically words alone do not rise to the level of assault, unless together with

acts or circumstances they put the other in a reasonable apprehension of imminent harm.  Moreover, the imminence

element does not mean harm must be immediate, but that there will be no significant delay in effectuating the harm.

3. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

Homer v. Long

Brief Fact Summary. The Circuit Court for Howard County (Maryland) dismissed the tort claims brought by

Plaintiff alleging breach of contract and tort claims, including negligence and intentional infliction of emotional

distress, resulting from a sexual relationship.

Synopsis of Rule of Law. One cannot sue to recover for injuries arising from “defilement of the marriage bed” or

from an interference with the marriage by simply casting the defendant’s conduct as a breach of contract, or

negligence, or some other intentional tort. To recover in an action for intentional infliction of emotional distress, a

plaintiff must show: (1) conduct that is intentional or reckless; (2) conduct that is also extreme and outrageous; (3) a

causal connection between the wrongful conduct and the emotional distress; and (4) that the emotional distress is

severe. When extreme and outrageous conduct is directed at a third person, the actor is subject to liability if he

intentionally or recklessly causes severe emotional distress (1) to a member of such person’s immediate family who

is present at the time, whether or not such distress results in bodily harm; or (2) to any other person who is present at

the time, if such distress results in bodily harm.

Facts. According to Plaintiff’s contentions, after several years of marriage his wife was hospitalized for severe

depression. During this period, she began seeing a therapist who, Plaintiff alleges, used confidential information and

took advantage of her condition to seduce her. Plaintiff maintains that, as a result, his wife’s personality changed

leading to their divorce. He brought suit alleging, among other things, intentional or reckless infliction of emotional

distress.

Issue.

* Can a Plaintiff successfully sue a therapist for adulterous actions under the banner of breach of contract?

* Does a psychiatrist owe a duty of care to a patient’s spouse?

* May a former husband recover in a third-party action for intentional infliction of emotional distress when he was

not present during the conduct in question?

Held. The court held that the circuit court properly dismissed Plaintiff’s claims: 1) a psychiatrist’s professional duty

is owed to the patient and not to the patient’s spouse, thus Plaintiff had no standing to sue; and 2) the of intentional

infliction of emotional distress claim was unfounded because the former husband was not present when the

psychiatrist allegedly seduced his wife.

Discussion. Intentional infliction of mental distress exists when the defendant, by extreme and outrageous conduct,

intentionally or recklessly causes the victim severe mental distress. It should be noted that this is the only area of tort

where “reckless” infers intent. Homer addresses an extended issue with regard to the intentional infliction

contention: the situation where a third person is alleging the wrongful action. In other words, this is an area where

transferred intent applies. As the court explained, “[w]here extreme and outrageous conduct is directed at a third

person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (1) to a

member of such person’s immediate family who is present at the time, whether or not such distress results in bodily

harm, or (2) to any other person who is present at the time, if such distress results in bodily harm.”

Generally, courts have award a third-party victim recovery only if, in addition to proving the prima facie elements,

the third party is (1) a close relative of the primary victim; (2) present at the scene of the outrageous conduct against

the primary victim; and (3) the defendant is aware of the close relative’s proximity.

With regard to the negligence claim, the court addressed first the prima facie elements of a negligence action: “[t]o

recover in an action for negligence, the plaintiff must show that the defendant owed a duty to him which was

breached. That duty, moreover, must be one that the law is prepared to recognize.” The court dismissed the claim

because the duty owed was to the patient, and not to her spouse, explaining, “[a] therapist’s professional duty must

run to his or her patient and not to the patient’s spouse, even if the spouse is the one who initially employed the

therapist and is paying the therapist’s fees.”

Addressing the action for breach of contract, the court recognized that the plaintiff in this case was in essence

attempting to sue for “alienation of affections. While noting that such actions are not necessarily barred under tort

law, the court states, “[t]hat is precluded, however, is the refitting of the abolished actions into other forms.”

4. FALSE IMPRISONMENT

McCann v. Wal-Mart Stores, Inc.

Brief Fact Summary. In a false imprisonment case, Debra McCann (Plaintiff) contended that Wal-Mart Stores,

Inc.’s (Defendant) employees stopped the McCanns as they were leaving the store, claiming that Plaintiff’s children

had been previously caught shoplifting, and could not re-enter the store. The employees detained Plaintiffs until a

security officer determined that the children were not the children who had been caught previously.

Synopsis of Rule of Law. False imprisonment occurs when a person confines another intentionally without lawful

privilege and against his consent within a limited area for any appreciable time, however short.

Facts. This case involves a claim for false imprisonment. In December, 1996, Ms. McCann and two of her children

were shopping at the Maine Wal-Mart store. After approximately an hour and a half, the McCanns went to a register

and paid for their purchases. As the McCanns were leaving the store, two Wal-Mart employees, stepped out in front

of the McCanns’ shopping cart, blocking their path to the exit. The employees told Plaintiff that the children were

not allowed in the store because they had been caught stealing on a prior occasion. Defendant’s employees had said

they were calling the police, but actually called a store security officer to identify the earlier shoplifter. Eventually,

the security officer, Rhonda Bickmore (Bickmore), arrived at the store and informed the employees that the

McCanns were not the family whose son had been caught shoplifting. The employees acknowledged their mistake to

the McCanns, and they left the store.

Issue. Did the conduct of Defendant’s employees constitute the tort of false imprisonment?

Held. The court affirmed the lower court’s decision, noting that Plaintiffs adequately proved the elements of false

imprisonment. The court ruled, however, that Defendant’s refusal to allow the 12-year old boy, to use the restroom

was not sufficiently outrageous to warrant the imposing of punitive damages.

Discussion. In false imprisonment, the defendant unlawfully acts to intentionally cause confinement or restraint of

the victim within a bounded area. Accidental confinement is not included and must be addressed under negligence or

strict liability. [See Restatement Section:Section: 35-45A.] The transferred intent doctrine is applicable.

* The victim must be confined in such a manner as to preclude his or her escape. The bounded area can be, however,

a large area, even an entire city. The confinement may be accomplished by (1) physical barriers; (2) force or threat of

immediate force against the victim, the victim’s family or others in her immediate presence, or the victim’s property;

(3) omission where the defendant has a legal duty to act; or (4) improper assertion of legal authority.

5. TORTS TO PROPERTY

A. Trespass to Land

- Intentional Entry: Trespass to land usually requires an intentional entry upon land of another. This might be

accomplished by personal entry or by intentionally causing an object to enter the land. The refusal to leave is now

considered a trespass

- Intent: The object of intent need not be “to trespass.” It is enough that defendant intended to enter the land. Once

intent is shown, the defendant does not escape liability merely because the defendant did not intend to harm

plaintiff’s property. Similarly, it is no defense that defendant reasonably believes that this is the defendant’s own

land or that there is a right to be there.

- Trespass and Nuisance: Trespass is an invasion of the plaintiff’s interest in the exclusive possession of his land,

while nuisance is an interference with his use and enjoyment of it.

- Extended Liability: The trespasser is liable for damages inflicted even if he never intended harm and could not

foresee it

B. Conversion of Chattels

- Intent: Conversion is an intentional tort. The defendant must intend to exercise substantial dominion over the

chattel.

- The factors important to imposing liability for interference include:

- Extent and duration of control

- The defendant’s intent to assert a right to the property

- The defendant’s good faith

- The harm done

- Expense or inconvenience caused

C. Trespass to Chattels

- Trespass to Chattels involves something short of conversion. Liability is based on actual damage

- It has traditionally involved the plaintiff’s tangible chattel; however, this has also extended to electronic

interferences

DEFENSES OF INTENTIONAL TORTS - PRIVILEGES

1. PROTECTING AGAINST APPARENT MISCONDUCT OF THE PLAINTIFF

Peters v. Menard

Brief Fact Summary. Store security officers believed Peters shoplifted a power drill.  Upon questioning him in the

parking lot, he fled on foot, and they pursued him off store premises for seven minutes.  Peters ran into the river and

drowned.  His estate sued the store in wrongful death and lost.

Synopsis of Rule of Law.  Merchants generally have the right to detain suspected shoplifters assuming the detention

is (1) with reasonable cause to believe a violation has occurred; (2) in a reasonable manner, and (3) for a reasonable

length of time.

Facts. Menard’s store security officer Wright observed Peters take a power drill out of the store and put it in his car

without paying for it.  Wright followed Peters out to his car and asked him to get out for questioning.  Peters fled on

foot and Wright and another officer named Kind pursued him on foot.  Peters ran into the flooded La Crosse River

and the fast-moving current pulled him under, drowning him.  Peters’ estate and family brought a wrongful death

suit against the store, Defendant Menards, Inc.  The Wisconsin Supreme Court found that Peters’ conduct was more

unreasonable than the store’s, barring plaintiff’s recovery under Wisconsin law.  Although not the deciding factor,

the court also discussed whether a Wisconsin store can be immune from liability for actions taken by security

officers in pursuing suspects off-premises, which is the primary purpose of this case study in the textbook.

Issue. Whether a merchant or its agents are immune from liability under Wisconsin law for actions taken in pursuit

of a suspected shoplifter that occur off of the merchant’s premises.

Held. Yes, so long as three reasonableness requirements are met.  Wisconsin statute § 943.50(3) permits merchants

to detain suspected shoplifters (1) with reasonable cause to believe a violation has occurred; (2) in a reasonable

manner, and (3) for a reasonable length of time.  To interpret whether this statute also limits liability for actions

taken off-premises, the court examined the statute’s construction.  The court found that the legislature specifically

excluded from the statute language from the Restatement of Torts § 120A that extends immunity only to those

detentions occurring “on the premises.”  That the Wisconsin statute contains no such phrase plainly suggests that the

legislature intended to allow merchants to follow suspects off the store’s premises to detain them.  Public policy

supports this construction, because to limit merchants from off-premises pursuits would increase shoplifting and

result in stores having to charge higher prices to make up for losses.  Furthermore, shoplifters would be encouraged

to dash out of stores off-premises, increasing injuries to innocent shoppers in the way.

Discussion. This decision introduces the concept of the common law “shopkeepers privilege” which allows

merchants to effect reasonable detentions of suspected shoplifters.  The shopkeeper’s privilege can also be used as a

defense against a false imprisonment claim made against a store by a detained suspected shoplifter.

Katko v. Briney

Brief Fact Summary. Marvin E. Katko (Plaintiff), filed an action for damages resulting from serious injury caused

by a shot from a 20-gauge spring shotgun. The shotgun was set by Edward and Bertha Briney (Defendants), in a

bedroom of an old farmhouse, which had been uninhabited for several years.

Synopsis of Rule of Law. The value of human life and limb both to an individual and as a matter of public policy

outweighs the potential damage to property. Thus, while a defendant may use reasonable force in defense of her

property, he has no right to willfully and intentionally injure a trespasser in a manner that may result in loss of life or

great bodily injury. The only exception is when the trespasser is committing a violent felony with the potential of

endangering human life.

Facts. Defendants inherited an unoccupied farmhouse and over the course of ten years the house was subject to a

series of break-ins. The property sustained considerable damage and despite boarding up the windows and posting

no trespass signs, the incidents continued. Defendants then set up a shotgun trap, where the gun was secured to an

iron bed with its muzzle pointed at the door. A wire was fastened from trigger to doorknob, pointed in such a manner

as to wound an intruder’s feet. When Plaintiff, having broken and entered on at least one prior occasion entered, the

gun went off, injuring Plaintiff’s right leg. A jury found for the Plaintiff, awarding both actual and punitive damages.

Defendants appealed.

Issue. Did Defendants employ a reasonable means of preventing the unlawful entry of trespassers on their property?

Held. No. The Supreme Court of Iowa affirmed the judgment because the use of spring guns to protect uninhabited

property was not permissible.

Dissent. The dissent opined that the majority wrongfully assumed that by installing a spring gun in the bedroom of

their unoccupied house, the Defendants intended to shoot any intruder who attempted to enter the room. The dissent

frames the issue in the following manner: there exist two definite issues of fact, i.e., did the Defendants intend to

shoot the invader, and if so, did they employ unnecessary and unreasonable force against him? The dissent asserts

that in its view there is no absolute liability for injury to a criminal intruder by setting up such a device on his

property unless done with an intent to kill or seriously injure the intruder.

* The dissent further objected to the awarding of punitive damages, contending that such an award is “court-made

law, not statutory law.” In sum, the dissent maintains that “under such circumstances as we have here the issue as to

whether the set was with an intent to seriously injure or kill an intruder is a question of fact that should be left to the

jury under proper instructions, and that the mere setting of such a device with a resultant serious injury should not as

a matter of law establish liability.”

Discussion. The question presented in Katko centers around the determination of the general privilege of an owner

to defend property and what level of force is reasonable to do so. The ruling in Katko is consistent with all other

areas of tort law with regard to the use of force, the standard being one of reasonableness. In short, an individual is

permitted to use a degree of force commensurate with the threat with which they are confronted. Thus, as here,

where the owner of the property in question is not faced with a threat of death or grave bodily injury, that owner

cannot do indirectly, by means of “a mechanical device that which, were he present, he could not immediately do in

person.”

2. PRIVILEGES NOT BASED ON PLAINTIFF’S CONDUCT

Surocco v. Geary

Brief Fact Summary. Alcalde of San Francisco (Defendant), in the midst of a massive fire, destroyed Plaintiff’s

house in an effort to stave off the fire.

Synopsis of Rule of Law. A person who tears down or destroys the house of another, in good faith, and under

apparent necessity, during a deadly fire, in an effort to save the adjacent buildings and to stop the fire’s progress,

cannot be held personally liable in an action by the owner in connection with the destroyed property.

Facts. In the midst of a raging fire, Geary (Defendant), in his capacity of public official, made the decision to

destroy Plaintiff’s building; it was subsequently blown up to stop the progress of the fire. Plaintiffs brought an action

against Defendant for the destruction of Plaintiffs’ house and store. The trial court awarded damages to Plaintiffs.

Issue. Can a person who, in good faith, destroys property out of public necessity in order to prevent greater damage

be held liable?

Held. The Supreme Court of California reversed the trial court’s award of damages to Plaintiffs, maintaining that the

court clearly erred; a person who destroys the house of another in good faith, and under apparent necessity, cannot

be held personally liable.

Discussion. The central legal tenet embodied in Surocco is that the private rights of the individual must yield to the

considerations and the interests of society. The court notes further “the right to destroy property, to prevent the

spread of a conflagration, has been traced to the highest law of necessity.” In other words, what under normal

circumstances would be a tortious act may be justified in exigent circumstances such as a raging fire.

* The court does take note of the role of the legislature with regard to issues of public policy, i.e., who makes the

determination as to which property may properly be destroyed during an emergency. Lawmakers, the court suggests,

should make determinations as to the manner in which such property may be destroyed, and the mode in which

compensation should be paid.

Vincent v. Lake Erie Transportation Co.

Brief Fact Summary. Plaintiffs sued for damage to their wharf that caused by defendant’s vessel, docked there

during a storm. A jury awarded damages and Defendant sought review.

Synopsis of Rule of Law. Where one reasonably believes his interests outweigh the loss or harm another may incur,

his conduct is privileged. That person will be held liable, however, to the extent he or she causes damage to

another’s property or land.

Facts. Plaintiffs owned a wharf where ships docked to unload cargo. Defendant owned a ship that docked at

plaintiffs’ wharf in foul weather. Defendant’s ship damaged plaintiffs’ wharf during a storm. Plaintiffs brought an

action against defendant to recover for the damages to their wharf. The trial court denied defendant’s motion for a

directed verdict and entered judgment in favor of plaintiffs, and denied defendant’s motion for a new trial.

Issue. Are plaintiff’s entitled to compensation for damages even where Defendant acted prudently and by necessity?

Held. Yes. Where those in charge of a sea vessel deliberately and by their direct efforts hold that vessel in such a

position that the damage to another’s dock results, and, having thus preserved the ship at the expense of the dock,

her owners are responsible to the dock owners to the extent of the injury inflicted.

Dissent. The dissent takes the view that the case is one of contract and not tort. In entering into an agreement with

the ship owner, plaintiff assumed the risks inherent in such a venture. Further, the dissent asserts that the vessel’s

owner exercised due care thus ameliorating further his liability.

Discussion. Vincent illustrates an instance where the defense of private necessity is introduced and examined.

Essentially, the defense holds that private necessity exists when the individual appropriates or injures a private

property interest to protect a private interest valued greater than the appropriated or injured property. Nevertheless,

courts attempt to balance such necessity with the dictates of equitable relief. In other words, private necessity is not

a complete defense. A defendant is privileged to interfere with another’s property, but will be held liable for the

damage. As the court in Vincent analogized, “A starving man may, without moral guilt, take what is necessary to

sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the

property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the

taking of private property for public purposes; but under our system of jurisprudence compensation must be made.”

Thus, the order of the lower court awarding damages was

II. NEGLIGENCE

1. DUTY

A. THE GENERAL DUTY OF CARE: THE PRUDENT PERSON STANDARD

Stewart v. Motts

Brief Fact Summary. John Stewart (Appellant) suffered burns after an accident in Motts’ (Appellee) auto body

shop after the automobile on which they were jointly working ignited. The Superior Court of Pennsylvania affirmed

a judgment in favor of Appellee in Appellant’s negligence action seeking damages for personal injuries. Appellant

sought review.

Synopsis of Rule of Law. The standard of reasonable care applies to all negligence actions, i.e., the reasonable

person must exercise care in proportion to the danger involved in his act, and that he or she must exercise such care

not only for his own safety and the protection of his property but also to avoid serious injury to others.

Facts. Plaintiff stopped at Defendant’s auto repair shop to assist in repairing a car’s fuel tank. The tank was

unattached, and Plaintiff suggested pouring gasoline into the carburetor in an attempt to start the vehicle. The car

backfired, and in the ensuing explosion Plaintiff suffered severe burns. At trial, Plaintiff requested a jury instruction

directing the application of a standard of a “high degree” of care in instances of elevated danger. The judge declined,

the jury found for Defendant and Plaintiff appealed.

Issue. Does there exist a higher standard of “extraordinary care” for the use of dangerous instrumentalities over and

above the usual standard of “reasonable care” to be applied in negligence actions?

Held. No. The court reaffirmed the principle that that there is only one standard, that of “reasonable care” to be

applied uniformly in negligence actions.

Discussion. In any action for negligence, a plaintiff must establish that four elements are met: duty, breach,

causation, and harm. The Defendant must owe a duty to plaintiff, breach that duty and, as a result, the plaintiff must

suffer harm. The defendant’s actions must be the proximate, or legal, cause of the injury suffered.

The standard of care is the level of conduct demanded of a person so as to avoid liability for negligence. Failure to

meet this standard is characterized as breach of duty.

As a general rule, adults must ordinarily act with reasonable care, i.e., as a reasonable person would under like or

similar circumstances. Children are expected to act with the degree of reasonable care as would a child of similar

age, intelligence and experience. However, when a child is engaged in an adult activity, it is certain that the child is

expected to act as a reasonable adult engaged in the same activity.

Professionals (i.e., physicians, attorneys, etc.) are expected to exercise the degree of care appropriate to the

standards of other professionals in that, or similar, community.

The court in Stewart stated concisely: “[The law] recognizes only one standard of care in negligence actions

involving dangerous instrumentalities-the standard of reasonable care under the circumstances. It is well established

by its case law that the reasonable man must exercise care in proportion to the danger involved in his act.” Thus, the

trial judge’s declining to instruct the jury to apply a separate standard was proper and the appellate court accordingly

affirmed the trial court’s ruling.

Bjorndal v. Weitman

Brief Fact Summary. Defendant’s vehicle collided with plaintiff’s vehicle on the highway while plaintiff was in the

process of slowing down and turning to pick up her father, whose car had broken down on the side of the road. 

Plaintiff sued Defendant for negligence and lost at trial, but won her appeal based on the trial court’s erroneous jury

instructions on the legal standard for negligence.

Synopsis of Rule of Law. A person is negligent if he fails to exercise reasonable care, a standard that is measured by

what a reasonable person of ordinary prudence would or would not, do in the same or similar circumstances.

Facts.  Plaintiff was driving down the highway looking for her father, whose car had broken down along the

highway.  When she spotted her father waving his arms on the side of the road, she rapidly decelerated and started to

make a left hand turn into a snowpark on the left side of the road.  Defendant, upon seeing the father waving his

arms, assumed that there may be an emergency situation and glanced left to scan the horizon for a potential problem. 

When he returned his eyes to the road, he saw that Plaintiff had slowed rapidly.  To avoid a collision, Defendant

planned to pass Plaintiff on her left hand side, but because she was starting to make a left hand turn, he collided with

her.  She sued for negligence.  At trial, the court gave a jury instruction on negligence that pertains to “emergency”

situations, which provides, “People who are suddenly placed in a position of peril through no fault of their own and

who are compelled to act without opportunity for reflection, are not negligent if they make a choice as a reasonably

careful person placed in such a position might make, even though they do not make the wisest choice.”  The jury

found defendant not negligent, and the plaintiff appealed, arguing that the jury instruction was an inaccurate

statement of negligence law.  The Supreme Court reversed.

Issue.  Whether the trial court committed error by providing a jury instruction on negligence pertaining to

“emergency” circumstances.

Held. Yes.  A person is negligent if he fails to exercise reasonable care, a standard that is measured by what a

reasonable person of ordinary prudence would or would not, do in the same or similar circumstances.  The

emergency instruction, however, tells the jurors that if there was an emergency, they nevertheless may conclude that

the actor was not negligent even if he made a choice that was not the “wisest choice”.  Jurors would understandably

view that instruction as permitting them to find a defendant not negligent even when he makes an unwise choice. 

The reasonable care standard does not mean that a defendant is not negligent simply because an unwise choice was

made in the context of an emergency.  Accordingly, the court concluded that the emergency instruction misstated the

law and was likely to confuse the jury as to the correct legal standard, thus substantially affecting plaintiff’s rights.

Discussion. This decision explains the standard of care requirement for negligence and highlights the controversy

surrounding “emergency” instructions.  Several courts have said that the idea behind the emergency instruction is

adequately covered by the instruction defining the reasonable care standard and that the separate emergency

instruction should never be given

Creasy v. Rusk

Brief Fact Summary. Carol Creasy (Plaintiff), a certified nursing assistant, sued Rusk (Defendant), an Alzheimer’s

patient, for injuries she suffered when Defendant kicked her while she was trying to put him to bed.

Synopsis of Rule of Law. A person with mental disabilities is generally held to the same standard of care as that of a

reasonable person under the same circumstances without regard to the alleged tortfeasor’s capacity to control or

understand the consequences of his or her actions. However, exceptions to this general rule that a person with mental

disabilities is generally held to the same standard of care as that of a reasonable person under the same

circumstances will arise when the factual circumstances negate the factors supporting imposition of a duty,

particularly with respect to the nature of the parties’ relationship and public policy considerations.

Facts. Plaintiff, a certified nursing assistant, sued Defendant, an Alzheimer’s patient, for injuries she suffered when

he kicked her while she was trying to put him to bed. Plaintiff filed a civil negligence suit against Defendant seeking

monetary damages for the injuries she suffered as a result of Defendant’s conduct. Defendant moved for summary

judgment, which was granted by the trial court. Creasy appealed. The court of appeals reversed, holding “that a

person’s mental capacity, whether that person is a child or an adult, must be factored [into] the determination of

whether a legal duty exists.”

Issue. Is the general duty of care imposed upon adults with mental disabilities the same as that for adults without

mental disabilities?

* Whether the circumstances of Defendant’s case are such that the general duty of care imposed upon adults with

mental disabilities should be imposed upon him?

Held. Judgment of the trial court was affirmed and summary judgment was granted in favor of Defendant because

the relationship between the parties and public policy considerations were such that Defendant owed no duty of care

to Plaintiff.

Dissent. Associate Justice Dickson of the Indiana high court filed both a dissent and a concurrence. In the former,

rejecting the majority’s reasoning, the Associate Justice, citing an Indiana precedent, rejected the notion that the

Plaintiff had “impliedly assumed the risk of injury in the primary sense, based upon (her) choice of occupation.”

Instead, the dissent argued, such a standard would place at risk any number of individuals who by dint of their

professional status are placed in potentially volatile situations. He notes: “It is not only unfair but also extremely

unwise social policy to deprive, as a matter of law, such professionals of the tort remedy to which other victims of

negligence are entitled.”

Concurrence. Conversely, Associate Justice Dickson asserts that the majority opinion smacks of inconsistency-and

concurs in the majority’s assertion that “a person with a mental disability owes a duty of reasonable care.”

Discussion. To establish a prima facie case for negligence, a plaintiff must, by a preponderance of the evidence

establish each of the following elements (that is, by more than 50%): duty, standard of care, breach of duty, cause-in-

fact, proximate cause (scope of liability) and damages.

* With regard to the threshold issue, the court in Rusk the court addresses the duty of care owed by one with mental

disabilities: “Mental disability does not excuse a person from liability for conduct which does not conform to the

standard of a reasonable man under like circumstances.” Further, the court notes, historically,” People with mental

disabilities are commonly held liable for their intentional and negligent torts. No allowance is made for lack of

intelligence, ignorance, excitability, or proneness to accident.” There are, however, exceptions “[A] person with

mental disabilities is generally held to the same standard of care as that of a reasonable person under the same

circumstances will arise where the factual circumstances negate the factors supporting imposition of a duty,

particularly with respect to the nature of the parties’ relationship and public policy considerations. The court then

provides a matrix for the balancing of three factors to determine whether an individual owes a duty to another: (1)

the relationship between the parties; (2) the reasonable foreseeability of harm to the person injured; and (3) public

policy concerns.

* As pertaining to this plaintiff, and others similarly situated, the court concluded, “Public safety officials and

caregivers are specifically hired to encounter and combat particular dangers, and by accepting such employment

assume the risks associated with their respective occupations.”

Robinson v. Lindsay

Brief Fact Summary. This was a personal injury action brought on behalf of Kelly Robinson, a minor, involved in a

snowmobile accident. The jury found in favor of Billy Anderson (Defendant), also a minor, who was operating the

vehicle at the time of the accident. The trial court ordered a new trial, because there had been an improper

instruction. The court of appeals affirmed the trial court’s judgment. Defendants appealed.

Synopsis of Rule of Law. When the activity a child engages in is inherently dangerous, as is the operation of

powerful mechanized vehicles, the child should be held to an adult standard of care.

Facts. Defendant was operating a snowmobile and was involved in an accident. Plaintiff was injured as a result, and

lost full use of her thumb.

Issue. Should a minor operating a snowmobile be held to an adult standard of care?

Held. Yes. The Supreme Court of Washington affirmed the lower courts’ holdings, stating that because Defendant

had engaged in the inherently dangerous activity, the operation of a snowmobile, he should have been held to an

adult standard of care.

Discussion. With regard to minors and the duty of care, in most jurisdictions, children are held to a standard that

compares their conduct to other reasonable children of the same age, experience, and intelligence under like

circumstances. Such a standard allows the jury to consider the child’s particular qualities such as experience and

intelligence. When, as here, children are engaged in adult or inherently dangerous activities they are held to the same

standard as adults. As the court explained in Robinson, “[t]he care or caution required is according to the capacity of

the child, and this is to be determined ordinarily by the age of the child. A child is held only to the exercise of such

degree of care and discretion as is reasonably to be expected from children of his age.” As the court concluded, “The

operation of a snowmobile requires adult care and competence because it is a powerful motorized vehicle.”

B. SPECIFICATION OF PARTICULAR STANDARDS OR DUTIES

Chaffin v. Brame

Brief Fact Summary. Brame (Defendant) parked his vehicle on a highway at night without warning lights or

signals. Chaffin (Plaintiff) collided with the truck, and the driver filed an action for property damage. The trial court

in Lincoln County (North Carolina) entered the jury’s verdict that the Plaintiff was damaged by the truck driver’s

negligence and that the Plaintiff driver was not contributorily negligent. Defendant appealed.

Synopsis of Rule of Law. A person is not bound to anticipate negligent acts or omissions on the part of others; but

in the absence of anything which gives or should give notice to the contrary, he is entitled to assume and to act upon

the assumption that every other person will perform his duty and obey the law and that he will not be exposed to

danger which can come to him only from the violation of duty or law by such other person.

Facts. Defendant conceded negligence in parking his truck on the traveled portion of the highway at night without

displaying lights or warning signals. He asserted, however, that the driver of the other vehicle was guilty of

contributory negligence as a matter of law because he did not control his car sufficiently in order to stop within the

range of the Plaintiff’s driver’s lights.

Issue. Was Plaintiff guilty of contributory negligence in his failure to avert collision with the parked vehicle?

Held. The court ruled that Plaintiff had no reason to anticipate that the Defendant’s truck had been left standing on

the traveled portion of the highway ahead of him without lights or warning signals. He did everything possible to

avert the collision as soon as the truck became visible, and thus Plaintiff was not guilty of contributory negligence as

a matter of law.

Discussion. According to the Restatement Section 463, contributory negligence is “conduct on the part of the

plaintiff which falls below the standard of conduct to which he should conform for his own protection, and which is

a legally contributing cause . . . in bringing about the plaintiff’s harm.” Thus, in some instances, assignment of

liability is possible when it has been determined as a matter of law that the Plaintiff was contributorily negligent in

the damages resulting from the incidents at issue. Contributory negligence is a complete defense to negligence

except in those jurisdictions that adhere to comparative negligence jurisprudence.

O’Guin v. Bingham County

Brief Fact Summary. Plaintiff’s children were playing in the Bingham County landfill when a wall collapsed and

killed them.  Plaintiffs sued the County under a negligence per se theory, arguing that the County’s failure to fence

the boundaries of the landfill, as required by state statutes and federal regulations, caused the children’s deaths.

Synopsis of Rule of Law. To make a prima facie claim for negligence per se, the following elements must be met:

(1) the statute must clearly define the required standard of conduct; (2) the statute must have been intended to

prevent the type of harm the defendant’s acts or omissions caused; (3) the plaintiff must be a member of the class of

persons the statute was designed to protect; and (4) the violation must have been the proximate cause of the injury.

Facts. Shaun, Alex, and Frank Jr. O’Guin ate lunch at a summer school program then proceeded to walk home.  The

children went through an unlocked gate at the back of the schoolyard, through a privately owned empty field, and

into an unobstructed landfill pit to play.  A section of the pit wall collapsed and crushed Shaun and Alex, killing

them.  Their bodies were initially discovered by Frank Jr.  Their parents sued the County for negligence per se,

relying on Idaho statutes and federal regulations which require the County to fence or block access to the landfill

when an attendant is not on duty.  The trial court granted summary judgment for the County, the O’Guins appealed

and won, resulting in a reversal of the trial court’s judgment. 

Issue. Whether the O’Guins have an actionable claim for negligence per se against the County.

Held.  Yes.  In order to replace the common law duty of care with that imposed by a statute, the following elements

must be met: (1) the statute must clearly define the required standard of conduct; (2) the statute must have been

intended to prevent the type of harm the defendant’s acts or omissions caused; (3) the plaintiff must be a member of

the class of persons the statute was designed to protect; and (4) the violation must have been the proximate cause of

the injury.  In analyzing these requirements, the court held that the applicable statutes and regulations (1) clearly

required boundaries on the landfill and that the County failed to meet that standard; (2) were intended to protect

health and human safety; (3) were intended to protect against entry of unauthorized person such as the O’Guin

children; and (4) that there was a disputed issue of fact as to whether the County’s violation proximately caused the

children’s deaths.  Accordingly the court reversed the trial court’s grant of summary judgment to the County.

Discussion. This decision introduces the theory of negligence per se.  The effect of establishing negligence per se

through a violation of a statute is to conclusively establish the first two elements of a cause of action in negligence:

duty and breach.  Negligence per se lessens the plaintiff’s burden only on the issue of the actor’s departure from the

standard of conduct required of a reasonable person. 

Impson v. Structural Metals, Inc.

Brief Fact Summary. The original action in this case arose out of a highway accident between a truck owned and

operated by Structural Metals and Joe Polanco (Defendants) respectively, and an automobile in which three people

were killed, including Mrs. Impson, and two others were injured (Plaintiffs). The trial judge ruled that Polanco was

negligent as a matter of law and entered judgment for the Plaintiffs. The appeals court held that Defendant had

submitted excuses sufficient excuses that the issue of negligence should be brought before a jury. Plaintiffs appealed.

Synopsis of Rule of Law. Where a party violates a statute, he must present some legally substantial excuse or

justification.

Facts. Polanco’s truck attempted to pass the car within a prohibited distance of a highway intersection. The car

turned left into the intersection and was struck by the Polanco, who was attempting to pass the car in the left hand

lane.

Issue. What excuses and/or justifications are legally acceptable in a negligence action?

Held. The court affirmed the trial court’s ruling that there was no evidence offered of any legally acceptable excuse

or justification. The violation was, as a matter of law, unexcused. Plaintiffs were thus entitled to a judgment.

Discussion. An excused violation of a legislative enactment is not negligence. Excusable violations (not exclusive),

fall into five categories, including, but not limited to: a) the violation is reasonable because of the actor’s incapacity;

b) he neither knows nor should know of the occasion for compliance; c) he is unable after reasonable diligence or

care to comply; d) he is confronted by an emergency not due to his own misconduct; and e) compliance would

involve a greater risk of harm to the actor or to others. Restatement of Torts (Second) (1965).

2. BREACH OF DUTY

A. ASSESSING REASONABLE CARE BY ASSESSING FORESEEABLE RISKS AND COSTS

Pipher v. Parsell

Brief Fact Summary. Plaintiff and another were passengers in Defendant’s car.  The other passenger yanked

Defendant’s steering wheel causing the car to swerve, but Defendant regained control and did not do anything about

it.  The passenger again yanked the wheel, causing the car to veer off the road and hit a tree, resulting in injuries to

plaintiff.  Plaintiff sued Defendant for negligence.

Synopsis of Rule of Law. When actions of a passenger that interfere with the driver’s safe operation of the motor

vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or

the public.

Facts. Plaintiff Pipher was a passenger in Defendant Parsell’s car along with a third person named Beisel.  All three

were 16 years old.  As they were traveling at 55 mph, Beisel unexpectedly grabbed the steering wheel causing the

truck to veer off onto the shoulder of the road.  Parsell regained control but did nothing in response to Beisel’s

dangerous action other than laugh about it.  Thirty seconds later, Beisel again yanked the steering wheel, causing

Parsell’s truck to leave the roadway, slide down the embankment, and strike a tree, injuring Pipher.  She sued Parsell

for negligence, the trial court granted summary judgment for Defendant, and the appellate court disagreed, finding

that the issue of negligence should have been submitted to the jury. 

Issue. Whether a driver has a duty to prevent unsafe conduct by passengers that could interfere with his safe driving

and ultimately harm his passengers.

Held. Yes.  A driver owes a duty of care to his passengers because it is foreseeable that they may be injured if,

through in attention or otherwise, the driver involves the car he is operating in a collision.  Pipher argued that after

Beisel grabbed the steering wheel initially, Parsell was on notice that a dangerous situation could reoccur in the

truck.  At this point, plaintiff argued that Parsell had the duty to exercise reasonable care to protect his passengers

from that harm, and was negligent because he kept driving without attempting to address that risk.  The court held

that when actions of a passenger that interfere with the driver’s safe operation of the motor vehicle are foreseeable,

the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or the public.

Discussion. This decision highlights the role of foreseeability in proving negligence.  Foreseeability of harm is

central to the issue of whether a person’s conduct fell below the standard of care. 

Indiana Consolidated Insurance Co. V. Mathew

Brief Fact Summary. This is an appeal from Indiana Consolidated Insurance (Appellant) that claimed that Robert

D. Mathew (Appellee) acted negligently and contributed to the destruction, by fire, of his brother’s garage when a

riding lawnmower ignited.

Synopsis of Rule of Law. The central concept illustrated by this case is the sudden emergency doctrine which holds

that when a person is confronted with an emergency not of his or her own making, he is expected to act in the same

manner as that of the ordinary, prudent person and cannot be charged as negligent when acting in accordance with

his or her best judgment.

Facts. Appellee was attempting to start a riding lawnmower in his brother’s garage when the lawnmower caught fire.

Appellee tried, unsuccessfully, to extinguish the flames. He then ran to his home to call the fire department. He

returned to discover the garage completely engulfed. Indiana Consolidated Insurance sued Appellee, alleging that he

negligently breached the duty to exercise due care in starting the lawnmower and thus was liable for the resulting

damages.

Issue. Is a person considered to be negligent if he acts in his best judgment, and that judgment is consistent with that

of an ordinary prudent person?

Held. Appellee was not negligent as he exercised the judgment of an ordinary, prudent person.

Discussion. A person is deemed negligent when his/her conduct results in an unreasonable risk of harm. In assessing

reasonableness, a court will consider a number of factors, primarily how another, in the same circumstances, would

likely act. This is known as the reasonable person standard, i.e., the ordinary and prudent judgment a reasonable

person would exercise. Here, the question is how a reasonable person would react when an emergency suddenly

arises. A court will, as here, examine the person’s conduct leading up to the emergency. Here, the court found that

Appellee exercised the due care that an ordinary, prudent person would “under the same or similar circumstances.”

The court held that he did, and upheld the lower court’s ruling.

Stinnett v. Buchele

Brief Fact Summary. This is an appeal from a farm employee, Stinnett (Appellant) challenging a grant of summary

judgment to his employer, Buchele (Appellee) in an action by Appellant for injuries suffered when he fell off a barn,

which was painting. Appellant maintained that the injuries were sustained during the course and scope of

employment, the employer, Appellee, had a duty to provide a safe work environment, and as a result, he was entitled

to the recovery of damages.

Synopsis of Rule of Law. An employer cannot be required to guarantee an absolutely safe place of employment. An

employer is required to take reasonable and prudent steps to ensure safety, and there is no responsibility for

additional steps “where the employees’ means of knowledge of the dangers to be incurred is equal to that of the

employer.”

Facts. The farm employee, Appellant, was injured when he fell off a barn roof and brought an action against the

employer, Appellee, claiming negligence in the failure to comply with safety regulations requiring the installation of

safety nets for work in elevated areas and failure to provide a safe place to work. The trial court granted summary

judgment to the Appellee, because it determined that the safety regulations did not create an independent cause of

action against an employer. Further, there was no evidence that the Appellee had sufficient familiarity with the

circumstances at the farm location that he had a duty to the farm employee, Appellant, to discharge. Appellant

asserted that Appellee was required to provide a safe work place. The court affirmed the grant of summary

judgment, holding that under such circumstances, Appellee could not be required to guarantee absolute safety.

Finally, the court concluded, when the employee’s knowledge is greater than the employer’s knowledge, the

employer does not have a duty to the employee.

Issue. To what degree is an employer required to provide a safe working environment?

Held. There was no showing of any negligence on the part of Appellee arising solely out of the fact that he had

asked Appellant to paint the barn roof.

Discussion. As the Stinnett court observes: “[t]he liability of the employer rests upon the assumption that the

employer has a better and more comprehensive knowledge than the employees, and ceases to be applicable where

the employees’ means of knowledge of the dangers to be incurred is equal to that of the employer.” Further, while

several federal statutes provide for various forms of workers compensation, in certain instances employees are

excluded from such protection, and must seek remedies through tort actions.

Bernier v. Boston Edison Co.

Brief Fact Summary. This is an appeal of a United States District Court (Massachusetts) judgment in favor of

Bernier (Plaintiff) in consolidated actions for injuries suffered when an automobile knocked over an electric pole

and struck teenagers as they walked down a sidewalk.

Synopsis of Rule of Law. A manufacturer is required to “anticipate the environment on which its product will be

used, and it must design against the reasonably foreseeable risk attending the use in that setting.”

Facts. After a collision in a suburban Massachusetts intersection, one Defendant, motorist Alice Ramsdell

(Defendant), became dazed and inadvertently allowed her foot to slip from the brake to the gas pedal. She collided

with another driver, John Boireau, and then accelerated across the street and down a sidewalk, where she knocked

down an electric light pole owned by Boston Edison Company. (Defendant) The pole struck the teenagers as they

walked along the sidewalk. Both were injured and instituted actions against both drivers, and Boston Edison

Company (Defendants). The jury returned verdicts against one driver and Boston Edison Company.

Issue. Is a manufacturer negligent if, in its product design, it fails to sufficiently anticipate the various circumstances

in which its product may not properly perform and create unreasonable risk of injury?

Held. The court held that “[a]s designer or co-designer of the pole and in control of its maintenance, Boston Edison

Company must anticipate the environment in which its product will be used, and it must design against the

reasonably foreseeable risks attending the product’s use in that setting,” and thus bore liability in connection with

the design and maintenance of the electric light pole.

Discussion. Foreseeability of risk lies at the heart of any negligence action focusing on product liability. A

manufacturer is assumed to possess expertise with respect to the manner and circumstances in which its product will

perform. Here, at issue is whether an electric light pole can be designed in such a manner as to anticipate vehicular

collision and the likelihood of resulting injury. Courts expect a manufacturer to take into consideration the totality of

circumstances, i.e., that vehicular collisions are likely and prudent precautions are expected to be taken, so as to

minimize the risk of injury to pedestrians. In essence, a manufacturer is expected to employ a design optimally

suited to avert such risk, and that such risk should be the primary consideration during the design process.

United States v. Carroll Towing Co.

Brief Fact Summary. A district court held Appellant (Conners Co.) partly liable for damage to a barge and for lost

cargo by not having an attendant aboard the barge when it broke free from a pier. Appellant sought review.

Synopsis of Rule of Law. There is no general rule to determine when the absence of an attendant will make the

owner of the barge liable for injuries to other vessels if she breaks away from her moorings. If he is found to be

liable for injuries to others, then he must reduce his damages proportionately, if the injury is to his own barge.

Vessels invariably suffer accidents. The owner’s duty, as in other similar situations, to prevent against resulting

injuries is a function of three variables: (1) The probability of the kind of incident in question; (2) the gravity of the

resulting injury; and (3) the burden of adequate precautions.

Facts. Appellant owned a barge, which was chartered by a railroad company. The barge, with a cargo of flour owned

by the United States, was moored to the end of the pier. Appellant chartered a tug company, Carroll Towing Co.

(Appellee) to drill out one of the barges. Appellee went aboard the barge and readjusted its mooring lines. The barge

broke free of the mooring lines due to this readjustment. The Barge hit a tanker, and the tanker’s propeller broke a

hole in the barge. The barge careened, dumped her cargo, and sank. No one was aboard at the time. Appellee argued

that is someone was aboard the barge to observe it leaking after it broke free, the cargo and the barge could have

been saved.

Issue. At issue is whether the Appellants should be held partly liable for damage to the barge and for the lost cargo

by not having an attendant aboard the barge when it broke free from the pier.

Held. Appellants held partly liable. The court applied the “burden was less than the injury multiplied by the

probability” formula and found that the burden of having an attendant aboard the barge was less than the gravity of

injury of a runaway barge multiplied by the probability that the barge would break free if unattended.

Discussion. The Carroll case is noteworthy in that it utilizes a balancing test to determine whether a breach of the

duty of ordinary care occurred. Most courts employ Judge Hand’s formulation: a comparable risk-benefit model. The

Hand formulation provides that an actor is in breach if the burden of taking measures to avoid the harm would be

less than the multiple of the probability of the kind of incident in question times the gravity of the harm should it

occur, or B<PxL.

B. PROVING AND EVALUATING CONDUCT

-PROVING

Santiago v. First Student, Inc.

Brief Fact Summary. Plaintiff alleged that in 1997, when she was in the eighth grade and being transported one of

Defendant’s school busses, it collided with a car.  As a result of the collision, plaintiff claimed that the right side of

her face hit the seat in front of her and she was injured.  She sued Defendant for negligence.  The trial court granted

summary judgment for the Defendant and judgment was affirmed.

Synopsis of Rule of Law. When actions of a passenger that interfere with the driver’s safe operation of the motor

vehicle are foreseeable, the failure to prevent such conduct may be a breach of the driver’s duty to his passengers or

the public.

Facts. Plaintiff alleged that in 1997 she was in the eighth grade and being transported one of Defendant’s school

busses.  She claimed that the bus was approaching a stop sign and that she jerked forward when the bus driver

applied the brakes and the bus collided with the car.  As a result of the collision, plaintiff claimed that the right side

of her face hit the seat in front of her and she was injured.  There was no police report, plaintiff did not see the

collision, nor could plaintiff identify the street or intersection where the alleged collision occurred.  She sued the

Defendant bus company for negligence.

Issue. Whether a finding of negligence can be premised on mere conclusory allegations of negligent conduct.

Held. No.  Plaintiff was unable to describe any actions on the part of the driver of the unidentified car or the

unidentified bus driver relating to the accident.  Plaintiff could recall no details of the collision nor could she offer

any witnesses who could.  The plaintiff attempted to justify a lack of evidence to support her case by pointing to the

nature of the accident.  However, the fact that the plaintiff’s case may be extremely difficult to prove does not

relieve her of the burden of presenting sufficient evidence to demonstrate the existence of a material question of fact.  

The court found that to assign negligence to the Defendant based on the limited evidence on the record would

impermissibly cross the line from reasonable inference and venture into the realm of rank speculation.  Because the

plaintiff could not meet that burden in this case, the defendant was entitled to summary judgment.

Discussion. A plaintiff must prove each element of a civil case by the preponderance of the evidence.  Accordingly,

a defendant’s negligence must be shown to be more probable than not.  The trier of fact must reasonably believe that

the probability of negligence exceeds one-half.  Mere conclusory allegations are not enough to prove negligent

conduct.

Upchurch v. Rotenberry

Brief Fact Summary. The Oktibbeha County Circuit Court (Mississippi) entered judgment in favor of appellee

Rotenberry in connection with a car accident in which appellant’s son died. Appellant, the decedent’s mother

challenged the judgment denying her motion for judgment notwithstanding the verdict or for a new trial in her

personal injury action.

Synopsis of Rule of Law. The jury is the judge of the weight of the evidence and the credibility of the witnesses. An

appellate court will not intrude into the realm of the jury by determining the credibility of a witness and making

findings of fact. The jury is the judge of the weight of the evidence and the credibility of the witnesses.

Facts. In October 1992 Teresa Rotenberry was driving a car in which Timothy Upchurch was the sole passenger.

Rotenberry lost control of the vehicle, veered off the road, and struck a tree. Upchurch dies from resulting injuries.

Rotenberry was the only witness. She claimed that a large animal had darted in front of her car, causing her to lose

control. A jury concluded that Rotenberry’s explanation was factual and thus found in defendant’s favor.

Issue. May an appellate court grant motion for judgment notwithstanding the verdict when the issue is the

determination of fact?

Held. The court held that a reasonable and fair-minded jury could reach different conclusions of fact, and that it is

the jury, not the court, which properly makes such determinations.

Dissent. The dissent questioned the manner in which the majority framed the issue, i.e., if the matter of factual

determination properly rests with a jury. Rather, the dissent focused on the matter of culpability: “The question is,

was there any negligence on her part in the one-car crash? Since there was absolutely no negligence on the part of

the passenger, a finding of 1% negligence or more by Rotenberry would warrant recovery.” Thus, the dissent took

the view that “[a] directed verdict should have been granted as to liability and the jury should have only determined

damages.”

Discussion. In its opinion the Upchurch court provides a textbook explication of the respective roles of the court and

jury with respect to determination of fact: “The resolution of disputed facts is a duty that devolves upon the jury

sitting as finders of fact. They are charged with listening to the witnesses, observing their demeanor, and coming to

their own conclusions of which evidence they find more credible. The system of jurisprudence has determined that

citizen jurors, employing their native intelligence and collective life experiences, are best qualified to make those

judgments. Absent some clear indication that the jurors in a particular case somehow ignored that duty, neither the

trial court, nor an appellate court reviewing the record on appeal, are permitted to interfere in the conclusions

reached by these jurors.”

-EVALUATING

Thoma v. Cracker Barrel Old Country Store, Inc.

Brief Fact Summary. In a slip and fall case, the Circuit Court for Leon County (Florida) granted Cracker Barrell

Restaurant (Appellee’s) motion for summary judgment, dismissing Deborah Thoma’s (Appellant’s) complaint.

Appellant challenged the order.

Synopsis of Rule of Law. To recover for injuries incurred in a slip and fall accident, plaintiff must show that the

premises owner either created a dangerous condition or had actual or constructive knowledge of a dangerous

condition. Notice of a dangerous condition may be established by circumstantial evidence, such as evidence leading

to an inference that a substance has been on the floor for a sufficient length of time such that in the exercise of

reasonable care the premises owner should have known the condition.

Facts. Appellant claimed to have suffered a back injury when she fell in a Cracker Barrel Restaurant in September,

1990. After eating breakfast, Thoma was walking away from her table when her left foot slid out from under her.

She fell in the middle of a common aisle, near the passage from the kitchen to the restaurant. When Thoma got up,

she noticed that area in which she fell was wet, covered in a small puddle of clear liquid. She contends the liquid

was what caused her fall. Thoma was in the restaurant about thirty minutes prior to her accident, and during that

time, she did not see anyone spill any liquid on the floor where she fell. She alleged that Cracker Barrel was

negligent in failing to maintain the floor in that particular area of the restaurant.

Issue. Was summary judgment proper where, in viewing the evidence in a light most favorable to the plaintiff, there

existed a question as to whether employees exercised due diligence in maintaining the safety of the area in question?

Held. No. Reversed and remanded. The court reversed the grant of summary judgment, holding that it was for a jury

to decide whether appellant could establish by a preponderance of the evidence that Appellee created a dangerous

condition in its restaurant.

Discussion. To recover for negligence, a plaintiff must establish each of the following elements by a preponderance

of the evidence: duty, standard of care, breach of duty, proximate cause, and damages. The standard of care in

negligence law requires a defendant to act as a reasonably prudent person would in the same or a similar situation. If

a defendant meets this standard, he is shielded from liability. Failure to act in such a fashion constitutes

unreasonable conduct and, thus, is a breach of duty. The reasonable person standard is an objective one, comparing a

defendant’s conduct to that of a reasonable person.

In Thoma, the court concluded that there existed enough evidence that a jury might infer negligence, thus there

existed an issue of material fact sufficient to preclude a grant of summary judgment.

The T.J. Hooper

Brief Fact Summary. Defendant, owner of two barges and third-party defendant owner of two tugs appealed an

interlocutory decree from the District Court of the United States for the Southern District of New York, which

declared the tugs and the barges jointly and severally liable to plaintiff cargo owners, because all of the vessels were

unseaworthy.

Synopsis of Rule of Law. There are precautions so imperative that even their universal disregard will not excuse

their omission.

Facts. Plaintiffs sued Defendant, who is the owner of barges, which sank in a storm. The latter then sued third-party

defendant, who is the owner of tugs, which towed the barges. The trial court found all of the vessels to be

unseaworthy, and held each tug and barge jointly and severally liable to Plaintiffs. Both Defendants appealed. The

court affirmed, holding that the barges were unseaworthy in fact, and that their owners did not take reasonable

precautions to make them seaworthy as required by its charter. The barges could not withstand coastal storms,

leaked badly under weather-related stress, and their pumps were not properly inspected. The court also upheld the

principal finding that the tugs were unseaworthy, because they did not have radio sets with which they could receive

weather reports, even though such sets were not standard in the industry.

Issue. Did the fact that there was an industry custom that tugs did not carry radios relieve Defendants of their

responsibility to maintain radios?

Held. No. While certain courts had held that the industry standard constituted proper diligence, courts have an

obligation to set a standard consistent with prudence and proper caution.

Discussion. Though the context is maritime law, and Judge Hand’s standard of prudence is set against the possible

exculpatory weight of the standards of industry, at its core the standard applied in The T. J. Hooper is really the most

common standard of care in negligence law: one that requires the Defendant to act as would a reasonably prudent

person in the same or similar circumstances. If the Defendant does so, she is protected from negligence liability.

Failure to do so constitutes unreasonable conduct and, hence, breach of duty. This is an objective standard that

compares the Defendant’s conduct to the external standard of a reasonable person. This decision expands on that

standard by applying it in the context of accepted practice.

C. PROVING UNSPECIFIED NEGLIGENCE: RES IPSA LOQUITUR

Byrne v. Boadle

Brief Fact Summary. Byrne (Plaintiff) testified that he was walking along Scotland Road when he evidently lost

consciousness. Witnesses testified that a barrel of flour fell on him. Neither Plaintiff nor any of the witnesses

testified as to anything done by Boadle (Defendant) that could have led to the barrel falling.

Synopsis of Rule of Law. A plaintiff must persuade a jury that more likely than not the harm-causing event does not

occur in the absence of negligence. The plaintiff does not have to eliminate all other possible causes for the harm,

nor does the fact that the defendant raises possible non-negligent causes for the harm defeat plaintiff’s effort to

invoke res ipsa loquitur (Latin for “the thing speaks for itself). The key is that a reasonable jury must be able to find

that the likely cause was negligence.

Facts. Defendant’s shop was adjacent to the road on which Plaintiff was walking, and the barrel appeared to have

fallen, or was dropped from the shop.

Issue. Was the mere fact of the incident occurring, i.e., the barrel having fallen from the shop, sufficient to presume

negligence?

Held. The court allowed the case to proceed because of the nature of the harm-causing event and Defendant’s

relationship to it, i.e., as it was Defendant’s responsibility to control the contents of his warehouse, the accident itself

is evidence of negligence.

Discussion. A plaintiff seeking to rely on res ipsa loquitur must connect the defendant to the harm. Initially, courts

interpreted the control element narrowly, requiring the plaintiff to show that the defendant likely had “exclusive

control” over the harm-causing instrumentality. This element has been liberalized and it is now enough for a plaintiff

to get the issue to a jury on res ipsa loquitur if he can provide evidence showing that the defendant probably was the

responsible party even if the defendant did not have exclusive control. Further, most jurisdictions no longer require

the plaintiff to prove that he did not contribute to his harm.

Warren v. Jeffries

Brief Fact Summary. Terry Lee Enoch (Enoch), a 6-year old child, was injured when a wheel of

Jeffries’ (Defendant) automobile ran over his body. The child died from his injuries. Warren (Plaintiff) brought an

action to recover for the child’s alleged wrongful death. Plaintiff appealed a judgment of involuntary nonsuit entered

at the close of Plaintiff’s evidence.

Synopsis of Rule of Law. The conditions traditionally required for the application of res ipsa loquitur are: “an

accident that normally does not happen without negligence; exclusive control of the instrumentality by the

defendant; and absence of voluntary action or contribution by the plaintiff.” In order for the Plaintiff to have the

benefit of res ipsa loquitur, she must convince the jury that each of these factors more likely than not exists.

Facts. Defendant’s car was parked on an incline at Plaintiff’s home. Defendant gave Ms. Enoch, the child’s mother,

the keys to his car so that she could drive it to the store. The mother was in the house, while five children, including

Enoch, climbed into the rear of the vehicle. No one touched any of the control mechanisms of the car. Enoch was the

last to enter and when he closed the door something clicked in the front and the car started rolling backward in the

direction of a large ditch. One of the older children opened the door and told the others to jump out. When the

decedent jumped out he fell, and the front wheel ran over his chest.

Issue. Does the doctrine of res ipsa loquitur apply?

Held. No. No sufficient proof of negligence was offered. All indications were that this was an accident.

Discussion. As noted in Gift v. Palmer, an analogous case, “A verdict cannot be supported on the basis of mere

speculation or conjecture. Proof of negligence may be furnished by the circumstances themselves and it is not

essential to have eyewitness testimony, but when the circumstantial evidence is offered because direct proof is not

available it must provide as the only reasonable inference the conclusion that the accident was caused by the

negligence of the defendant.”

Giles v. City of New Haven

Brief Fact Summary. Plaintiff, the elevator operator filed a negligence action against the elevator installer to

recover injuries he sustained when the elevator fell. The trial court granted a Motion for Summary Judgment and

directed a verdict in favor of the elevator installer. The appellate court (Connecticut) reversed and remanded the case

for a new trial. The elevator operator sought review.

Synopsis of Rule of Law. To avail herself of the inference afforded by the res ipsa loquitur doctrine, a plaintiff must

demonstrate that a defendant was responsible for the specific instrumentality that caused the event.

Facts. The Plaintiff was injured when an elevator he was operating fell. The facts indicated that the elevator installer

installed the elevator sixty-one years prior to the accident. The trial court directed a verdict in favor of the elevator

installer. The appellate court concluded that the Plaintiff had presented sufficient evidence to warrant presentation of

the question of negligence under the doctrine of res ipsa loquitur to the jury.

Issue. Did the Appellate Court properly apply the doctrine of res ipsa loquitur?

Held. The court affirmed the order that reversed a directed verdict in favor of the elevator installer and remanded the

case for a new trial on the issue of whether the elevator installer was liable under the theory of negligence for the

injuries the Plaintiff sustained when an elevator he was operating fell. With respect to the doctrine of res ipsa

loquitur (as clarified in the court’s opinion), the Plaintiff was entitled to have a jury consider her claim that the

Defendant’s negligence was the cause of her personal injuries.

Discussion. The Giles case further clarifies the doctrine of res ipsa loquitur, which, as the court enunciated, “applies

when three conditions are satisfied: the situation, condition, or apparatus causing the injury must be such that in the

ordinary course of events no injury would result unless from a careless construction, inspection or user; both

inspection and user must have been at the time of the injury in the control of the party charged with neglect; the

injurious occurrence or condition must have happened irrespective of any voluntary action at the time by the party

injured. Whether the doctrine applies in a given case is a question of law for the court.” In essence, upon the

showing that the product or apparatus was one over which the defendant had complete control, and that the accident

resulting in injury was of such a nature that it ordinarily would not occur in the absence of negligence, the doctrine

of res ipsa loquitur permits the plaintiff to shift to the defendant the burden of proof on the issue of negligence.

3. HARM AND CAUSATION IN FACT

A. ACTUAL HARM

Right v. Breen

Brief Fact Summary. Defendant rear-ended Plaintiff but neither party reported any personal injuries at the scene. 

Plaintiff subsequently sued Defendant for negligence but could not prove causation or actual damages and

Defendant argued that Plaintiff’s injuries were the result of his prior five auto accidents.  Defendant prevailed.

Synopsis of Rule of Law. Common law requires proof of causation and actual damages to support a cause of action

in negligence. 

Facts. Plaintiff stopped his vehicle at a red traffic light when it was struck from behind by Defendant’s vehicle. 

There was minor damage to the Plaintiff’s vehicle, but no physical injuries reported at the accident scene.  Later,

Plaintiff sued, alleging that as a result of Defendant’s negligence he had suffered bodily injury.  At trial Plaintiff

presented evidence that his injuries resulted from the collision, while Defendant presented evidence that the injuries

resulted from Plaintiff’s five previous auto accidents.  The jury returned a verdict of zero damages.  The plaintiff

filed a motion to set aside this verdict, arguing that he was entitled to at least nominal damages because he had

suffered a technical legal injury that admittedly had been caused by Defendant.  Defendant objected, arguing that

although she had admitted to causing the collision, she had denied the causal relationship between the collision and

the plaintiff’s alleged injuries.  The trial court nevertheless granted the plaintiff’s motion and awarded nominal

damages of $1.  The appellate court affirmed.  The supreme court reversed, finding that nominal damages should not

have been awarded.

Issue. Whether a plaintiff may use the technical legal injury concept to recover damages in a negligence action

where defendant has admitted to causing an accident, but where plaintiff cannot prove actual bodily injury.

Held.  No.  Under the technical legal injury concept, where the plaintiff’s right has been intentionally invaded, he

can recover nominal and even exemplary damages, to serve as a deterrence to society.  However, the technical legal

injury concept does not apply to a negligence action where injury has occurred unintentionally.  Common law

requires proof of actual damages to support a cause of action in negligence. 

Discussion.  No.  Under the technical legal injury concept, where the plaintiff’s right has been intentionally invaded,

he can recover nominal and even exemplary damages, to serve as a deterrence to society.  However, the technical

legal injury concept does not apply to a negligence action where injury has occurred unintentionally.  Common law

requires proof of actual damages to support a cause of action in negligence. 

B. CAUSE IN FACT

-The But-for Test of Causation

Hale v. Ostrow

Brief Fact Summary. Defendants’ overgrown bushes obstructed the sidewalk, forcing Plaintiff to step into the street

to walk around them.  As Plaintiff looked up to check traffic in preparation for stepping into the street, she tripped on

crumbling sidewalk prior to the bushes and fell, crushing her hip.  She sued Defendants for negligence.

Synopsis of Rule of Law. Negligence requires both the elements of cause in fact and proximate cause.  The test for

determining whether an action is the cause in fact of an injury is to ask whether the injury would have occurred “but

for” the defendant’s act.  If not, then the defendant’s conduct is a cause in fact of the injury.  It is not necessary that

the defendant’s act be the sole cause of the plaintiff’s injury, only that it be a cause. 

Facts. Plaintiff Hale was walking home on a sidewalk that she had not traveled before.  As she proceeded, she

noticed that bushes protruding from Defendants’ property at Mississippi Boulevard had overgrown the sidewalk and

had grown around a telephone pole located on the sidewalk, blocking her way.  She determined she had to leave the

sidewalk and enter the street to bypass it.  As she stepped off the sidewalk before she reached the bushes, she tripped

over a chunk of concrete and fell into the street.  Her left hip was crushed in the fall requiring extensive medical

care.  The crumbled sidewalk was located in front of 1063 Mississippi, property owned by another party.  Plaintiff

filed suit against Defendants and the other property owner.  Defendants, the Ostrows, moved for summary judgment

arguing that the injury was caused by the defective sidewalk, not the overgrown bushes.  Trial court granted the

Defendants’ motion, the Court of Appeals affirmed, and the Tennessee Supreme Court reversed.

Issue. Whether bushes obstructing a sidewalk are the cause in fact of a plaintiff’s injury where she tripped on

crumbling concrete located on separate property while stepping in to the street to walk around the bushes.

Held. Yes. Negligence requires both causation in fact and proximate cause, distinct elements which must be proven

by the preponderance of the evidence.  A defendant’s conduct is the cause in fact of a plaintiff’s injury if it directly

contributed to the injury and the injury would not have happened “but for” the defendant’s act.  In this case, the

court found that Defendant’s obstruction of the sidewalk caused Plaintiff’s injury because “but for” the bushes,

Plaintiff would not have had to look up and check for traffic in preparation for stepping into the street to go around

it. 

Discussion. This decision stands for the proposition plaintiffs hoping to recover under a negligence theory must

prove the fourth element, factual causation.  The plaintiff must prove not only that she suffered legally recognized

harm, but that the harm was in fact caused by the defendant. 

Salinetro v. Nystrom

Brief Fact Summary. The trial court (Florida) entered an adverse final judgment pursuant to a directed verdict for

Appellees in Anna Salinetro’s (Appellant) action for alleged medical malpractice. Appellants, patient and her

husband, sought review.

Synopsis of Rule of Law. An element of a negligence prima facie case is cause in fact or actual cause. The plaintiff

must prove, not only that she suffered legally recognized harm, but that the harm was in fact caused by the

defendant. This is expressed as the “but-for” rule: but-for defendant’s conduct, the pedestrian would have avoided

injury. When this statement can be shown to be true, cause in fact or actual cause has been proven.

Facts. Anna Salinetro sustained back injuries in an automobile accident and applied for personal injury benefits from

her insurer, State Farm Mutual Automobile Insurance Company (State Farm). State Farm required Salinetro to

submit to a medical examination and on December 10 Dr. Nystrom of her lower back and abdominal area took x-

rays. He did not inquire as to whether she was pregnant. Salinetro did not know that she was pregnant at the time of

the x-ray; her doctor confirmed the pregnancy after multiple tests, and she was advised to terminate pregnancy

because the fetus had been exposed. She underwent a therapeutic abortion and the pathology report stated the fetus

was dead at the time of the procedure. She filed suit for medical malpractice.

Issue. Did the trial court err in entering judgment for Appellee?

* Was Appellee the cause in fact/actual cause of Appellant’s injury?

Held. No. The appellate court affirmed the trial court’s judgment. The appellate court found that the trial court did

not err in granting Appellee’s Motion for Directed Verdict since Appellants did not make a prima facie case for

medical malpractice since, even if Nystrom’s failure to inquire as to whether Salinetro was pregnant at the time of

her examination, this failure was not the cause of her injury.

Discussion. Any claim for negligence requires plaintiff to establish the following elements: duty, standard of care,

breach of duty, cause-in-fact, proximate cause (scope of liability) and damages. The Salinetro court focused,

initially, on the issue of causation: “Liability for negligence depends on a showing that the injury suffered by

plaintiff was caused by the alleged wrongful act or omission to act by the defendant. Merely to show a connection

between the negligence and the injury is sufficient to establish liability.”

* The court then shifted to the standard of care required of physicians. It should be noted that, because of the

specialized skill and training required in fields such as medicine, law, science or economics, courts defer to the

expertise of the profession to determine the appropriate standard of care.

With regard to doctors, the court explained: “A physician, whether he be a general practitioner or specialist, is under

a duty to use ordinary skills, means and methods recognized as necessary and customarily followed in a particular

type of case according to the standard of those who are qualified by training and experience to perform similar

services in the community.” Continuing along similar lines, the court stated, “To determine what skills, etc. are

necessary and customarily followed in the community normally requires expert testimony by those physicians who

perform similar services in the community.” Thus, in determining that plaintiff had failed to establish two necessary

elements, the court concluded that the lower court properly entered judgment on behalf of Nystrom.

-Problems With and Alternatives to But-for Tests

Landers v. East Texas Salt Water Disposal Co.

Brief Fact Summary. : Landers (Plaintiff), owner of a small lake, appealed the dismissal of action as to damages.

After East Texas Salt Water Disposal Company’s (Defendant) plea in abatement asserting a misjoinder of parties and

of causes of action had been sustained, the lake owner declined to replead so as to assert several liability only

against each defendant in separate suits. The Court of Civil Appeals for the Sixth District (Texas) affirmed.

Synopsis of Rule of Law. This case overrules the holding in Sun Oil Co. v. Robicheaux when it was held that a

plaintiff could not proceed to judgment and satisfaction against the wrongdoers separately because in such a suit he

cannot discharge the burden of proving with sufficient certainty the portion of the injury attributable to each

defendant.

In this case, the court adopts a new rule which states that when (1) the tortious acts of two or more wrongdoers join

to produce an indivisible injury, that is, an injury which from its nature cannot be apportioned with reasonable

certainty to the individual wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire

damages and (2) the injured party may proceed to judgment against any one separately or against all in one suit.

Facts. Plaintiff owned a small lake, which he had cleaned and stocked with fish at considerable expense. He alleged

that East Texas Salt Water Disposal Co. and Sun Oil Co. (Defendants) both caused large quantities of salt water and

also oil to flow into his lake killing the fish. He alleged that both Defendants acted negligently.

Issue. Did the Plaintiff in his pleading allege facts, which, if established by evidence, made the Defendants jointly

and severally liable for Plaintiff’s damages?

Held. Yes.

* The judgments of both lower courts were reversed and the case was remanded to the trial court for further

proceedings not inconsistent with the instant opinion.

* Adopting a new rule, that when (1) the tortious acts of two or more wrongdoers join to produce an indivisible

injury, that is, an injury which from its nature cannot be apportioned with reasonable certainty to the individual

wrongdoers, all of the wrongdoers will be held jointly and severally liable for the entire damages and (2) the injured

party may proceed to judgment against any one separately or against all in one suit.

* The court held that because there was no misjoinder as alleged, the property owner was within his rights in

declining to replead and in declining to proceed through a futile and fruitless trial in order to test the correctness of a

court’s ruling of misjoinder.

Discussion. The Plaintiffs’ action seeking a joint and several judgment of damages and injunctive relief was

dismissed as to the damages feature by the trial court, when, after Defendants’ plea in abatement asserting a

misjoinder of parties and of causes of action had been sustained, he declined to replead so as to assert several

liability only against each of the Defendants in separate suits.

* The lower court affirmed the trial court decision.

* Overruling the holding in Sun Oil Co. v. Robicheaux, this court held that the property owner was not required

under the circumstances of this case to replead and try a case wholly different from that asserted by him in order to

obtain appellate review of his right to pursue to trial the case made by his pleadings. The allegations of the petition

were sufficient to assert a case of joint and several liability against the corporations and there was no misjoinder of

either parties or causes of action.

Anderson v. Minneapolis S.P. & S.S.M.R.

Brief Fact Summary. Anderson (Plaintiff) property near Minneapolis, S.P. & S.S.M.R. Company’s (Defendant)

railroad tracks. Plaintiff sued the railroad company and the Director General of Railroads (Defendants) for damages

resulting from a fire that was allegedly caused by sparks from one of Defendant’s locomotive engines that spread

until it reached Plaintiff’s land, where it destroyed some of his property.

Synopsis of Rule of Law. In Anderson, the court approved a jury instruction that allowed the jury to find actual

causation if the Defendant’s fire was a “material or substantial element” in the harm done. When the “but-for” test

seems to produce clearly wrong results, as in the duplicative cause cases, the “substantial factor” test has been

widely accepted. If two or more causes concur to bring about an event, then the cause-in-fact is established by the

“substantial factor” test. When either the “but-for” or “substantial factor” test is satisfied, a party has established that

the other party’s conduct was the cause in fact of an injury.

Facts. Plaintiff owned property near railroad company’s tracks. Plaintiff sued Defendants for damages resulting

from a fire that was allegedly caused by sparks from one of Defendant’s locomotives that spread until it reached

Plaintiff’s land, where it destroyed some of his property. The fire started in a bog near Plaintiff’s land and smoldered

there for several months, when it flared up and burned his property shortly before it was reached by one of the great

fires sweeping through the area that day.

The jury returned a verdict for Plaintiff.

The Supreme Court of Minnesota affirmed the judgment because the trial court did not abuse its discretion in

allowing Plaintiff to amend the complaint to conform to proof at trial. Moreover, the trial judge’s instructions to the

jury in the absence of counsel were correct statements of law, and the trial court was not obliged to notify counsel

before responding to the jury’s question.

Issue. Did the trial court err when it instructed the jury to apply the rule in the Cook v. M., St. P. & S.S.M. Ry. Co.

case?

Held. No.

Discussion. If two or more causes concur to bring about an event, then the cause-in-fact of an injury is established

by the “substantial factor” test. The court applied the “substantial factor” test imported from the rule in the Cook

case, 98 Wis. 624, 74 N.W. 561, 40 L.R.A. 457, 68 Am. St. Rep. 830, which exempted Defendant from liability

since there were other fires sweeping east towards Plaintiff’s property, and any one of those fires could have been the

actual cause of Plaintiff’s loss. The narrow rule in this case states that if a fire combines with another of no

responsible origin, and after the union of the two fires, they destroy the property, and either fire independently of the

other would have destroyed it, then, irrespective of whether the first fire was or was not a material factor in the

destruction of the property, there is no liability.

-Proof: What was Caused?

Summers v. Tice

Brief Fact Summary. Consolidated appeals from a judgment of the Superior Court of Los Angeles County

(California), which awarded Charles A. Summers, Plaintiff damages for personal injuries arising out of a hunting

accident, in Plaintiff’s negligence action against two hunters, Harold W. Tice and Ernest Simonson (Defendants).

Both hunters negligently fired, at the same time, in Defendant’s direction.

Synopsis of Rule of Law. If Defendants are independent tortfeasors, and thus each liable for the damage caused by

him alone, but it is impossible to prove whose conduct actually caused the harm, many jurisdictions presume that

each Defendant was the actual cause of the Plaintiff’s injury. The wronged party should not be deprived of his right

to redress.

Facts. Plaintiff and Defendants went on a hunting trip. Plaintiff provided each Defendant with directions on how to

safely fire their weapons. While attempting to shoot their target, both Defendants fired in Plaintiff’s direction.

Plaintiff suffered injuries to his right eye and face.

Plaintiff sued both Defendants in a negligence action. The trial court entered a judgment in Plaintiff’s favor.

On appeal, the court affirmed, because it determined that Defendants failed to meet their burden of proving who was

responsible for Plaintiff’s injury, therefore, because each acted negligently, each was responsible to Plaintiff for

damages from the injuries he sustained. The court reasoned further that it was Defendants’ burden to offer proof as

to the apportionment of damages. Because they failed to meet that burden, it was in the discretion of the trier of fact

to apportion the damages.

Issue. Did the trial court err in entering judgment in Plaintiff’s favor?

Held. No. The judgment of the lower court was affirmed because Defendants failed to meet their burden of proving

who was responsible for Plaintiff’s injury; therefore, because each acted negligently, each was responsible to

Plaintiff for damages from the injuries Plaintiff sustained.

Discussion. When we consider the relative position of the parties and the results that would flow if plaintiff was

required to pin the injury on one of the defendants only, a requirement that the burden of proof on that subject be

shifted to defendants becomes manifest. They are both wrongdoers negligent toward the plaintiff. They brought

about a situation where the negligence of one of them injured the plaintiff; hence it should rest with them each one

to absolve oneself, if he can.

Defendants have placed the injured party in the unfair position of pointing to which defendant caused the harm. If

one can escape the other may also and plaintiff is remediless. Ordinarily defendants are in a far better position to

offer evidence to determine which one caused the injury. Here, the defendants failed to meet their burden of proving

which party was responsible for plaintiff’s eye injury. Thus, the court reasoned that since they failed to meet that

burden, the case should be left to the trier of fact to apportion damages. Since each Defendant acted negligently,

each was responsible to Plaintiff for damages from the injuries Plaintiff sustained. The appellate court correctly

affirmed the lower court’s ruling.

Lord v. Lovett

Brief Fact Summary. Plaintiff broke her neck in an auto accident and claimed that the hospital staff negligently

misdiagnosed her injury, causing her to lose the opportunity for a substantially better recovery.  She sued Defendants

for medical malpractice, the trial court dismissed her action, and the higher court reversed and remanded.

Synopsis of Rule of Law. A plaintiff may recover for a loss of opportunity for a better recovery in a medical

malpractice case when the defendant’s negligence aggravates the plaintiff’s preexisting injury such that it deprives

the plaintiff of a substantially better outcome.

Facts. Plaintiff suffered a broken neck in an auto accident and was treated at the hospital by Defendants.  She sued

Defendants, alleging that they negligently misdiagnosed her spinal cord injury, then failed to both immobilize her

properly and to administer steroid therapy, causing her to lose the opportunity for a substantially better recovery. 

Upon learning that the Defendants intended to move to dismiss at the close of her case, Plaintiff proffered that her

expert would testify that the Defendant’s negligence deprived her of the opportunity for a substantially better

recovery, but conceded that her expert could not quantify the degree to which she was deprived of a better recovery

by their negligence.  The trial court dismissed the action on the ground that lost opportunity was not a recognized

theory.  The New Hampshire Supreme Court reversed and remanded.

Issue.  Whether Plaintiff can recover under the loss of opportunity doctrine.

Held. Yes.  The loss the opportunity doctrine is a medical malpractice form of recovery which allows a plaintiff,

whose preexisting injury or illness is aggravated by the alleged negligence of a physician or health care worker, to

recover for her lost opportunity to obtain a better degree of recovery. 

The court explained three different approaches to loss of opportunity claims generally taken:

(1) If a plaintiff proves that she was deprived of at least a 51% chance of a more favorable outcome than she

received, she may recover damages for the entire preexisting condition;

(2) If a plaintiff proves that the defendant’s negligence more likely than not increased the harm to the plaintiff, she

may recover damages for the entire preexisting condition;

(3) If a plaintiff can prove that she was deprived of at least a 51% chance of a more favorable outcome than she

received, she may recover damages only for the lost opportunity for a better outcome, not for the entire

preexisting condition. 

The court adopted the third approach, reversed the trial court’s dismissal, and remanded.

Discussion. This decision explains that a minority of jurisdictions approach this theory according to the standards

explained in (1) & (2) above, which allow a plaintiff to recover for the entire preexisting injury upon proving

causation by the specified standard.  Many jurisdictions, however, as in the above case, only permit a plaintiff to

recover damages for loss of opportunity itself, which can be difficult to calculate, but can be quantified through

expectation.

4. THE SCOPE OF RISK OR “PROXIMATE CAUSE” ELEMENT

A. THE PRINCIPLE: SCOPE OF RISK

Medcalf v. Washington Heights Condominium

Brief Fact Summary. Washington Height Condominium Association and a management company (Defendants)

appealed a judgment for plaintiff, by the Superior Court in the Judicial District of Stamford-Norwalk (Connecticut),

on grounds that the court should have entered judgment for Defendants on Plaintiff’s negligence claim as a matter of

law.

Synopsis of Rule of Law. The term proximate cause, includes both cause in fact and foreseeability components. The

harm that occurred to plaintiff must be of the “same general nature as the foreseeable risk created by the defendant’s

negligence.” This means that:

Liability must be rejected unless a reasonable person would have reasonably foreseen and avoided harm of the same

general kind actually suffered by the plaintiff; or the defendant who negligently creates a risk to the plaintiff is

subject to liability when that risk or a similar one results in harm, but not when some entirely different risk

eventuates in entirely different harm.

Facts. Plaintiff became the victim of a violent assault as she waited in the lobby of Defendants’ apartment building.

Her hosts struggled to admit her by using an electronic buzzer that did not work, while Plaintiff was assaulted. The

jury indicated in interrogatories that the verdict for Plaintiff was based entirely on a finding that Defendants were

negligent in failing to maintain the building telephone security intercom communication system to protect Plaintiff

and others. The court held that the trial court should have entered judgment for Defendants as a matter of law,

because Plaintiff failed to establish an essential element of negligence, proximate cause. The intervening criminal

act of the assailant was not within the scope of risk created by Defendants’ lack of maintenance, because the primary

reason buildings have buzzer systems is to protect residents, not guests.

Issue. Did the trial court err in ruling in favor of the Plaintiff?

Held. Yes. In fact, the Appellate Court of Connecticut reversed and remanded because as a matter of law a jury

could not reasonably have found that failure to fix an intercom was the proximate cause of an assault on Plaintiff and

resultant injury, so there could be no finding of negligence.

Discussion. The second component of a negligence action is proximate cause. Proximate cause establishes a

reasonable connection between an act or omission of a defendant and the harm suffered by a plaintiff.

* The Supreme Court of Connecticut has defined proximate cause as an actual cause that is a substantial factor in

the resulting harm. The substantial factor test reflects the inquiry fundamental to all proximate cause questions,

that, whether the harm which occurred was of the same general nature as the foreseeable risk created by the

Defendant’s negligence.

* Proximate cause is a question of fact to be decided by the trier of fact, but it becomes a question of law when the

mind of a fair and reasonable person could reach only one conclusion.

* The Defendants could not have reasonably foreseen that a malfunctioning intercom system might provide a

substantial incentive or inducement for the commission of a violent criminal assault on their property by one

stranger upon another.

* The court found here that, as a matter of law, the jury could not reasonably have found that the assault on the

Plaintiff and the resultant injury were within the foreseeable scope of risk created by Defendants’ failure to maintain

the intercom system, a critical element for Plaintiff to prevail. Thus, Plaintiff failed to establish the necessary causal

relationship.

Palsgraf v. Long Island Railroad Co.

Brief Fact Summary. Defendant helped to push a man aboard a train. The man’s package fell. Inside were

firecrackers, which exploded causing some scales to fall and injure Plaintiff

Synopsis of Rule of Law. Chief Justice Cardozo, writing for the majority held that negligence is based on the

foreseeability of the harm between the parties. Justice Andrews, writing for the minority stated that each person

owes an absolute duty of care; i.e. each person must refrain from acts (foreseeable or not) that unreasonably threaten

the safety of others.

Facts. Mrs. Palsgraf (Plaintiff) was standing on a platform after she bought a ticket from Long Island R.R.

(Defendant). Two men ran to catch a train that was pulling out from the platform. The first man jumped aboard. The

second man, who was carrying a package, attempted to jump aboard the car, however he was unsteady. A guard on

the train, who had held the door open, reached forward to help him in, and another guard on the platform pushed

him from behind at the same time. In this act, the package the man was carrying was dislodged and fell upon the

rails. The package contained fireworks, but there was nothing from its appearance to give notice of its contents. The

fireworks exploded when they fell. The shock of the explosion threw down some scales at the other end of the

platform, many feet away. The stales struck Plaintiff, causing injuries for which she sues. Plaintiff sued Defendant.

Plaintiff was awarded damages. Defendant appealed.

Issue. Does a Defendant owe a duty of care to Plaintiff who is outside the reasonably foreseeable zone of danger?

Held. No. Judgment reversed.

* A duty that is owed must be determined from the risk that can reasonably be foreseen under the circumstances. A

defendant owes a duty of care only to those plaintiffs who are in the reasonably foreseeable zone of danger.

* If no hazard is apparent to the eye of ordinary vigilance, an act innocent and harmless does not become a tort

because it happened to be wrong with reference to someone else. The conduct in relation to Defendant’s guard

was wrong in relation to the man carrying the parcel.

* However, it was not wrong in relation to Plaintiff who was standing so far away. There was no indication that the

parcel contained fireworks. There was no showing by Plaintiff that the act had such great possibilities of danger as

to entitle a party to protection against that act.

* For there to be a finding of negligence there must first be a finding that Defendant owes a duty to Plaintiff and that

the injury could have been avoided by the Defendant.

* The plaintiff must prove that her rights were violated and the duty that Defendant owed to her was transgressed. It

is not enough that Plaintiff merely prove that a duty that was owed to another was transgressed. While it is clear

that Defendant violated its duty to the person carrying the fireworks, Defendant did not violate any foreseeable

duties to Plaintiff.

* It was unforeseeable that a package being carried would explode and cause any damage to Plaintiff. Even if the

guard had intentionally taken the package and thrown it, he would not have threatened Plaintiff’s safety.

Defendant’s liability for an intentional act cannot be greater when an act is inadvertent or unintentional.

Dissent. (Justice Andrews) Everyone owes the world at large the duty of refraining from those acts that may

unreasonably threaten the safety of others. In determining proximate cause the court must ask itself whether there

was a natural and continuous sequence between the cause and effect, and not whether the act would reasonably be

expected to injure another. If not for the explosion, she would not have been injured.

Discussion. This case identifies two ways to determine if a duty is owed to Plaintiff: (1) the Cardozo method; and

(2) the Andrews method:

* (C.J. Cardozo) Negligence is based on the foreseeability of harm between the parties. C.J. Cardozo’s opinion is

the majority view and is referred to as the zone of danger view. Thus liability for negligence is limited to what was

foreseeable and what duties were owed that were reasonably foreseeable prior to the negligent act. Thus to

recover, a plaintiff must be a foreseeable plaintiff and be in the zone of danger.

* (J. Andrews) Each person owes an absolute duty of care; each person must refrain from acts (foreseeable or not)

that unreasonably threaten the safety of others. Under J. Andrews’ view, everyone is a foreseeable plaintiff

B. ASSESSING THE SCOPE OF THE RISK

Hughes v. Lord Advocate

Brief Fact Summary. Post Office workers were working underground and left the manhole unattended surrounded

with kerosene lamps while on break.  Plaintiff Hughes, an 8 year old boy, was playing at the unattended site and

knocked over a kerosene lamp, which resulted in a huge explosion that threw him down the manhole.  He suffered

severe burns and sued Defendant. Defendant argued it was not the proximate cause of the injuries.  The higher court

disagreed and found for Plaintiff on appeal.

Synopsis of Rule of Law. Where a plaintiff’s injury is foreseeable, but the injury is caused in a unique way or

manner which could not have been foreseen, the result is within the chain of proximate causation and that element of

negligence is satisfied.

Facts. Post Office employees were working on an underground telephone cable in Edinburgh, Scotland.  At 5:00

they took a tea break, leaving unguarded an open manhole, covered with a tent and surrounded by kerosene lanterns. 

Two boys, 8 and 10 years old, found the site, descended in the hole then came back up without mishap.  But once

back on top, they knocked or dropped a lantern into the hole.  The accepted reconstruction of what happened was

that the lantern broke and some of the kerosene vaporized.  This gaseous form of kerosene came into contact with

the lantern’s flame and created a large explosion, causing Hughes, the 8 year old, to fall into the manhole and suffer

severe burns.  He sued the Lord Advocate of Scotland as the representative of the Post Office.  The courts of

Scotland held in favor of Lord Advocate on the grounds that though burns were foreseeable, the vaporization of the

kerosene and the explosion were not.

Issue. Whether Defendant can be found liable for negligence where the manner or cause of the injury was

unforeseeable, but the injury is the type that was foreseeable.

Held.  Yes.  Three different judges agreed that the Plaintiff’s burns were foreseeable, even though the manner in

which they occurred was not.  Where the cause of an accident was a known source of danger, namely the kerosene

lamp, but injury is caused in a unique way which could not have been foreseen, there is no defense to negligence. 

The explosion did not create an accident or damage of a different type than what could have been foreseen by the

danger of fire.  Thus, it would be too narrow a view to hold that those who created the risk of fire are excused from

liability for the damage simply because it came about in an unforeseeable way, namely an explosion, as opposed to,

for example, a spill of the kerosene which would have produced a more normal conflagration.

Discussion. This case stands for the proposition that foreseeable injuries or harm that are caused in a unique,

unforeseeable manner are still considered within the scope of risk a defendant has a duty to protect plaintiffs from.

Delaney v. Reynolds

Brief Fact Summary. Plaintiff lived with Defendant police officer who owned a gun and stored it loaded and

unlocked in the bedroom.  One night after consuming drugs and being asked by Defendant to move out, Plaintiff

took the gun from the bedroom and shot at Defendant twice but the gun did not fire.  Plaintiff then shot herself and

the gun did fire, seriously injuring her.  She sued Defendant for negligence.

Synopsis of Rule of Law. In most states, suicide is considered an intervening cause which breaks the chain of

causation, relieving a defendant from liability.  A few states, however, including Massachusetts, do not follow this

traditional rule and will allow a plaintiff the chance to show that the risk of suicide was foreseeable and that

defendant proximately caused it.

Facts. Plaintiff Delaney began living with Defendant Reynolds, a police officer.  Reynolds routinely stored his gun,

loaded and unlocked in the bedroom.  Reynolds knew that Delaney knew where he kept his gun.  Reynolds also

knew that Delaney was depressed and had substance abuse problems.  One night Delaney smoked crack cocaine and

was drinking heavily.  Reynolds urged her to move out of his house.  While packing her things, Delaney took the

gun, went downstairs and aimed the gun at Reynolds, pulling the trigger twice.  The gun did not fire.  Delaney then

ran back up stairs, pursued by Reynolds.  When they reached the bedroom, Delaney put the gun under her chin,

fired, and this time the gun went off, seriously injuring her.  Delaney sued Reynolds for negligence.  Reynolds

claimed that Delaney’s intentional act of attempting suicide was a superseding cause of her injuries.  The trial judge

granted summary judgment for Reynolds and the court of appeals reversed

Issue.  Whether suicide is such an extraordinary event as not to be reasonably foreseeable, but an intervening cause

of injury which breaks the chain of causation.

Held. No, under Massachusetts law.  Historically, a purposeful act of suicide, rather than any antecedent negligence,

will be deemed the legal cause of a decedent’s injury unless the defendant’s negligence rendered the decedent unable

to appreciate the self-destructive nature of the suicidal act or unable to resist the suicidal impulse.  Massachusetts,

however, does not adopt an ironclad rule that suicide constitutes an intervening cause.  The court held that Delaney

should have the chance to show that the risk that she would handle Reynolds’ gun in a manner so as to cause

intentional injury to herself was foreseeable and that his failure to secure his gun was a proximate cause of her

injury.  Accordingly, the appeals court revered the summary judgment ruling.

Discussion.  Most states continue to follow the traditional rule that suicide is a superseding cause of plaintiff’s harm,

freeing the defendant from liability for negligence.  Like Massachusetts, however, other jurisdictions have recently

gone beyond the categorical basis for treating suicide as an intervening cause of injury and have considered various

nontraditional circumstances as relevant to the issue of foreseeability. 

Derdiarian v. Felix Contracting Corp.

Brief Fact Summary. Plaintiff was hit by a car when he was working on an excavation job. The driver of the

automobile, James Dickens (Dickens) was suffering from an epileptic seizure when the accident occurred.

Synopsis of Rule of Law. Foreseeability is the reasonable anticipation of the possible results of an action. Proximate

cause is determined by whether an intervening act is a foreseeable consequence of the defendant’s negligence. If it is

not foreseeable, then it is a superseding act which would sever the causal connection.

Facts. Dickens was driving eastbound on the thoroughfare where Plaintiff was working on an excavation. The driver

suffered an epileptic seizure and lost consciousness, striking Plaintiff. The driver was undergoing treatment at the

time, but had failed to take his medication that particular day. The automobile crashed through a single wooden

horse-type barricade, and struck an employee of a subcontractor, who was propelled into the air. Upon landing, the

employee was splattered by boiling liquid enamel from a kettle. Plaintiff and his wife sued the employer, Felix

Contracting Corporation (Felix), Dickens, and the contractor for negligence, (Defendants) claiming that the

employer failed to maintain a safe work site. Plaintiffs maintained that the barrier should have covered the entire

width of the excavation site, and there should have been two flagmen present, as opposed to one. Felix contended

that Plaintiff was injured solely as a result of Dickens’ negligence, because there was no causal link between Felix’s

breach of duty and Dickens’ negligence.

Issue. Were Plaintiff’s injuries a foreseeable result of the employer’s failure to maintain a safe work site?

Held. Yes. On appeal, defendant employer argued that there was no causal link between the employers breach of

duty and plaintiffs injuries. The Court of Appeals of New York held that Plaintiff’s injuries were a foreseeable result

of the risk created by the employer. When the acts of a third person intervene between the defendant’s conduct and

the plaintiff’s injury, the causal connection is not automatically interrupted. Instead, it depends upon whether the

intervening act was a foreseeable consequence of defendant’s negligence. If the intervening event is unforeseeable,

then it may be a superseding cause, which would interrupt the causal connection between defendant’s negligence

and plaintiff’s injuries. Whether an intervening act is foreseeable or not is a question for the trier of fact.

Discussion. For a plaintiff to carry the burden of proving a prima facie case of negligence, he must generally show

that the defendant’s negligence was a substantial cause of the events that produced the injury. Plaintiff need not

demonstrate that the precise manner in which the accident happened or that the extent of injuries was foreseeable.

Essentially, the foreseeable harm test requires (1) a reasonably foreseeable result or type of harm, and (2) no

superseding intervening force. Further, an intervening act may not serve as a superseding cause, and relieve an actor

of responsibility, when the risk of the intervening act occurring is the very same risk that renders the actor negligent.

Marshall v. Nugent

Brief Fact Summary. An oil company and the driver of its truck, (Defendants) and the Plaintiff appealed the district

court judgments in a negligence action.

Synopsis of Rule of Law. One is liable for the harmful consequences that result from the creation of unreasonable

risk, i.e., risk that is foreseeable and is the immediate cause of the plaintiff’s injury. The assigning of such liability is

a question for the trier of fact.

Facts. Plaintiff was a passenger of a car that went off the road under icy conditions when an approaching truck

crossed into his lane. The truck driver pulled over to offer assistance, leaving his truck partially blocking the road.

Plaintiff was attempting to warn oncoming traffic of the unsafe situation when a motorist who was attempting to

avoid colliding with the truck struck him. The jury found the truck driver liable.

Issue. Was the truck driver negligent and his conduct the proximate cause of the Defendant’s injuries?

Held. The court of appeals affirmed the judgment against Defendants. The Plaintiff’s attempt to warn oncoming

motorists of the dangerous situation was reasonable and did not constitute contributory negligence; the Defendant’s

negligence “constituted an irretrievable breach of duty.”

Discussion. The court in Marshall addresses a number of peripheral questions in determining the scope of liability in

connection with auto accidents, what the court refers to as “a variety of risks.” In so doing the court provides the

framework for delineating reasonable and unreasonable risks (the latter being those that are foreseeable and thus

avoidable). Again, the primary test for proximate cause focuses on whether the Defendant should have reasonably

foreseen the general consequences or type of harm that could result from her conduct. Noting the often complicated

circumstances surrounding a car accident, the court states, “[i]t would be impossible for a person in the defendant’s

position to predict in advance just how his negligent act would work out to another’s injury.” Thus, the court

concludes, “[t]he question of proximate causation is one of fact for the

5. CONTRIBUTORY/COMPARATIVE FAULT

A. THE COMMON LAW RULE

Butterfield v. Forrester

Brief Fact Summary. The Plaintiff, Butterfield (Plaintiff), was injured when he rode his horse into an obstruction

placed into the road by the Defendant, Forrester (Defendant). A witness said that if Plaintiff had not been riding

hard, he would have been able to see and avoid the obstruction.

Synopsis of Rule of Law. The plaintiff’s failure to exercise reasonable and ordinary care in this case is a complete

bar to recovery from the defendant, initializing the concept of contributory negligence.

Facts. The Defendant had put up a pole across a public road for the purpose of making some repairs to his house.

The Plaintiff, riding violently, did not see the pole and was thrown from his horse by the pole, injuring himself. A

witness stated that if the Plaintiff had not been riding violently, he would have been able to see and avoid the pole.

The judge directed the jury that if they found that a person riding with reasonable and ordinary care could have

avoided the obstruction and if Plaintiff was not riding with ordinary care, the jury should find a verdict for the

Defendant. The jury found for Defendant.

Issue. Is the defendant liable for injuries caused by his negligence when the plaintiff could have avoided the injuries

by exercising reasonable and ordinary care?

Held. No. Rule refused.

* Justice Bayley: If the Plaintiff had used ordinary care, he would have seen the obstruction, so the accident

happened entirely at his own fault.

* Chief Justice Lord Ellenborough: One person being in fault will not dispense with another’s using ordinary care

for himself. The Plaintiff cannot recover for casting himself on an obstruction made by the fault of another if he did

not use common and ordinary caution to be in the right.

Discussion. The Court’s holding in this case is demonstrative of common law contributory negligence, which

completely bars recovery if plaintiff’s negligence contributed to the happening of the accident.

B. ADOPTING AND APPLYING COMPARATIVE FAULT RULES

Wassell v. Adams

Brief Fact Summary. The United States District Court for the Northern District of Illinois found that the Adamses

(Defendants) were negligent and that their negligence was the proximate cause of the assault on Susan Wassell

(Plaintiff). The court of appeals affirmed.

Synopsis of Rule of Law. A new trial can be granted only when the jury’s verdict is against the clear weight of the

evidence, and the court of appeals can reverse only when persuaded that in applying this standard, the district judge

abused his discretion

Facts. Plaintiff traveled to an area just north of Chicago, Illinois to attend a graduation at the Great Lakes Naval

Training Station. She was staying at a motel, owned by Defendants, when she was awakened late at night by a knock

on the door. Outside was a man she didn’t know, who, after some confusion, asked for a glass of water. Plaintiff

allowed the man inside the room, and he sexually assaulted her. Plaintiff managed to escape, but the rapist was never

prosecuted. A suspect was apprehended, but Plaintiff was too upset to provide proper identification. Diagnosed with

post-traumatic stress disorder, Plaintiff brought suit against the Defendants alleging negligence in their failure to

warn her of the dangerous conditions of the neighborhood in which the motel was located. A jury found the

Defendants to be negligent, and their negligence was the proximate cause of Plaintiff’s assault. However the jury

also found that Plaintiff had been negligent as well, apportioning blame 97% to Plaintiff, and 3% to Defendants. The

court of appeals, in dicta, disagreed with the jury’s apportionment, but declined to reverse. It held that the issue of

apportionment was one of fact and thus properly within the purview of the jury.

Issue. Did the court err in allowing the jury’s determination to stand, that Plaintiff’s negligence was a relevant,

contributory factor to the circumstances that resulted in her injuries and denying her Motion for a New Trial?

Held. The question of apportionment of blame was properly one for the jury, as the latter was the trier of fact. The

court of appeals would only be justified in negating such apportionment if there was an abuse of discretion on the

part of the trial judge.

Discussion. According to the Restatement of Torts Section: 463, contributory negligence is “conduct on the part of

the plaintiff which falls below the standard of conduct to which he should conform for his own protection, and

which is a legally contributing cause . . . in bringing about the plaintiff’s harm.”

* The court also clearly enunciated the rule by which it is proper to set aside a jury verdict: “[t]he federal standard

is that a new trial can be granted only when the jury’s verdict is against the clear weight of the evidence, and the

court of appeals can reverse only when persuaded that in applying this standard the district judge abused his

discretion.”

6. ASSUMPTION OF THE RISK

A. CONTRACTUAL OR EXPRESS ASSUMPTION OF THE RISK

Moore v. Hartley Motors

Brief Fact Summary. Plaintiff purchased an ATV and attended an ATV rider safety course where she hit a rock, was

thrown from the ATV and injured.  Prior to the class she had signed a release and consent form.  She sued

Defendants for negligence.  The court ultimately held that the hidden rock on the ATV course was an unreasonable

risk not within the scope of the release.

Synopsis of Rule of Law. An exculpatory release for a dangerous activity releases the providing party from the risks

inherent in that activity and ordinary negligence associated with those inherent risks.  However, an injured party

may still have recourse if her injuries were caused by unreasonable risks or unnecessary dangers that are not

inherent in the activity.

Facts. Plaintiff Moore bought a Suzuki four-wheel ATV in May 1993.  At the time of the sale, the salesperson

offered them a $50 rebate upon voluntary completion of an ATV rider safety class.  The Moores elected to attend the

class and signed a consent form and release before the class began.  During the class, Plaintiff was thrown from her

ATV when it struck a rock obscured by high grass.  She sued Hartley Motors, the dealer, the ATV Safety Institute,

and the instructor of the class, alleging that Defendants negligently concealed the fact that the course was unsafe. 

The superior court granted summary judgment for Defendants finding that the signed release was valid, Plaintiff

appealed, and the higher court reversed and remanded.

Issue.  Whether the scope of an exculpatory release for an ATV rider safety course includes liability for general

negligence unrelated to the risks inherent in the safety course.

Held. No.  First, the court analyzed that the signed release did not violate public policy because the ATV safety

course was voluntary for ATV purchasers, thus the class providers did not have a “decisive advantage of bargaining

strength” in requiring the release for participation.  Second, the court discussed the language of the release, which

released the course providers from liability and damages “arising out of participation in the ATV RiderCourse.” 

Based on that language, the court held that Moore released the class provider only from the inherent risks of ATV

riding and ordinary negligence associated with those inherent risks.  The court concluded that holding a safety

course on an unreasonably risky course may give rise to Defendants’ liability even if encountering rocks is generally

an inherent risk of ATV riding.  Reversed and remanded.

Discussion. This decision stands for the proposition that while people may contractually waive their right to sue for

damages caused by the ordinary negligence of others, such pre-injury releases are unenforceable if they offend

public policy, or if they are ambiguous.  Moreover, even if a release comports with public policy, a court must

determine whether the risk that caused the injury was within the scope of the release, or was an unnecessary danger.

B. IMPLIED ASSUMPTION OF THE RISK

Avila v. Citrus Community College District

Brief Fact Summary. Plaintiff Avila was hit in the head by a ball thrown by the pitcher while he was at bat,

resulting in serious injuries.  He sued the college of the pitcher but his action was barred by the assumption of the

risk.

Synopsis of Rule of Law. In determining whether primary assumption of the risk bars liability in a sporting context,

the court must evaluate the fundamental nature of the sport and the defendant’s role in that sport in order to

determine whether the defendant owes a duty to protect a plaintiff from the particular risk of harm.  In general, a

defendant does not have a duty to protect a plaintiff from injuries arising from risks deemed inherent in a sport.

Facts.  Plaintiff Avila, a Rio Hondo Community College student, played baseball for the school’s team.  On January

5, 2001, he was playing a preseason game against Citrus Community College.  During the game, a Rio Hondo

pitcher hit a Citrus College batter with a pitch; when Avila came to bat in the next inning, the Citrus College pitcher

hit him in the head with a pitch, cracking his batting helmet.  Avila alleges it was an intentional “beanball” throw in

retaliation for the previous hit batter.  Avila staggered, felt dizzy, and complained to his manager of being in pain. 

Nevertheless, his manager told him to go to first base and to stay in the game.  At second base, he was still in pain,

so a Citrus College player yelled to the Rio Hondo dugout that they needed a pinch runner.  Avila walked off the

field and went to the bench.  No one tended his injuries.  He sued both colleges, his manager, the helmet

manufacturer, etc.  The trial court dismissed the action, the court of appeals reversed, and the California Supreme

Court reversed, holding that the action was barred by assumption of the risk.

Issue. Whether Avila’s head injury was an inherent risk of the sport such that Defendants did not owe a duty to

protect him from it.

Held. Yes.  Assumption of the risk applies in the sporting context when a defendant owes no duty to protect a

plaintiff from particular harms.  A court must evaluate the fundamental nature of the sport and the defendant’s role in

that sport in order to determine whether the defendant owes a duty to protect a plaintiff from the particular risk of

harm.  The court found that none of Avila’s allegations showed that Defendant breached a duty to him: (1) nothing

about the District’s hosting the game enhanced the ordinary inherent risks of baseball; (2) failure to supervise and

control the Citrus College pitcher was barred by Avila’s primary assumption of the risk, as being hit by a pitch, even

intentionally, is an inherent risk of baseball; (3) failing to provide umpires likewise did not increase the risks

inherent in the game, and Defendants did not have a duty to decrease the risks in the game; (4) the District had no

duty to provide medical care after he was injured and his own Rio Hondo coaches and trainers were present to assist

him.  Reversed and remanded.

Discussion.  This decision stands for the proposition that where primary assumption of the risk exists, there is no

liability to the plaintiff because there is no negligence on the part of the defendant to begin with.  The danger to the

plaintiff is not one which defendant is required to extinguish or warn about.  A growing number of courts now say

that personal injury cases arising out of an athletic event must be predicated on reckless disregard of safety.

III. LIMITING OR EXPANDING THE DUTY OF CARE

1. CARRIERS, HOST-DRIVERS AND LANDOWNERS

A. LANDOWNERS’ DUTIES TO TRESPASSERS, LICENSEES, INVITEES, AND CHILDREN

Gladon v. Greater Cleveland Regional Transit Authority

Brief Fact Summary. A jury awarded Gladon (Plaintiff) damages in connection with being struck by a train

operated by Greater Cleveland Regional Transit Authority (Defendant). Defendant appealed.

Synopsis of Rule of Law. A landowner owes a duty to an invitee to exercise ordinary care for the invitee’s safety

and protection. Conversely, a landowner owes no duty to a licensee or trespasser except to refrain from willful,

wanton, or reckless conduct that is likely to injure him.

Facts. Plaintiff boarded Defendant’s train after attending a Cleveland Indians baseball game. He was assaulted after

mistakenly alighting from the train. At some point, Plaintiff ended up on the tracks with a train approaching. The

train’s operator was unable to brake in time and the train struck Plaintiff causing him serious and permanent injuries.

Plaintiff filed suit against the Defendant, alleging negligent security and negligent operation. The trial court

dismissed the security claim, but permitted the negligent operation claim to proceed to trial. A jury found for

Plaintiff and awarded damages. The trial court instructed the jury to consider the question of whether the evidence

showed Plaintiff was an invitee, and thus entitled to the heightened duty owed by one of that status.

Issue. What was the Plaintiff’s status at the time of his injury?

* What duty of care was Plaintiff owed by the Defendant?

Held. The court ruled that the “RTA’s invitation to [Plaintiff] to use their premises did not extend to the area on or

near the tracks,” therefore his status was that of trespasser or licensee and thus subject to an ordinary standard of

care requiring the Defendant only “to discover and avoid danger.” The judgment of the lower court was reversed and

the action remanded.

Dissent. The dissent maintained that the majority avoided the fundamental issue at hand, which was characterized as

a constitutional one: “[t]he real issue in this case is whether any application of [the applicable statute] to reduce or

“cap” a jury award in a negligence action against a political subdivision of the state violates the right to trial by

jury.” The dissent took further issue with the majority’s characterization of the status of the Plaintiff, which the

dissent maintains is that of “business invitee.” The distinction was critical as it goes directly to the duty of cared

owed by Defendant.

Discussion. The common law approach measure the duty owed by the status of the person entering the land. There

are three basic categories: “trespassers,” “licensees,” and “invitees.” That classification determines the standard of

care owed by the land occupier. In some jurisdictions this approach to liability has been abandoned in favor of a

generalized duty of ordinary care.

* A “trespasser” is defined as a person who enters or remains on another’s property without the permission (express

or implied) of the owner. The duty owed in this case is very limited. As noted above, the only duty owed is to refrain

from willful harm. A “licensee”, in contrast is one who enters the land with the express or implied consent of the

landowner. Social guests fall under this category. Finally, an “invitee” is a person who enters the property at the

behest of the owner, and this type of person generally falls into two categories: business invitees and public invitees.

The duty owed an invitee is that the landowner uses reasonable care in maintaining the premises and in their

activities.

Bennett v. Stanley

Brief Fact Summary. A five-year-old boy trespassed into his neighbor’s yard to play by their unkempt, pond-like

pool, fell in, and drowned.  His mother also drowned trying to save him.  The father sued the neighbors in

negligence.

Synopsis of Rule of Law.

A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial

condition upon land if:

(a) The possessor knows or has reason to know that children are likely to trespass on that place;

(b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious

bodily harm to such children;

(c) Because of their youth the children do not discover the condition or realize the risk involved

(d) The risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden

of eliminating it;

(e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.”

Facts.  Kyleigh and Chance Bennett, 3 years old and 5 years old respectively, were playing at their neighbor

Stanleys’ pool on March 20, 1997.  The Stanleys did not properly maintain the pool, but had allowed it to fill with

rainwater to a depth of over 6 feet.  They had removed a tarp from the pool and fencing from two sides of the pool

and it did not have any ladders.  It became pond-like and contained tadpoles and frogs with slimy sides covered in

algae.  Chance fell into the pool and his mother apparently drowned trying to save him.  When Rickey Bennett came

home on the day of the drowning he found his two young daughters crying.  Kyleigh told him that “Mommy and

Chance are drowning in the water.”  Bennett ran next door to find his wife and son unconscious in the swimming

pool.  Both died.  Bennett sued the Stanleys in negligence.  The trial granted the Stanleys’ motion for summary

judgment, the appeals court affirmed, and the Ohio Supreme Court reversed and remanded.

Issue. Whether property owners have a heightened duty of care to protect child trespassers from dangers upon their

land.

Held.  Yes.  Children have a special status in tort law and duties of care owed to them are proportioned to their

inability to foresee and avoid the perils that they may encounter.  The Ohio Supreme court adopted the “attractive

nuisance” doctrine of the Restatement of Torts 2d in this case, which provides that “A possessor of land is subject to

liability for physical harm to children trespassing thereon caused by an artificial condition upon land if:

(a) The possessor knows or has reason to know that children are likely to trespass on that place;

(b) The possessor knows or has reason to know the condition will involve unreasonable risk of death or serious

bodily harm to such children;

(c) Because of their youth the children do not discover the condition or realize the risk involved

(d) The risk of harm to the children outweighs the possessor’s utility of maintaining the condition and his burden of

eliminating it;

(e) The possessor fails to exercise reasonable care to eliminate the danger or to otherwise protect the children.” 

Accordingly, the court reversed the judgment of the lower courts granting summary judgment for the Defendants

and remanded.

Discussion. The attractive nuisance doctrine applies only to children who, because of their youth, are unlikely to

appreciate the dangers and to avoid them.  Thus, the doctrine applies mainly to children of grade school age or

younger and only rarely to teenagers

O’Sullivan v. Shaw

Brief Fact Summary. In an action for negligence, the Superior Court, Essex (Massachusetts) granted Defendants’

Motion for Summary Judgment. The court reasoned that diving into the shallow end of Defendants’ pool presented

an open and obvious danger that was known to the Plaintiff, therefore Defendants did not owe a duty of care to

Plaintiff. Plaintiff appealed.

Synopsis of Rule of Law. A landowner’s duty to protect lawful visitors against dangerous conditions on his property

ordinarily does not extend to dangers that would be obvious to persons of average intelligence.

Facts. Plaintiff brought an action to recover damages for injuries incurred after he dove headfirst into the shallow

end of the Defendant’s swimming pool. He contended that Defendants had a duty to warn visitors of the danger of

diving into the pool. The Plaintiff suffered injuries to his neck and back after diving into the shallow end of the pool.

He struck the bottom of the pool at an odd angle and sustained a fracture to the cervical vertebrae resulting in

temporary paralysis. The Superior Court granted Defendants’ Motion for Summary Judgment. Plaintiff appealed,

arguing that the Massachusetts statute, which expressly abolished the defense of assumption of risk, implicitly

abolished the open and obvious danger defense.

Issue. Did Defendants owe a duty to Plaintiff to warn him of the danger of diving into the shallow end of

Defendants’ swimming pool?

* Did Plaintiff, by exposing himself to an obvious danger, assume the risk of harm associated with the activity in

question?

Held. The appellate court affirmed the lower court’s judgment, concluding that the statute in question did not relieve

Plaintiff of the burden of proving Defendant owed him a duty of care that superseded the “open and obvious danger”

rule. The standard of care owed by a defendant presumes that a plaintiff is required to exercise reasonable care for

his own safety.

Discussion. Along with contributory negligence, the court explains, assumption of risk is traditionally the second

complete defense to a negligence claim. The assumption of risk defense contains three basic elements. A plaintiff

must 1) know a particular risk; and 2) voluntarily; 3) assume the risk. In seeking to avoid the confusion and potential

for arbitrariness for juries, many jurisdictions have opted for a more generalized reasonable person standard with

respect to the degree of reasonable care a land possessor must exercise with regard to safety of those entering upon

his or her property. This approach presumes a duty of reasonable care is owed to any land entrant regardless of his or

her status.

B. THE FIREFIGHTER RULE

Minnich v. Med-Waste, Inc.

Brief Fact Summary. Plaintiff public safety officer was helping load medical waste onto a truck when the

unoccupied truck started rolling towards a public street.  He ran to catch it, jumped in, then stopped it and claimed

he was injured in the process.  He sued the Defendant truck company.  The Defendant contended that his claim was

barred by the firefighter’s rule but they were unsuccessful in that argument as the court held South Carolina does not

follow that rule.

Synopsis of Rule of Law. The “firefighter’s rule”  is a common law doctrine still applied in some states that

precludes a firefighter (and certain other public employees, including police officers and public safety officers) from

recovering against a defendant whose negligence caused the firefighter or officer’s on-the-job injury. 

Facts. Plaintiff Minnich was employed by the Medical University of South Carolina as a public safety officer. 

While working in this capacity, Plaintiff assisted in loading medical waste from the premises onto a tractor-trailer

truck owned by Defendant Med-Waste, Inc.  Plaintiff noticed the unoccupied truck begin to roll forward, toward a

public street.  Plaintiff ran to the truck, jumped inside, and stopped the truck.  In the course of this feat, Plaintiff

alleged he suffered serious injuries proximately caused by Defendants’ employees and sued in federal court. 

Defendants contended the Plaintiff’s claims were barred by the “firefighter’s rule”.  The federal district court

certified a question to the South Carolina Supreme Court asking whether the firefighter’s rule barred a claim for

injury to emergency professionals.  The South Carolina Supreme Court answered no.

Issue. Whether South Carolina adopts the firefighter’s rule, thus barring Plaintiff’s claim.

Held. No.  The “firefighter’s rule”  is a common law doctrine that precludes a firefighter (and certain other public

employees, including police officers and public safety officers such as here) from recovering against a defendant

whose negligence caused the firefighter’s on-the-job injury.  The court discussed several rationales for the rule, such

as that firefighters and police officers are aware of the risks inherent in their chosen professions and therefore have

assumed those risks.  Moreover, as a policy matter, injuries to police and firemen are compensable through workers’

compensation and liability should be borne by the public rather than by individual property owners.  Courts have,

however, allowed policemen and firefighters to recover for injuries resulting from an act of negligence unrelated to

the specific reason for which the officer or firefighter was originally summoned.  However, the Supreme Court found

that the rule is riddled with exceptions and criticisms, has been abolished in many jurisdictions, and was not part of

South Carolina’s case law.  Accordingly, the court held that the firefighter’s rule did not apply under South Carolina

state law and answered the certified question in the negative.

Discussion. In some states which still adhere to the firefighter’s rule, courts reason that the public pays to train and

compensate firefighters and police officers via taxes.  If these public employees were permitted to bring suit against

the taxpayers whose negligence proximately caused injury, the negligent taxpayer would incur multiple penalties in

exchange for the protection provided to them. 

C. LANDOWNERS

Rowland v. Christian

Brief Fact Summary. The Superior Court of the City and County of San Francisco (California) granted summary

judgment in favor of Nancy Christian (Defendant). Roland (Plaintiff), a social guest, had brought an action to

recover damages for personal injuries caused by a defective bathroom fixture in an apartment occupied by

Defendant. Plaintiff appealed.

Synopsis of Rule of Law. The proper test to be applied to the liability of a landowner is whether in the management

of his property, he has acted as a reasonable man in view of the probability of injury to others. A guest is reasonably

entitled to be warned of any dangerous condition, so that he may take necessary precautions.

Facts. Plaintiff was a guest in Defendant’s apartment. The porcelain handle of the bathroom faucet broke while

Plaintiff was using it. He suffered severed tendons and nerves. Defendant had known about the damaged fixture and

had reported it to her lessors, yet did not warn Plaintiff. Plaintiff brought suit for recovery and the trial court granted

Defendant summary judgment.

Issue. Had the trial court, in granting summary judgment in favor of Defendant, applied the proper standard for duty

of care?

Held. No. The Supreme Court of California held that a social guest such as Plaintiff was entitled to a warning of a

dangerous condition so that he, like the host, could take proper precautions.

Dissent. The dissent took issue with what he viewed as a departure from an established and workable framework.

He noted, “[i]n determining the liability of the occupier or owner of land for injuries, the distinctions between

trespassers, licensees and invitees have been developed and applied by the courts over a period of many years.” It

was not a proper function of the court to overturn this system, which had predominated tort law for years. Instead, it

is the job of the legislature to enact statutes to provide guidelines for the modern society.

Discussion. In common law, the degree of liability assigned an owner or occupier of land was assessed according to

the status of persons entering the property. The law evolved in such a manner as to place primary importance on land

ownership, and thus the standards of liability were, literally, “status” conscious. Thus, whether the entrant of a

property was a “trespasser”, a “licensee” or an “invitee” determined the degree of care owed.

* In Rowland, California is one of the first states to depart from the common law approach, stating that “[i]t is

apparent that the classifications of trespasser, licensee, and invitee, the immunities from liability predicated upon

those classifications, and the exceptions to those immunities, often do not reflect the major factors that should

determine whether immunity should be conferred upon the possessor of land.” It is unreasonable to apply the

historical or traditional terminology to modern society. The classifications do not take into account certain factors

that need to be considered, which include: “the defendant’s conduct, the moral blame attached to the defendant’s

conduct, the policy of preventing future harm, and the prevalence and availability of insurance.” It no longer makes

sense to hold someone to a certain duty of care, based on these classifications. To find that one person is owed a

lesser duty of care than another based on these archaic classifications, offends society’s moral and humanitarian

values.

* Therefore, the court outlined a different test, which provides that “whether in the management of his [Defendant's]

property he has acted as a reasonable man in view of the probability of injury to others, and, although the plaintiff’s

status as a trespasser, licensee, or invitee may in the light of the facts giving rise to such status have some bearing on

the question of liability, the status is not determinative.” Thus, the court adopts a more generalized “reasonable

person” standard.

D. LESSORS

Pagelsdorf v. Safeco Insurance Co.

Brief Fact Summary. Plaintiff was injured when tenant’s balcony rail collapsed while she was helping tenant move.

Plaintiff sued landlord for landlord’s failure to repair the balcony. Judgment was entered for defendant landlord

based on a landlord’s general immunity to liability from tenants and visitors.

Synopsis of Rule of Law. Under Wisconsin law, a landlord owes to his tenant or anyone on the premises with the

tenant’s consent a duty to exercise ordinary care.

Facts. The Defendant, Richard Mahnke (Defendant), owned a two-story duplex with four balcony porches.

Defendant rented the upper unit to the John Blatnner and Mary Katherine Blatnner (Mrs. Blatnner). The Plaintiffs in

this matter were Carol Pagelsdorf (Mrs. Pagelsdorf) and James Pagelsdorf (Plaintiffs). Mrs. Pagelsdorf was assisting

Mrs. Blattner to move some furniture. Mrs. Pagelsdorf leaned against the railing of the second floor balcony and it

collapsed, injuring her. The railing had a dry rot condition and should have been replaced. Judgment was entered on

the verdict, dismissing the complaint. Plaintiffs appeal.

Issue. Did the trial court err in failing to instruct the jury that Defendant owed Mrs. Pagelsdorf a duty to exercise ordinary care in maintaining the premises?

Held. Yes. Judgment reversed and cause remanded.

* This court previously abolished the distinction between licensees and invitees [Antoniewicz v. Reszcynski, 70

Wis.2d 836, 854-55, 236 N.W.2d 1, 10 (1975)]. However, the landlord is generally not liable to tenants unless one

of the exceptions applies and no exception applies in this case.

* Following the traditional rule, the Plaintiff would not be entitled to an instruction that Defendant owed Mrs.

Pagelsdorf a duty of ordinary care. The Court believes that public policy calls for abandonment of the previous

rule and adoption of a standard that landlords are under a duty to exercise ordinary care in the maintenance of the

premises.

* The policies discussed in Antoniewicz support, in the present case, the Court’s decision to abandon the landlord’s

cloak of immunity to tenants and visitors. The modern day apartment lease is viewed as a contract rather than a

conveyance. The Court has implied a warranty of habitability in such contracts. It would be anomalous to apply a

warranty of habitability to landlords, yet immunize them from liability from injuries resulting from a failure to

comply with such a warranty.

Discussion. An implied warranty of habitability requires a lessor to deliver the premises to the lessee in a habitable

condition. Generally, the only recourse for a landlord’s failure to comply with this warranty is a right to withhold

rent until repairs are made.

DUTIES OF MEDICAL AND OTHER PROFESSIONALS

1. TRADITIONAL DUTIES OF HEALTH CARE PROVIDERS IN TRADITIONAL PRACTICE

Walski v. Tiesenga

Brief Fact Summary. In a medical malpractice action, the Appellate Court for the First District (Illinois) affirmed a

directed verdict entered in favor of Appellees. Appellants sought review.

Synopsis of Rule of Law. One element of a cause of action for medical malpractice is proof of the standard of care

by which the physician’s conduct is to be measured. A physician must exercise that degree of care, skill, and

proficiency exercised by reasonably careful, skillful, and prudent practitioners in the same class to which he belongs,

acting under the same or similar circumstances.

Facts. Appellants operated to remove Appellee’s thyroid. A common risk in such a procedure is damage to the

patient’s recurrent laryngeal nerves, resulting in a loss of his or her voice. In attempting to segregate the laryngeal

nerves in order to avoid damage, the Appellants mistakenly cut them, causing paralysis of the vocal chords. The trial

court directed a verdict in favor of the Appellants and the intermediate appellate court affirmed.

Issue. Did Appellee meet the burden of establishing Appellants’ medical malpractice?

Held. The Supreme Court of Illinois affirmed the directed verdict entered in favor of the Appellants. The court held

that the patient failed to establish a standard that the doctors were bound to follow. The plaintiff in a medical

malpractice action must establish the standard of care through expert testimony.

Discussion. The court recognized the difficulty inherent in requiring a jury to evaluate certain standards of

professional conduct. Expert testimony is necessary to establish that a defendant fell below the standard of care. A

court could only dispense with such a requirement “where the physician’s conduct is so grossly negligent or the

treatment so common that a layman could readily appraise it, no expert testimony is necessary.”

* A plaintiff’s introduction of conflicting expert testimony, the common scenario of “dueling experts”, alone may not

be sufficient to meet the burden of establishing professional error. As the court clarified, “[i]t is insufficient in a

medical malpractice action for plaintiff to establish a prima facie case merely to present testimony of another

physician that he would have acted differently from the defendant, because medicine is not an exact science. It is

rather a profession, which involves the exercise of individual judgment within the framework of established

procedures. Differences in opinion are consistent with the exercise of due care.” Finally, the court concludes, “[i]t

has always been the rule that the testimony of other physicians that they would have followed a different course of

treatment than that followed by the defendant, or a disagreement of doctors of equal skill and learning as to what the

treatment should have been, does not establish negligence.”

Vergara v. Doan

Brief Fact Summary. The Court of Appeals of Indiana affirmed the trial court’s judgment, which was a jury verdict

in favor of Defendant. Plaintiffs brought an action against the Defendant for injuries sustained by their infant son.

Plaintiffs alleged that their infant suffered severe and permanent injuries during delivery as a result of the

Defendant’s negligence. Plaintiffs appealed.

Synopsis of Rule of Law. A physician must exercise that degree of care, skill, and proficiency exercised by

reasonably careful, skillful, and prudent practitioners in the same class to which he belongs, acting under the same or

similar circumstances.

Facts. This was a case alleging medical malpractice, in which Plaintiffs contend that Defendant failed in his

professional responsibility in performing a cesarean section Plaintiff’s infant son, Javier Vergara, suffered severe and

permanent injuries as a result of the cesarean. Plaintiffs alleged that these injuries were the result of the Defendant’s

negligence.

Issue. Did the lower court properly instruct the jury regarding the standard to apply in evaluating Defendant’s

professional conduct?

Held. No. The Supreme Court of Indiana opted to adopt a more objective standard, which is articulated above.

Dissent. The dissent objected to the standard outlined by the majority, because the ability of a physician in a rural

community hospital may be vastly different than his or her ability in a large metropolitan hospital. The dissent

contends that the majority position served to confuse, rather than clarify, the standard of care to which physicians

were expected to adhere.

Discussion. Prior to Vergara, Indiana employed a professional standard of care, “the modified locality rule,” which

differentiated between the manners of treatment acceptable in different locales. In adopting the new standard, the

Vergara court simply brought Indiana law in line with the more universal, objective standard employed by the

majority of jurisdictions.

2. RES IPSA LOQUITUR

States v. Lourdes Hospital

Brief Fact Summary. Plaintiff States underwent surgery for removal of an ovarian cyst.  In the course of the

surgery, the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended

period of time resulting in injury to her.  She sued the hospital on a res ipsa loquitur theory and had to present expert

testimony as direct evidence of negligence.

Synopsis of Rule of Law. Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself.” 

It derives from the understanding that according to common knowledge, some events ordinarily do not occur in the

absence of negligence, and thus negligence may be inferred from the mere happening of an event.  Expert testimony

is frequently necessary in a medical malpractice case brought on a res ipsa loquitur theory. 

Facts.  Plaintiff Kathleen States underwent surgery for removal of an ovarian cyst.  She believed that during the

operation the anesthesiologist negligently hyperabducted her right arm beyond a 90-degree angle for an extended

period of time, causing right thoracic outlet syndrome and reflex sympathetic dystrophy.  She sued the hospital.  At

the close of discovery, Defendant Hospital moved for summary judgment on the ground that there was no direct

evidence that the plaintiff’s arm was hyperabducted during surgery.  Conceding the absence of direct evidence of

negligence, Plaintiff opposed the motion, submitting expert medical opinion that her injuries would not have

occurred in the absence of negligence.  Plaintiff claimed this testimony could be used by a jury in support of a res

ipsa loquitur theory.  The trial court denied defendant’s motion for summary judgment and permitted plaintiff to rely

on the expert medical opinion for a res ipsa theory.  A divided appellate division reversed, but the New York Court

of Appeals affirmed the trial court

Issue. Whether a jury can rely on expert medical opinion in the absence of direct evidence of negligence to support a

res ipsa loquitur theory.

Held. Yes.  Res ipsa loquitur is a doctrine of ancient origin which means “the thing speaks for itself.”  It derives

from the understanding that according to common knowledge, some events ordinarily do not occur in the absence of

negligence. The defendant in this case argued that res ipsa could not apply because to establish that the

hyperabduction of plaintiff’s arm would not have occurred in the absence of negligence, the jury would have to rely

on expert medical opinion rather than their own common knowledge and everyday experience.  The court concluded

that expert testimony may be used to help the jury “bridge the gap” between its own common knowledge, which

does not encompass the specialized knowledge necessary, and the common knowledge of physicians, which does. 

The court reasoned that expert opinion does not negate the jury’s ultimate responsibility as finder of fact to

determine whether an event would normally occur in the absence of negligence.

Discussion.  The normal basis for medical res ipsa loquitur is that, as a matter of common knowledge, the plaintiff’s

injury is more likely than not to have resulted from negligence.  The clearest cases are those in which instruments or

towels are left inside the patient’s abdomen after surgery and those in which injury is inflicted upon a part of the

body not being treated.  This decision stands for the proposition that expert testimony is frequently necessary in a

medical malpractice case brought on a res ipsa loquitur theory.  

Ybarra v. Spangard

Brief Fact Summary. In a personal injury action, the Superior Court of Los Angeles County (California) entered

judgments of nonsuit as to all Defendants in an action for damages for personal injuries. Plaintiff appealed.

Synopsis of Rule of Law. The doctrine of res ipsa loquitur applies with equal force in cases wherein medical and

nursing staffs take the place of machinery and may, through carelessness or lack of skill, inflict, or permit the

infliction of, injury upon a patient who is thereafter in no position to say how he received his injuries.

Facts. Plaintiff was diagnosed with appendicitis and was scheduled for surgery. After being given an injection, and

in the course of preparation for surgery members of the surgical team adjusted Plaintiff, so that his back rested

against two hard objects. After surgery, Plaintiff complained of neck and back pain. He testified that prior to the

operation he had never had any such pain, nor had he suffered any injury that might have been the cause. His

condition worsened, eventually resulting in paralysis. The evidence established that his condition was the result of

trauma. He brought suit.

Issue. Would the application of the doctrine of res ipsa loquitur have been appropriate in this case, thus rendering

the trial court’s judgment of nonsuit improper?

Held. Yes. The Supreme Court of California reversed the lower court’s ruling because the res ipsa loquitur doctrine

applied to Defendants, because they had control over Plaintiff’s body and instrumentalities that might have caused

the injuries which Plaintiff sustained.

Discussion. In explaining the applicability of res ipsa loquitur, the Supreme Court of California provided a very

broad interpretation of res ipsa loquitur, stating: “[t]he doctrine of res ipsa loquitur has three conditions: (1) the

accident must be of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it must be

caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due

to any voluntary action or contribution on the part of the plaintiff. It is applied in a wide variety of situations,

including cases of medical or dental treatment and hospital care.” The court’s application of the doctrine carries

particular significance within the parameters of medical malpractice claims: “[w]here a plaintiff receives unusual

injuries while unconscious and in the course of medical treatment, all those defendants who had any control over his

body or the instrumentalities which might have caused the injuries may properly be called upon to meet the

inference of negligence by giving an explanation of their conduct.”

3. INFORMED CONSENT

Harnish v. Children’s Hospital Medical Center

Brief Fact Summary. The Superior Court (Massachusetts) dismissed Harnish’s (Plaintiff) negligence claim after a

medical malpractice tribunal concluded that Plaintiff’s evidence was inadequate. Plaintiff sought review.

Synopsis of Rule of Law. A physician owes his patient the duty to disclose in a reasonable manner all significant

medical information that the physician possesses or reasonably should possess, which is material to in order for the

patient to make an intelligent decision whether or not to undergo a proposed procedure. Failure to do so constitutes

professional misconduct.

Facts. Plaintiff underwent surgery to remove a tumor in her neck. In the course of the procedure her hypoglossal

nerve was severed, allegedly resulting in the critical loss of certain functions of her tongue. She brought suit,

contending that the purpose of the procedure was cosmetic, and the resulting injury foreseeable. She maintained that

if she had been apprised of the risk, she would not have consented to the procedure. Thus, she asserted, the

physicians treating her did not properly inform her of the possible consequences and should have been held liable.

Issue. To what degree is a physician required to disclose medical information so as to enable a patient to give

informed consent to a course of treatment?

* What information is material, and thus necessary for a patient to be sufficiently informed?

Held. The court reversed the dismissal of the Plaintiff’s action against the Defendants. It held that the surgeon’s

failure to divulge to a competent adult patient, sufficient information to enable the patient to make an informed

judgment whether to give or withhold consent to a medical or surgical procedure, constituted professional

misconduct.

Discussion. Harnish illustrates another basis for medical malpractice liability: a physician’s failure to provide

information to the patient. In these circumstances, liability flows from the defendant’s failure to obtain the plaintiff’s

informed consent. Regarding such consent, the Harnish court explained: “[i]n the context of informed consent,

materiality may be said to be the significance a reasonable person, in what the physician knows or should know is

his patient’s position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to

surgery or treatment.”

The court further addresses the question of what facts are material and would factor into the consideration of what

constitutes informed consent: “[a]ppropriate information may include the nature of the patient’s condition, the nature

and probability of risks involved, the benefits to be reasonably expected, the inability of the physician to predict

results, if that is the situation, the irreversibility of the procedure, if that be the case, the likely result of no treatment,

and the available alternatives, including their risks and benefits.”

NONFEASANCE

1. THE NO DUTY TO ACT RULE

Yania v. Bigan

Brief Fact Summary. Plaintiff appealed a judgment from the Somerset County Court of Common Pleas

(Pennsylvania) that sustained John Bigan’s (Defendant) demurrer. It dismissed her wrongful death and survival

actions against Defendant, which arose from the death of the Plaintiff’s husband, Joseph Yania (Yania).

Synopsis of Rule of Law. A possessor of land becomes subject to liability to a business invitee for any physical

harm caused by any artificial or natural condition upon the land: (1) if, but only if, the owner knew or could have

discovered the condition which, if known to him he should have realized involved an unreasonable risk of harm to

the business invitee; (2) if the owner had no reason to believe the business invitee would discover the condition or

realize the risk of harm; and (3) if he invited or permitted the business invitee to enter upon the land without

exercising reasonable care to make the condition reasonably safe or give adequate warning to enable him to avoid

the harm.

Facts. Defendant was engaged in a coal strip-mining operation, whereby trenches were dug in order to remove coal

deposits. One trench contained several feet of water, and Defendant had placed a pump in the trench to remove the

water. Defendant asked Yania, the operator of another coal strip-mining operation, to assist him in starting the pump.

According to Plaintiff, Defendant taunted and urged Yania to jump into the water. Yania jumped into the water and

drowned.

The Plaintiff initiated wrongful death and survival actions against Defendant, alleging that Defendant taunted her

husband, failed to warn him of the danger, and failed to rescue him.

The trial court sustained Defendant’s demurrer and dismissed Plaintiff’s actions. On appeal, the court affirmed,

holding that Yania was a reasonable and prudent adult and performed an act, which he knew or should have known,

was perilous. Justice Benjamin R. Jones held that it was the performance of that act and not defendant’s conduct

which caused Yania’s death.

Issue. Did the trial court err in ruling in favor of Defendant?

Held. No. The trial court properly ruled for Defendant. Although Defendant enticed Yania to perform a dangerous

act, it was the performance of that act that caused Yania’s death, not the enticement.

Discussion. On appeal, the court stated that the “only inference deductible from the facts alleged in the compliant is

that Bigan, by the employment of cajolery and inveiglement, caused such a mental impact on Yania that the latter

was deprived of his volition and freedom of choice and placed under a compulsion to jump into the water.”

The appellate court reasoned that had Yania been a child of tender years or a person mentally deficient then it is

conceivable that taunting and enticement could constitute actionable negligence if it resulted in harm. However, to

contend that such conduct directed to an adult in full possession of all his mental faculties constitutes negligence is

without merit.

* The fact that Defendant saw Yania in a position of peril in the water, imposed upon him a moral duty, not a legal

duty. The court held that absent a legal responsibility to rescue Yania for placing him in the perilous position, there

was no duty of rescue.

2. EXCEPTIONS QUALIFICATIONS AND QUESTIONS

Wakulich v. Mraz

Brief Fact Summary. Sixteen-year-old Elizabeth Wakulich consumed an quart of Goldschlager alcohol after

Michael and Brian Mraz offered her money as a prize to do it.  She went unconscious and started vomiting while

unconscious.  The boys checked on her and moved her to the couch but refused to get medical assistance.  She died

as a result and her parents sued.

Synopsis of Rule of Law. One who voluntarily undertakes to render services to another is liable for bodily harm

caused by his failure to perform such services with due care or with such competence and skill as he possesses. 

Facts. Michael and Brian Mraz, 21 and 18 years old, provided a quart of Goldschlager alcohol to 16-year-old

Elizabeth Wakulich and offered her money as a prize if she could drink the entire bottle without losing

consciousness or vomiting.  After drinking the entire bottle, Elizabeth lost consciousness.  According to the

complaint, the boys put her in the downstairs family room where they observed her vomiting profusely and making

gurgling sounds.  They later checked on her and removed her vomit-soaked blouse and put a pillow under her head

to prevent aspiration.  They did not seek medical attention and prevented others from calling 911 or seeking medical

attention.  Later their father ordered she be removed from the home, so they took her to a friend’s home then to the

hospital where she was pronounced dead.  The complaint was dismissed on the ground that Illinois case law

eliminated liability of social hosts for providing alcohol.  Plaintiff, however, appealed on the ground that the

complaint stated sufficient facts to establish a cause of action based on defendants’ failure to exercise due care after

voluntarily undertaking to care for plaintiff’s decedent after she became unconscious.  The court of appeals agreed.

Issue. Whether defendants’ actions demonstrated a voluntary undertaking concerning decedent’s well-being such

that they had a duty to exercise due care in the performance of that undertaking.

Held. Yes.  One who voluntarily undertakes to render services to another is liable for bodily harm caused by his

failure to perform such services with due care or with such competence and skill as he possesses.  Although the

defendants claimed that none of their acts indicated a voluntary assumption of responsibility for the decedent, the

court disagreed.  The court found that Michael and Brian Mraz demonstrated an undertaking concerning decedent’s

well-being by carrying decedent downstairs, placing her on a couch, checking on her, changing her vomit-saturated

shirt, and placing a pillow under her head.  Accordingly, the court of appeals held that the trial court erred in

dismissing counts based on voluntary undertaking.

Discussion. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to

another, when the actor knows or should know that those services will reduce the risk of harm to the other, has a

duty to exercise reasonable care in rendering those services if the failure to exercise reasonable care would increase

the risk of harm beyond which would have existed without the undertaking; or if the other person relies on the

actor’s using reasonable care in the undertaking.

Farwell v. Keaton

Brief Fact Summary. Plaintiff appealed a ruling from the Court of Appeals of Michigan, which held that Defendant

did not assume a duty to aid his companion, and neither knew nor should have known of the need for medical

treatment, in a wrongful death action for negligence.

Synopsis of Rule of Law. Courts have been slow to recognize a duty to render aid to a person in peril. When such a

duty has been found, it has been predicated upon the existence of a special relationship between the parties; in such a

case, if defendant knew or should have known of the other person’s peril, he is required to render reasonable care

under all circumstances. Such a defendant will then be liable for a failure to use reasonable care for the protection of

the plaintiff’s interests.

Facts. Richard Farwell, 18, and his friend David Siegrist, 16, had a few beers while waiting for a friend to finish

work. When teenage girls walked by they attempted conversation without success. The girls complained to friends

that they were being followed, and six boys chased Farwell and Siegrist back to a trailer lot. Siegrist escaped, but

Farwell was severely beaten. Siegrist found him under a car, put ice on his head and then drove around for two

hours, stopping at drive-in restaurants. Farwell “went to sleep” in the back of the car and around midnight Siegrist

drove him to his grandparents’ home, where he left him in the back of the car after an attempt to arouse him. Farwell

died three days later from the beating and there was evidence that prompt medical attention could have prevented

this.

The jury found for the Plaintiff in an action for Farwell’s death, but the court of appeals reversed on the ground that

Siegrist had not assumed any duty to aid Farwell.

Issue. Did the appellate court err in reversing the trial court’s ruling in favor of Plaintiff?

Held. Yes. The Supreme Court of Michigan reversed and reinstated the jury verdict, finding that Defendant had an

affirmative duty to aid, because he had a special relationship with the deceased, he knew or should have known of

the peril the deceased was in, and he could have rendered assistance without endangering himself.

Discussion. Farwell and Siegrist were companions on a social venture. As such, a special relationship existed

between the parties. Implicit in such a common undertaking is the understanding that one will render assistance to

the together when he is in peril if he can do so without endangering himself. Siegrist knew or should have known

when he left Farwell, who was badly beaten and unconscious, in the back seat of his car that no one would find him

before morning. Under these circumstances, to say that Siegrist had no duty to obtain medial assistance or at least to

notify someone of Farwell’s condition and whereabouts would be “shocking to humanitarian considerations” and fly

in thecae of “the commonly accepted code of social conduct.”

Therefore, on appeal, the court reversed and reinstated the jury verdict, finding that Defendant had the affirmative

duty to aid, because he had a special relationship with the deceased, he knew or should have known of the peril the

deceased was in, and he could have rendered assistance without endangering himself.

Podias v. Mairs

Brief Fact Summary. Defendant Mairs was driving a car drunk which held defendant passengers Swanson and

Newell.  After Mairs hit a motorcyclist, the group left the scene of the accident and did not call for emergency

assistance.  Swanson in fact dissuaded anyone from calling 911.  The victim, left lying in the road, was hit by

another vehicle and died from injuries sustained in both accidents.

Synopsis of Rule of Law. The mere knowledge of serious peril threatening death or great bodily harm to another,

which an identified defendant might avoid with little inconvenience, creates a sufficient relation to impose a duty of

action. 

Facts.  Defendants Mairs, Swanson and Newell were 18-year-olds drinking at a friend’s home.  They decided to

leave with Mairs driving while it was raining and the road was wet.  Mairs lost control of the car, struck a

motorcycle driven by Plaintiff Podias, and went over the guardrail.  Swanson saw Podias lying in the roadway and

because he saw no movement and heard no sound, told Mairs and Newell that he thought Mairs had killed the

cyclist.  Even though all three had cell phones, no one called for assistance.  Instead, Mairs called his girlfriend,

Swanson placed 17 phone calls in the next one-and-a-half hours and Newell made 27 phone calls in the next two-

and-a-half hours, but none of them emergency calls.  After ten minutes all three got back in the car and leave the

scene.  Swanson instructed Mairs “not to bring up his name or involve him in what occurred”.  The three drove

south for a short while until Mairs car broke down.  Mairs pulled over in the bushes and waited for his girlfriend to

arrive, while Swanson and Newell ran off into the woods.  Meanwhile, a vehicle operated by Patricia Uribe ran over

Podias, who died as a result of injuries sustained in both accidents.  The trial court granted summary judgment in

favor of Swanson and Newell and plaintiff appealed.

Issue.  Whether passenger defendants, whose actions did not result in the car accident, nevertheless had a duty to

prevent bodily harm to the victim of the accident.

Held. Yes.  Ordinarily, mere presence at the commission of a wrong is not enough to charge one with responsibility

to go to the aid of another human being who is in danger of losing his life.  However, a duty of affirmative action

may be found where there is some “definite relation between the parties of such a character that social policy

justifies the imposition of a duty to act.”  The mere knowledge of serious peril threatening death or great bodily

harm to another, which an identified defendant might avoid with little inconvenience, creates a sufficient relation to

impose a duty of action.  The court found that the record contained facts from which a reasonable jury could find

defendants breached a duty which proximately caused Podias’ death.  The risk of harm or death to Podias from the

defendants’ failure to summon help was readily foreseeable.  In addition, the harm to the victim could have been

prevented with relative ease.  All three had cell phones and used them for their own purposes rather than to call for

emergency assistance.  Accordingly, the appeals court reversed the trial court’s granting summary judgment for

defendants and remanded.

Discussion. The Restatement Third of Torts § 43 recognizes that an actor who undertakes to render services to

another, when the actor knows or should know that those services will reduce the risk of harm to the other, has a

duty to exercise reasonable care in rendering those services if the failure to exercise reasonable care would increase

the risk of harm beyond which would have existed without the undertaking; or if the other person relies on the

actor’s using reasonable care in the undertaking.

3. NONPERFORMANCE OF PROMISES

A. UNENFORCEABLE PROMISES

Thorne v. Deas

Brief Fact Summary. Plaintiffs filed an action for nonfeasance. Judgment was granted to the Plaintiffs. Defendant

appealed.

Synopsis of Rule of Law. One who takes on a responsibility gratuitously is not responsible for consequences if he

fails to act; he is only responsible when he attempts to act and performs incorrectly.

Facts. Plaintiffs brought an action against Defendant for failure in his promise to insure a boat that they jointly and

equally owned. Prior to a planned sailing from New York to North Carolina, Defendant promised Plaintiffs that he

would insure the vessel. He failed to do so, and the vessel was wrecked near the Carolina coast. Plaintiffs brought

suit for “nonfeasance” alleging that Defendant was liable for having failed to insure the vessel.

Issue. In tort law, can a defendant be held liable for failing to act when he has promised to do so gratuitously?

Held. No. The court held that only when a party engages in a course of action on behalf of another, and does so

incorrectly is he held liable.

Discussion. The primary distinction is between the laws of torts and contracts. At issue was whether there existed

grounds for an action in tort. The court asserts that only when one begins a job and he does so incorrectly can

damages be assessed. He would be responsible for a misfeasance, but not for a nonfeasance. The court further stated

that one cannot sue in tort for broken promises. As the court notes, “[t]here are many rights of moral obligation

which civil laws do not enforce, and are, therefore, left to the conscience of the individual, as rights of imperfect

obligation.”

B. ENFORCEABLE PROMISES

Spengler v. ADT Security Services, Inc.

Brief Fact Summary. Defendant ADT installed and monitored a call button alarm in the home of plaintiff

Spengler’s mother, which allowed her to activate it in distress prompting ADT to dispatch an ambulance.  In October

2005, ADT received an alarm from the mother, but due to an error in the address that ADT gave to the ambulance

dispatchers, the ambulance was delayed 16 minutes.  By the time they got there it was too late and Barker died. 

Spengler sued on both contract and tort theories but the tort theory was dismissed.

Synopsis of Rule of Law.  Where an actor’s only violation is that of a broken promise to perform a contract, and

there exists no independent duty outside the contract to perform, liability, if any, must rest solely upon the breach of

the contract and a tort cause of action is not available.

Facts. In May 2004, Plaintiff Spengler signed a contract with Defendant ADT to install and monitor a security alarm

at the home of his mother Veronica Barker.  The agreement included a call button alarm that Barker could activate

when in distress, which he requested due to her cancer of the larynx leaving her unable to speak.  In October 2005,

ADT received an alarm from Barker, but due to an error in the address that ADT gave to the ambulance dispatchers

in response to the alarm, the ambulance was delayed 16 minutes.  By the time they got there, Barker’s heart rhythm

was asystolic, she never regained consciousness, and died in the hospital.  Spengler sued ADT alleging that by

providing an erroneous address to the dispatcher, ADT committed misfeasance subjecting it to tort liability.  The

district court granted summary judgment for ADT on the tort claim, finding that ADT breached no duty independent

of the contract.  The court also granted summary judgment to Spengler on the contract claim, finding that ADT

breached the contract and limiting damages to the $500 amount stated in the contract.  Spengler appealed arguing

that the court erred in finding the case sounded in contract instead of tort, and that the $500 limitation of liability

clause was unconscionable and unenforceable.

Issue. Whether a breach of contract may also give rise to a tort claim where an actor’s duty to perform arises purely

under the contract.

Held. No.  Where an actor’s only violation is that of a broken promise to perform a contract, and there exists no

independent duty outside the contract, liability, if any, must rest solely upon the breach of the contract.  The court of

appeals determined that in this case, ADT’s obligation to promptly and correctly dispatch emergency medical

services to Barker’s home emanated only from the contract, not Michigan common law, and thus ADT did not have

an independent legal duty to perform.  Accordingly, no tort claim was available to Spengler.  Moreover, the court of

appeals declined to consider Spengler’s argument related to the unconscionability of the $500 liability cap because it

was raised for the first time on appeal, and thus was not proper on appeal.

Discussion. According to this case, it does not appear that Michigan common law follows the Restatement approach. 

The Restatement 3d of Torts: Liability for Physical Harm § 42 (2005) states that an actor who undertakes to render

services to another, when the actor knows or should know that the services will reduce the risk o physical harm to

the other, owes a duty of reasonable care in carrying out that undertaking if (a) the failure to exercises care increases

the risk of harm beyond that which would have existed without the undertaking, or (b) the other person relies on the

undertaking.  This provision might have helped Spengler.

THE DUTY TO PROTECT FROM THIRD PERSONS

1. DEFENDANT’S RELATIONSHIP WITH THE PLAINTIFF

Iseberg v. Gross

Brief Fact Summary. Plaintiff Iseberg and defendants were in a partnership that eventually dissolved.  One of the

partners, Mr. Slavin, lost his entire investment and told two partners that he wanted to harm Iseberg as a result.  A

few years later, Slavin rang Iseberg’s doorbell and shot him four times when he answered the door.  The two partners

had never warned Iseberg.

Synopsis of Rule of Law. When a special relationships exists between parties, and an unreasonable risk of harm

arises within the scope of that relationship, an obligation may be imposed on the one to exercise reasonable care to

protect the other from, or warn him about, such risk, if the risk is reasonably foreseeable, or to render aid when it is

known that such aid is need

Facts. Slavin and Mr. Gross formed a business together called Vernonshire Auto Laundry (“VAL”).  They contacted

Plaintiff Iseberg, a lawyer and real estate developer, who was in the process of acquiring land to develop into a strip

mall.   Iseberg and one Mr. Frank started a corporation, LFD, in order to complete that transaction.  VAL and LFD

formed a partnership with each company contributing funds to purchase the land.  A dispute arose among the

partners and the partnership was dissolved, leaving VAL with sole ownership of the property.  Much time passed and

because the property did not sell, Slavin lost his entire investment.  Slavin became mentally unbalanced and focused

his anger on Iseberg.  Slavin told Gross several times that he wanted to harm Iseberg and then commit suicide. 

Gross told Frank about these threats, but neither told Iseberg.  In early 2000, Slavin rang the doorbell at Iseberg’s

home and shot him four times when he answered the door, killing him.

Issue. Whether Gross and Frank had a special relationship with Iseberg such that they had a duty to act reasonably

to protect him from, or warn him of, Slavin’s attack.

Held. No.  The law only imposes a duty to act where a “special relationship” exists between the parties.  Historically

there have been four such relationships: common carrier/passenger, innkeeper/guest, business invitor/invitee, and

voluntary custodian/protectee.  When one of these special relationships exists and an unreasonable risk of harm

arises within the scope of that relationship, an obligation may be imposed on the one to exercise reasonable care to

protect the other from such risk, if the risk is reasonably foreseeable, or to render aid when it is known that such aid

is needed.  Plaintiff argued that Iseberg was an agent of Gross and Frank, giving rise to a duty to warn of Slavin’s

threats.  The court, however, did not find a principal/agent relationship between the defendants and Iseberg at the

time of the injury.  Moreover, the complaint did not allege that the risk of harm arose from the agency relationship. 

Not finding any other special relationship, the court held that defendants had no duty to protect Iseberg.

Discussion. This case stands for the proposition that an affirmative duty to warn or protect against the criminal

conduct of a third party may be imposed on one for the benefit of another only if there exists a special relationship

between them.

2. DEFENDANT’S RELATIONSHIP WITH DANGEROUS PERSONS

Tarasoff v. Regents of University of California

Brief Fact Summary. Tatiana Tarasoff’s parents (Plaintiffs) asserted that the four psychiatrists at Cowell Memorial

Hospital of the University of California had a duty to warn them or their daughter of threats made by their patient,

Prosenjit Poddar. The Superior Court of Alameda County (California) dismissed Plaintiffs’ action (sustaining a

demurrer to Defendant’s second amended complaint) for failure to state a valid claim against the therapists, police,

and the Regents of University of California (Defendants). Plaintiffs sought review.

Synopsis of Rule of Law. A defendant owes a duty of care to all persons who are foreseeably endangered by his

conduct, with respect to all risks that make the conduct unreasonably dangerous. When the avoidance of foreseeable

harm requires a defendant to control the conduct of another person, or to warn of such conduct, liability is imposed

only if the defendant bears some special relationship to the dangerous person or to the potential victim.

Facts. In October 1969, Prosenjit Poddar (Poddar) murdered Tatiana Tarasoff (Tarasoff). Plaintiffs, Tatiana’s

parents, contended that only a short time prior, Poddar had expressed his intention to do so. This, they alleged, he

had confided to his therapist, Dr. Lawrence Moore, a psychologist employed by University of California. They

further alleged that Dr. Moore had warned campus police of Poddar’s intentions, and that the police had briefly

detained him, but then released him. Plaintiffs asserted two grounds for their action: the failure to confine Poddar, in

spite of his expressed intentions to kill Tarasoff, and failure to warn Tarasoff or her parents. Defendants maintained

that they owed no duty of care to the victim, and were immune from suit.

Issue. Did Defendants owe a duty to the victim thus making them liable for the harm that ensued?

Held. The court held that Plaintiffs could amend their complaint so as to bring a valid cause of action against

therapists and Regents of University of California for breach of duty to exercise reasonable care.

* The court concluded that the police did not have the requisite special relationship with Tarasoff, sufficient to

impose a duty to warn her of her Poddar’s intention.

Discussion. In Tarasoff, the Supreme Court of California addressed a complicated area of tort law concerning duty

owed. Their analysis required a balancing test between the need to protect privileged communication between a

therapist and his patient and the protection of the greater society against potential threats. The court began its

analysis by addressing the “special relationship” required that imposes a duty on an individual to control another.

“A duty of care may arise from either (a) a special relation between the actor and the third person which imposes a

duty upon the actor to control the third person’s conduct, or (b) a special relation between the actor and the other

which gives to the other a right of protection.” This consideration was critical to the circumstances in Tarasoff. As a

general proposition, “[w]hen a hospital has notice or knowledge of facts from which it might reasonably be

concluded that a patient would be likely to harm himself or others unless preclusive measures were taken, then the

hospital must use reasonable care in the circumstances to prevent such harm.”

More specifically, the court explained, “[i]n attempting to forecast whether a patient presents a serious danger of

violence, a court does not require that a therapist, in making that determination, render a perfect performance; the

therapist need only exercise that reasonable degree of skill, knowledge, and care ordinarily possessed and exercised

by members of that professional specialty under similar circumstances.”

* The court had to address the contending policy consideration, first noting “[o]nce a therapist determines, or under

applicable professional standards reasonably should have determined, that a patient poses a serious danger of

violence to others, he bears a duty to exercise reasonable care to protect the foreseeable victim of that danger.

While the discharge of this duty of due care will necessarily vary with the facts of each case, in each instance the

adequacy of the therapist’s conduct must be measured against the traditional negligence standard of the rendition

of reasonable care under the circumstances.” Thus, the court concluded, “[a] physician may not reveal the

confidence entrusted to him in the course of medical attendance unless he is required to do so by law or unless it

becomes necessary in order to protect the welfare of the individual or of the community.”

* Finally, with respect to the potential liability of the police, the court explained that, pursuant to state statute, “a

public employee is not liable for an injury resulting from his act or omission where the act or omission was the result

of the exercise of the discretion vested in him, whether or not such discretion was abused. There is a line between

discretionary policy decisions which enjoy statutory immunity and ministerial administrative acts which do not.

Section 820.2 affords immunity only for ‘basic policy decisions.’” Thus, immunity was afforded to the police.

Brigance v. Velvet Dove Restaurant, Inc.

Brief Fact Summary. In a negligence action, Plaintiffs seek damages against Velvet Dove Restaurant, Inc.

(Defendant) alleging that Defendant served alcohol to clearly intoxicated persons. The District Court of Oklahoma

County (Oklahoma) dismissed the complaint for failure to state a claim upon which relief could be granted

Plaintiffs. Plaintiffs appealed.

Synopsis of Rule of Law. One who sells intoxicating beverages for on the premises consumption has a duty to

exercise reasonable care not to sell liquor to a noticeably intoxicated person.

Facts. Defendant served alcohol to a group of minors that included Jeff Johnson (Johnson), who the Defendant

knew had driven the group to the restaurant. Plaintiffs alleged that the alcohol Defendant served to Johnson either

caused his intoxication, or contributed to his incumbent state of intoxication that caused a one-car accident in which

Plaintiff was injured. Plaintiff brought suit. The trial court dismissed the claim.

Issue. Did the former common law rule shielding bars and restaurants that serve alcohol from civil liability apply?

Held. No. Noting that the former common law rule was an anachronism and unrealistic within the framework of

modern tort law, the Supreme Court of Oklahoma, discarded it, overturning the lower courts’ decisions.

Discussion. The court in Brigance, noting the change in the trend of tort law with respect to alcohol consumption

and driving, and those who provide alcohol, observed “duty and liability are matters of public policy . . . subject to

the changing attitudes and needs of society.” Thus, the court, while noting that the Legislature had not spoken

directly to the subject of liability under the kinds of circumstances in question, nevertheless saw fit to “establish a

civil cause of action by an injured third person against a commercial vendor of liquor for on the premises

consumption.”

Having established the possibility of liability, the court included an analysis, under the standard framework, of duty,

breach, causation and harm applicable to all negligence actions.

With respect to causation, the court would not rule out, as a matter of law, that the restaurant’s sale of the alcoholic

beverage to the noticeably intoxicated patron could have been the proximate cause of the alleged injuries. This

would be an issue of fact for the jury. A jury could have found that the restaurant could have reasonably foreseen and

anticipated the possible consequences in selling alcohol to a clearly intoxicated customer who intended to drive and

that the sale may have been a proximate cause of the alleged injuries.

Thus, “a plaintiff must still show the illegal sale of alcohol led to the impairment of the ability of the driver which

was the proximate cause of the injury and there was a causal connection between the sale and the foreseeable

ensuing injury.”

NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

1. THE EMOTIONAL DISTRESS CLAIM

Grube v. Union Pacific Railroad

Brief Fact Summary. The Wyandotte District Court (Kansas) held in favor of Appellee in an action to recover

damages for negligent infliction of emotional distress under the Federal Employer’s Liability Act (FELA) 45

U.S.C.S. Section: 51 et seq. Pacific Union R.R. (Appellant) company challenged the decision.

Synopsis of Rule of Law. FELA provides that every common carrier by railroad shall be liable in damages to any

person suffering injury or death while he is employed by such carrier for such injury or death resulting in whole or

in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or

insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats,

wharves, or other equipment.

Facts. Grube (Appellee) was employed by Appellant. A train Appellee was operating collided with a car that had

gotten trapped in a Kansas railroad crossing. In the accident, one person died and two were severely injured.

Appellee brought a claim against his employeer, seeking recovery for negligent infliction of emotional distress.

Appellee sustained no physical injuries in the collision, and attempted to render aid to the victims. He later testified

that he became physically ill, and subsequently suffered emotional injury. A jury found for Appellee, and he was was

awarded $121,500.00 damages. Appellant sought review.

Issue. Did the Appellee meet the “zone of danger test” outlined in Conrail v. Gottshall, 512 U.S. 532, and thus, may

he successfully bring a cause of action under FELA for emotional injury when such injury was not related to any

physical trauma?

Held. The court concluded that the employee failed to establish an essential element of the zone of danger test, and

reversed the judgment.

Discussion. The court in Grube cites Conrail v. Gottshall, 512 U.S. 532, the primary authority with regard to FELA

interpretation. As that court stated, “[t]he injury from negligent infliction of emotional distress is mental or

emotional harm (such as fright or anxiety) that is caused by the negligence of another and that is not directly brought

about by a physical injury, but that may manifest itself in physical symptoms.”

The Conrail court prescribed three tests, to determine the viability of a claim. The court in Conrail explained,

“[u]nder the physical impact test, a plaintiff seeking damages for emotional injury stemming from a negligent act

must have contemporaneously sustained a physical impact (no matter how slight) or injury due to the defendant’s

conduct.” With regard to the second, the zone of danger test, at issue here, the Grube court again quoted Conrail,

“[u]nder this test, a worker within the zone of danger of physical impact will be able to recover for emotional injury

caused by fear of physical injury to himself whereas a worker outside the zone will not.”

Interpreting the Conrail decision narrowly, the court drew a fine distinction: “The zone of danger test . . . does not

necessarily require that there be fear for one’s personal safety expressed contemporaneously with a collision.

However, fear for one’s safety is an essential element of the zone of danger test and must be expressed at or near the

time of the danger in order for plaintiff to prevail in an action brought under the Federal Employer’s Liability Act.”

2. THE LOSS OF CONSORTIUM CLAIM

Boucher v. Dixie Medical Center

Brief Fact Summary. The Fifth District Court, Washington County (Utah) dismissed claims against Defendant

doctors for negligent infliction of emotional distress and loss of filial consortium in relation to injuries sustained by

Mr. and Ms. Bouchers’ son (Plaintiffs), Daniel Boucher, following surgery. Plaintiffs appealed.

Synopsis of Rule of Law.

Plaintiffs, who suffered emotional distress because of another’s negligence, though they do not suffer any physical

impact, may recover damages only if they are placed in actual physical peril and fear for their own safety.

Loss of consortium claims are based on the recognition of a legally protected interest in personal relationships.

Accordingly, if one member of the relationship is tortiously injured, the non-injured party has a cause of action to

recover for damage to their relational interest, the loss of the injured party’s company, society, cooperation, and

affection.

Facts. Daniel Boucher was admitted to the hospital with a severely damaged hand. After surgery, he lapsed into a

coma from which he emerged with severe brain damage and quadriplegia that required extensive medical care for

the rest of his life. Plaintiffs brought actions against the hospital for negligent infliction of mental distress and loss of

consortium.

Issue. Was the harm suffered by the parents of a severely injured child the type recognized so as to fulfill the

elements of a claim for negligent infliction of emotional distress?

* May parents bring a cause of action for loss of consortium in connection with the tortious injury of their child?

Held. The decision of the lower court was affirmed. The court concluded that the parents did not allege sufficient

facts to state a claim of negligent infliction of emotional distress as the claim was defined in Utah. The court

declined to extend loss of consortium rights to parents of a tortiously injured child.

Dissent. The dissent takes issue with the majority’s rationale for precluding parent’s recovery on the theory of loss

of consortium for tortious injury to their children. To adopt such a cause of action would open the floodgates of

litigation. The dissent asserts,

“[t]he law protects all kinds of human values that cannot be measured by a slide rule, such as marital and filial

consortium in wrongful death actions, reputation, privacy, and emotional security from outrageous conduct.” The

dissent also describes the nexus between physical and emotional well-being: “[m]oreover, medical science and

psychology have clearly established that a person’s physical health and emotional health are often closely related

and that emotional and psychological trauma may have a cause and effect relationship on physical health. The loss

of a child’s consortium may well affect the physical well-being of parents.” The dissent acknowledges the need for

circumspection concerning the adoption of litigious redress for harm such as the type suffered in this case,

concluding, “[c]ertainly, the law need not recognize causes of action for ephemeral injuries or for every form of

personal distress that arises from living in a necessarily rough and tumble world. But that is not what this case is

about. There is every reason to believe that the loss in this case is both permanent and profound.”

Discussion.

Courts almost universally permit a spouse to recover against a person who seriously injures the other spouse, usually

known as a “loss of consortium” claim. Such claims were eventually extended to include recovery for more than the

economic loss of the of the injured spouse’s household services. Loss of consortium claims presently allows a

plaintiff to recover damages for such things as loss of companionship and other forms of emotional support.

As the court in Boucher observed, “[a]t common law, the father of a tortiously injured child did have a cause of

action to recover the value of the child’s loss of services and the medical expenses incurred on the child’s behalf.”

The court drew a distinction as to basis for such recovery. “However, this action was based on a father’s right to his

minor children’s services and a father’s obligation to pay his minor children’s medical expenses.

This right of recovery, therefore, did not extend beyond these two elements of damages, nor did it extend to injuries

involving adult or emancipated children,” and, the court concluded, “no widely accepted development has occurred

that allows recovery in cases involving adult children, nor has any widely accepted development occurred that

allows recovery for the loss of a child’s society and affection.”

The issue surrounding the negligent infliction of emotional distress claim was more straightforward. The court

applied the zone of danger test, i.e., allowing a claim only if the plaintiffs are placed in actual physical peril and fear

for their own safety.

3. TOXIC EXPOSURES

Potter v. Firestone Tire & Rubber Co.

Brief Fact Summary. The Court of Appeals of California affirmed the trial court’s award in favor of respondent

residents on their claims for negligent and intentional infliction of emotional distress. Plaintiffs brought actions for

negligent and intentional infliction of emotional distress, and were awarded damages. The Firestone Tire & Rubber

Co. (Defendant) appealed.

Synopsis of Rule of Law. In ordinary negligence actions for physical injury, recovery for emotional distress caused

by that injury is available as an item of parasitic damages. When a plaintiff can demonstrate a physical injury caused

by the defendant’s negligence, anxiety specifically due to a reasonable fear of a future harm attributable to the injury

may also constitute a proper element of damages.

Facts. Plaintiffs brought actions for negligent and intentional infliction of emotional distress, based on their fear of

developing cancer as a result of their exposure to toxic waste the company had allegedly permitted to seep into

groundwater. The company operated a tire manufacturing plant in Northern California and subcontracted with

another company to dispose of industrial waste. The waste was deposited in a local landfill. The trial court awarded

both compensatory and punitive damages. The appellate court modified the awards, but affirmed the main elements.

The company sought review.

Issue. At issue was whether the absence of a present physical injury precluded recovery for emotional distress

engendered by fear of cancer.

Held. The Supreme Court of California held that because the toxic exposure resulted from oppression, fraud, or

malice, pursuant to state statute the residents could recover without having to show that it was more likely than not

that they would develop cancer from the exposure.

Discussion. As a general rule, compensation for emotional distress is available to plaintiffs only following physical

injury. Such emotional harm, defined as parasitic to the plaintiff’s claim for physical harm, is usually referred to as

“pain and suffering.”

The court explained that, “[u]nless the defendant has assumed a duty to plaintiff in which the emotional condition of

the plaintiff is an object, recovery is available only if the emotional distress arises out of the defendant’s breach of

some other legal duty and the emotional distress is proximately caused by that breach of duty. Even then, with rare

exceptions, a breach of the duty must threaten physical injury, not simply damage to property or financial interests.”

Mental distress, which results from fear that an already existent injury will lead to the future onset of an as yet

unrealized disease, constitutes an element of recovery only where such distress is either foreseeable or is a natural

consequence of, or reasonably expected to flow from, the present injury.

In sum, the court articulated a two-point standard for establishing a claim of negligent and intentional infliction of

emotional distress with regard to toxic tort liability: (1) as a result of the defendant’s negligent breach of a duty

owed to the plaintiff, the plaintiff is exposed to a toxic substance which threatens cancer; and (2) the plaintiff’s fear

stems from a knowledge, corroborated by reliable medical or scientific opinion, that it is more likely than not that

the plaintiff will develop the cancer in the future due to the toxic exposure.