Torts


Vosburg v. Putney

Facts: Schoolboy (11 years old) and Wimp (14 years old) were sitting in class across the aisle from each other. Schoolboy (11 years old) kicked Wimp (14 years old) in the shin in the classroom. Wimp at first did not feel it (likely story). But then a few minutes later, Wimp felt a sharp pain and cried out loudly. It turned out that Wimp had hurt the same spot on his leg a few days before and his leg was in the process of healing. The medical experts all agreed that Schoolboy’s kick aggravated Wimp’s previous injury. And in what must be the youngest documented case of osteoporosis in human history, Wimp lost the use of his leg (true story) and was likely picked last in gym class forever (just a guess).

Holding: Jury found Schoolboy liable. Schoolboy appealed…annnnnd…he lost again.

Rule: The wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him/her.  (Eggshell skull rule.)  In actions for assault and battery, Plaintiff must show either that the intention was unlawful, or that Defendant is at fault. The wrongdoer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him.

Plaintiff Must Show: (1) a touching; and (2) intent. (The intention was unlawful or that the defendant is at fault. “If the kicking was unlawful, then the intention to kick was unlawful.”)

Key Point: The touching was not part of the order and decorum of the classroom.

Also Note: Court says that kicking would have been acceptable in the playground (cuz, you know, “boys will be boys”), but in the present case, order had been called by the teacher (“STFU and no kicking”).  Under those circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful.

Related Case: Wagnor v. Utah (2005) – Court held that the only required mental state was the intention to make contact with the plaintiff, not the intention to cause harm.


Bird v. Holbrook

Facts: Holbrook (D) set up a spring-gun trap in his garden in order to catch an intruder who had been stealing from his garden. D did not post a warning. Bird (P) chased an escaped bird into the garden and set off the trap, suffering serious damage to his knee. Bird sued Holbrook for damages.

Issue: May a property owner set up a trap without notice in order to harm or catch an intruder?

Holding: He who sets spring guns without giving notice is guilty of an inhuman act, and if injurious consequences ensue, he is liable to yield redress to the sufferer.

Rationale: We put it to the principle that it is inhuman to catch a man by means which may maim him or endanger his life, and, as far as human means can go, it is the object of English law to uphold humanity and the sanctions of religion.

Rule: No man is permitted to do indirectly that which he is forbidden to do directly.

Related Cases:

  • Brock v. Copeland – “Can’t be placed for mischief”
  • Katko v. Briney Defendant’s boarded-up house kept getting broken into. The owner set a spring gun aimed at the legs of an intruder and injured an intruder who won $20,000 in actual damages and $10,000 in punitive damages.

Dougherty v. Stepp

Facts: (Mistaken Trespass while surveying but didn’t cause any material damage.) Landowner brought an action of trespass. The only evidence Landowner offered to support his claim was that the defendant had entered onto his unenclosed land with a surveyor and actually surveyed a part of the land and claimed it as his own. The Defendant did not “make trees” (wtf does that mean) or cut bushes. The trial court ruled that no trespassing occurred.

Issue: Does a trespass occur whenever there is an unauthorized entry, even if that entry resulted in no material damage?

Rule: Every unauthorized entry is an unlawful entry. Thus, every unauthorized entry into another’s land is a trespass that gives rise to a cause of action for breaking the close regardless of whether the land was actually enclosed. Second, the law infers damage from every such entry, even if it is just the flattening the grass or shrubbery on which the trespasser walked.

Holding: The Court held that every unauthorised, and therefore unlawful entry, into the close of another, is a trespass. Plaintiff therefore had the right to recover, even if only a nominal amount.


Ploof v. Putnam

Facts: Putnam (D) owned an island with a dock. Ploof (P) and his family were sailing when a storm forced them to moor at Putnam’s dock. Putnam’s servant set the boat free and the boat wrecked against the land destroying the boat and resulting in injury to Ploof and his family. P sued for trespass on the grounds that D’s servant forcibly and intentionally unmoored the sloop. P also sued on the grounds that D through his servant had a duty to permit P to moor his sloop at the dock and to permit it to remain until the storm had passed. D demurred to both counts, claiming that P could have moored his boat somewhere else. At trial the court entered judgment in favor of P and D appealed.

Issue: Can a party lawfully trespass if it is out of private necessity?

Holding: Yes. The court noted that there are many cases in which necessity will justify entries on land, and that the doctrine applies with special force to the preservation of human life. For example, if a dog continues onto another’s property after he drives sheep off his property; or if a traveler trespasses on another’s land because the road is blocked. One may sacrifice the personal property of another to save his life or the life of another. Entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass.

Rationale: The doctrine of necessity applies with special force to the preservation of human life. If some situation arises that imperils the lives of humans and requires that those at risk trespass to land in order to preserve life, it is within their rights to do so. As such, it is not within the rights of the land owner to forbid such a trespass or forcibly remove the individuals in such a situation.

Rule: One may sacrifice the personal property of another to save his life or the lives of his fellows.

Note: General Average Contribution – If a vessel carrying passengers and cargo is threatened by a storm and it is in the best interest of the passengers to throw some of the cargo off of the ship, the damage to the cargo is then spread across all of the passengers so as to foster accountability for the decisions made to preserve life.


Mohr v. Williams (1905)

Facts: Defendant was performing an operation upon Plaintiff’s right ear when he decided that the condition was not so serious as to warrant the operation. While Plaintiff remained under anesthetic, Defendant discovered a more serious condition in her left ear. Without awakening her to receive consent, he performed the operation on the left ear.

Issue: Did the trial court err in granting defendant’s motion for new trial?

Rule: Whether a new trial upon the ground of excessive or inadequate damages should be granted or refused, or whether the verdict should be reduced, rests in the sound judicial discretion of a trial court.

Holding: No.

Discussion: While implied consent for a surgeon or doctor to operate in emergency, life-threatening situations may exist; the consent to perform one operation does not automatically operate as consent to perform other, similar operations.


McGuire v. Almy

Facts: Plaintiff was a nurse employed to take care of defendant, an insane patient. Defendant injured plaintiff when she tried to prevent defendant from injuring herself during a violent rage. Plaintiff sued defendant in an action for tortious assault and battery.

Issue: Can an insane person be held liable for his acts that cause injury to other or damage to property?

Rule: Where an insane person by his act does intentional damage to the person or property of another she is liable for that damage in the same circumstances in which a normal person would be liable.

Holding: Yes. Judgment for plaintiff affirmed, because the jury could find defendant entertained an intent to strike and injure plaintiff and that defendant acted on that intent, and because defendant did intentional damage to the person of another, she was liable for that damage even though insane.


Polmatier v. Russ

Facts: Defendant tortfeasor appealed a decision of the Superior Court in the Judicial District of Windham (Connecticut), which rendered judgment for plaintiff executrix in her action against to recover damages for the wrongful death of her husband. The tortfeasor was charged with the decedent’s murder pursuant to Conn. Gen. Stat. § 53a-54a(a) but was found not guilty by reason of insanity pursuant to Conn. Gen. Stat. § 53a-13. The tortfeasor claimed that the trial court should have applied a two-pronged analysis by considering whether he intended the act which produced the injury and whether he intended the resulting injury.

Issue: Whether a defendant who is held to be of unsound mind can nevertheless be held liable for an intentional tort?

Rule: In the context of civil liability for an intentional tort, unless an actor is a child, his insanity or other mental deficiency does not relieve the actor from liability for conduct which does not conform to the standard of a reasonable man under like circumstances. This majority rule has been applied to cases involving intentional homicide.

Holding: Yes. The court found no error. Initially, it followed the majority rule in that insane persons were civilly liable for their torts. On this analysis, the tortfeasor argued that his acts were external manifestations of irrational thoughts, rather than being intended acts. However, precedent has established that an insane person could have an intent to harm another, even though his reasons and motives for forming that intention were irrational.


Courvoisier v. Raymond (1896)

Facts:  A policeman was in the discharge of his duties when a man shot him in the abdomen causing a serious and painful wound. The policeman filed a case for the recovery of a sum of money in the amount of $30,150 claiming the defendant acted willfully, knowingly and maliciously, and without any reasonable cause. The defendant denied all allegations claiming he acted in self-defense because his home and store were broken into by men whom he chased outside. The trial court awarded the policeman $3,143. The case was appealed to the Supreme Court of Colorado.

Issue: Was shooter able to claim self-defense after shooting a police officer he thought was a burglar?

Rule: Where a defendant in a civil action attempts to justify on a plea of necessary self-defense, he must satisfy the jury not only that he acted honestly in using force, but that his fears were reasonable under the circumstances; and also as to the reasonableness of the means made use of.

Holding: No. The Court held that the jury instruction that the shooter was liable if he assaulted the police officer was error because it failed to take into account the shooter’s self-defense theory.


Kirby v. Foster

Facts: Plaintiff worked as a bookkeeper for Providence Warehouse Co. (Corporation), of which Defendant was the agent. The Corporation lost fifty dollars. Plaintiff was held responsible and fifty dollars was deducted from Plaintiff’s pay. Defendant handed Plaintiff some money to pay the employees. Plaintiff took from this money an amount due to him, including the fifty dollars, and returned the balance to Defendant. Defendant and his son grabbed Plaintiff in an attempt to retake the money. A struggle ensued and Plaintiff was injured for which suit was brought. The jury returned a verdict in favor of Plaintiff. Defendant appealed.

Issue: Were Defendants justified in the use of force upon Plaintiff to retake money from him?

Rule: The right of recapture of chattels involves two things: first, possession by the owner, and, second, a purely wrongful taking or conversion, without a claim of right.

Holding: No. Judgement for plaintiff. The right of recapture of chattels involves two things: first, possession by the owner, and, second, a purely wrongful taking or conversion, without a claim of right. If one has entrusted his property to another, who afterwards, honestly though erroneously, claims it as his own, the owner has no right to retake it by force. Under the facts in the case, Defendants’ proper remedy would be to bring actions of replevin and trover.


Vincent v. Lake Erie Transportation Co.

Facts: A steamship owned by Lake Erie Transportation Co. (D) was moored at Vincent’s (P) dock to unload cargo. A storm arose and the vessel was held secure to the dock causing $500 in damage to the dock. Vincent sued to recover damage to the dock and the jury decided in favor of Vincent. D appealed, alleging that it was not liable under the defense of private necessity.

Issue: Is a party acting under private necessity liable for resulting damage to the property of others?

Rule: If during a storm a ship owner enters a harbor, becomes disabled, and his ship thrown against the plaintiffs’ dock, the plaintiffs cannot recover. Again, if while attempting to hold fast to the dock the lines part, without any negligence, and the vessel is carried against some other boat or dock in the harbor, there would be no liability upon her owner. But where those in charge of the vessel deliberately and by their direct efforts hold their vessel in such a position that the damage to the dock results, and, having thus preserved the ship at the expense of the dock, the owners are responsible to the dock owners to the extent of the injury inflicted.

Holding: Yes. The ship was secured to the dock deliberately to avoid damage to the ship resulting in damage to the dock. The court held that while D cannot be held liable for trespass due to private necessity, D used P’s property to preserve his own and D is therefore liable for resulting damages to P. If the boat had remained secured to the dock without further action by D, D would not have been liable. D was held liable because affirmative measures were taken to secure the boat.

Discussion: The Court here distinguishes between public necessity for the greater good of society and private necessity for the good of one’s own property. In the case of public necessity, compensation is not required for resulting damage. In the case of private necessity, however, while one may be entitled to use another’s property and the act of so doing is thus not considered unlawful, any resulting damage must be compensated.


I. de S. and Wife v. W. de S.

Facts: After Defendant struck the door of Plaintiff’s tavern with a hatchet, Plaintiff told Defendant to stop. Defendant saw Plaintiff and struck the door with the hatchet again, but he did not hit Plaintiff. Plaintiff sued Defendant for assault.

Issue: Is a party liable for placing another in fear of harm if no actual physical harm is caused?

Rule: The tort of assault does not require physical contact.

Holding: The tort of assault does not require physical contact. Yes. Defendant frightened Plaintiff when he swung the hatchet and the plaintiffs were entitled to recover damages even though there was no actual physical harm.

Discussion: Assault is the reasonable apprehension of imminent harmful or offensive contact.


Tuberville v. Savage

Facts: Plaintiff put his hand upon his sword and said to Defendant, “If it were not assize-time (if judges were not in town), I would not take such language from you.” Defendant sued Plaintiff for assault.

Issue: What are the elements of the tort of assault?

Rule: Threats of some future harm are insufficient to constitute the tort of assault.

Holding:  The declaration of Tuberville was that he would not assault Savage at that point in time. To commit an assault there must be intention followed by an act. An assault is present if the fear is reasonable. The court held that in this case there was clearly no intention of assault.

Discussion: Threats of some future harm are insufficient to constitute the tort of assault. An assault is the act of putting another person in reasonable fear or apprehension of an immediate battery by means of an act amounting to an attempt or threat to commit a battery. In this case, Defendant put his hand on this sword. The act requirement of a claim for assault has been satisfied. The reason why Defendant is not liable to Plaintiff for assault in this case is because of the words spoken by Defendant to Plaintiff. Defendant’s statement did not reflect an immediate attack. His words implied an attack in the future, it at all. Assault requires an immediate apprehension of a battery. In this case, Defendant did not express a wish or intent to commit an immediate battery. Thus, Plaintiff may not maintain an action against Defendant for assault.


Alcorn v. Mitchell

Facts: Alcorn (Plaintiff) was awarded $1,000 in damages after Mitchell (Defendant) spat in Plaintiff’s face. Defendant appealed, claiming the damages were excessive.

Issue: Can the court award punitive damages for battery?

Rule: It is customary to instruct juries that they may give vindictive damages when there are circumstances of malice, willfulness, wantonness, outrage and indignity attending the wrong.

Holding: Yes. The court has the authority to award punitive damages if it is necessary to avoid physical retaliation for highly offensive conduct.

Discussion: Battery is the intentional harmful or offensive touching of another. Spitting on someone is an offensive touching. Defendant intended to cause this offensive touching. Therefore, Defendant is liable to Plaintiff for an offensive battery.


Bird v. Jones

Facts: Jones (Defendant) prohibited Bird (Plaintiff) from moving in the direction he wished to go. Plaintiff was free to remain where he was, or move in any other direction but the one direction obstructed by Defendant. Plaintiff sued Defendant for false imprisonment.

Issue: Is prohibiting a person from moving in one direction, when all other directions are unobstructed, enough to constitute a boundary for the tort of false imprisonment?

Rule: A prison may have boundaries that are large or narrow, visible or tangible, movable or fixed, but it must have some boundary.

Holding: No. Defendant’s request for a new trial was granted.

Discussion: In order to have a claim for false imprisonment, the Plaintiff must have been confined to some boundary, whether it be tangible or intangible. In this case, Plaintiff was not restrained to a bounded area. Plaintiff still had the option to remain in one spot or proceed in a different direction. Defendant only prevented Plaintiff from continuing in one specific direction. Plaintiff may have suffered a loss of freedom, but this loss of freedom did not constitute false imprisonment.


Coblyn v. Kennedy’s, Inc.

Facts: After shopping in Kennedy’s Inc.’s (Defendant’s) store, Coblyn (Plaintiff), a 70 year-old man, was leaving when Defendant stopped him. Defendant thought Plaintiff was attempting to steal an ascot. Goss firmly grasped Plaintiff’s arm and told him that he had better go back to see the manager. Plaintiff was hospitalized and sued Defendant for false imprisonment.

Issue: Did the evidence show that there were reasonable grounds for the detention?

Rule: Any demonstration of physical power, which, to all appearances, can be avoided only by submission, operates as a false imprisonment. Defendant has a privilege to detain Plaintiff if done in a reasonable manner, for a reasonable length of time, and Defendant had reasonable grounds for believing that Plaintiff was attempting to commit larceny of goods held for sale.

Holding: No. The judge properly instructed the jury that grounds for detention were reasonable when there was a basis which would appear to the reasonably prudent, cautious, intelligent person.

Discussion: In this case, Plaintiff was imprisoned by a demonstration of physical power that could only be avoided by submission. Plaintiff was falsely imprisoned, and Defendant was not privileged to detain Plaintiff. Defendant did not have any objective, reasonable grounds for believing that Plaintiff committed larceny. The court added that even if there were reasonable grounds to detain Plaintiff, the detainment was not executed in a reasonable manner. In its analysis, the court pays special attention to Plaintiff’s age and physical condition.


Sindle v. New York Transit Authority

Facts: Plaintiff was a passenger on a school bus owned by Defendant transit authority and driven by Defendant Mooney. Students aboard the bus were behaving rather disobediently and causing damage to the bus despite Defendant’s admonitions. Ultimately, Defendant bypassed the usual stops and took the Plaintiff and a few other students to a police station.

Issue: Did the trial court abuse its discretion in excluding the evidence of justification proffered by Defendants?

Rule: Reasonable restraint or detention undertaken with the aim of preventing another from inflicting personal injury or damaging property is not unlawful.

Holding: Yes. The judgment was reversed and remanded for a new trial.

Discussion: The Court introduces the defense of justification for the use of physical force. In finding justification, the Court focuses upon the bus driver’s role as the supervisor of the students on the bus, creating a special relationship between the parties. The Court also notes that the burden is on the Defendant to prove justifice.


Wilkinson v. Downton

Facts: Defendant played a practical joke by telling the wife of her friend that the husband had broken legs in an accident. This caused her nervous shock and great physical sickness. Files suit alleging deceit and fraud.

Issue: Can outrageous conduct that brings about physical harm or mental distress give rise to a cause of action?

Rule: The principle that where a defendant has willfully committed an act or made a statement calculated to cause physical harm, and which does cause physical harm (including psychiatric injury), it is actionable.

Holding: A party may seek recovery for outrageous conduct that causes physical harm or mental distress. In this case Downton willfully performed the act which caused harm to the plaintiff. The court held that there was little doubt that Downton’s actions would harm Wilkinson and it therefore must be assumed that he intended to produce these effects.

Discussion: Court determined that defendant had willfully performed the act which harmed the plaintiff and that the act performed by the defendant was so obviously likely to result in such harm that it must be concluded that the defendant intended to cause said harm.


Bouillon v. Laclede Gaslight Co. (1910)

Facts: Bouillon lived in a downstairs apartment over a basement. In the basement was a gas meter. Bouillon was pregnant, and due to medical complications, was bedridden. A meter reader from Laclede, came to the door and demanded entry through the apartment to read the meter in the basement. He was very belligerent to the nurse who answered the door, and the fright and shock of the incident led Bouillon to have a miscarriage the next day.

Issue: Is one liable for injuries resulting directly and naturally from one’s wrongful conduct?

Rule: Fright and mental anguish are competent elements of damage and if physical injury results from such fright, compensation is merited.

Holding: Although the meter reader’s actions were directed at the nurse and not at Bouillon, the court eventually held that the tortfeasor is liable for injuries which may result naturally, necessarily, directly, and proximately in consequence of his wrong.


Vaughan v. Menlove

Facts: Menlove placed a haystack near the plaintiff’s two cottages and, in spite of warnings, the defendant did not move or make the rick safer and as a result, it caught fire and burned down the plaintiff’s cottages.

Issue: Did the court error in instructing the jury to determine negligence by the standard of reasonable caution as a prudent man would have exercised under such circumstances?

Rule: The standard for negligence is an objective one. One has behaved negligently if he has acted in a way contrary to how a reasonably prudent person would have acted under similar circumstances.

Holding: The court did not error.


Daniels v. Evans (1966)

Facts: Plaintiff, a 19-year-old, was killed when his motorcycle collided with Defendant’s car. The jury returned a verdict for Plaintiff. Defendant appealed and alleged error pertaining to the standard of care required of Plaintiff.

Issue: Should the standard of care applied to minors prevail when the minor is engaged in activities normally undertaken by adults?

Rule: Minors are entitled to be judged by standards commensurate with their age, experience, and wisdom when engaged in activities appropriate to their age.

Holding: No. When a minor engages in such activities as the operation of an automobile or similar power device, he forfeits his rights to have the reasonableness of his conduct measured by a standard commensurate with his age and is thenceforth held to the same standard as all other persons. The court held the driver’s objection to the trial court’s instruction was valid because a minor operating a motor vehicle, whether an automobile or a motorcycle, was to be judged by the same standard of care as an adult. To apply to minors a more lenient standard in the operation of motor vehicles, whether an automobile or a motorcycle, than that applied to adults is unrealistic, contrary to the expressed legislative policy, and inimical to public safety.


Fletcher v. City of Aberdeen

Facts: Fletcher (Plaintiff), a blind man, fell into a ditch excavated by the City of Aberdeen (Defendant). Defendant failed to provide proper barricades up at the time Plaintiff fell. Plaintiff sued Defendant for negligence.

Issue: Must the city exercise a standard of care above that of an ordinary person for a disabled person?

Rule: The duty of maintaining the sidewalks and adjacent parking strips is a continuing one. A city is obligated to afford that degree of protection, which would bring notice to a person with a physical disability, the danger being encountered.

Holding: Yes. Judgment for Plaintiff affirmed. The duty of maintaining the sidewalks and the adjacent parking strips is a continuing one. In this case, the city is negligent when it removes proper and necessary barricades without giving pedestrians other types of warning. The city is charged with knowledge that those who are physically infirm as well as those in perfect physical condition will use its streets.


Blyth v. Birmingham Water Works

Facts: Birmingham Waterworks Co. (D) had installed water mains and fire plugs on the street where Blyth (P) lived. After 25 years without problems, an unusually cold frost caused one of the plugs opposite P’s house to freeze over. The damaged plug leaked a large quantity of water into P’s home. P sued D for damages based on negligence. P was awarded damages for negligence by the jury and D appealed, asserting that the severity of the frost of 1855 was unforeseeable.

Issue: What is the standard for negligence?

Rule: Negligence is the failure to do something a person of ordinary prudence would do or the taking of an action that a person of ordinary prudence would not take. A mere accident that is not occasioned by the failure to take such an action or the taking of such an action does not qualify as negligence.

Holding: Negligence is determined by a reasonable person standard. A person is not negligent if his conduct and precautions conform to the standard obeyed by a prudent or reasonable person. A reasonable man would consider the usual range of temperature in recent years and act accordingly.


Eckert v. Long Island R.R.

Facts: Rescued kid from oncoming train and was injured and killed in the process.

Issue: Did the court error in finding the plaintiff free from negligence based on the rule that a man who exposes himself to danger for the purpose of saving life, it is not wrongful, and therefore not negligent unless such as to be regarded either rash or reckless.

Rule: Negligence implies some act of commission or omission wrongful in itself. Plaintiff will not be held to be negligent in rescuing a child.

Holding: No, the jury was warranted in finding the deceased free from negligence under the rule as stated above.

Discussion: The law has a high regard for human life. It would not be in keeping with this regard to hold a man as negligent while trying to save the life of another, assuming he was not being rash or reckless.


Osborne v. Montgomery

Facts: Plaintiff, a boy of thirteen years of age, was employed as an errand boy. He was returning to his place of employment on a bicycle. He followed a car driven by Defendant. Defendant stopped his car for the purpose of leaving some clothes at the cleaners. As Defendant’s car stopped and his door opened Plaintiff attempted to pass when the right handle bar of his bicycle collided with Defendant’s car door. As a result, Plaintiff was injured. The jury found Defendant negligent, because he did not look before opening his car door, but not negligent in stopping his car where he did. The instruction of the trial judge on the definition of negligence read as follows: 1. By ordinary care, it is meant that degree of care, which the great mass of mankind, or the type of that mass, the ordinary prudent man, exercises under like or similar circumstances. 2: Negligence is the want of ordinary care. Defendant appealed.

Issue: Are all actions in our society that cause harm to others considered negligent?

Rule: While acts result in injury to others, they are held not to be negligent because they are in conformity to what the great mass of mankind would do under similar circumstances.

Holding:  No. Judgment for the Defendant. Reversed and remanded on the question of damages only. Not every want of care results in liability. In order to measure ordinary care, some standards must be adopted. Right, duties, obligations are relative, not absolute. The law determines that under the circumstances of a particular case, an actor should or should not be liable for the natural consequences of his conduct. In this case, Defendant exercised that degree of care, which drivers ordinarily exercise under the same or similar circumstances.

Discussion: Not every injury is actionable. Society deems an actor liable for conduct that is outside that of ordinary care. Ordinary care is that degree of care, which under the same or similar circumstances, the great mass of mankind would ordinarily exercise. 


United States v. Carroll Towing Co.

Facts: Barge sinks at 2pm during a workday while bargee was not on board. Carroll maintains that if bargee (employed by the Connors Company) had been on board, the damage would have been limited and they should not have to pay for the difference between the limited and actual damages.

Issue: Is “a barge owner slack in the care of his barge if the bargee is absent?”

Rule: 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.

Holding: Yes, it is a fair requirement that the Conners Company should have a bargee aboard during the working hours of daylight.

Rationale: During the short days of January during the full tide of war, barges are constantly being drilled in and out and it was not beyond reasonable expectation that this haste and hustle should result in work being done without adequate care — resulting in the scenario at hand.


Byrne v. Boadle

Facts: Byrne (P) was struck by a barrel falling from a window as he walked past Boadle’s (D) flour shop and sustained serious personal injuries. A witness testified that he saw the barrel fall from Boadle’s window but had not seen the cause. Byrne did not present any other evidence of negligence by Boadle or his employees. Boadle moved for a nonsuit on the grounds that Byrne had presented no evidence of negligence. The court granted the motion and plaintiff obtained a rule nisi. The Court of Exchequer found in favor of Byrne and reversed. Boadle appealed.

Issue: Can liability for negligence lie solely on account of the type of accident that occurred, without direct evidence of negligence?

Rule: 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.

Holding:  Yes. Liability for negligence can lie solely on account of the type of accident that occurred, without direct evidence of negligence.


Poyner v. Loftus

Facts: Plaintiff, who was legally blind, testified that he could see only approximately six to eight feet in front of him. Notwithstanding his handicap, plaintiff did not use a cane or seeing eye dog in pursuing his daily activities. Plaintiff testified that he had walked to the retail establishment on three or four previous occasions and knew the lay out. On the day of his injury, a bush had been removed from the edge of the elevated walkway. As he was walking, someone called his name. He turned his head but continued to walk forward to where he thought the bush would be and fell. Plaintiff filed for damages. The trial court granted summary judgment for defendants, building owners, property manager, and proprietor and concluded that plaintiff was contributorily negligent. On appeal, the court affirmed.

Issue: Did a genuine issue of material fact exist as to whether plaintiff exercised reasonable care therefore making the entry of summary judgment erroneous?

Rule: Ordinarily, questions of negligence and contributory negligence must be decided by the trier of fact. A party asserting the defense of contributory negligence is required to establish, by a preponderance of the evidence, that the plaintiff failed to exercise reasonable care. Only in the exceptional case is evidence so clear and unambiguous that contributory negligence should be found as a matter of law. The issue of contributory negligence should not be submitted to the jury, however, where the evidence, taken in the light most favorable to the plaintiff, establishes contributory negligence so clearly that no other inference can reasonably be drawn.

Holding: The conduct of an actor with a significant and objectively verifiable physical disability is negligent only if the conduct does not conform to that of a reasonably careful person with the same disability.

Discussion: The court granted the summary judgment for the defendant because the plaintiff was negligent when he turned his head but continued to walk forward on the basis that those with poor eyesight must take keener watchfulness in conducting their own affairs.


Lama v. Borras

Facts: Lama was referred to Dr. for back pain and Dr. recommended surgery.  Lama was not on bed rest prior nor subject to any conservative treatment, as was the custom.  After several surgeries that did not resolve the problem, trial court found negligence by Dr. Borras.

Issue: Did a genuine issue of material fact exist as to whether plaintiff exercised reasonable care therefore making the entry of summary judgment erroneous?

Rule: A doctor must use that degree of skill and learning which is normally possessed and used by doctors in good standing, in a similar practice, in a similar community, and under like circumstances.

Holding: Yes.


Martin v. Herzog

Facts: The decedent collided with defendant’s buggy and defendant did not have his lights on (contrary to statute). The jury found the defendant negligent (and that the plaintiff was not negligent). But, on appeal, the court held that the duty to have lights was to protect other drivers from accidents, and, as such, this violation of a statutory duty established negligence per se. The issue should not have to go before a jury at all.

Issue: Does failure to comply with a statutory duty intended for the protection of others constitute negligence per se?

Rule: Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another.

Holding: Yes. In the case at hand, we have an instance of the admitted violation of a statute intended for the protection of travelers on the highway, of whom the defendant at the time was one. Yet the jurors were instructed in effect that they were at liberty in their discretion to treat the omission of lights either as innocent or as culpable. Jurors have no dispensing power by which they may relax the duty that one traveler on the highway owes under the statute to another.

Discussion. The jury may not discount a breach of a statutory duty. The question of duty is a question of law. The jury is the trier of facts. Plaintiff wrongfully violated a statute intended for the protection of Defendant. Plaintiff is negligent per se. The only thing left to determine is causation and injury. If Plaintiff’s failure to light the buggy was the cause of the accident, then it is contributory negligence.


Ybarra v. Spangard (1944)

Facts: In operating room, P remembers two hard objects at his shoulders before being put under.  Pain in arm and right shoulder developed after surgery (wasn’t there before) and developed paralysis; evidence that it was the result of trauma.  Trial court entered nonsuit for defendants.

Issue: Was the doctrine of res ipsa loquitur applicable in this case?

Rule: 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.

Holding: Yes. We merely hold that where 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.


Liv v. Yellow Cab Co. of California

Facts: Plaintiff attempted to cross three lanes of oncoming traffic in order to enter a service station. Defendant’s driver was speeding, ran a yellow light and struck Plaintiff’s car. Both parties were negligent. The trial court held that Plaintiff was barred from recovery due to her own contributory negligence. Plaintiff appealed.

Issue: Can an individual recover damages for injuries in a car accident even if he was contributorily negligent?

Rule: The doctrine of comparative negligence assesses liability in direct proportion to fault.

Holding: Yes. Reversed in favor of plaintiff. The doctrine of comparative negligence assesses liability in direct proportion to fault. It is preferable to the “all-or-nothing” doctrine of contributory negligence from the point of view of logic, practical experience and fundamental justice.  Contributory negligence is inequitable in its operation because it fails to distribute responsibility in proportion to fault.

Discussion: This case is the precedent for comparative negligence. The affirmative defense of contributory negligence is no longer used in California. California adopts a “pure” form of comparative negligence.


Murphy v. Steeplechase Amusement Co.

Facts: Plaintiff sued Defendant for negligence. In his claim for negligence, Plaintiff argued that the belt was dangerous to life and limb in that it stopped and started violently and suddenly and was not properly equipped to prevent injuries to people who were using it without knowledge of its dangers. Plaintiff also argued that “The Flopper” was operated at a fast and dangerous speed and should have been supplied with proper railing or guard. The lower court returned a verdict for Plaintiff. Defendant appealed. Appellate court reversed for defendants.

Issue: Should the amusement park be liable for damages?

Rule: One who takes part in a sport accepts the dangers that are inherent in it so far as they are obvious and necessary.

Holding: No. The court found that the risk of falling from the belt was foreseeable and that plaintiff assumed that risk of injuring himself when he participated in the amusement park’s attraction.


Sosa v. Paulos (1996)

Facts: Plaintiff was a patient of Defendant, an orthopedic surgeon. Plaintiff signed an arbitration agreement an hour before her surgery. She did not read the agreement before signing it. Immediately after the surgery, Plaintiff became aware of a surgical complication. Plaintiff sued Defendant, Defendant moved to compel arbitration.

Issue: How can a contract/arbitration clause be deemed unconscionable?

Holding/Rule: A party asserting a contract is conscionable must prove both procedural (bargaining naughtiness, unfair surprise, lack of meaningful choice, inequality of bargaining power) and substantive unconscionability (harsh, one-sided, and oppressive contract terms).A court will find a contract to be unconscionable only when the inequality of the bargain is so manifest as to shock the judgment of a person of common sense, and where the terms are so oppressive that no reasonable person would make them on the one hand, and no honest and fair person would accept them on the other.


Dalury v. S-K-I Ltd

Facts: Dalury (P) was skiing at S-K-I’s (D) ski resort when he collided with a metal pole. Dalury had purchased a season pass and signed a form stating that he understood and freely accepted and voluntarily assumed the risks of skiing and released D from liability. Dalury also signed a photo identification that contained the same language. At trial the judge granted D’s motion for summary judgment and P appealed.

Issue: Does a skier’s assumption of the inherent risk of skiing abrogate the ski area’s duty to warn of or correct foreseeable dangers?

Rule: A liability release form may be found unenforceable if it violates public policy.

Holding: No. The skier’s assumption of the inherent risks of skiing does not abrogate the ski area’s duty to “warn of or correct dangers which in the exercise of reasonable prudence in the circumstances could have been foreseen and corrected.”

Discussion: Skier is responsible for inherent risks. Court says that inherent risks of any sport are those which are obvious and necessary. The metal pole was neither obvious nor necessary.


Chepkevich v. Hidden Valley Resort

Facts: A skier and her spouse, sued appellant ski resort for negligence, seeking to recover damages for injuries the skier suffered from falling off the ski lift and for the spouse’s loss of consortium. The resort argued that the suit was barred by a release the skier signed, which exempted the resort from liability for its employees’ negligence, and by her voluntary assumption of the risk under the Pennsylvania Skier’s Responsibility Act. The trial court granted the resort summary judgment on the basis of the release. Appellees sought review and the Superior Court reversed and remanded the case for further proceedings. The resort appealed and the high court reversed the order of the intermediate appellate court and reinstated the trial court’s order granting summary judgment in favor of the resort.

Issue: Was appellee barred by statute and/or a release signed by the skier from maintaining a negligence action?

Rule: In interpreting such clauses the guiding standards are that: 1) the contract language must be construed strictly, since exculpatory language is not favored by the law; 2) the contract must state the intention of the parties with the greatest particularity, beyond doubt by express stipulation, and no inference from words of general import can establish the intent of the parties; 3) the language of the contract must be construed, in cases of ambiguity, against the party seeking immunity from liability; and 4) the burden of establishing the immunity is upon the party invoking protection under the clause.

Holding: No.


Wagenblast v. Odessa School District

Facts: Public school students sought the invalidation of school district requirements that they sign forms releasing the district from all future claims for negligence as a condition of their participation in interscholastic athletics. The plaintiff parents, in two separate actions, sought injunctions. The Superior Court granted the plaintiffs motion for summary judgment and enjoined the school district from requiring the releases in the Lincoln County action but denied injunctive and declaratory relief in the King County action. The Supreme Court affirmed the grant of summary judgment in favor of the Lincoln County plaintiffs and reversed the denial of the King County plaintiffs.

Rule:

Issue: Is a written release from any future school district negligence invalid because it violates public policy?

Holding: Yes.


New York Central R.R. v. Grimstad

Facts: Plaintiff drowned when he fell into the water from the deck of a barge. Plaintiff sued Defendant, the barge owner, for negligence in failing to equip the barge with life-preserving jackets.

Rule: To be liable for negligence the cause of the accident must be more than pure conjecture and speculation. It must be the cause in fact of the injury.

Issue: If Defendant’s act is not a direct cause in fact of the accident, but merely a matter of speculation, is it liable to Plaintiff for negligence?

Holding:  No. Judgment reversed.

Discussion: The proximate cause of Plaintiff’s death was his falling into the water. There is no testimony in the record that this happened because of the negligent act of Plaintiff or Defendant. Rather, the negligence alleged is based on Defendant’s failure to equip the boat with life preserving jackets. Plaintiff claims that Defendant’s failure to equip the barge with life-preserving jackets was the cause of Plaintiff’s drowning. However, there was no evidence to show that Plaintiff drowned because he did not know how to swim, or anything to show that, if there had been a life-preserving jacket on board, the Plaintiff’s wife would have got it in time, or that Plaintiff would have grabbed it, or that it would have prevented Plaintiff from drowning.


Spier v. Barker (1974)

Facts: Spier suffered extensive injuries because she was not wearing a seat belt when Barker’s truck negligently hit her car.

Issue: May damages be reduced for a plaintiff who failed to use a seat belt?

Rule: If a plaintiff failed to mitigate damages by wearing a seat belt, damages should be apportioned such that the defendant is only liable for those that would have occurred had the plaintiff been wearing a seat belt.

Holding: If a plaintiff failed to mitigate damages by wearing a seat belt, damages should be apportioned such that the defendant is only liable for those that would have occurred had the plaintiff been wearing a seat belt.


Derheim v. N. Fiorito Co.

Facts: Plaintiff suffered injuries when his car collided with Defendant’s truck after Defendant made an illegal left turn. The trial court refused to allow Defendant to use the seatbelt defense, which would have reduced Plaintiff’s damage award.

Issue: Does Plaintiff’s failure to wear a seat-belt limit a recovery for damages in an action for negligence?

Rule: The failure of a plaintiff to wear a seat belt does not limit an award for damages when the defendant is held to be negligent.

Holding:  No. Judgment affirmed.

Discussion: Courts have been inconsistent in their application of the “seatbelt” defense. The defense does not fit into the familiar doctrines of contributory negligence, assumption of risk, or avoidable consequences. The failure to use a seatbelt occurs before defendant’s negligence, as opposed to contributory negligence, which is conduct contributing to the accident itself.


Kumkumian v. City of NY (1953)

Facts: Kumkumian was found dead under a subway car that had made an emergency stop after the engineer had twice attempted to drive over the track, but was unable to because of the plaintiff’s body on the tracks. These attempts to drive on probably killed the plaintiff.

Issue: May a negligent plaintiff recover damages against a negligent defendant when the defendant had a chance to avoid the accident?

Rule: Under the last clear chance doctrine, a plaintiff’s negligence is not the proximate cause of the plaintiff’s injury when a negligent defendant had the last clear chance to avoid the accident.

Holding: Prima facie case for LCC (despite dissent’s argument for lack of knowledge) because a jury could reasonably conclude that a reasonable person would/should have known a body was underneath the train.