Introduction
Intentional Torts
Privileges
Policy issues
Negligence
Damages
Vicarious liability
Strict liability
Products liability
Index of tort cases
Tort cases

Vosburg v. Putney --------------------------------- C 14

(Kick in Leg): Harm does not have to be iontended; only the wrongful contact. Intention ot do harm is essence of assualt. Wrongdoer is liable for all injuries resulting directly from act, foreseen or not.

Garratt v. Dailey --------------------------------- C 23

(5 yrs old pulls chair): Knowledge of consequences with substantial certainty is intent.

Spivey v. Battaglia ------------------------------- SM 16

(friendly unsolicited hug): Where a reasonable man would believe that a particular result was substantially certain to follow, it is as he intended it (battery). Knowledge of risk, short of substantial certainty is not intent (negligence).

Blythe v. Radiometer America Inc. ----------------- SM 18

(employee stuck in hand w/ needle w/ HIV): Workers Compenssation Act with exclusivity clause allows recovery if injuries caused by intentional act or omission of employer directed at employee or class of employees. Intent to violate law is not intentional malicious harm. Employer did not force employees to use the defective kits and warned them. Minority rule: Intentionally exposing a worker to substantial risks (ex. toxic) is a course of action.

Arise in areas such as debt collection practices; hospital that did not honor P request to not be tended by male nurses; mishandling of corpses, autopsies; disposal of dead newborns.

State Rubbish Collectors Assoc. v. Siliznoff ------ C 771

(Siliznov was threatened with force to join Association): Frightened, physical illness ensued. If D intentionally subjected P to distress and bodily harm resulted, D would be liable for it.

Alcorn v. Anbro Engineering, Inc. ----------------- C 780

(Black truck driver harrassed by employer): Racial slurs do not usually create a claim for IIED. P suffered physical and motional distress. D is a member of class perticularly susceptible to such slurs. D was in a position of power over P . The jury must determine if whether conduct is extreme and outrageous.

  Logan v. Sears, Roebuck & Co. --------------------- C 784

(Homosexual insulted by phone comment): Insulting language does not create a cause of action. Public figures cannot recover from published parodies.

Ford v. Revlon, Inc. ------------------------------ C 786

(sexual harassment in company): Corporation is liable for IIED when its supervisors know of harrassment and fail to stop it.

Jones v. Clinton ---------------------------------- C 793

(Sexual harrassment in hotel room): P must show: intent; extreme & outrageous conduct; causation; severe ED that no reasonable person could be expected to endure it. D : Conduct was isolated, brief; no objective symptoms; no knowledge of any special condition of P . No sexual assault occurred. Conduct was abandoned as soon as P made clear it was not welcome. She did not miss work, never filed complaint.

Lehman v. Toys ‘R’ Us, Inc. et al. ---------------- SM 75

(Sexual discrimination case: LAD):Quid pro quo sex harrasment occurs when employer attempts to make employee’s submission to sexual demands a condition of his/her employment. Hostile work environment sexual harrasment occurs when an employer or employees harass an employee to the point at which the work environment becomes hostile. Test: a female P must allege that conduct: 1. would not have occurred but for the employee’s gender; and it was 2. severe or pervasive enough to make a 3. reasonable woman believe that 4. the conditions of employment is hostile or abusive. Intent is not necessary. Cummulative effects of all incidents must be considered. [Some courts hold that in addition, such conduct must have unreasonably interfered with P ’s work]. For a female P a reasonable woman standard must be used: there are differences in perspective between men and women of sexual harrasment, women have a stronger incentive to be concerned with sexual behavior (rapes and sexual assult in disproportionate numbers).

Swenson v. Northern Crop, Inc. -------------------- SM 23

(Recovering AA, demoted): To find conduct extreme and outrageuos all acts should be taken in the context and background in which they occur, as well as the position of power and knowledge of vulnerability of the alleged Tortfeasor.

Whittaker v. Sanford ------------------------------ C 759

(member of sect refused a boat to abandon yacht): Force is not necessary to restrain a person. Refusal of the boat was equivalent of not turning the key in a locked room to open door.

Rougeau v. Firestone Tire & Rubbish Co. ----------- C 761

(guard at plant, asked to wait in guardhouse): He was not conscious of being imprisoned, and left the guardhouse 30 minutes after beiing there when he felt ill.

Sindle v. New York City Transit Authority --------- C 762

(child held in school bus, injured while attempting to escape): A person may reasonably restrain another to protect property in his custody. A bus driver, entrusted with care of passengers and property has duty to the care of both. This may justify the restarining. If one restrained places himself in preilous situation, attemping to escape, recovery for subsequent injuries is barred.

Coblyn v. Kennedy’s, Inc. ------------------------- C 764

(held in store for "stealing" ascot): Detentiion must show reasonable grounds. (RS) actor is liable to other for FI if: he acts intending to confine other within boundaries fixed by actor; and his act directly or indirectly results in confinement and the other is conscious of the confinement or harmed by it. If a man is restrained by fear of a personal difficulty, that amounts to FI.

Hogan v. Tavzel ----------------------------------- SM 36

(husband infected wife w/ genital warts): Consent is vitiated if it is procured by fraud and concealment. (RS)Consent to intercourse is not consent to be infected. Consent is ineffective if given by mistake about nature and quality of invasion.

Neal v. Neal -------------------------------------- SM 37

(wife had sex w/ cheating husband, alleges mistake): Mistake must extend to essential character of act itself, not to some collateral matter that acts as inducement (marriage).(Counter Ex.improve voice of singer)

Bang v. Charles T. Miller Hospital ---------------- C 47

(unauthorized severance of spermatic cords): Where surgeon can ascertain in advance alternative situations and no emergency exists patient should be informed and given chance to decide.

Kennedy v. Parrott -------------------------------- C 50

(Unauthorized ovary cysts puncture): Where an internal operation is indicated, a surgeon may lawfully perform, and it is his duty, such operation as good surgery demands, even when it extends further than originally contemplated.

O’Brien v. Cunard Steam Co. ----------------------- C 36

(Inmigrant vaccinated): D conduct must be evaluated according to circumstances., if P beahvior was such as to indicate consent, the D is justified in his act, whatever P unexpressed feelings may have been.

In Re A.C. ---------------------------------------- SM 43

(pregnant woman w/ viable fetus dying from cancer, court ordered C-section): Any person has the right to to make an informed choice if competent: Body integrity. State’s interest (only in extraordinary cases) must be compelling to justify overriding patient’s decision (ex. save fetus). Court must determine patient’s wishes by any means. Minority view: state has due interest in saving life. Substituted judgment: court determines what choice patient would make if competent; and what most persons in similar situations would do. Best interest standard: (minority courts), court decides what treatment would serve patient’s best interest.

Legal advise, moral paralysis and death ----------- SM 55

(disconnect ventilator of permanently unconscious son)When an ethical alternative is illegal, an ethics committee can not make it so. Bad advise from hospital’s attorney: he cared more for hospital’s image & liability. Some courts hold it be legal (Ca, La, Fla,…). Medicine should not be practiced out of self-interest and fear of theoretical legal consequences. NY law does not allow surrogate decisions on life-death. There is the law, then there’s what’s right: judge removed hydration line of dying patient.

Courvoisier v. Raymond ---------------------------- C 65

(D shot policeman P in stomach): In claiming self-defense a D must act honestly in using force and that his fears were reasonable under the circumstances, and means used were also reasonable. (Reasonable man)

Katko v. Briney ----------------------------------- C 78

(trespasser shot by spring shotgun): One is liable to trespassers injured when using force likely to cause great bodily injury. Non-inst: law places higher value on human life that property. Mere trespass against property other that a dwelling is not justification to authorize use of deadly force. Dissent: Liability must rest on: Did D intend to shoot invader?; Did D employ unnecessary & unreasonable force?

Ploof v. Putnam ----------------------------------- C 88

(Ploof moored boat during a storm to D ’s dock): D unmoored the sloop, and subsequently destroyed in storm. Entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not trespass, it is justified. Doctrine of necessity applies with special force to the preservation of human life.

Vincent v. Lake Erie Transportation Co. ----------- C 90

(damage to P ’s wharf by vessel tied to it): It was not negligent to deliberately hold vessel in dock. (B < PL). Owners are responsible to dock owners for damage.

Cordas v. Peerless Transportation Co. ------------- SM 69

(Chauffer jumped out of moving taxi, injured mother and 2 children): Negligence is failure to exercise that care and caution which a reasonable person would have under the circumstances. The law (in this state) does not hold one in an emergency, not of his making, to exercise mature judgment which is required when he has an opportunity for deliberate action.

Its goal is to achieve the optimal leel of accident preention so that total costs of accidents and prevention will be minimized.

Cohen v. Petty ------------------------------------ SM 12

(Woman riding in backseat):person w/ unanticipated sudden illness while driving auto is not chargeable w/ negligence. (RS) standard of conduct to which one must conform to avoid being negligent is that of a reasonable man under the circumstances.

Spano v. Perini ----------------------------------- SM 13

(Damage from blasting tunnel):Intentional setting off of explosives in an area in which it was likely to cause harm to neighbors results in absolute(strict)liability) No physical invasion is required.

Negligence when a statute is violated ------------- SM 81

Standard of care: 1. reasonable person under all circumstances (includes B < PL); 2. ordinary member of profession in good standing; 3. special rule of law (Helling v. Carey ophtalmologist: Bad Law); and 4. statute: a. it shall be negligent to do X, b. Don’t do/Do X, or a fine will be applied. If an actor injures another while violating a statute we ask:

1. Is the statute applicable in setting the standard of care in this situation?

a. P is in the class of persons to be protected by this statute

b. harm and hazard which result must be of the type against which the statute aimed to protect

2. If it applies, what effect does it have in setting the standard of care in this situation?

a. Will the court rule negligence per se?

b. Ca, Vt,say violatin creates a presumption of negligence until rebutted by D

c. A minority of states say violation of statute is evidence of negligence which the jury is free to reject

3. What excuses will suffice to blunt negligence per se, so the judge’s instruction tells the jury to determine whether D acted as a reasonable person under all circumstances?

a. Compliance w/ statute may increase, rather that diminish danger of a situation

b. Emergency…

Brown v. Kendall ---------------------------------- C 167

(separating dogs fighting, breakthrough case): Move from strict liability to modern view of negligence. Burden is on plaintiff to show D did not exercise ordinary care demanded of prudent and cautious men.

Formal Law: the answer is in the books.

Cardozo: judges act as law finders, law-givers and legislators. Guided by aceptable standards of the community.

Legal Realists: expose myths of traditional jurisprudence to observed reality: judges do make laws.

Efficiency judges: adopt efficient/fair legal rules

Feminist: judicial review, restraint and dependence on precedent are dominated by male points of view.

Critical race: there is racial bias in the law and its application.

Vaughn v. Menlove --------------------------------- SM 72

(hay rick which caught fire): The standard of care is that as a man of ordinary prudence would observe, not that of the particular D . Tradition in this case (not so for professionals) is to be overruled: the way of building ricks is dangerous.

United States v. Carroll Towing Co. --------------- C 178

(Person in charge of barge that sank was absent): Owners duty is a function of 3 variables: probability that it will break away (P); gravity of resulting injury (L) and burden of adequate precautions (B). D is liable if B < PL.

RS§291, 292 &293. Where an act is one which a reasonable man would recognize as involving a risk of harm to another, the risk is unreasonable and the act negligent if the risk is of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done. They restate B < PL.

 

Washington v. Louisiana Power and Light Co. ------- C 186

(Electrocuted when moving antenna): Co. not held liable because burden B of taking precautions against this type of accident was greater that PL.

Weirum v. RKO General, Inc. ----------------------- C 189

(teenagers following disc jockey): in the pursuit one of the minors negligently forced a car off the highway, killing its occupant. Duty is a question of law, foreseeability a question of fact for jury. RKO had a duty to decedent, it was foreseeable that young people would pursue disc jockey. Liability is imposed since the risk (PL) is unreasonable, that is B < PL.

Young v. Clark ------------------------------------ C 194

(Rear end collision): A person confornted with sudden or unexpected circumstances calling for immediate action is not expected to exercise the judgment of one acting under norla conditions. But, he is still expected to respond to the situation as a reasonably prudent person under the circumstances. This emergency doctrine is conditioned on a finding that the actor was not placed in a perious predicament through any fault of his own.

Tedla v. Ellman ----------------------------------- C 203

(Walking on right of road, struck by passing car, brother killed): They used a safer area of the road, the statute was meant to protect pedestrians, but they had to violate it to be safer than on the left as required by statute. A statute may also be excused if it was impossible for the D under the circumstances to comply with it.

32. Martin v. Herzog ---------------------------------- C 201

(Struck by car from opposite direction): Not using lights on a car is negligence per se, however, it may not be contributory negligence.

33. Brown v. Shyne ------------------------------------ C 207

(Chiropractic treatment without a license): Guilty of misdemeanor. If violation of statute was the proximate cause of injury, the P may recover. If violation has no direct bearing on the injury, then the violation is irrelevant. (Bad law: new statute states practicing medicine without a license is prima facie evidence of negligence.)

34. Trimarco v. Klein --------------------------------- C 215

(injured by glass shower door): Certain dangers have been removed by a customary way of doing things safely, the custom may be proved to show that the D has fallen below the required standrad of care. Common practice or usage is not necessarily a conclusive or compelling test of negligence. The jury must be satisfied with its reasonableness.

35. T.J. Hooper --------------------------------------- C 216

(Loss of barges in storm): Tug TJHooper was unseaworthy, lacking a radio receiver to hear weather reports. Such a radio is inexpensive. Custom of not having one is no good. (B<PL)

36. Helling v. Carey ---------------------------------- C 230

(ophthalmologist: BAD LAW)

37. Boyce v. Brown ------------------------------------ SM 87

(malpractice on broken ankle, fixing with screws): A person licensed to practice medicine is presumed to possess skill and learning of average doctor in good standing in the community in which he practices and to apply that skill and learning with ordinary and reasonable care. For a doctor to be held liable he must have done something forbidden or neglected to do something that the standard of care requires. The standard of medical care in the community must be shown byaffirmative evidence. A physician’s negligence is never presumed, even when treatment fails. The departure from accepted practice must be shown by expert testimony. Testimony of other physicians that would have followed other treatment is not sufficient unless it also appears that the treatment followed deviates form the accepted practice. Failure to take X-Ray is not a departure from ordinary medial standards. Minority rule: doctors are required to have skill and knowledge of ordinary physicians in similar communities.

38. Scott v. Bradford --------------------------------- SM 91

(hysterectomy resulting in urine leaking to vagina): Informed consent: a physician cannot substitute his judgment for that of the patient. If consent is given, but not been informed of all material risks (likely to affect decision), has a cause of action:lack of informed consent (duty to inform, causation, injury)(some courts use battery). Causation: occurs when disclosure of material risks would have resulted in decision against treatment of this P (some courts use a reasonable patient). Injury: risk must materialize otherwise no cause for action, no negligence necessary.

39. Boyer v. Iowa High School Athletic Association ---- C 239

(Collapsing bleachers)

40. Shutt v. Kaufman’s, Inc. -------------------------- C 242

(metal shoe stand toppled): mere happening of an accident raises no presumption of negligence.

42. Escola v. Coca Cola Bottling Co. ------------------ C 248

(exploding bottle)

43. Janet Kambat v. St. Francis Hospital -------------- SM 109

(18" pad found after hysterectomy): Event does not occur in the absence of negligence, it must have been caused by agency within exclusive control of D , it must not have been due to any action of P . Must show it is more likely than not injury was caused by D negligence. D has burden of explaining.

44. Tennessee Trailways, Inc. v. Ervin ---------------- SM 116

(cycle driver killed by speeding bus):For recovery P must show negligence and proximate cause of injury. Proximate cause: act or omission which inmediately causes of fails to prevent injury or concurring with another which if it had not happened, the injury would not have been inflicted. Even if bus was not speeding, the injury would have occurred.

45. Ford v. Trident Fisheries Co. --------------------- C 299

(Death by drowning) (but for): Vessel rolled and was thrown overboard as he was ascending from the galley. The boat operator had only one oar, and could not row, but scull. Even if he had found to be negligent for this, he would not have contributed to drowning of decedent.

47. General Electric v. Joiner ----------------------- SM 117

(lung cancer & PCB): Appropriate standard for assessing trial’s court of science expert testimony is the abuse of discretion standard. Expert’s conclusions to support human can be examined by court: methodology must support conclusions. Daubert guidelines: 1. can expert theory be tested?; 2. has analysis been subjected to peer review and publication?; 3. are there governing standards or know potential error rates for techniques?; 4. has relevant scientific community accepted the expert’s technique?

48. Kumho Tire v. Carmichael -------------------------- SM 110

(Minivan tire blowout): Expert testimony (technical, scientific, or specialized) can be questioned by trial court. Trial court acts as gatekeeper for such testimony. Methodology must support conclusions.

49. Smith v. Rapid Transit, Inc. ---------------------- C

yty

50. Ayers v. Township of Jackson ---------------------- SM 129

(toxic waste in municipal landfill): Enhanced risk of cancer. Quantitative measures of increased risk cannot be derived. To recover P must prove actual loss or damage. P can recover for prospective consequence if it may, in reasonable probability be expected to follow form past harm. Reasonable probability requires evidence in quality sufficient to generate a belief that the tendered hypothesis is in all human likelihood the fact. Enhancement of risk is not actionable. Cancerphobia: Criteria requiring proof of substantial bodily injury as a result of emotional trauma is an essential element of proof. The court must determine if it was reasonably foreseeable that the negligence in letting contaminats escape to casue the type of fear experience by P and the impact to P body of ingesting contaminants. A P who was exposed to known carcinogens should undergo annual medical testing (Public policy).

51. Weymers v. Khera ---------------------------------- C 304

(20 yr old antibiotics then diagnosed with Goodpasture syndrome, received kidney transplant): If D had given proper care she would have had a 30 to 40% chance of retaining kidney function. Must prove D negligence proximately caused P injuries: more likely than not, but for D ’s conduct P injuries would not have occurred.

Lost opportunity doctrine

allows P to recover when D negligence possibly (prob < 50%) caused P ’s injury. Three altenatives:

1. Pure lost chance

: allows P to recover even though it is more likely than not that he would have suffered the injury if D had not been negligent. P has to show that D negligence decreased P ’s chance of avoiding injury. Receives full damages.

2. Proportional approach

: indentical to pure, but P ’s recovery is the % of chance lost.

3. Substantial possibility approach

: for wrongful death cases. P must show that there is a substantial possibility that that D ’s negligence caused the injury. It does not have to be more than 50%.

If lost opportunity is limited to cases only involving death, potentially flagrant examples could go uncompensated. Court does not recognize a cause of action for the loss of opportunity to avoid physical harm less than death.

Dissent:

1. Medicine is an inexact science, questions regarding causation are not easily answered, especially when a physician’s failure to act is alleged to be responsible for harm.

2. Lost opportunity helps ensure that physicians are leiable for gross negligence that deprives their patients of less than an even chance of obtaining a better result.

3. Where the chance of recovery is 50% or less, traditional rule undermines loss allocations and deterrent functions of tort law.

52. Falcon v. Memorial Hospital ----------------------- C 303

(death from embolism after giving birth): had hospital exercised reasonable care, mother would have had a 37.5% chance of survival. This % is a substantial opportunity to avoid physical harm. P would recover 37.5% of damages recoverable for wrongful death.

52.a Jorgensen v. Vener -------------------------------- SM 135

(shattered leg, infected and lost): 60% chance of success to savbe leg, decided for amputation. Loss of chance: a doctor by doing something wrong has decreased patients chance of recovery or survival.

Opponents: alters or eliminates requirement of proximate causation.

Proponents: permits some form of recovery, rather than all or nothing; allows allocation of losses attributable to doctor’s negligence; cost of uncertainty shold be imposed on doctor rather than patient; any chance of recovery is legally congnizable interest (even if chance of recovery is less than 50%).

Typically, unless P can attribute more than 50% chance of causation to D ’s negligence, he fails to meet burden of proof. Some courts recognize loss of chance as a cause of action, trating it as the compensable injury, not the injury itself. Causation inquiry: determines whether D should compensate a P for a loss. Valuation inquiry: how much comensation is required. Doctrine relies on statistics to assign a value to the lost chance, but this is already necessary under traditional standards of causation and valuation. A doctor should be subject to liability to the extent that he contributed to the harm. Minority of courts: refuse to recognize lost chance as a distinct and compensable injury. Relaxed standard approach (substantial chance): P most prove that a siginificant chance for recovery was lost, then jury decides if negligence was the cause of this lost chance. It needs to be a siginificant chance, rather that a greater that 50% chance of a better result. Policy issues: more suits, rural medical providers, increased costs to consumers.

Dissent: 99 cancer patients with 1/3 chance of survival. Each receives negligent medial care and all died. Traditional tort law will deny recovery to the 99, since they had less that 50% chance of recovery. We made 33 errors. In the same situation, all recover, recover 1/3 of the normal value of case. 33 patients who would have survived received receive 1/3 of what they should have and 66 receive more than what they should. Errors in all 99 cases.

53. Summers v. Tice ----------------------------------- C 119

(two hunters fired & injured a 3^rd): Alternative liability, joint and several liability.

54. Scafidi v. Seiler --------------------------------- SM 121

55. Doe v. Cutter Biological -------------------------- C 134

(hemophiliac infected with HIV):

Alternate liability: (Summers)

Market share liability:

Enterprise liability (joint and several): (blasting caps) P unable to identify manufacturers, but the 6 D s comprised virtually the all the industry, manufactured to meet industry-wide standards set by their own trade association.

56. New York Telephone Co. v. AAER Sprayed Insulation - SM 146

(Asbestos claim): In product liability actions it is required that P identify exact D . Alternative liability requires all torfeasors to be before the court, that all breached a duty to P and one of them caused the injury. D have better access to information than P . Nexus between each D conduct and P is fundamental. D unable to exculpate will be held jointly and severally liable for full amount of damages. Court applies market share liability here.

57. Smith v. ELI LILLY & Co. -------------------------- SM 150

(DES daughter with cancer): Market share liability: P ’s obligation to is more limited, burden of proof shifts to D s upon showing that they manufactured the product. P recovery is also limited. Apportions damages according to likelihood that any of the D s supplied the product by holding each D liable for the proportion of judgment represented by their MS. Liability is not joint and several.

California: (Sindel v. Abbot Labs.)

Market share reasons: manufacturer should bear cost of injury; in better position to bear cost; provides an incentive to safe products. P must join a substantial share of DES market her mother took. Difficult to identify relevant market. Fails to specify market of DES allocated for other uses. Geographic market area ideally local.

Washington: MS alternate liability allows P to bring suit against one D . P must prove mother took DES; DES caused injuries; D marketed the type of DES taken by mother; production and marketing of DES breached a duty. Geographic market area ideally local. D presumed initally to have equal market share, that they may rebut. D recovery is limited to % actually represented by D s.

Wisconsin: Risk contribution theory. P can sue only one company, not necessarily constituting a substantial share of market. If only one company is sued, then it is liable for all the damages, if it cannot exculpate itself. If more that one D is joined damages are determined upon considering: market share, safety tests conducted, role in gaining FDA aproval and warnings issued.

New York: Uses a National market. Measures the amount of risk of injury each D created to the public at large. They can only exculpate themselves by showing they did not market DES for pregnancy uses. Liability is several, not inflated if not all manufacturers are before court.

Other courts: have rejected MS liability.

Difficulties: There is little or no informatin on market share. Many D are no longer in business. It ios likely that actual D who sold product to her mother is not before court. D who cannot ascertain their MS have the task of establishing the MS of companies not before court. They are liable for a specualtive disproportionate amount of damages. Has potential to treat P who cannot identify actual producer more favorable than those who can. P may be better able to identify actual responsible. May result in eliminating production of useful drugs. May diminish resarch on drugs. It is not fair to impose liability solely on the ability to pay. May broaden manufacturers exposure to liability.

Pros: incentive to produce safer generic drugs, on the average, liability under all or nothig or market share will be equal. If P was required to identify culpable (and it is impossible), there will not be an incentive for safer drugs.

58. Santiago v. Sherwin-Williams Co. ------------------ SM 150

(lead poisoning) P sues companies as distributors of lead as a base to other paint manufacturers. There is no certainty that lead from paint or lead itself produced P illness. No court has applied MS theory to a D that supplies ingredients for a product packaged and sold by other, without his control.

59. Dillon v. Twin State Gas & Electric. Co. ---------- C 144

(boy electrocuted trying to avoid fall): Two successive causal agents would have caused P ’s harm. Electrocuted or killed or maimed from fall. If P would have died from fall, D cannot be held liable. If he would have been maimed, D only liable for a diminished earning capacity.

60. Kingston v. Chicago & N.W. Ry. -------------------- C 145

Two simultaneous fires on two sides of property. One of unknown origin, the other caused by RR company. Any of the two would have destroyed P ’s home. Since the fire by RR is a proximate cause of loss, D is responsible for all damages.

61. Ryan v. New York Central RR Co. ------------------- SM 153

62. Bartolone v. Jechkovich --------------------------- SM 156

63. Dellwo v. Pearson --------------------------------- SM 157

64. Palsgraf v. Long Island RR ------------------------ C 309

65. Soloman v. Shuell --------------------------------- C 316

66. Marshall v. Nugent -------------------------------- C 320

67. Watson v. Kentucky & Ind-Bridge & Ry. ------------- C 326

68. Petition of Kinsman Transit Co. ------------------- SM 161

69. Rowland v. Christian ------------------------------ C 259

70. Farwell v. Keaton --------------------------------- SM 175

71. Erie R. Co. v. Steward ---------------------------- C 268

72. Tubbs v. Argus ------------------------------------ C 270

73. Tarasoff v. Regent Univ. of Cali. ----------------- C 279

74. Eaves Brooks v. YBH Realty ------------------------ SM 202

(fire sprinkler malfuntioned): Two D s contracted to inspect and report; install & maintain central fire alarm system. Sprinkler head malfunction, more than $1 million in damages.

Issue: Whether D assumed a duty to exercise reasonable care to prevent foreseeable harm.

Misfeasance: negligent performance.

Nonfeasance: failure to conduct some precedure.

Rule: There is no duty to P or tort liability in contractual obligations for its misfeasance or nonfeasance unless the performance of these obligations has induced detrimental reliance on continued performance and inaction would result in not just withholding a benefit, but in causing an injury.

Reasoning: Building owners and P are in a better position to insure against losses. If D were answerable to property damage, they would have to insure against a risk they do not know or control. They would pay high insurance premiums, and thus increase their prices.

74.a Palka v. Servicemaster Mgt. ----------------------- SM 205

Elaborated rules governing tort liability based on failure to carry out contractual obligation. Service Co. was paid $91,207 biweekly to maintain hospital premises. Founf liable to nurse for injuries for negligent performance of contract.

Reasoning: property damages of Eaves does not carry to personal injury; the contract was comprehensive and exclusive; contract functions were directed at a known and identifiable group.

74.b Brezenski v. World Truck Transfer Inc. ------------- SM 206

Action for death of a person caused by Crew, employee of WTT. Hired w/o background check. Had an accident,killed one, then another while escaping.

Held: Employer not liable

Rules:

1. An employer is vicariously liable for the acts of an employee if the act was commited during the course of and within the scope of employment. If act ios done for personal reasons or in an outrageous manner, it is not done within the scope of employment.

2. (Dempsey v. Walso Bureau) may be negligent if it knew or should have known that an employee was dangerous, careless or incompetent and such employment may create a situation where the employee would harm another.

3. A P must show D owes a duty of care to P ; breached the duty; resulting in injury; P suffered actual damage.

4. $ no duty to control conduct of a 3^rd party to prevent harm to another except in a special relationship.

5. An act is not negligent unless harm is foreseeable to the class to which the P belongs.

6. Master is under duty to exercise reasonable care to control his servant while acting outside the scope of his employment if:

a. The servant is:

i. Upon master’s premises

ii. Using a chattel of the master; AND

b. The master

i. Knows or should have known that he has ability to control servant

ii. Knows or should have known about the need and opportunity to exercise control

74.c Randi W. v. Muroc Joint Unified School District --- SM 214

D school districts, employeer of vice-principal who sexually assaulted P , was found liable for fraud and negligent misrepresentation in placing affirmative references for employee despite known prior misconduct.

Rule: a recommender owes to 3^rd persons a duty not to misrepresent facts about qualifications or character of a former employee, if such misrepresentation would present a substantial foreseeable risk of physical injury to 3^rd person.

75. Waube v. Warrington ------------------------------- C 344

76. Thing v. La Chusa --------------------------------- C 351

77. Consolidated Rail Corp. v. Gottshall -------------- SM 216

(RR Crew not allowed to rest, worker dies): Gotschall suffered severe ED for witnessing his friend’s death.

Three tests for recovery for NIED:

1. Physical impact (5 states): P must sustain a physical impact or injury due to D ’s conduct

2. Zone of danger (14 states): P sustain physical impact or be in immediate risk of physical harm

3. Relative bystander (~25 states)(Dillon v. Legg): whether D could reasonably could have foreseen P ’s emotional injury:

a. P near accident

b. sensory and contemporaneous observance of accident

c. P and victim closely related

No jurisdiction allows recovery for all emotional harms that might be causally linked to the negligence of another.

ED is easy to fake, flood of suits, trivial claims.

Rule: Zone of danger best reconciles concerns of common law w/ FELA. Employers owe a duty of care to its employees.

78. Potter v. Firestone Tire & Rubber ----------------- SM 221

79. Grand Central Pipe Article ------------------------ SM

80. Hartwig v. Oregon Trail Eye Clinic ---------------- SM 233a

81. Burgess v. Superior Court ------------------------- C 360

82. Feliciano v. Rosemar Silver Co. ------------------- C 365

83. Anderson v. ELI LILLY & Co. ----------------------- SM

84. High v. Howard ------------------------------------ SM

85. Fassoulas v. Ramey -------------------------------- C 380

86. Turpin v. Sortini --------------------------------- C 388

87. Loerch v. Abbott Laboratories --------------------- SM

88. Barber Lines A/S v. M/V Donau Maru ---------------- C 392

89. J’Aire Corp v. Gregory ---------------------------- C 397

90. People Express Airlines v. Consolidated Rail Corp.- C 401

91. Kelley v. Gwinnell -------------------------------- SM

92. Stagl v. Delta Airlines, Inc. --------------------- SM

93. Kentucky Fried Chicken v. Superior Court ---------- SM

94. McCarthy v. Olin Corporation ---------------------- SM

95. Bierczynski v. Rogers ----------------------------- SM

96. Knell v. Feltman ---------------------------------- SM

97. Tolbert v. Gerber Indus., Inc. -------------------- SM

98. Bartlett v. New Mexico Welding Supply, Inc. ------- SM

99. Butterfield v. Forrester -------------------------- C 409

100. Davies v. Mann ------------------------------------ C 410

101. LaFrenz v. Lake Co. Fair Board -------------------- SM

102. Kelly v. Ziolko ----------------------------------- SM

103. Hacker v. City of Glendale ------------------------ SM

104. Rush v. Commercial Realth Co. --------------------- SM

105. Meistrich v. Casino Arena Attractions, Inc. ------- C 412

106. Anthony v. Abbott Laboratories -------------------- SM

107. Hicks v. State ------------------------------------ SM

108. Riss v. City of New York -------------------------- SM

109. William v. Bright --------------------------------- C 617

110. Coyne v. Campbell --------------------------------- C 623

111. Holton v. Gibson ---------------------------------- C 630

112. Grayson v. Inmar Realty Corp. --------------------- C 640

113. Walters v. Hitchcock ------------------------------ C 650

114. McDougald v. Garber ------------------------------- C 656

115. Lakin v. Sanco Products, Inc. --------------------- SM

116. Owen-Illinois, Inc. Zenobia ----------------------- C 689

117. Gressy v. Digital Equipment Corp. ----------------- SM

118. Ira S. Bushy & Sons, Inc. v. United States -------- SM

119. John R. v. Oakland Unified School District -------- SM

120. Fletcher v. Rylands ------------------------------- C 485

121. Rylands v. Fletcher ------------------------------- C 489

122. Turner v. Big Lake Oil Co. ------------------------ C 488

123. Siegler v. Kuhlman -------------------------------- C 493

124. Foster v. Preston Mill Co. ------------------------ C 502

125. MacPherson v. Buick Motor Co. --------------------- C 509

126. Henningsen v. Bloomfield Motors, Inc. ------------- C 515

127. Brown v. Superior Court --------------------------- SM

128. Carlin v. Superior Court (Upjohn Company) --------- SM

129. Sheckells v. AGV Corp. ---------------------------- C 554

130. MacDonald v. Ortho Pharmaceutical Corp. ----------- C 560

131. Anderson v. Owens-Corning Fiberlas Corp. ---------- C 569

132. Woodill v. Parke Davis & Co. ---------------------- SM

133. Murray v. Fairbanks Morse ------------------------- C 545

134. Nealy v. US Healthcare HMO ------------------------ SM

135. Johnson v. General Motors Corporation ------------- SM