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TORTS (Ewing)

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TORTS FALL 2010 - Prof. EWING

Introduction
Liability for wrongs that people inflict on each other by various means
o Assaults, car accidents, malpractice, defamation
o Gives victim a remedy against person who wronged them
Torts and criminal law was combined in English Common Law
o Here there is a broad division between criminal and civil wrongs
o Criminal- brought by government
o Criminal- there may not be any injury to anyone else
o Malpractice may be strictly a tort
Standards: Criminal (reasonable doubt) **** Civil/Tort (preponderance of evidence)
I. Intentional Torts

A. Battery
Intentional bodily contact, which is harmful or offensive. The intent element does not require a
desire or purpose to bring a specific result of injury, it is satisfied if the actors affirmative act
causes an intended contact, which is harmful or offensive. Un-consented touching- may or
may not have to be intentional- usually does

Note contact can be with an actors clothes or purse/bag. And, for offensive contact, all thats
necessary is for that the actor intended to cause the other, directly or indirectly to come in
contact w/ a foreign substance in a manner which the other will reasonably regard as offensive.

1) Intent and Volition
The Intent element does not have to be intent to harm, simply intent to make contact.
And, intent maybe unlawful depending on circumstances of location/place.

a) Vosburg v. Putney
12 yo boy kicks 14 yo boy in classroom after teacher called class to
order. 14 yo injured in shin. The court notes the location of the accident,
and implies that if this was horseplay in the playground, a P would know
the risk of the actions. The court stated because school had commenced,
there was no implied license to do the act/kicking.
Court defines unlawful- intention must be lawful, or defendant must be at
fault- courts reasoning seems circular
o The intended act was to kick the other kid- how do we know this?-
court assumes that it is

RULE: If the intended act is unlawful, the intention to commit it
must necessarily be unlawful.

Also note, children held liable for their intentional torts.

b) Knight v. Jewett
Touch football game between friends gets a bit rough. D knocks P over
during play and steps on her finger and injures her. It appears as though
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accident occurred during game play. Act was not wrongful. And, P
conceded that D did not intend to step on her hand and did not intend to
hurt her.

RULE: A requisite element of assault and battery is intent
No intent = no claim.

Reconciling Vosburg and Knight- Knight- she knew the risks of playing
the game- assumption of risk- defendant didnt intend to step on her
finger- it was an accident- Vosburg- it wasnt an accident and act was
wrongful

c) White v. University of Idaho
Piano teacher walks up behind student, while she was seated at a counter,
and touched her back with both of hands in a motion made to simulate
striking a keyboard. Student suffered serious injuries which required
surgery. The act was voluntary and intentional.

RULE: Battery elements are met when intended contact is un-
permitted and is harmful or offensive. The contact and result may be
physically harmless, but if offensive, its battery.

The test for determining if touching was offensive/unpermitted
touching is: What would a reasonable person want? Or, is this
contact reasonable given these circumstances.

Piano teacher intended to touch- conduct was intentional- closer to Vosburg
o Is this common in teaching piano?
How do we decide if it is consented?
o Subjective v. objective- would probably want a reasonableness
standard.
How do you determine intent?- usually up to a jury- difficult to determine

Polmatier v. Russ
Ct. finds L for D (insane man) who shoots his father in law with a
shotgun. Ct. says the action was intentional insane person acts
intentionally, even though his reasons or motives leading to intention
may be entirely irrational. He is not criminally liable, but is civilly
liable. Court reasons that it makes sure the caretakers are responsible.
Restatement- all acts, except compulsive, are intentional

Laidlaw v. Sage
Ct. finds NL for D who uses a man as a human shield when a man comes
into his business strapped with a bomb. Ct. says self preservation is the
first law of nature. Where it is a question of whether one of two men
will suffer, each is justified in doing the best he can for himself.

d) Keel v. Hainline
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Boys throwing erasers back and forth in horse play while waiting for late
teacher to show up. The boys tossed the erasers toward one another at
opposite ends of the classroom until one hit a girl in the face. None of
boys intended to strike or injure P, who brought suit against several boys,
including those who had not thrown the eraser, but were involved in
game. Ct. finds L for D who threw the eraser and Ds involved in game.

RULE: If the act was wrongful, the intent was wrongful. The fact
that the act was done is enough.

Intent may be transferred, its no defense for A to say he intended to
make contact with B after he actually hit C. As intentions toward B
are combined with the harmful contact of C to create battery. B is
also liable because he was included and encouraged the wrongful
act.

Keel was the one the eraser was thrown atHe may be held liable if
he is encouraging or abetting an act..but not mere provocation..

e) Manning v. Grimsley
Pitcher is being heckled by fans sitting nearby while warming up. Pitcher
throws the ball at the stands and towards hecklers. Ball goes through a
mesh fence and hits P who may or may not have been a heckler. Ct.
finds L for D where a jury could infer that Pitcher intended to cause
harm to one or more of the hecklers. Regardless of who he intended to
harm, D is L if he harms someone else. It may be reasonable behavior to
heckle.

RULE: Liability in battery is not diminished if actor is provoked.
The behavior of plaintiff not examined.

Lecture Note- Although Grimsley was provoked, this does not alter
his liability.The case would have been different had the other
people been throwing car batteries at him or somethingNo
reasonable assumption of risk from heckling fans..

All thats required is that P intended to do AN action. It doesnt
matter if P was direct target of Ds intent, L for battery exists for
anyone who is physically injured as a result intentional harmful
contact either at him or a 3
rd
party.


2) Minimum Requirements
How direct or invasive does contact need to be to constitute harmful or offensive? In
some cases, smoke purposely blown in anti-smokers face is considered contact thats
harmful and offensive.

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Leichtman v. WLW Jacor Communications, Inc. - Guest on radio show- smoke
intentionally blown in his face by D. Ct. finds L for D - smoke is particulate matter capable
of making physical contact and of offending a reasonable sense of personal dignity

Madden v. DC Transit System, Inc.- plaintiff injured by bus fumes- Ct. finds no L for D - no
wrongful intent- distinguishes the 2 cases b/c no intent

a) Morgan v. Loyacomo
P purchases underwear from Ds store and leaves. Ds manager only sees
P paying for one and follows P out of store and pursues her for a block.
Then, before several other people, D explains he has to inspect purchase
to make sure she paid, forcibly grabs bag and looks through it. P sues for
battery. Ct finds L for D.

RULE: It is not necessary to touch a plaintiffs body or, even,
clothing, or bags attached to Ps person, when its done in a rude
and insolent manner.

Store manager had better alternatives than taking her bag!!
What if she has stolen property?- case would probably differ- may
be a type of consent b/c she had stolen goods

b) Wallace v. Rosen
During fire drill, teacher told P (student) to move it, put fingers on her
shoulder then turned P 90 degrees towards stairs. P then slipped and fell
down stairs. NL for teacher. Note, could have been L if teacher had
pushed/shoved P, instead of simply touching.

RULE: In a crowded world, a certain amount of personal contact is
inevitable and must be accepted. The license of the situation, and the
relationship between the parties, will determine the reasonable
contact permitted.

3) Consent and limitations/Affirmative Defenses

Sometimes a defendant will offer a plaintiffs consent as an affirmative
defense/privilege to battery. Other times consent will render otherwise offensive contact
inoffensive.

Consent is willingness in fact for conduct to occur. It may be manifested by action, or in
action, and need not be communicated to the actor (apparent consent).

Mohr v. Williams
P agrees to have D operate on one ear. Upon examination immediately
prior to surgery, D found that Ps other ear was actually in need of
surgery. P awoke and came to have pain and loss of hearing in the ear
that was operated on. Ct. finds L for D because he did not have consent
of P to perform the operation on the ear that he did. Consent is only
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implied when necessary to preserve life or limb and the person is
otherwise unable to communicate consent.

a) Grabowski v. Quigly
P slips on ice and hurts back, hires D to perform back surgery. P later
discovers that during surgery/while under anesthesia, Surgery was not
performed by D, but by other doctor. App. Ct finds L for D - battery b/c
he didnt consent for that doctor to do that surgery. This case protects
patients right to choose!!!

RULE: Consent to one person can not be transferred to another.

RESTATEMENT: However, note, in hospitals, consent to doctors may
be interpreted to include acts of another, assistants, or subordinates. (not
case in Grawbowski though)

b) Brzoska v. Olson
D is a dentist with HIV. Doesnt tell patients and about a year after HIV
diagnosis dies. Former patients, who had not known he had AIDS, bring
suits against estate alleging battery. None of patients contracted AIDS.
SC affirms TCs decision that D had not committed an offensive touching
of any of the Ps. No L for D. Ps had consented to touching and
willingly attended Ds practice. Ps failed to show any specific exposure
to HIV may have made things a bit different.

RULE: Cant evaluate actual touch, if unwanted offensive, after the
fact. Therefore, to determine offensiveness standard a court can ask
Would a reasonable person mind/object if X happened?

c) Cohen v. Smith
P admitted to hospital to deliver baby, tells doctors she can not have man
other than husband see her naked. During procedure male nurse sees her
naked. P sues nurse and hospital for battery. Ct. finds L for D as they
acted in the face of Ps expressed refusal of treatment involving any male
seeing her unclothed.

RULE: Informing others about objections can constitute implicit
refusal of contact.

Lecture Note- Distinction between Broska - she told them before the
operation that if she was to be operated on that she should not be
touched or seen by any men while she is unclothed, wishes were
violated, no consent, the touching was a battery

d) Werth v. Taylor
P was Jehovahs Witness, not allowed to have blood transfusion. Fills
out form before operation that says she refuses to have blood transfusion.
P looses blood during D&C procedure, doctors give her blood. She sues
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for battery. NL for D. (note, Ewing thinks it should have been L b/c of
consent form. Court saw wavering of Ps husband as sign they did not
understand the optionsdeath or transfusion).

RULE: There are limitations of consent/lack of consent that can be
overruled in times of emergency/duress.

The law implies consent of an unconscious patient to medical
procedures needed to preserve patients life.

Ewing said that there was no consent here for the blood transfusion.
The court held that since the plaintiffs request to not have a blood
transfusion under any circumstances did not explicitly cover a life or
death situation, and therefore, since it was a life or death situation,
the court held that there was implied consent because it was an
emergency procedure required and there was no opportunity to
obtain actual consent or where the patient seeks treatment or
otherwise manifests a willingness to submit to the particular
procedure. At the moment of life and death, we can imply that she
gave consent to a blood transfusion.

What are you complaining about? Youre alive!!!
Maybe a doctor wouldnt operate if he cant do a transfusion if
necessary

4) Consent to illegal acts
Consent is effective to bar recovery in a tort action although the conduct consented to is
a crime.
Rains- plaintiffs were patients at a psychotherapeutic center- plaintiffs consented to use of
physical violence in sluggo therapy- defendants won but did not get total immunity- problem
was that the plaintiffs could not prove their claim- plaintiffs won
Freedman- went into labor- called her doctor- hospital gave her a drug- was told the drug was
to prevent infection- it was to induce hard labor contractions- court found for the doctors- not
really a harmful or offensive act- doctors may be liable for negligence- physical contact is not
the essential character of the misrepresentation- plaintiff alleged at court that inducing labor
was so the doctor wouldnt be at the hospital over the weekend- if this was the case, different
result
Neal- wife discovered her husband was having an affair- sued for battery- she would not have
had sex with him if she knew he was having an affair- what result?
McNiel- two men on horse and carriage- road rage- got into a fight- plaintiff sued for injury-
Ct. finds L for D. Breach of peace cases were held to a different standard because the state is a
party and consent to an assault is no justification.
o Self defense differs - ok as long as it is not an excessive response
consent 2 a crime usually means no liability unless the law is designed to protect a certain class
(statutory rape cases)
consent is ineffective if drunk (Hollerud)


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a) Hart v. Geysel
2 men engage in illegal prize fighting. One of the men dies from injuries
sustained in fight and estate sues D for damages. D defends on ground
that P consented. TC dismissed complaint, NL for D. Ct. says Ps
decedent consented to the combat as a matter of business and sport.

IMPORTANT NOTE: (On page 26 of the textbook, it says that Hart v.
Geysel is the minority opinion, and the majority opinion is McNeil, and
allows for one to collect in mutual affray).So in this situation, consent
is not effective to bar recovery of a battery.

RULE: No man shall profit from his wrong doing.
One who has sufficiently expressed his willingness to suffer a
particular invasion, has no right to complain if another acts upon the
consent given. However, if the consent is exceeded (i.e. fist-fight
agreed upon, but gun is used) then its an intentional tort.

b) Hollerud v. Malamis
P was drinking all night at Ds bar. The two men engage in Indian
wrestling and P gets injured. Ct. finds L for D.

RULE: An intoxicated actor is incapable of expressing a rational will
or consent.
(Is this always the case?)

Consent is nullified when there is fraud involved that goes to the very character of the act that
was being consented toExample- A choir teacher tells a pupil that a sexual exercise is helpful
for the voice, when in fact it is not, and he is just doing it for his own pleasure. The boys consent
to do the action is nullified, and would not bar his recovery against the choir teacher because he
the deception was to the very character of what the act was..

B) Trespass

Trespass protects the right to exclusive enjoyment of the land. A defendant can invade Ps land
OR, D may institute a physical invasion of property with objects or animals.

One is subject to another for trespass if he intentionally:
1) enters land in possession of the other or causes a thing or 3
rd
person to do so.
2) Remains on the land. 3) Fails to remove from the land a thing which he is under a duty to
remove.

1) Consent
A conditional or restricted consent to enter land creates a privilege to do so as
long as the condition or restriction is complied with.

EXAMPLE: A allows B to park truck in As barn. While in barn B does
automotive work on truck and accidentally starts a fire. B is a trespasser.

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a) Desnick v. ABC (note, full case)
P runs franchise eye clinic in mid-west. Ds reporters/producers pose as
patients and go to clinics, secretly taping transactions. P sues claiming he
would not have consented to Ds presence if he knew their true identity.
COA/TC finds NL for D. Consent is effective even though it may have
been obtained by fraud.

Court admitted, entering land w/o consent is trespass and, there is no
journalists privilege to trespass. However, consent can be effective
even when procured by fraud. In this case it is because none of the
interests that trespass seeks to protect were violated by the fraud.

Ct. sees this case different than phony meter checker lying in order to
gain access into a house to snoop around.

Ct. also saw that no trespass b/c office services not disrupted, other
patients not disturbed, and occurrence took place in office where P
advertised and charged for services.
Also, Ct. may have considered the social usefulness of Ds work, it had a
social importance.
A restaurant wants to have customers- a food critic is not trespassing-
doesnt disrupt control of your property- open a store- you want people
to come in- media is doing a public good
Public policy? E.g., limitations on 1st Amendment?

RULE: If consent procured by fraud, may be valid consent/defense
as long as entry is not invasive in the interest of P or interference
with ownership or possession of land.

2) Knowledge
Generally, the relevant intent in regard with trespass is the intent to go where
you went, NOT whether or not you had intent to trespass. With torts, intent
doesnt have to be to harm, hurt, trespass, rather, its the intent to do the act that
ended up violating the law.

a) Pegg v. Gray
P owns farm with 70 cattle, D has adjoining farm with hounds used to
hunt foxes. D often lets dogs out and they chase foxes onto Ps land and
incite cattle to stampede and break down nearby fences.

P sues D for trespass, Ct. finds L for D. Owner knew or should have
known that the dogs would enter neighbors property.

RULE: Owner of a dog not answerable for its entry upon lands of
another. However, if owner has actual or constructive knowledge
that dogs/animals will go on lands of others (or they send dogs onto
the lands of others) that is trespass.
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RULE 2: Farmers and Ranchers are held Strictly Liable for damage
done by their trespassing animals regardless of fencing efforts.

b) Malouf v. Dallas Athletic Country Club
P lives near country club. Ps car was hit 3 separate times by golf balls
that went astray. P sues for trespass, TC finds NL.

In this case, the golfers were aiming at the right flag on the golf course,
but were merely poor golfers

RULE: For trespass one has to have intent to enter land (i.e golfer
aiming for flag on your property b/c they thought it was flag on
course).

Intent plays some role in trespass- more intent in the dog case- it was
enough that the owner had constructive knowledge the dogs would end
up on the land.

Mistake- if theres a mistake and you think you should be there,
however reasonable, you trespass. But if the property owner is the
one who misleads you, its not.

If its an accident- not liable!!!

c) Van Alstyne v. Rochester Telephone Co.
P owns hunting dogs. D Telephone Company comes onto Ps property,
via consent for easement, to do necessary work. They had a right to
enter the property. While performing operations they use lead and drop
some of it onto land. Ps dogs eat the lead and die.

P sues for trespass, Ct. finds for P, saying workers were responsible for it
regardless of fault. P gave permission for D to come on land, but not to
leave droppings there.

RULE: An actor is liable for consequences regardless of whether the
results could or should reasonable have been foreseen of whether
acts constituted negligence. There is no intent, but they should have
known better- case could easily go the other way b/c there was no
intent.

*Lost on negligence, won on trespass- probably changed the outcome

If action interferes with use of property by landowner, even if
unintentional act, its trespass.

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Consent may be given, but if D exceeds boundaries of consent given-
thats trespass. They had a limited license to be on the property.
They exceeded the scope of that license.

Similar to ABC case- went beyond the license- but werent harming
the property

What about Maloof case? - why is there liability here- people using
the lead were acting in a more professional capacity

HOWEVER- be mindful of Section 166- An unintentional and non-negligent entry does not amount to
a liability for trespass.

Edwards v. Lee
Edwards was stopped from using caves that went underground because 1/3 were owned by Lee even
though he built the business and the entrance was on his land.

C) Conversion
Conversion is an intentional exercise of dominion or control over a chattel, which so seriously
interferes with the right of another to control it that the actor may be required to pay for it.

In conversion, and damages, court considers:
A) Extent and duration of actors exercise of dominion or control;
B) Actors intent to assert a right inconsistent with the others right of control;
C) The actors good faith;
D) The extent and duration of the resulting interference with the others right of control;
E) The harm done to the chattel;
F) The inconvenience and expense caused to the other.

One who intentionally destroys a chattel, or, materially alters its physical condition to change
its identity or character is liable for conversion.

In conversion one seeks damages. If you want the property returned, institute a suit for
replevin.

1) Intentional dominion

a) Russell-Vaughn Ford v. Rouse
P visits Ds car dealerships looking for a new car. During 3
rd
visit, Ds
salesman asks P for keys to Ps car and pretends to not know where they
are until P calls police. Ds salesman admits he wanted to see P cry a
while. During trial, D admits this is common practice w/car salesman.

P sues for conversion, wins at TC, Ala. SC affirms. Damages were
$5,000, value of car, and he gets to keep the car. EWING sees a lot of
damages, but perhaps damages were message to D after admitted it was
usual practice to lose keys. Court wants to deter coercion- 1 hour isnt
worth the entire value of the car!!!
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Also, note, P involuntarily placed in this position and had little
protection/bargaining power. There would be a difference if this was a
rental car place and you had signed a contract.

HYPOTHETICAL: I rent a car from Hertz, and two days before the car
is due, I loan the car to Serra to go to Montana. Now Hertz sues Myself
and Serra for conversion. Does the person I loaned it to become
responsible? I am definitely responsible.
Answer: The other person would also be responsible, even if I had told
him that the car was in fact mine. (Look at Section 164 with regard to
trespass).
Even if it was done by mistaken belief, if you actually engage in the act,
like take the keys and drive a way, you are liable for a conversion
I rent a car, and Im an hour late returning it, should I have to pay the full
value of the car?- contractually accounted for- late fees written into
contract

RULE: Conversion is met when actor exercises dominion over
property in exclusion or dominion of plaintiff.

P does not need to exhaust all possible means of gaining possession of
a chattel that is withheld by a defendant after demanding its return.

Refusal without legal excuse to deliver a chattel constitutes
conversion.

If the court allowed the dealer to keep the car and pay for it, the dealer
would have allowed the practice to continue. This case calls the
damages compensatory, but theyre really punitive damages

b) Palmer v. Mayo
P rents carriage to D for trip to East Haven on business. Along the way,
D lends carriage to 3
rd
party, who thinking cart belongs to D, takes it for
ride and crashes it.

P sues D and 3
rd
party for conversion. Jury finds L for Ds.

RULE: A bailee is liable in an action of tort for an injury to property
bailed occurring during a use of it by him, or by others with his
consent, which was never expressly or impliedly authorized by the
original owner, even if the damage to the property was an accident
and not negligence in way property was used.

Think P allows D to take car for errands, on way home D stops to
grocery shop while in parking lot car hit by someone else whose
negligent. D is still liable, even though other driver negligent.

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Spooner- Manchester rented a horse to drive- went the wrong way-
got directions- horse became lame- plaintiff sued- no negligence- he
did the best he could- no conversion

c) Wiseman v. Schaffer
D is tow truck driver and received a telephone call from man claiming he
was P. Asks him to tow a truck from a truck stop to a welding yard and
told D that $30 needed to tow truck would be in visor of truck. D tows
truck to welding yard and it is promptly stolen. Caller was phony and P
was actually in diner during whole sequence.

Court found L for D.

RULE: Liability for conversion occurs even under reasonable mistake of
fact or law. Even if something is a reasonable mistake, it wont get you
off the hook.
Ask, who is in the best position to prevent something like this from
happening? - Nobody except the tow truck driver could prevent this

Restatement 244 covers this
2) Theft
A thief acquires no title to the property he steals. However, if victim looses
goods to a fraud, that fraud voidable title, which can be voided when/if victim
discovered the misdeed. Victim can seek damages or rescind transaction.

a) OKeeffe v. Snyder
Ps paintings stolen from art gallery, she tells friends about it, but does
not tell police. Years later, D buys painting from other party, who claims
his father inherited paintings. Impossible to tell if story is true. P sues for
conversion, seeks replevin, L for D.

RULE: A thief can not acquire title to a good nor, can good title be
transferred to others, regardless of their good faith and ignorance of
theft. people down the line get fucked too! (theyll be L to the
original owner)

Conversion by fraud protects the buyer, conversion by theft protects
the original owner.

b) Phelps v. McQuade
P approached by man claiming to be Gwynne, a man with good credit.
Turns out mans credit is terrible, but P doesnt know that. P delivers
jewelry to man, who turns around and immediately sells it to D. P learns
of this and sues D.

The question in court was if imposter had received title for jewels b/c if
yes, then title could be transferred.
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Note, jeweler, unlike OKeeffe had intent to sell and was in best position
to investigate potential buyers.

RULE: When a vendor intends to sell his goods to the person he
deals with, then title passes, even if vendor deceived about identity.
It is a question of the vendors intention.

They gave the jewels over to the crooks!!! This is a main distinction-
court wont allow liability since the original owner could have and
should have checked on the buyer.

c) Kelly Kar v. Maryland Casualty Co.
Thief steals money from bank in Oklahoma and goes to Ca. to buy car.
Pays for it in cash and trades in other car he bought with robbery cash.
Banks insurance co. sues to recover $ from car company. Ct. finds NL
for car company.

Cash is universal means of transacting business, its hard to trace down
the origins of cash (buyers means of protection), which is seen as the
grease of the wheels of commerce. Every merchant couldnt ask where
you got your money- higher duty buying a painting

RULE: Only bad faith on part of such purchaser of a chattel
purchased with stolen money can deprive him of ownership of
chattel.

d) Anderson v. Gouldberg
D took logs from Ps property. P sues for replevin and Ds defense is that
P had acquired logs by trespassing onto someone elses property. Ct.
found L for D, saying that a thiefs title is better than anyone elses title
other than the person thief stole from. The policy is to prevent a never-
ending cycle of crooks stealing from crooks.

RULE: Possession, even if stolen, is good title against all the world
except those having a better title, such as the original owner.

Armorie v. Delamirie
Plaintiff found a jewel set when cleaning a chimney- gave jewel to one of his
bosses- bosses refused to give it back- finder has rights to all except the true
owner. L for D.

Moore v. Regents of the University of California
Moore had hairy cell leukemia- doctors removed his spleen- w/o his consent,
they tested the cells in the spleen- white blood cells overproduced certain
proteins- developed a cell line from this and patented it- line valued at $3
billion- trial court dismissed- app ct. reversed- the plaintiff believed that his
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spleen may be tested, but its not reasonable to believe that the spleen would be
used in the way it was- not within the accepted understanding, so its conversion

California Supreme Court reversed this claim!!
The spleen served a use to society- concerned about civil claims in this sense.
Moore has a cause of action for breach of fiduciary duty and performance of
medical procedures without his consent-

Kreman v. Cohen
Kreman registered sex.com with a firm designated to give the name- Cohen-
released from prison, sent a fraudulent letter to the firm stating he was from
Kremans firm and Kreman wanted to relinquish the name- gave domain name
to Cohen- Kreman won $65 million- Kreman then brought a suit against the
firm, Network Solutions- 3 part test to a property right
1. an interest of precise definition
2. must be capable of exclusive possession
3. putative owner must have established a legitimate claim to exclusivity
Domain names satisfy the requirements- are valuable and capable of exclusive
possession- jury might find that Kremans intangible property right was
violated- NS wrongfully disposed of this property right- district curt concluded
that since the property right was intangible, it is not subject to conversion- but
NS gave away Kremans property- facially suspect letter-

Compu Serve v. Cyber Promotions
CS sues b/c of spam its customers got- court found that it was a trespass issue-

D) FALSE IMPRISONMENT
Protects the plaintiffs interest in freedom of movement- one party confines another party
without authorization- not just formal incarceration- anywhere liberty of movement might
wrongfully be restricted
An actor is subject to liability to another for false imprisonment if:
A) He acts intending to confine the other or 3
rd
person within boundaries fixed by the
actor.
AND
B) His act directly or indirectly results in such a confinement of the other
AND
C) The other is conscious of the confinement or is harmed by it.

What constitutes confinement?
To make the actor liable for false imprisonment, the others confinement within the
boundaries fixed by the actor must be complete. The confinement is complete even though
there is means of escape UNLESS actor knows of it.

1) Confinement

a) Peterson v. Sorline/Eilers v. Coy
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Both cases involved Ps who joined cults and parents become concerned. They attempt to deprogram
kids by kidnapping them and taking them to deprogramming center where it is difficult to
escape/leave. In one case (Peterson) P escapes once she pretends to agree with deprogrammers.

Peterson- 21 year old at college joined a cult- sold everything- even a car her parents gave her-
her parents became concerned- her grades declined- family concluded that she was in a state of
psychological bondage- parents arranged to have her deprogrammed- she begged to be released
and was at the house for a few weeks- got better- after a few weeks, she asked the police to take
her back to the cult- sued parents for false imprisonment- kidnapping done by parents- there
was a judgment against the programmers, no judgment against the parents (ds).
o She was willingly in the house for at least 13 days- she could have left- issue was if the
daughter voluntarily participated for the first 3 days- jury concluded that her behavior
constituted a waiver
o Society has a compelling interest in deprogramming
o SHE ASSENTED AT SOME POINT no liability for parents here
o Dissent- shes not a child- the groups activities may be suspect, but she had the right to
make that decision
Eilers- same scenario- 24 year old son joined a cult- parents worried about suicide-
deprogramming- he was handcuffed to a bed in a room with boards on the windows for a few
days- when he was allowed to go to the bathroom- ran- one of the guards stopped him- after a
few days- he pretended to consent- got away- kidnapping done by the deprogrammers- just
suing deprogrammers- courts deciding what is and is not a cult
o Court found for plaintiff- distinguished Peterson P clearly did not consent
*Ewing doesnt see a clear rule coming out of these cases and that in both, its false
imprisonment as theres really no consent by either party. She didnt consent to the initial
kidnapping!!!- court states that this is the least restrictive alternative- is it?- one persons cult
is another persons religion

*Seems Peterson was not quite under the same circumstances as Eilers. Eilers was handcuffed and
held clearly against his will. Although, Peterson was still certainly held against her will.

b) Bright v. Ailshie
Vincent Bright arrested and charged, gives name/SS as brother to bail
bonds company and then is released from jail. He disappears. Bail bond
firms hires D, a bounty hunter, to bring P back to Missouri. Once in
Missouri its determined that Dennis Bright was the wrong party and
wrongly arrested. P sues D for false imprisonment. Mich. SC finds L for
D

RULE: Private persons may arrest other person if they committed
felony, but it does not grant authority if person simply has suspicion,
or has not committed felony.

Liability based on statute- Bright was covered by common law
b/c he had probable cause

c) Baggett v. National Bank & Trust Co.
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P enters Ds bank to deposit a check. Unknown to P, someone had
written on back of teller slip that he was conducting a stick up. P gets
money, leaves bank and Ds employee notifies police. Police bring D
back to bank and investigate matter. Its pretty clear P did not write
notes, but hes still brought down to police HQ. Through questioning and
investigation, police determine notes not written by P and then released.

RULE: One who instigates or participates in the unlawful
confinement of another is subject to liability for false imprisonment.
However, if arrest made solely by police then not false
imprisonment. As was the case here. No liability because in good
faith.

Gave information to the police, the police took the case- the bank
acted reasonably
For better or worse, the police have some objectivity in the matter
Bank did instigate his arrest- how is this reconciled with Mellon?

d) Melton v. LaCalamito
P rents U-Haul trailer to move. When he arrives to turn in U-Haul,
employee insists that blankets in back belong to company. P and
employee fight, P insists blankets are his, company calls police. Officer
arrives and employee insists that blankets belong to company. Police
arrest man, but solely on the basis of employees statement about
blankets. It appears officers objectivity is compromised b/c of insistence
of U-Haul employee.

P goes to jail and spends several hours there, eventually charges are
dropped. P sues D for false imprisonment, wins judgment.

Liability b/c there was no real evidence in this case- D could have
called the other U-Haul place to see if he rented the mats-
damages are really excessive- $10,000- maybe b/c U-Haul has a
lot of money

RULE: If an actor is regarded as having instigated the proceeding,
or that his persuasion was the determining factor in the officers
decision, or he gave false information, to influence the authorities, he
may be held liable.


D) Assault

The threat of offensive touching. An actor is subject to liability to another for assault if: A) He
acts intending to cause harmful or offensive contact w/the person of the other or a third person.
Or, imminent apprehension of such a contact, and B) The other is thereby put in such imminent
apprehension.

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1) Imminence
Imminence is required because most threats dont pan out. Example of what is
imminent and what is not is when A threatens to shoot B and must leave room to
get revolver, threat is not imminent. Imminent apprehension is necessary.

a) Brower v. Ackerley
Brower is an activist trying to stop billboards from being erected.
Ackerly (2 brothers) is an advertiser on billboards trying to keep
billboards legal. Bower determined that some of the billboards are
illegal and wanted to get them removed Brower gets aggressive phone
calls, one night caller said he was going to find out where Brower lived
and kick his ass. Brower learns phone calls come from Ds house.
Brower sued D for assault. TC gives SJ to D.

RULE: With assault, it is the immediacy of the physical threat that
is important, not the manner in which it is conveyed. Over the phone
is not an immediate threat. Near future is not the imminent future.
If A threatens to shoot B, and leaves the room to get his gun- that
threat is in the near future; its not imminent!!

b) Bennight v. Western Auto Supply
P is husband of employee at Ds store, which has a rear room filled with
bats. Employee repeatedly protests working in area. One day she was
attacked by bats, but not bit. The next day one did bite her. Ps husband
sued for loss of consortium. Court noted that intentionally placing Ps
wife in fear of harm, whether or not manager intended harm, was assault
Even if bats did not come near Ps wife, it would still be assault b/c of
the apprehension of harm.

RULE: For assault all one has to have is apprehension about
impending harm, whether or not actor requires
additional/subsequent harm.

Langford v. Shu
Langford visited her neighbor, Shu- saw a box danger, African
mongoose, live snake eater- Shu said it was for her kids and told
Langford to look in the box- it wouldnt hurt her- Langford was afraid-
looked at it from several feet away- no mongoose- fox tail attached to a
spring- Langford ran away, stumbling into a brick wall, tearing cartilage
in her knee- sued Shu for assault:
App Ct found for Langford- Shu set the stage for the prank she should
have expected that the mongoose would be sprung by one of her boys.

Tuberville v. Savage
P- put his sword on D- said if the judges werent in town, I wouldnt take
this language from you- not an assault- no intention here. Basically he
said he wasnt going to do harm.

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Newell v. Witcher
Ct finds L for D who goes into Ps room while she is sleeping and
solicits her for sex.

E) Intentional Infliction of Emotional Distress (Outrage)
One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if bodily
harm to the other results, for such bodily harm. Or, when conduct is directed to a 3
rd
person, the
actor is subject to liability if he intentionally causes severe emotional distress to: A) Member of
persons family present or, B) To any other person who is present if such distress results in
bodily harm.

Ewings rules on IIED:
1) Public Figures almost never win these suits as they have to prove malice

2) Doctrine usually applies when P is a private individual in a captive situation (i.e patient
in hospital, customer in cruise ship)

3) Doctrine seems likely to succeed for P where D is a professional who owes a duty to P.

4) P is more likely to succeed with claim of IIED if P can prove no arguable social value
for Ds conduct.

1) What is outrageous?

a) Roberts v. Saylor
P underwent surgeries and had stitches left in her. Saylor removed the
stitches from her and then P sued earlier doctors for malpractice, and
tried to enlist D for trial. D refused. P sued D as well. Later, when P was
undergoing another surgery D saw her in pre-op room, walked up to her
and said I dont like you, I dont like you. P sues for IIED, Ct. gives
summary judgment to D.

RULE: Liability for IIED does not arise from mere insults,
indignities, threats, annoyances, petty expressions or other
trivialities. Conduct for IIED muse be outrageous to the point that it
goes beyond the bounds of decency.

b) Greer v. Medders
P underwent surgery and was recovering when his physician left town.
Medders assigned to take care of D and does not show up for several
days. When D does show up he insults P and then insults P wife, calling
her a smart ass. D leaves room and Ps wife cries and he begins to shake
uncontrollably. P sues D for IIED. Ct. said these statements made to a
post-op patient were potentially abusive and could result in a recovery
for outrage.

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**Ewing thinks liability b/c of vulnerability of being under the persons
care

RULE: Outrageous conduct may be determined by an actors
relationship with another.

c) Muratore v. M/S Scotia Prince
P is passenger on cruise ship, tries to enter and staff insists on taking
picture. She declines and walks on ship backwards, they still take photo.
Another time, they approach her with camera, and she declines, but they
continue harassing her and saying derogatory sexual comments. P sues
for IIED and D found L. Ds continued to harass her throughout her
vacation.

With P the issue may be the context of where and when harassment
occurs. One doesnt expect it on vacation, especially when paying money
for trip.

RULE: In appropriate cases, severe emotional distress may be
inferred from the extreme and outrageous nature of Ds conduct
alone.

d) Pemberton v. Bethlehem Steel
P is union leader and claims D is unhappy with his attempts to organize
unions. D hired PI to trail him and place him under surveillance. D finds
out P is conducting affair and sends this information, anonymously to
wife, which precipitated affair. In addition, D gets mug shots from Ps
earlier arrest and circulates them to union members. P sues for IIED, D
gets summary judgment/NL statements were true.

One might argue some social good would come out of Ds actions and
essentially court saying P should be thick skinned.

RULE: With IIED, the court must consider the conduct itself, but
also the personality of the individual to whom the misconduct is
directed. Sending truthful information does not meet the necessary
outrageousness requirement

e) Class Example
A tells B, his friend, about his marriage, including his affair. B tells A he
needs to divorce spouse b/c A is not right for her. A divorces spouse and
then B promptly marries spouse. Is B liable for IIED? No, not unless B is
As psychologist/shrink/marriage counselor.

RULE: The extreme and outrageous character of the defendants
conduct may arise from his abuse of a position, or relation with
another person, which gives him actual and apparent authority over
him or power to affect his interest.
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Figueirdo- Torres v. Nickel
Nickel- marriage counselor- Figuierdo sought help- Nickel and the
plaintiffs wife were soon involved in an affair- plaintiff wins- Nickel
tried to argue that the relationship was between consenting adults- but
Nickel wasnt the guy next door- the patient/psychiatrist relationship
should be carefully scrutinized by courts- psychiatrist told the husband
he was a codfish and his wife deserves a fillet- certainly complicated the
issue. Ct. finds L for D.

f) Hustler Magazine v. Falwell
Hustler published a parody of a liquor advertisement featuring Falwell
and lewd comments about him sleeping with his mother in an outhouse.
Falwell sues for IIED. Court finds NL.

RULE: Public officials may not recover for IIED by reason of
publication without showing that publication contains false
statement of fact made with actual maliceknowledge that
statement was false.

g) Van Duyn v. Smith
P is abortion doctor trailed by activist, house picketed with signs and
home picketed. COA allows trial after TC dismisses IIED claim. COA
doesnt see P as a public figure merely because shes director of an
abortion clinic and therefore doesnt have to prove malice.

RULE: Sometimes, its the aggregate effect of acts that make a D
liable for IIED.

Lecture Note- the court said it was enough for IIED because in addition
to everything, there was a physical confrontation.

Walko v. Kean College
Ann Walko- instructor at the college and assistant dean- name in satirical
advertisement for whoreline- sued the college- court dismissed her
claim- no reasonable person would think the ad was genuine- everyone
knew it was a bad joke. Limited purpose public figure perhaps

Murray v. Schlosser
Dog of the Week if this OUTRAGE?
Think about the generational gap we thought no, Ewing, yes.

II. Affirmative Defenses/Privileges

A) Defense of Person and Property

1) Defense of property
The law has always placed a higher value upon human life than mere rights in property.
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a) Katko v. Briney
Ds own farm and house in Iowa where they dont live. They post no
trespass signs, but house is broken into many times. Finally, D sets a
trap in a bedroom, jerry-rigging a gun to fire when door is opened. P
breaks into house, enters bedroom and is injured by gun. After P gets out
of jail, P sues D for battery. Ct. finds L for D.

Note, however, sometimes things such as a fence/barbed-wire is seen as
notice/warning in and of itself.

Wright v. Haffker
Store clerk (D) not L for shooting P in back after he had assaulted him
and robbed him. Felony committed.

Some states do not hold Ds liable when using deadly force to protect
their homeP is inside your home.

RULE 1: There is no privilege to use any force calculated to cause
death or serious bodily injury to repeal threat to land/chattels unless
there is such a threat to Ds person.

RULE 2: A possessor of land cannot do indirectly and by a
mechanical device that which, were he present, he could not do
immediately and in person. This generally holds to vicious
dogs/electric fences

Lecture Note- The amount of force which is being used should be commensurate to the amount of
harm that is being avoided

Harm imposed versus Harm avoided, seen as necessity by the law.

What about electric fences? Would a sign warning of an electric fence be sufficient to bar someone for
recovery for injuries?

Spring guns generally will not be allowed, for a few reasons:
1. It would be disproportionate to the amount of harm that would be done to the intruder.
2. Spring guns, electric fences are not discriminating. Therefore automated devices are not privileged.
With regard to using other force, you may not use deadly force to protect property, and any force that
you do use must be proportional to the piece of property. Only that level of force that is necessary to
protect your interest.

B) Private Necessity
With crimes its the harm imposed v. the harm avoided. If HA higher than HI, then action not
wrong.

1) Ploof v. Putnam
Full case
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P sailing on Lake Champlain with children and wife when sudden storm comes
along. P takes refuge on Ds dock and moors his ship there. Ds servant unties
boat and Ps boat cast into lake where it crashes on shore, injuring P, wife and
kids. P sues D. Ct. finds L for D.

What harm did Ploof impose? None really.

RULE: The doctrine of necessity applies to the preservation of human life.
One assault and in peril of his life may run through the close of another to
escape his assailant.

2) Vincent v. Lake Erie Transporation Co.
Full Case
D discharging cargo while docked when storm moves into area. It would have
been dangerous for D to leave dock, so D stays moored. Then, D could not get
tug to bring her out and instead of casting away ropes, and allowing D to drift
away and possibly damage ship. D sat tied to dock and boat rubbed against
dock, causing damage and P sues. Ct. finds L for D, saying that by replacing
lines, and keeping ship docked, ship owners made a conscious choice to put
their property above others. D had a right to be at the dock, but any damages to
the dock would have to be paid to the dock owner.
;
RULE: Private necessity will allow/permit trespass, but damages will have
to be paid for/accounted for by D.

3) Texas Midland Ry. Co. v. Geraldon
Family at train station misses last train for night. Rain begins to pour and
conductor instructs them they must leave, cant spend night at station. P explains
his wife will get sick if stuck in rain, D doesnt care and sends them out into
rain. Ps wife gets sick and they sue for damages. Ct. finds L for D.
Under Vincent, family could have paid for time of railroad conductor stuck at
station overnight.

4) London borough of Southwark v. Williams
D is homeless with family in London. They find abandoned house in public
housing and became squatters. P moves to evict and D defends on private
necessity. Ct. evicted them.

Consider the duration and ability to pay for damages. In this case, unlike
Geraldon where situation was temporary, this could last for unknown time. Also,
its a question of resources.


C) Public Necessity
One is privileged to commit an act which would otherwise be a trespass to chattel or conversion
if the act is or is reasonably believed to be necessary for the purpose of avoiding public
disaster.

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With public necessity youre generally not compensated for eviction, use or destruction of
property. The law generally prefers life to property.

1) Mouses Case
P on barge that is struck by storm and may drown if not lightened. Captain determines
to save lives of passengers they must throw things overboard, including the casket that
Mouse brought on board. The boat was saved as well as all lives. Only loss was some
property on boat. Owner of the barge sued Ds for throwing property overboard. Ct.
finds no L for D.

RULE: When life is threatened property may be trespassed or destroyed in order
to save life.

2) Surocco v. Geary
D sued for ordering Ps house destroyed in attempt to stop fire raging through area. P
claimed they were in process of removing their stuff when city blew up their home. P
sues D for trespass. CA SC finds for D.

RULE: The needs of the many outweigh the needs of the few.

III. Breach of DutyThe negligence standard
Conduct of a reasonable manUnless the actor is a child, the standard of reasonable conduct to which
he must confirm to avoid being negligent is that of a reasonable man under like circumstances. Did he
have a duty? Was that duty breached?

A. Mental ability
The general rule is that an insane person is just as responsible for his torts as a sane person.

1) William v. Hays1
D was Captain of ship during storm. He stayed on deck during whole time and became
delirious, refusing help from passing tugs after the ships rudder broke. The ship
eventually crashed. D claims insanity, but court wont accept it as a defense.

RULE: The law looks to the person damaged by another and seeks to make him
whole, without reference to the mental or physical condition of the person causing
the damage.

2) William v. Hayes2
The case returns and this time the D argues he was made temporarily insane by events
and it was impossible for him to do his duty.

RULE: Impossibility is an excuse in law, and there is no obligation to perform
impossible thing.

3) Vaughn v. Menlove
D builds haystack near edge of his property, P repeatedly complained it was a fire
hazard and dangerous. D responded his property was insured and hed chance it. When
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fire destroys property, Ds defense is that he ought not to be responsible for the
misfortune of not possessing the highest order of intelligence. Notice of danger.

RULE: The standard for negligence is that of a reasonable person, its not
individualized.

4) Lynch v. Rosenthal
P was a 22 yo man with the mental capacity of a 10yo. He lived with D, who took him
out corn picking one day with a machine. D instructs P, but does not tell him not to
come close to machine. P does and gets injured, sued D. TC finds P contributorily
negligent, but SC disagrees. No notice of danger.

RULE: Mental deficiency is a different standard to be measured by for
contributory negligence. Its what would a reasonably mentally retarded person
do. Note, if Lynch was defendant, it would simply be a reasonable person
standard.

NOTE: Look at nature of disability. Compare Lynch with Weirs, case where man
couldnt read English and didnt notice signs on bridge. W/determining negligence
when it involves a disability, consider if the nature of the disability is one that
person could change/control (i.e. learning another language) vs. one that person
could not control (mental retardation).

5) Friedman v. State
16 yo orthodox Jewish girl becomes hysterical when trapped on ski lift overnight in
company of young man. Jumps down and runs to get help, injures herself. Ct. finds Due
to religious belief and situation, her behavior was reasonable.

RULE: Plaintiffs, despite negligence of others, are still responsible for mitigating
damages done to them. If injured, they should seek help, not refusing medical
treatment.

B. Physical Ability

1) Kerr v. Connecticut/Davis v. Finstein
In Kerr, a man with poor hearing walks home alongside trolley tracks. Gets hit by
trolley, which he didnt hear, and estate sues for negligence. TC finds L on Kerrs part,
but NL on trolly driver. Kerr was contributorily negligent. Should have known danger
of where he was walking.

In Davis, a blind man is walking down street using a cane and falls through an open
cellar door. Court finds L for Finestein, shop owner who left door open. Davis took
necessary precautions and store owner was negligent in leaving the door open.

Courts, in general, are more lenient when considering contributory negligence of a
handicapped person.

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RULE: The law requires the disabled to care for their own safety in the same
manner a reasonably prudent man, with the same disabilities, would exercise
under the circumstances.

C. Age
A minor is held to an adult standard when conducting dangerous activities that are dangerous
AND normally done by adults. This includes driving, speed boats, power tools, but not bicycles
or hunting. With some activities one needs to consider the environment in which theyre being
done.

1) Dellwo v. Pearson
D is a 12 yo boy who ran across Ps fishing line with his power boat and injured P.
Minn. SC rules boy should be held to an adult standard because those on the other side
of the lake (i.e. other boaters, drivers, etc.) are unable to protect themselves from kid
drivers/evaluate whose behind the wheel. Held to an adult standard.

2) Roberts v. Ring
P is 7 yo boy struck by driver of car who was 77 yo. Ct. finds P not cont. negligent and
that a 7 yo should not be held to the same standard of care in self-protection as an adult.
Also affirmed that if you are 18 or 88 youre expected to be a competent/safe driver,
passengers and others cant be expected to guess who is behind the wheel. NOTE: kid
was P and not a D, being evaluated for level of contributory negligence.

RULE: When ones acts cause injury to others, his negligence is judged by the
standard of care exercised by the ordinarily prudent normal man.

3) Rule of 7 laws
A) Minors under the age of seven are conclusively presumed incapable of negligence;
B) Minors between ages of seven and fourteen are presumed incapable of negligence,
but presumption is rebuttable;
C) Minors over 14 are presumed capable of negligence, burden placed on minor to
prove incapacity.

NOTE: May be better to go with A child of life intelligence and reason.

Purtle v. Shelton
17 yo D accidently shoots P, a 16 yo friend while both are out hunting. Court found
contributory negligence for P and awarded no damages. Ct. found no L for D on appeal
based on the fact that minors frequently engage in hunting.

D. Risks and Precautions
HAND FORMULA: Burden < Probability of injury* Loss/injury [ B < PL ]
*Burden is the untaken precaution P could have taken ;
*P is the probability of accident happening,
*L is the injury.
*While its difficult to place a dollar amount on BPL, the relationship allows one to evaluate
the relative relationships between BPL. Juries deciding negligence claims are generally told not
to apply the Hand formula.
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*The one problem with the Hand formula is that its applied after the fact, difficult to use it
during a forward looking situation (i.e. Eckert)

1) United States v. Carroll Towing Co.
Boat filled with flour moved to end of barge line. A bargee and captain readjust barge
lines and b/c of negligence barge breaks away and hits another boat, which punctured a
hole in the Anna C. To activate pumps, a bargee was supposed to be on Anna C, but
was not, as a result, boat sank. To determine negligence court looked at: 1) Probability
boat will break away, 2) Gravity of resulting injury, 3) Burden of adequate precautions.
Ct. found it was a reasonable expectation that bargee be on board during daylight hours.

HAND FORMULA - RULE: B < PL is used to determine if a party took
reasonable care in preventing an accident.

2) Eckert v. Long Island RR
P having conversation in neighborhood and sees train slowing heading down track,
about to hit young boy sitting on track. P races onto track, saves child, but dies himself.
D tries to say P is cont. negligent, but COA finds for P, saying negligence implies act of
omission or wrongfulness, it appears under the circumstances it would be wrongful for
P not to try and save child. P weighed the probability of injury to himself over injury to
the child. Both with regard to trying to save him and not trying to save him.

With the Eckert situation, its not fair to use B< PL or standard of reasonable person b/c
answer to both would be no, since were looking at it with hindsight and know P is
dead.

**Ewing thinks Eckert acted unreasonably, cts. judgment clouded by fact that Eckert
saved the kid. Ewing doesnt think Eckert is necessarily negligent, but thinks there
would have been a different outcome if kid had died.

3) The Margharita
A sailor on a ship falls overboard and leg injured by sea creature. Sailor brought back
on board and its determined his injuries wont kill him Captain wont go off route,
nearest doctor 3 weeks away, and continues on. P suffers pain, but nothing medically
related. P sues for pain and suffering. COA finds for D. If he had died from their
refusal to stop, perhaps the result might have been different.

Using the B<PL formula the burden is quite high and P is 1 because its the probability
hes going to suffer, which we know he will. But L is in question. How do you put a $
on L. Burden is stopping and not delivering cargo on time and is greater than the
probability of injury as the leg was already gone and he was stabilized.

4) Davis v. Consolidated Rail Corp.
P goes to rail yard to inspect trains, drove unmarked van. P crawls under train and fails
to put up warning flag that lets crew know hes working. Crews ordered to move trains,
but fail to blow horn, ring bell or use radio to warn others, or, walk/look under trains.
Jury found L for D, but reduced damages due to contributory negligence of P.

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Ewing sees B for companyblowing horn or using radiopretty low compared with
the L and PL. But, contributory negligence on Ps part high, too since burdenraising
flagwas so low.

a) Custom/Medical Malpractice
Adherence to custom may be a defense for medical malpractice claim, but is not
allowed for business (i.e. TJ Hooper, radios on boats) because if court held
operations to standard of custom, businesses could set custom and that could be
wrong/incorrect. With the custom defense for businesses youre not creating an
incentive for change. Ps win as a radio was a precaution so imperative that
even their universal disregard among the industry will not excuse their omission.

With businesses one could evaluate instituting changes/new technology by
considering burden placed on company to upgrade vs. PL (i.e. cameras on
trucks).

With a medical agreement, you and the physician understand, youre getting the
standard customary care, the standard for the procedure is the practice.

Custom is also used for technical practices such as law, architecture, accounting
or other professions where lay people may find the area of expertise difficult to
understand and may need an expert to explain/discuss. The general rule for
attys. custom is evaluation within the same state.

i) Brune v. Belinkoff
D is an anesthesiologist practicing in a small town 50 miles from Boston.
P, who is delivering baby, given 8 mg of pitocin, usual amount. is 5 mg.
Slips and injures herself. Sues D for injury. Mass. SC reverses lower
decision and says traditional locality rule doctors measured by
conduct of other physicians in similar communities--should not be used.
Ct. finds proper standard is whether the physician had exercised degree
of care and skill of average qualified practitioner, under this standard
some allowance is made for type of community where P runs his
practice. Locality rule does not apply here as it is unsuited to present
day conditions of medical practice. Present conditions of medical
practice are such that most precautions are afforded at least similar
amenities. Ct. finds L for D as industry standard was more closely
related to 5 mg.

RULE: A physician is evaluated by whether or not he exercised the
degree of care and skill of the average qualified practitioner
ordinarily found in some community of physicians.

ii) Johnson v. Wills Memorial Hospital
P is patient at hospital and starts acting strangely and agitated. Staff
sedates him and locks him in room. He escapes and is later found and
pronounced dead. Hospital defends suit by saying standard of care
applicable was standard of care applicable in similar hospital in similar
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communities. Ct. affirms for locality rule, finding it appropriate for
hospital facilities.

**Ewing sees this as more of human error, not an issue of facility.

RULE: A medical facility can be judged by locality rule, but it still
must meet standards of reasonableness (i.e. beds for patients)

Gambill v. Stroud
Goes back to locality rule saying that physicians in small towns cannot
be held to the same standard as all others in the profession. similar
locality rule

Cook v. Irion
Legal malpractice locality rule does not apply by the very nature of the
law. Attys in specific locality would be familiar with laws & rules of
practice in that particular locality.

E. Negligence Per Se
When the court determines that the defendant has violated some sort of rule, statutory or judge
made, the violation establishes the defendants negligence as a matter of law.

Generally, violation of a statute constitutes negligence per se when:
1) Conduct prescribed by statute is clear;
2) Plaintiff is in the group the statute seeks to protect;
3) Plaintiff was injured by a consequence of Ds failure to comply with statute.
*Also, P not NPS if statute would cause more harm than good.

1) Violation of criminal statute
a) Martin v. Herzog
P and husband driving in buggy at night w/o light on despite statute that requires
lights on buggies at night. P riding around curve when hit by Ds car, which
crossed over center line. Ct. remanded case for new trial b/c of bad jury
instructions, found omission of lights was a wrong and a negligent wrong, b/c
lights were intended for the guidance and protection of the travelers on the
highway.

**Ewing thinks both parties were negligent per se.

b) Tedla v. Ellman
Brother and sister walking along road way with baby carriages filled with junk.
The 2-lane roadway had no footpaths on either side. P walking with lantern, but
Ps walking on the wrong side of the road, in opposition of statute. However, the
wrong side of the road had less traffic than other side and was safer. Ct. finds D
negligent and COA affirms no negligence per se of P.

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29
RULE: A statutory rule of conduct to promote public safety should not be
construed as an inflexible command that must be followed even under
conditions when observance might cause accidents.

c) Tingle v. Chicago, B & Q. Ry.
Ds train ran over Ps cow on a Sunday, a day when state law prohibited the
operation of trains. SC finds for D. Train not operated in a negligent manner
even though it was operated in violation of the statute.

RULE: When violation of the statute is the proximate cause of the accident
then NPS. Need to look at the purpose of the statute.

White v. Lauren
D accidentally shot P while hunting on a day prohibited by statute. Ct. found
negligence per se for D.

d) Selger v. Steven Brothers
City ordinance requires shop owners to keep their sidewalks clean and free of
debris. Dog poop often accumulates outside Ds business, but he regularly keeps
it clean. One morning, D spots poop and is directing employee to clean it up
when P slips and falls. P sues, but ct. found that the ordinance created a standard
of care to the city, not the plaintiff.
**Ewing point, think of it proportionally. This is an act where the fine was $20,
does a city council create this ordinance in anticipation of a $400,000 trial ct.
verdict.

RULE: Municipal ordinances for care of property (i.e. clear of snow, ice,
poop) generally creates a duty of care owed to the municipality, not citizens.

F. Res Ipsa Loquitor
Generally, RIL applies when something generally does not happen unless:
1) someone was negligent,
2) D has more knowledge about a situation than P and
3) an instrument has been in Ds exclusive control.
*Also, P must be free of contributory negligence.

1) Byrne v. Boadle
P was passing in front of Ds premise when a barrel fell out from a window above. D
had set up machinery to raise and lower barrels. Several people saw barrel fall, but no
evidence as to how accident occurred. Ds servants were involved in work at the time of
accident. D held liable for RIL. Ds burden to prove no negligence.

RULE: An accident itself can be prima facie evidence of negligence under RIL.

2) Combustion Engineering Co. v. Hunsberger
P is workman on project rebuilding boiler room at construction site. Ds worker was
attempting to do work, looses control of hammer, it slips, falls and hits P. P sues for
injury, COA finds NL for D. Importance here is environment and that even under the
TORTS (Ewing)

30
best of care, tools might fall. Also, one could expect this type of occurrence here, as
opposed to barrels falling from the sky. Lastly, look at the B for construction site.
Burden too high to tell all workers at a construction site dont ever drop a tool.

RULE: RIL may not be found depending on the environment and the expectations
of that space.

3) Larson v. St. Francis/Connolly v. Nicollet Hotel
In Larson, P walking down street on V-J-Day and chair thrown out hotel window, hits
and injures her. NL found for hotel, b/c not rational to think they have control over all
their guests.

In Connolly, mud hit P in eye. Came from exuberant conference attendees who hotel
manager had earlier warned staff that they were rowdy/dangerous and could lead to
arrests. L for hotel, with court finding that negligence may be inferred from all the facts
and surrounding circumstances. Hotel knew about possible cause of injury, but did not
do anything to prevent it.

RULE: RIL is generally applied when D has exclusive control over injurious items,
or, control over people who cause injury.

4) Brauner v. Peterson/Guthrie v. Powell
In Brauner P drove his car into Ds black angus cow, which had strayed onto the
highway. P produced no evidence as how cow escaped from Ds property. TC finds NL
for D stating that one could reasonable see how a cow could escape from confines, not a
good use of RIL.

In Guthrie, D buys and sells livestock at fair grounds in a 2-story building. P is visiting,
sitting on 1
st
floor and chatting with friends when a cow crashes through ceiling. Court
finds RIL appropriate and finds L for D.

RULE: Looking at RIL consider whats reasonable and whats not. Reasonable
that a cow could escape, not reasonable to place cows on 2
nd
floor.

5) Haasman v. Pacific Alaska Air Expres/Walston v. Lambertsen

In Haasman, P was on plane that disappeared during trip. No signs of bad weather and
the plane, cargo or crew was never found. Ps estate sues under RIL and ct. finds L for
D. D argues that neither side knew what happened, therefore, its NOT inequality of
knowledge, but equality of ignorance. Court doesnt buy this, saying that rule doesnt
apply.

In Walson, Ps decedent was a member of the crew on a crab fishing boat that sunk
while at sea. The cause of the boats disappearance was unknown, weather was good.
But, ct. argues that RIL doesnt apply b/c of too many variables that could have
interfered and caused the sinking.

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31
RULE: In most instances where technology has made an activity unusually safe
(i.e. flying) that same technology has multiplied the possibilities for compliance
errors relative to those unavoidable accidents. Thus, if something goes wrong,
more likely RIL.

6) Ybarra v. Spanguard
P enters hospital for appendicitis operation and when he awoke, has a sharp pain in his
shoulder. Later the pain progresses to paralysis. A doctor he sees subsequently said the
paralysis was due to trauma or injury by pressure strain to neck. D claims that P cant
claim RIL because 1) there was several defendants/division of responsibility and use in
instrumentality and 2) where there are several instruments and no showing of which one
caused the injury then RIL shouldnt apply.

But, the court held when one is unconscious you dont need to show actor or
instrument. Ct. finds it should be enough that P shows injury resulting from external
force applied while hes unconscious.

What else could P do w/o RIL? Hed be out of luck.

RULE: Where P receives unusual injuries while unconscious, and in course of
medical treatment, all those Ds that had control over his body/the instrumentalities
which may have caused injuries may properly be called upon to meet the inference
of negligence.

HOWEVER- THIS IS THE MINORITY OPINION- MOST OF THE TIME,
WHERE THERE ARE MULTIPLE DEFENDANTS, RES IPSA LiQUITOR
DOESNT APPLY!

IV. Duties and LimitationsNegligence
A plaintiff bringing a negligence claim must show 5 things:
1) Duty,
2) Breach of Duty;
3) Cause in Fact;
4) Proximate Cause;
5) Damages

A) Duties Arising from Affirmative Acts
The law generally imposes duties of care on people when they engage in affirmative actsones
that create risks for others. Generally, a defendant can not be held liable for nonfeasance (doing
nothing) where as the law applies liability for misfeasance (Affirmative acts done carelessly)

However, according to 2
nd
Restatement: If an actor knows that his conduct, whether tortious or
innocent, has caused bodily harm to another as to make him helpless and in danger of further
harm, the factor is under a duty to exercise reasonable care to prevent further harm (think of the
hit and run driver). Even if the driver does not negligently hit the person, but hits the person
non-negligently..


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The doctrine is different when on a ship/part of a crew. The general rule is that crews must take
all reasonable steps to rescue someone.

There is a duty of parents to children, there is no duty of children to parents.

1) Doing nothing and doing something

If you choose to get involved, you assume a duty not to make the situation
worse

a) Yania v. Bigan
P comes to Ds coal strip-mining operation. D taunts P to jump into hole filled
with water. P does and D does not try to save P. No L for D. P could decide
for himself to jump into the water or not.

RULE: The mere fact that an actor sees a person in peril imposes no legal
duty to go to the others rescue.

And mere taunting someone to do an unreasonable action is not enough to
impose a duty on someone to save them if they in fact do itmay be
different if a taunting a minor or person with deficient
capacities/intelligence.

b) Grieshaber v. City of Albany
Jenna Griseshaber calls 911 when stranger in apartment. Operator tells her
help is on the way and Jenna then starts screaming. Police arrive at her
apartment and when they hear a dog barking they wait 30 min. for animal
control to arrive before entering her apartment, where they find Jenna dead
from a murder.

Ct. Found NL for police because the general rule that a municipality cannot be
held negligent in performance of police enforcement functions.

There is an exception to the rule and 4 requirements for a special relationship
must be met:
1) Assumption by municipality of an affirmative duty to act on behalf of party;
2) Knowledge by city that inaction could lead to harm;
3) Direct contact between municipality and party and
4) Actor relied on municipalities affirmative undertaking to her own detriment
(i.e. forewent other options for safety)

Ct. held that she relied on police, but not to her own detriment since attack
already underway.

RULE: Police/Fire generally can not be held liable for negligence in
performance of their duties.


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33
Globe Malleable Iron & Steel Co. v. NY Cent. & HRR Co.
RR Co. held L for not moving to allow fire fighters to get across tracks and
thereby allowing a plant to burn on the other side. RR should yield its rights
to the public interest.

c) Weirum v. RKO
Radio station hosts contest where it tells listeners of DJs location and prizes
awarded to first listeners to show up at new spot. Teens in car racing to get to
spot run 3
rd
party off road and kill him. Ct. finds L for D b/c while D normally
didnt have a duty, D created an unreasonable risk of harm/general hazard.

RULE: Duty doesnt matter if an actor, through an affirmative act,
creates an undue risk of harm to others.

d) Soldano v. ODaniels
D owns 2 bars and a patron in one runs into bar and tells bartender to call
police, or allow him to call 911, as man at other saloon was threatened.
Bartender refuses and man was shot and killed. Mans decedents bring suit,
alleging negligence.

The court found no special relationship, but said good social policy (i.e.
encouraging good Samaritans) is a reason for imposing L, because a business,
during business hours, should allow people to use public phones for
emergencies involving serious physical injury..

RULE: Use of a telephone in a public portion of a business should be
allowed for a legitimate (i.e. bodily harm/death) emergency call.

Strangle v. Firemans Fund Insurance Co.
Court says no L for D in not allowing P to call police to report to a robbery.
This was an office building, not a public place. Life or physical harm was not
at stake.

2) Duties arising from undertakings
Sometimes a defendant with no duty to a stranger may acquire a duty by undertaking to
provide assistance or voluntarily assuming responsibilities.

RESTATEMENT OF TORTS
Duty of one who takes charge of another who is helpless
One who, being under no duty to do so, takes charge of another who is helpless is
subject to liability to the other for harm caused by A) Failure of actor to exercise
reasonable care to secure the safety of the other or B) The actors discontinuing his aid
or protection, if by doing so leaves the other in a worse position than when the actor
took charge of him.

If one assumes a duty of rescue they must fulfill that duty until someone else assumes it
(i.e. they pass it along). Also, if one prevents others from saving someone in claim that
theyll rescue, theyve assumed the duty. (You tell others, get back, Im the expert
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swimmer, Ill save junior!) Many jurisdictions have statutes that protect good
Samaritans from lawsuits.

a) Hurley v. Eddingfield/ ONeill v. Montefiore Hospital
Both cases dealt with doctors declining to see patients.

In Hurley, doctor refused to see patient. Ct. found no L because no duty was
undertaken by doctor. Never examined or assumed any role in care for P.

In Montefiore, doctor listened to patients complaint via the telephone and
then instructed him to go home and come back an hour later when doctor from
insurance co. was on duty. Patient later dies.

Ct. finds L in Montefiore because the doctor was considered to have
undertaken an examination/treatment of the patient. However, in Hurley, NL,
because doctor never learned of patients condition, just refused care.

RULE: A doctor may refuse to treat someone, however, when a physician
undertakes to examine and treats a patient, and later abandons him, a
physician may be held liable for malpractice.

b) United States v. Lawter
Coast Guard tries to rescue woman and botches it by dropping her into the sea.
Court finds L for Coast Guard b/c the rescue left the patient in a worse
position that before.

RULE: One who assumes the duty of rescue will be found L for
negligence if they placed the victim in a worse position than when it took
charge.

Frank v. U.S.
Ps sued U.S. for not saving the life of their decadent after he fell overboard
during a fishing expedition rescue by the coast guard. Ct. found no L for D.
because rescue effort was diligent and did not worsen Ps position. Even
though it was unsuccessful, it was not due to Ds negligence.

c) Octillo West Joint Venture v. Superior Court
2 buddies drinking and golfing at golf course. Course staff refuses to give keys
to one because he appeared intoxicated. Friend offered to drive him home,
club gave friend keys and then, friend handed keys back to drunk man who
later killed himself in an accident. Court found NL for club b/c friend had
assumed the duty. Ct. finds L for friend because he put him in a worse
position than when he had his keys.

RULE: When one assumes the duty of a helpless person, he assumes
liability for that persons safety unless the duty is passed to another.

B) Special Relationships
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35
There are generally relationships that exist between two parties where a level of care is
impliedcaptain/crew; innkeeper/guest; carrier/passenger; school/child

1) Brosnahan v. Western Airlines/Boyette v. Trans World Airlines
In Brosnahan, P took his seat in a row on the plane. During an attempt to stuff
a bag in an overhead compartment a passenger dropped the bag on Ps head
causing injuries. P argued flight attendant should have been on board to help
with baggage, etc. P sued and won jury b/c of carrier duty.

In Boyette, P got off plane, drunk, and while in airport for layover stole golf
cart, led staff on wild goose chase and hid in trash chute that dumped him in
trash compactor where he died. NL for airport b/c duty had ended. He was
safely deposited at the airport. Transport was over and so was the duty.

RULE: A common carrier has a duty to exercise the highest degree of
care to safely transport passengers and protect them while in transit. But
this duty ends once a passenger reaches a reasonably safe place.

RULE2 (alternative way of saying it): A common carrier is under a duty
to its passengers to take reasonable action to protect them against
unreasonable risk of physical harmfrom the common carriers conduct
and from the conduct of third parties.

Trans Pacific Fishing & Packing Co.
D (captain) did nothing to go back and rescue his 3 crewmen that fell
overboard. Ct. found L for D because of the special relationship between
captain and crew.

2) Charles v. Seigfried
Adult (D) hosts party where a 16 yo girl drinks alcohol and then D allows her
to drive home. During drive she was killed in accident, her family sues,
claiming host had a special duty. Ct. finds no L for social hosts no special
duty. Ct. says imposing duty here would open the door for too much L.

The question with imposing liability is how would the test apply? What could
they really do? Theres a difference compared with a bartender (who could
better recognize drunkenness and has laws forcing him to be responsible).

RULE: A social hosts duties may vary depending on jurisdictions, but
generally there is not a special relationship.

Kelly v. Grinnell
Ct. finds social host L for actions of person who was served alcohol at their
home and caused an accident with a 3
rd
party. Ct. said to hold social hosts
liable would promote more care in these situations on the part of social hosts.
Burden to social hosts to impose more care was much lower when weighed
against misery and death from an accident that occurs because of the lack of
care.
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36

C) Duties to protect others from 3
rd
Parties

RESTATEMENT OF TORTS
There is no duty to control the conduct of a third person as to prevent him from causing
physical harm to another unless: A) A special relationship exists between the actor and
the third person, which imposes a duty upon the actor to control the third persons
conduct, or, B) A special relation exists between the actor and the other which gives the
other a right to protection.

1) Tarasoff v. Regents of UC (full case)
Parents of Tarasoff bring lawsuit against UC after shes killed by a former
patient of doctors at UC. Patient (Poddar) had confided to doctors that he
wanted to kill Tarasoff. The doctors briefly detained patient, but later released
him. Police watched him, but had no information as to his tendencies.

P alleged daughters death resulted from Ds negligent failure to warn
daughter or others about the threats. Ds argued they had no duty of care to
daughter because she was not their patient.

However, court found that there was a relationship between Podder and D, a
doctor-patient one, and that such a relationship supports affirmative duties for
benefit of a third person. The decision didnt discuss how imminent a threat
must be for a psychologist to warn, that could be a fact left up to
evaluation/debate.

RULE: Health professionals have a duty to take reasonable steps to
prevent harm from occurring if a patient indicates he wants to harm
others/readily identifiable victim. EXAMPLE: A doctor must warn a
patient if the patients condition or medication renders certain conduct,
such as driving a car, dangerous to others. Or, a hospital must exercise
reasonable care to control the behavior of a patient which may endanger
others.

2) Thompson v. County of Alameda
P and their son live a few doors down from James F. a juvenile sex offender.
James F. had indicated, if released from detention center, would kill a young
child in the neighborhood. He kills Ps son and they sue County for his
release, saying County had a special relationship and duty to warn. NL for
county b/c potential victims not specifically known.

RULE: For a duty to protect a third person from harm, there must be a
special relationship between the first two actors and the potential
victim/third person endangered must be identifiable or readily
identifiable.

3) Kline v. 1500 Mass. Ave. Corp
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37
P assaulted in building which had a doorman when she first moved in. Crime
had risen in the area and D (the landlord) took no extra safety measures. Ct.
found D had a duty to protect tenants from third parties. Ct. found it was the
LLs exclusive control over the building/area that allowed the court to require
additional precautions. The LL is best equipped and in best position to protect
tenants. LL had a security guard there previously he knew of the prior
incidents in the building.

RULE: Landlords have duty to take reasonable measures to protect
tenants from 3
rd
party harm in common areas/public places.

Bradshaw v. Daniel
Ct. found L for D, doctor, who failed to warn P that her husband had a tick
caused disease (which he died from). Doctor had a duty to warn an
identifiable 3
rd
party.

Hawkins v. Pizarro
Ct. found no L for D, doctor, that diagnosed a woman as not having hepatitis.
She did and infected her new husband. No L for D as he was an unknown 3
rd

party to which doctor had no duty.

D) Public Duty Doctrine
Generally, police/fire and public rescue services have sovereign immunity, a common
law doctrine forbidding lawsuits against government. Polices duty is to the public at
large, not necessarily individuals.

1) Riss v. City of New York/Schuster v. City of New York
In Riss, P is threatened by ex-boyfriend, she repeatedly goes to police and asks
for protection but nothing is done. Later, boyfriend attacks P and legally blinds
her. Then, shes given round-the clock police protection. P sues D and theres
NL because governments duty is to protect the public generally from hazards
and is limited by resources of community.

In Schuster, ct. found police had duty to provide surveillance/additional
protection for P because he had been a police informant. Ct. found that police
have a special duty to use reasonable care for protection of person who have
collaborated w/police in arrest/prosecution of criminals.

RULE: Police do not have a special duty to protect individuals unless
those individuals have collaborated with police on the arrest/prosecution
of criminals and it appears that they are in danger due to their
collaboration.

E) Duties Arising from Occupation of the land
In some areas details of a landowners duty depends on whether the plaintiff is a
trespasser, social guest or business guest. In some places, that has been abandoned for a
general standard of care.

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38
1) Trespassers
Landowners owe no duty to trespassers other than not to inflict harm/be
wantonly reckless. HOWEVER, once a trespasser is known, the landowner has
a duty to warn of hazardous conditions. Or, if a trespasser enters and becomes
part of a known group (i.e. an audience), a duty is known to him.

Ordinarily, when a trespasser enters the land, hes in the best position to
protect against harm. But, when a landowner knows of trespasser the equation
shifts.

Hoskins v. Grybka
No L for D when he shot at P, whom he thought was a woodchuck on his
property. P could not prove that he was not a trespasser.

Herrick v. Wixom
L for D when P injured during circus performance. P was a trespasser, but still
L for D because Ds negligence could have injured anyone at the performance.

2) Licensees
A licensee is a person who is privileged to enter or remain on land only by
virtue of the possessors consent. A licensee takes the premises as he finds
them, landowner has a duty to refrain from committing acts of negligence and
to warn about known dangers (pitfalls, dangers, booby traps, that a licensee
would not discover w/o hosts warning. A volunteer is generally considered a
licensee. (unless landowner had specifically asked for help).

3) Invitees
A business guest, a customer in a store, a person invited to enter or remain on
land for public purpose (i.e. lecture), a person invited inside the home. A
landowner is responsible for using reasonable care, and protecting invitees
from conditions, that could be reasonably discovered, that would involve risk
of harm to such invitees.

4) Reasonable Care
In some states, California and New York, the level of care by a landowner
does not depend on classification, but it is a standard of reasonable care where
foreseeability of the plaintiff is a factor of consideration.

F) Privity Limitation
Sometimes, when two parties enter into a contract, the defendant will owe an injured
third party a duty when a contract is breached and the third party is injured as a result.


1) H.R. Moch Co. v. Rensselaer Water Co/Glanzer v. Shephard
In Moch the Water Co. had a contract with the city to provide water through
sewers, hydrants, etc. A building caught fire (owned by P) and the pressure in
the hydrant wasnt strong enough to extinguish it. P sues, ct. finds NL b/c
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39
benefit of contract between city and water co. was incidental and secondary to
residents. Duty was to the city, not to specific Ps.

In Glanzer, bean counting firm misweighed beans for a company, company
sold them to another firm, which realized they weighed less than the certificate
stated. Court found L for firm that weighed beans because their actions were
the end and aim of the 2
nd
transaction. Only reason the beans were weighed
was for sale to a 3
rd
party. 3
rd
party was easily identifiable.

Conboy v. Mogeloff
No L for Doctor who told P she could drive w/her medication and she gets in
accident and kids are injured. No duty to Ps kids here. No evidence of kids
reliance on doctors statement.

Biakanja v. Irving
D was held L for not having witnesses present at will signing. 3
rd
party P was
directly injured by Ds negligence.

Food Pageant v. Con Ed.
L for D when electricity outage caused food in Ps store to spoil. Duty was
specific to P in this case.

Lilpan Food Corp. v. Con Ed.
No L for D when power outage led to looting of Ps store. Duty to city, not to
Ps to keep electricity in city to prevent looting (i.e. street lights and traffic
lights, etc.)

RULE: For C (a third party) to benefit from a duty between A and B, the
benefit must be primary and immediate to such a degree as to bespeak the
assumption of a duty to make reparation directly to the individual
members of the public if the benefit is lost. Also, having an ascertained
party as the third party is an important role.

G) Pure economic loss
Pure economic loss is the general notion that a plaintiff who suffers no physical injury
can recover from pure economic loss caused by defendants negligence. Generally, a
tort to a person or property of one person doesnt make the tort feasor liable to another
person merely because the injured person was under a contract with a third party, its a
means of limiting liability.

1) Robins Dry Dock & Repair Co. v. Flint/Carbone v. Ursich
In Robins Dry Dock, P (Flint) uses boat to lead tours. Its owned by someone
else and being cleaned for 2 weeks when the propeller is broken by employee
of RDD. P sues b/c of money lost by having to wait for boat to come back. Ct.
finds NL b/c a tort to the person/property of one man does not make the tort
feasor liable to another merely b/c injured was under contract with another.
Injury to the propeller was to the owner of it, not to the 3
rd
party.

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40
In Carbone, when a fishing boat was damaged, L was found for the company
after the unemployed fishermen sued. Ct. found L perhaps b/c fishermen/their
jobs were so intertwined with the boat. Special rule fishermen invest so
much in a voyage and are typically paid in percentage of the profits. Loss was
reasonably forseeable.

Henderson v. Arandel Corp.
No L for D that accidentally sank Ps dredge. Ct. disagreed with Carbone.
Dredge workers are different than fishermen.

Yarmouth Sea Products ltd. v. Scully
L for D ct. distinguished between dredge workers and fishermen. Fishermen
are a special class.

Newlin v. NE Telegraph
L for D where telephone pole fell and caused power outage at Ps mushroom
factory.

532 Madison Avenue Gourmet Foods v. Finlandia
No L for D where Ds building collapses and causes Ps business to close for
several weeks. Landowner cannot owe duty to protect an entire neighborhood.
There was an indeterminable class of Ps.

RULE: A tort to a person/property of one person does not make the tort
feasor liable to a third party that suffered losses, or was in contract, with
injured party.

H) Negligent Infliction of Emotional Distress
Sometimes negligence causes a P no physical harm, but grief or fear. Generally courts
find L for IIED and if Ds acts caused physical harm, but when negligence results in
only emotional reactions there are different takes.

1) P is direct victim of Ds negligence
Near miss cases where D acts negligently and narrowly avoids causing harm
to D, but result is emotional harm.

a) Robb v. Pennsylvania RR/Lawson v. Management Activities
In Robb, train bears down on Ps car, which is stuck on tracks. She
narrowly escapes death. Court rejects the impact rule (i.e. P must suffer
physical impact) and offers that P could collect if she was in the
immediate zone of physical risk caused by Ds negligence and if her
emotional distress caused her physical problems.

In Lawson, employees of a car dealership watched as a nearby plane
crashed. The court used a 7 prong test and found NL. In part, b/c opening
liability up would be opening a can of worms.

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41
The question to consider, too, is what is the incentive to a company for
change/improvement by allowing/not allowing L in NIED?

RULE: In considering NIED, look at the impact rule, zone of action
rule and overall, if P suffered ANY physical harm after incident.

2) P is family member of one injured by Ds negligence
General rule is that for a bystander to recover for NIED they must observe the
actual disaster/come across family member still in distress. And, it also looks
at the relationship between P and the injured party.

V. Cause in Fact
The demonstration that the injuries would not have occurred if D had used due care, or, but for the
defendants negligence, the plaintiff would not have been hurt.

A. But for
But for Ds negligence would this have occurred? Did Ds negligence cause the injury.

1) Stacy v. Knickerbocker Ice Co./Haft v. Lone Palm Hotel
In both cases, D did not comply with the law, but the question is was that lack
of compliance a but for cause.

In Stacy, P brought action when his horses crashed through Ds ice. D had
failed to erect a fence and failed to notify employees about thin ice. Ct. found
NL b/c even if precautions taken, not clear those would protect the horses.

In Haft, the hotel failed to have a lifeguard or sign warning of dangers of pool.
Father and son both drowned in pool. The court found that b/c the hotel had
violated law (i.e. no lifeguard) it was up to them to prove that violation was
not proximate cause of death.

RULE: While a defendant may violate laws that include precautions, the
question to ask is: would the untaken precaution have prevented the
accident?

NY Central RR v. Grimstad
No L for D (owner of barge) where decedent fell overboard after barge was hit
by tugboat while in port.

Gardner v. National Bulk Carriers, Inc.
L for D where decedent fell overboard and did not turn around and perform a
search when it was discovered that the decedent was missing.

2) Informed Consent
Think of Bernard v. Char, man who goes in for root canal, cant afford it, opts
for tooth to be pulled and jaw is yanked out. L for D.

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RULE: When a patient sues for medical malpractice after giving consent
and the operation goes awry, they are often evaluated by an objective
standard, which is: Would a reasonable person in the plaintiffs position
have consented to the treatment that led to the injuries had the patient
been properly informed of the risk of injury that befell him or her.

A subjective standard of evaluation looks at would *this* plaintiff go through
with the operation knowing the risks since they were informed?

Zalazar v. Vercimak
L for D (doctor) where P suffers from ill effects of cosmetic face lift.


3) Loss of Chance
Involves cases when the defendants negligence may have caused the injuries,
or decreased Ps chance for life.

a) Herskovitz v. Group Health Care Cooperative of Puget Sound
Ps decedant brings a wrongful death suit after D failed to make an early
diagnosis of Ps lung cancer. If Ps cancer had been identified when he
first saw doctor he would have a 39% chance of survival. Instead, when
it was diagnosed, he had a 25% chance of survival, his chance of
survival was lowered by 36%. Ct. finds L for D.

Ct. rejected idea that P must show he had a 51% chance of survival if P
had not been negligent. Ct. stated the reduction of chance of survival
was enough for jury to consider the proximate cause issue.

b) Wendland v. Sparks
P is cancer patient in hospital. Has heart attack and doctor/hospital does
not administer CPR/shock. Ps family sues relying on lost chance theory,
lost chance that resuscitation would have allowed her to live. And, lost
chance that while alive, she could have beaten cancer.

Under lost chance theory theyd look at Ps percentage of surviving
CPR. And, then, the likelihood shed survive cancer if she gets CPR. Ct.
finds L for D based on both probabilities.

c) Daugert v. Pappas
P sued his attorney who failed to file an appeal on time. He used the
loss chance argument and that it was a substantial factor in causing
damage to P. Ct found L for D. D appealed.

Problem with suit is that the 20% chance of winning was pulled out of
thin air, youre telling judges what they would do/decide. Ct. instead
decides to remand case, telling the TC what they would have decided.

Dillan v. Twin Sister Gas & Electric Co.
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Ct. found L for D based on the fact that P was electrocuted while trying
to save himself from falling off a bridge. Damage was calculated based
on whether or not decedent would have died from fall anyways or if he
would have lived if he was not shocked and only fell.

4) Alternative Liability
Determining causation, and damages, when only one defendant is negligent, but
its unclear who caused the damages. The 2 defendants have the burden of prove
to show who is at fault. If they cant then both are at fault.

a) Summers v. Tice
3 men are hunting, each with a 12-gague shotgun. P is struck in face by
birdshot that came from one of the other 2 men, but its not clear which
one. Its clear someone was negligent, but who? Court finds both
defendants liable.

Often, cases meet criteria of RIL: 1) Evidence set out doesnt occur w/o
negligence; 2) Accident occurred from instrument in exclusive control of
D; 3) Ps actions did not cause accident. (Think of kid picking up
firework at circus, both firms found not liable exception ct said they
did not want to hold both liable when one was not negligent)

Liteman v. Humbolt County
P may have been contributorily negligent lit the firework. ^^

RULE: When an injured party is placed in the position of pointing
to which defendant is liable (and both could escape) it is up to the
defendants to explain the cause of the injury otherwise they share
joint liability.

b) Market Share Liability
When its clear defendants product cause the harm, but one cant
conclusively show it was a particular brand used/bought was the cause,
then the companies in the relevant market area share the blame
dependant on their relevant market share. Relevant market can be
national or local.

This can only really be used when its clear that every single D was
negligent (i.e. in production of product) but its unclear exactly WHICH
product caused the harm.

i) Sindell v. Abbott Laboratories (full case)
P brings class action suit against drug manufacturers for
production of DES. DES taken by expectant mothers and later
caused cancer in daughters. The FDA had initially allowed Ds to
market and produce DES as a means of preventing miscarriages.
Later on, it changed policy, prohibiting such advertising, but
manufacturers continued anyways.
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RULE: Each defendant is held liable for the proportion for the
judgment represented by its share of that market unless it
demonstrates that it could not have made the product which
caused the plaintiffs injuries. P must be injured by a fungible
product made by many different manufacturers. D must also
represent a substantial share of the market.

A fungible product is one that could be interchanged with other
property of same kind (i.e. asbestos containing insulation).

Sanderson v. International Flavors & Fragrances, Inc.
No L for D (fragrance manufacturer) as Ps were not injured by a
fungible product made by many different companies. Market
share doesnt apply.

Smith v. Cutter Biological, Inc.
No L for D as only one company negligent, but cant tell which
one. Analogous to kid picking up the firework while at the fair.

VI. Proximate Causation
One thing to recall is that duty is a question of law for a court, while proximate cause, an evaluative
matter, is a question of fact for the fact finder.

A) Remoteness and Foreseeability

1) To determine whether an act is negligent, it is relevant to determine whether
the injury/outcome was reasonably foreseeable from the negligence. Example,
tin of rat pointing left next to box of flour on stove. Is it negligent if stove left
on, heats rat poison up and RP explodes? (usually, yes b/c foreseeable since its
near heat bad things could happen)- Direct cause

a) Wagon Mound 1
Oil spilled in harbor where ship was harbored. After 2 days of suspended
operations, to allow oil to disperse, and then while doing work, a spark
falls onto oil, it burns and sets ship on fire that are docked there.
CT. rejects Polemis theory (if act is negligent then any damage as a
result is directly connected) and argues that the consequence must be
reasonably foreseeable. No L for D.

RULE: If a negligent act is conducted, the damage must be
reasonably foreseeable from that act. Must forsee the exact result.

In re Polemis
L for D because the falling board into the hull of the ship was the direct
cause or the explosion was the direct result of the falling board. It was
immaterial that the board causing a spark was not reasonably forseeable.

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45
Wagon Mound 2
Ct. found L for D where a reasonable man would/might have realized or
prevented the risk.

b) Petition of Kinsman Transit Co.
A ship is moored to a dock in Buffalo. A thaw causes large chunks of ice
to come loose, some of the ice piled up between the boat and the shore,
the resulting pressure cause the ship to break loose, float down the river
and crash into another barge and then a bridge, causing flooding. Ct.
found L for dock owner (the post was negligently grounded) and said
accident was foreseeable. Negligence directly caused damage and was
somewhat forseeable (although not necessarily to the extent that actually
occurred).

RULE: Foreseeability of danger is necessary to render conduct
negligent.

c) Di Ponzio v. Riordan
P was customer at gas station, filling car when another car rolled into
him and broke his leg. The car had been left on in park and somehow
slipped into gear.
The gas station had a regulation that drivers were not to leave engines
running while gassing up car. Ct. found NL because this particular type
of injury was not foreseeable.

RULE: A negligent act can have a limited class of hazards and the
injuries must be proximate to that hazard.

d) Other examples:
Steinhauser v. Hertza woman in an auto accident started acting odd
after crash. Soon after diagnosed with schizophrenia and Ps parents
argued that crash, caused by D, precipitated illness. Ct. agreed and found
illness was precipitated by the crash.

Doughty v. Turner
No L for D whose workers hit a cement lid into boiling cyanide and
caused an explosion which injured P. Explosion not necessarily caused
by the dropping of the lid into the cyanide. Ds did not know explosion
might occur.

Colonial Inn Motor Lodge v. Gay
L for D who backed his car into a building and hit a heater which
exploded. Ct. said that it was reasonably forseeable that collision with a
building might cause some substantial harm.

B) Intervening Causes
When a defendant commits an act of negligence that produces harm when combined
with subsequent acct of wrongdoing by some third party.
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1) Brauer v. N.Y. Central HRR Co.
Ds train collided with Ps wagon at a grade crossing. Ps horse killed and the
contents of the wagon stolen. D had 2 detectives on the train to protect train
property from thieves, but they did nothing to protect Ps property. Ct. found L
for train company b/c accident immediately resulted in P being unable to protect
his property from thieves, something the RR company foresaw (i.e. detectives).

RULE: When an event occurs concurrently with the negligent act of
another, then that actor is liable for the harm of a third party to the
plaintiff.

2) Village of Caterville v. Cook/Alexander v. Town of New Castle
In Village of Caterville, D maintains a sidewalk 6 feet off ground, it has no
railings. One day P walking home, another person passes by and jostles him.
This causes P to fall off sidewalk. Ct. finds L. 3
rd
party did not deliberately
knock P off the sidewalk.

In Alexander, P asks to become special deputy so he can arrest a gambler. P
chases down/arrests the gambler and takes him to jail. Theyre walking along
the sidewalk, which has a 6-foot hole, when the gambler throws P into it. P sues
city, but ct. finds NL, saying the gambler was an intervening/independent human
agency in the infliction of injuries. 3
rd
party deliberately threw P in pit.

RULE: When the intervening act is an intentional tort, the chain of causation is
broken and L transfers to intentional actor.

3) Baby Jose
Article from NY times about prescription for infant incorrectly written by
resident. The prescription is passed along and at 2 other occasions (pharmacist
and nurse) they notice errors/think its incorrect, yet dont fix problem.

Ewing sees pharmacist as most egregious actor, he clearly failed to do his duty.

4) Exercise cases
Courts have found liability for an actors negligent even with intervening causes
such as lightening (Johnson v. Kosmos, when gas built up in barge), reasonable
scares/fright (when a gas attendant working on a gas leak thought he saw a fire,
ran and hit a lamppost) and mischevious children/drunks (keys left in bulldozer
at work site, men drove it to edge of mesa, abandoned it and it went over the
edge, crashing into a house). Mosquito fogger concurrent cause.

Ct. also found L when a pail of glycerin was left in a yard, it was moved, hidden
and then played with by boys. Ct. said it was foreseeable that mischief could
happen with glycerin.

C) Limitation of DutyForeseeable plaintiffs
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47
Dont forget, while an injury, or plaintiff, may or may not be foreseeable, one must
always consider the super sensitive plaintiff and that the tort feasor takes his victim as
he finds him.

1) Palsgraf v. Long Island RR
(FULL CASE)
P standing on platform of Ds railroad after buying a ticket. A man rushes up
with a package under his arm, trying to catch a train. He goes to jump on train
and one conduct pushes him in, the other pulls him on train. The package falls,
explosion ensues and causes scales to fall, at other end of platform. P is injured
and sues.

Ct. finds NL, (CARDOZO DECISION) because nothing in the situation gave
notice that the falling package had in it the potency of peril to those removed
from the situation. Harm was foreseeable, but not to this plaintiff. The plaintiff
must show a wrong to herself, a violation of her own right, and not merely a
wrong to someone else, nor conduct wrongful. The dissent thought one had a
duty of reasonable care to the world at large.

RULE: If the harm was not willfull, one must show that the act as to him
had possibilities of danger so many and apparent as to entitle him to be
protected. So, one is only liable to foreseeable plaintiffs injuries.



2) Edwards v. Honeywell
Alarm goes off at home and Honeywell calls fire company. Gives wrong
location of fire and then wrong directions, Delays firefighters arrival to home by
3 min. When FF arrive, they rush in and one crashes through floor that was
weakened by fire. Ct. finds NL b/c of unforeseeable plaintiff, and, holding
Honeywell liable would be a crushing financial burden.

RULE: As a matter of law, no duty is owed by homeowners/alarm companies to
FF/cops doing their jobs, they have assumed the risk.

3) Wagner v. International Ry. Co.
(FULL CASE)
P and his cousin riding on Ds train one night. Cousin thrown from the train as it
turned onto the bridge b/c trains doors had negligently been left open. Train
stopped and P left train w/conductor to search for cousin. P slips and falls off
bridge (while looking for cousin) and is hurt. P brings suit claiming his injuries
were attributable to same act that injured cousin.

Ct. finds L because danger invites rescue, and its all part of a chain of events.
In part, decision may be because of social reasoning, want to encourage others
to rescue.

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48
RULE: The wrongdoer may not have foreseen the coming of a
deliverer/rescuer, but he is accountable as though he had.

Widlowski v. Durkee Foods
Ct. found no L for D as liability must stop somewhere short of freakish and
fantastic. No L for D where employee is exposed to nitrogen at work and bites
nurses finger off when he is brought to the hospital in a delirious state. P tried to
say D was liable for negligently failing to protect employee from nitrogen
exposure.

VII. Strict Liability
Negligence provides the default rule governing liability for unintentional harm. But, strict liability
imposes harm without fault.

A) Liability for animals
Owners of ferocious beasts are strictly liable for damages their animals cause to others,
regardless of what precautions were taken. With wild animals, the court may examine
the animals social purpose. And, if it is a domesticated animal, if the owner had
knowledge of past attacks/viciousness.

SL for wild animals may cause owners to re-think whether or not they want to own such
animals. The law is saying, listen if you own this fine, but youll be SL.

1) Candler v. Smith
While P trying to start car, shes attacked by baboon who escaped from Ds zoo.
Animal wrecks her purse and frightens her and she has to run away. P sues and
D found SL for Ps injury.

RULE: With a wild animal, it is not necessary to allege the other was negligent
in allowing the animal to be at large because the owner is bound to keep the
animal secure.

Behrens v. Bertram Mills Circus
L for D (circus) when elephant gets spooked and tramples over P, causing
injury. Fact that elephant was tame is irrelevant and is to be treated as a wild
animal. Absolute duty to confine.

2) Earl v. Van Alstine
Bees kept in beehive that bordered the highway. P driving horse past when
attacked by bees, which had never attacked before. In considering whether wild
or domesticated, court found NL because the bees were found to have a social
purpose/usefulness.
However, outcome could have changed if bees regularly attacked people, or, if
bees were brought into a classroom.

Smith v. Pelah
Ct. finds L for D for his dogs bite. Second bite rule owner knows of dogs
vicious propensities = strict liability.
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B. Rylands

1) Rylands v. Fletcher
(FULL CASE)

D (Rylands) hires contractors to build a reservoir for him. Contracts discovered
some old mining tunnels underground, but did not investigate them. Turns out
tunnels were connected to a coal mine owned by P, Fletcher. D fills reservoir,
which breaks through bottom and floods Ps land. D sues.

Ct. finds L b/c a person who for his own purposes brings on his lands and
collects and keeps there anything likely to do mischief if it escapes, must keep it
in at his peril, and if he does not do so, hes answerable for all the damages of
its escape.

RULE: When one brings things on their land that can cause mischief if it
escapes, theyre strictly liable for any disastrous results that impact
others/neighboring land.

Crowhurst v. The Burial Board of the Parish of Amersham
Ct. finds L for D where Ps horse eats poisonous tree that extends onto Ps
property. Uses reasoning from Rylands to find SL.

2) Lubin v. Iowa City
(One of first American cases in book to adopt Rylands holding)
D (Iowa City) in practice of leaving underground pipes in place until they break,
even as a pipe approached end of estimated life. Ct. found city SL b/c it wasnt
reasonable for city to intentionally leave a water main w/o inspection. Water
mains arent inherently dangerous, but when such practice is followed, they do
become dangerous.

In part, this is a look at the best way to spread costs. Cts examine the economic
benefit or necessity (Turner v. Big Lake Oil Co.) in rejecting SL in many cases

Losee v. Buchanon
Ct. finds no L for D where a steam boiler explodes and flies off causing damage
on Ps property. Ds had right to place steam boiler on property and it was not a
nuisance, nor was there any negligence on Ds part. No one can be held liable
for injuries to the person or property of another without some fault or negligence
on his part. (against Rylands)

C. Abnormally Dangerous Activities
2
nd
Restatement of Torts
One who carries on an abnormally dangerous activity is subject to liability for harm to
the person, land or chattels of another resulting from the activity, although he has
exercised care in preventing harm. And, the SL is limited to the kind of harm, the
possibility of which makes the activity abnormally dangerous.
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In determining whether an activity is abnormally dangerous, the following facts are
considered:
a) Existence of a high degree of risk to some harm to the person, land or chattels
of others
b) likelihood that the harm that results from it will be great.
c) inability to eliminate the risk by the exercise of reasonable care.
d) extent to which the activity is not a matter of common usage
e) inappropriateness of activity to the place where its carried on
f) extent to which its value to the community is outweighed by its dangerous
attributes.

1) Indiana Harbor Belt Ry. Co. v. American Cyanamid Co.
FULL CASE

D transporting 20,000 gallons of acrylonitrile. While at switching station
in a rail yard near homes, employees notice the liquid gushing from
bottom of car. P sues for SL and ct. finds N SL. In part, court looks at if
risks could be eliminated using reasonable care, yes, they could have.
And, it considered what the alternatives were for transporting it. Ct. finds
that reasonable alternatives dont really exist, the roads were seen as
more dangerous than railways.

The court also saw the relevant activity as transportation, not the
manufacturing and shipping of the dangerous chemical.

RULE: The feasibility of avoiding accidents simply by being careful is
an argument against strict liability.

2) Siegler v. Kuhlman
Ds driver transporting gasoline in tanker truck across highways. Stops,
performs safety checks and then pulls onto highway where trailer jerks
loose and crashes. Gasoline spills out and Ps daughter drives through
puddle, it ignites and she dies.

Ct. found the principles supporting the Fletcher doctrine applied here.
Gasoline itself was not dangerous, but transporting it was what made it
dangerous, because the risks could not be eliminated by reasonable care.

Another reason for SL here is b/c without it, P couldnt prove negligence
(evidence disappeared, hard to prove explosion of case), proving RIL
here is impossible. Note the difference here is that Siegler is the
TRANSPORTER where as in Indiana Harbor, they sued the
manufacturer/shipper, not the transporter.

3) Klein v. Pyrodyne Corp/Miller v. Civil Constructors, Inc.

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51
In Klein, a fireworks display went awry and a rocket was shot into the
crowd 500 feet away and exploded. TC did found L for SL for fireworks
firm, reasoning no amount of reasonable care could entirely eliminate the
high risk in setting off powerful explosives near a crowd.

In Miller, Ds truck/person hit by a stray bullet. D was driving past a
firing range in a rural area where police officers went to practice. TC
finds NL for Ps SL count, and would not classify discharging firearms
as an ultra hazardous dangerous activity.

RULE: In considering strict liability, look at the social utility of the
activity weighed against the possibility of harm. And, consider the
location and appropriateness of the location of the activity.

D) Respondeat Superior
Generally, employers are strictly liable for torts committed by their employees in the
course of their workits an example of vicarious liability, liability for one party based
on the wrongs of another.

2
nd
Restatement of Torts
1) Conduct of a servant is within the scope of employment if, but only if:
a) It is of the kind he is employed to perform
b) It occurs substantially within the authorized time and space limits
c) It is actuated, in part, by a purpose to serve the master
d) If force is intentionally used by the servant against another, the use of force is
not unacceptable by the master
2) Conduct of a servant is not within the scope of employment if it is different in kind
from that authorized, far beyond the authorized time or space limits, or too little
actuated by a purpose to serve the master.

1) Ira s. Bushey & Sons (FULL CASE)/Miller v. Reiman-Weurth
In Bushey, a sailor goes out drinking comes back to the dock area where they
are staying (and only employees can enter/go) and opens valves that flood the
place and cause injury to the dry dock and boats. The court found L under theory
of RS b/c while his exact act may not have been foreseeable, his act of
negligence (or the general act of negligence) may have been foreseen by
employer. Crewmen didnt just work on the ship, they lived there.

In Miller, employee at construction site gets paycheck, asks for break to go to
bank and drives off. On the way back he gets into an auto accident. P sues
employer under theory that trip contributed to employees happiness and thus,
made him a better worker. Court found NL b/c that idea of
happiness/productivity would extend to all breaks, vacation, etc. Clearly, NL
under RS because the man was off the clock/doing his own business. Drawing a
line.

RULE: Scope of employment includes act done for employer/job and while on
the job.
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52

2) Konradi v. United States
A mailman is driving to work when he collides with Ps car and kills him. P
sues, but Indiana law normally does not hold employer L when employee
driving to work, unless it was in a company car. But, the postal service required
rural carriers to furnish their own vehicle when making rounds and REQUIRES
them to make the most direct route in driving to and from work. Postal delivery
guy wasnt allowed to pick up passengers and was required to wear a seatbelt.

Ct. found L for USPS b/c of the control it exerted over its employees.

RULE: Respondeat Superior may apply, despite an employee not being at the
work site, if the employee is acting in the interest of the employer, or the
employer has direct control over the employees behavior.

3) Roth v. 1
st
National State Bank of NJ
P runs a check cashing business and comes into bank to get cash. A teller
informs her boyfriend of this, who tips off thieves who rob P. P sues the bank to
recover for his losses. Ct. finds NL for RS because she had not been acting
within the scope of her employment.

Its not within her job to give out information about customers, bank argues.
And, ct. agrees that the act was criminal and not in any sense in the service of
the employers interest.

RULE: Usually, if the employee deviates from the business/interests of his
employer and while in pursuit of his own ends, commits a tort, the employer is
not liable.

4) Reina v. Metro-Dade/Forster v. Red Top Sedan
In both cases bus drivers attacked people who had ticked them off. However, in
Reina v. Metro-Dade it was clear that the beef was between the bus driver and
customer was personal. In Metro Dade/NL for RS of employer, in Red Top
Sedan L for employer.

RULE: Because one is on the job does not mean their employer is always liable
for their conduct.

4) Independent Contractors
RESTATEMENT of TORTS
A servant is a person employed to perform services in the affairs of another and
who, with respect to the physical conduct in the performance of the services is
subject to the others control or right to control.

In determining if one is a servant or an independent contractor, the following is
considered: a) extent of control which by agreement master exercises over the
details of work; b) whether or not one employed is engaged in a distinct
occupation or business; c) skill of occupation, d) whether the employer or
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53
workman supplies the instrumentalities, tools, and the place of work for the
person doing the work; f) length of time for which the person is employed; g)
whether or not the parties believe they are creating relation of master and
servant.

a) Miami Herald v. Kendall
Paper deliverer ran over plaintiff while delivering papers one morning.
Ct. finds NL because paper carrier is an independent contractor.

Note, the paper doesnt control how he delivers paper, or the route he
takes.

RULE: If the duties of a job are left up to the contractor (i.e. method
of delivery, work hours, route) then the person hired is most likely
an independent contractor.

Note, Ewing asks questions about Fed Ex, or pizza delivery guy.
Generally Fed Ex seen as IC (same with urban valet service that you
order food and then they pick it up and deliver).
Symbols of control over worker include uniform, mandatory routes,

b) Yazoo & Mississippi Valley Railroad Co.
A carload of cattle being shipped by rail. D hires an agent to unload the
animals at their destination , a steer escapes, gores the P and he sues. The
court finds L because it views that delegating the duty of delivering the
steer was not something D could do.

RULE: There are duties (i.e. handling of dangerous animals) and
responsibilities that can delegated to independent contractors, but will
still have L for firm/employer.

Also, in Yazoo, the injury that happened was the one that was foreseen,
where as in Wilton v. City of Spokane (dynamite exploded after left
underground) that was not the type of injury foreseen.

VII. Products Liability
One who sells any product in a defective condition unreasonably dangerous to the user or consumer or
to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer,
or to his property if
a) the seller is engaged in the business of selling such a product and, b) it is expected to and
does reach the user or consumer without substantial change in the condition in which it is sold.

One engaged in the business of selling or otherwise distributing products who sells or distributes a
defective produce is subject to liability for harm to persons or property caused by the defect.

A) MacPherson v. Buick Motor Co.
(FULL CASE)
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54
D manufactures cars and it sold a car to a retail dealer who sold it to P. While P was in
car, it collapsed suddenly, P was thrown out of car and injured because of a defective
wheel that was not made by D, but was made by another manufacturer and put into car.
Defects in wheel could have been noticed by reasonable inspection.

Ct. found that if the nature of a thing is such that it is reasonably certain to place life
and limb in peril when negligently made, it is then a thing of danger. General liability
is implied when a product is a thing of danger.

RULE: SL is applied to a manufacturer of a product b/c they can see a product would
fall into the hands of a consumer.

*Eliminates privity as a requirement in a negligence claim against a manufacturer of a
thing of danger.

*Establishes a general duty of manufacturer to users of their product.


B) Escola v. Coca-Cola Bottling Co.
(READ TRAYNORS OPINION)
P is a waitress at a restaurant and injured when a bottle broke in her hand.
The court rejected the idea that P could collect under RIL because instrument must be in
exclusive control of P, which it was not.

However, the court finds SL for products based on 4 ideals: 1) Loss minimization.
Manufacturer is in the best place to minimize loss from a product. 2) Spreading costs of
accidents. 3) Problems with Proof, its difficult for one injured by a product to prove
negligence even if manufacturer had been negligent. 4) Avoiding a series of claims that
would waste judicial resources. (i.e. buyer sue seller, seller sue distributor, dist. sue
manufacturer).

Even if no negligence, public policy demands that responsibility be fixed wherever it
will most effectively reduce the hazards to life and health inherent in defective products
that will reach the market.

RULE: A manufacturer incurs an absolute liability when an article he has placed on the
market, knowing that it is to be used without inspection, proves to have a defect that
causes injury to human beings.

RULE 2: The retailer, even though not equipped to test a product, is under an absolute
liability to his customer for the implied warranties of fitness for proposed use and
merchantable quality include a warrant of safety of the product.

C) Manufacturing Defects
Rule for manufacturing defects imposes liability whether or not the manufacturers
quality control efforts satisfy standards of reasonableness. Strict liability without fault
fosters safety incentives, encourages greater investment in product safety and by
eliminating issue of fault, SL reduces transaction costs of litigation.
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55

1) Welge v. Planters Lifesavers Co.
FULL DECISION
P is injured when placing lid on jar of peanuts his roommate bought at K-Mart.
The roommate, once she got jar home, had used Xacto knife to cut off label, but
no other noticeable change. P injures hand from shattered glass. P sues K-Mart,
Planters (bottled peanuts) and Brockway, bottle manufacturer. Ct. finds SL for
all Ds.

Note for SL to hold, it has to be shown that the product contained a defect at
least when it left the hands of the last defendant. Note that its not clear when
defect arrived therefore, assumed to be there from start. RIL doesnt apply
because D has parted from the object (i.e. doesnt have strict control over it).

Ct. finds the information about handling of the jar by K-Mart is only relevant if
defect introduced after the bottling/sale/delivery.

RULE: Invited misuse of a product is no defense for SL.

RULE 2: For SL, anyone who handled the product after a defect was
introduced is liable without fault.

A seller who is subject to strict products liability is responsible for the
consequences of selling a defective product even if the defect was
introduced without any fault on his party by his supplier or his suppliers
supplier.

2) Winter v. GP Putnam/Saloomey v. Jeppesen
NL in case where one uses mushroom encyclopedia to identify mushrooms, eats
them and then is poisoned. L is case where a pilot uses maps (from D who made
the map) with airport markings and crashes when airport doesnt have
appropriate landing gear as marked on maps.

The court in Winter distinguished it from the mushroom one saying aeronautical
tools were highly factual and precise and the map was like a compass. The book
was more like how to use a compass and was pure thought or expression.

The other point is to look at each things purpose. The purpose of a map is for
directions and to get people places. The books purpose was not for people to
identify mushrooms to eat, and it wasnt foreseeable that one would use book to
find mushrooms to eat. However, it was foreseeable that people would use map
to get around.

VIII. Damages
One takes their plaintiff, and their plaintiffs property as they find it on the day of the tort.

Proximate cause Damages stem from the tortious act directly

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--Compensatory Damages (loss of use, value of objects);
--Punitive Damages; generally not OK to exceed the ones net worth (OJ civil case)
--General rule, there is no damage for sentimental value

Kemezy v. Peters
Compensatory damages do not do not always compensate fully need for punitive damages

Murphy v. Hobbs
Punitive damages may make an example and also deter others.

*Lost Earnings

Landers v. Gosh
Wife of carpenter gets $ 400 K in lost earnings and loss of consortium.

Pescatore v. Pan Am World Airways
Wife of oil exec gets $ 9 mil in lost earnings and $ 5 mil in loss of consortium.

Olin Corp v. Smith
16 yo gets $ 5 mil from bullet malfunction that results in lost leg
Williams v. U.S.
Prisoner gets $500 K for lost leg after negligent hospital misdiagnoses

IX. Defenses to Negligence

A) Contributory v. Comparative Negligence
Under a contributory negligence scheme if P is found to have any negligence, then there can be
no recovery.

Pure Comparative Negligence: A plaintiffs damages are reduced in proportion to the
percentage of negligence attributed to him. For P found 90% negligent, he only gets 10%
damages.

Modified Comparative Negligence: P can collect if his negligence does not exceed 50 percent,
or if less than 49 percent.

Neither comparative nor contributory negligence are defenses to an intentional tort claim.

1) Manning v. Brown
Manning and her friend stole an unattended car. Theyre joy riding, each took turns at
driving, but friend, Amidon is behind the wheel when the car crashes and both are
injured. P sues friend and owners of the car for negligence. Ct. gives summary
judgment to Ds because courts will not entertain suit if the Ps conduct constitutes a
serious violation of the law and the injuries for which the P seeks recovery are the direct
result of that violation.

RULE: When committing a serious criminal act, recovery for negligence is not
allowed.
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2) Fritts v. McKinne
P is drunk and crashes his truck into a tree. Goes to hospital for reconstructive surgery
of his face and dies after he suffered a ruptured artery when a tracheostomy goes awry.
P sues and Ds defense is that Fritts was responsible for his own death b/c he had been
driving drunk.

Bt. Court rejected that saying under a guise of contributory negligence, a physician
may not avoid liability for negligent treatment by asserting that Ps injuries were
originally caused by his own negligence.

In Fritts, the harm that killed him is not a direct result of the accident/wrong doing,
whereas in Manning, the harm was a direct result of the wrongdoing/crime.

RULE: Physicians may not hold up the defense of the patients actions (i.e. crime/bad
health) as a defense for medical negligence.

3) Oulette v. Card
Neighbor comes over to help man crushed by car and as he helps neighbor escape. The
two leave through the garage, P opens the door with a garage door opener and gasoline
spilled on floor (from earlier car falling) ignites setting fire to the place. P (the rescuer)
sues Card alleging Card negligence and he counters claiming P was negligent. No L
for D.

The idea is that we want others to help, so to encourage it, generally, rescuers are
protected.

RULE: Only if a rescue attempt is rash or reckless should a rescuer be held liable for
negligence/comparative negligence.

4) Alami v. Volkswagon
Ps husband drives his car into a pole while drunk. His wife sues alleging that the
injuries from the crash were increased by a defect in the cars design that caused the
floorboard to buckle up during the crash. D not given SJ and case allowed to go to trial.

Ct. found P had a right to a crash proof vehicle regardless of how he crashed. Ct. didnt
dispute that alcohol caused crash, but injuries sustained were due to poor design,
injuries werent linked to violation of public policy (i.e. drunk driving)

4) Van Vecter v. Hierholzer
Patient smokes and is overweight. Told by doctor to loose weight, quit smoking and go
on medication. He doesnt do anything. Several years alter, he goes back to hospital
complaining of chest pains. Doctor tells him hes stabilized and sends him home. He
then dies.

Ct. finds for patient. In part, if we allow judgments against physicians to be reduced by
poor decision making of patient, were reducing the incentive of physicians to supply
adequate care.
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RULE: A patient is entitled to medical care no matter how she or he got there.

B) Express Assumption of Risk
A claim that the plaintiff assumed the risk of the harm that occurred and therefore be barred
from recovery.

When evaluating exculpatory clauses consider the bargaining power of each party and the
amount of free choice that one party had in seeking alternative services.

1) Van Tuyn v. Zurich American Ins. Co.
P was a patron at a club and wants to ride mechanical bull. Signs a general release of
waiver, claim, assumption of risk. She also tells operator not to go too fast and he tells
her that hell take care of it. P gets on the bull, it speeds up and shes thrown to floor
and inured.

Ct. finds L because for an exculpatory clause to be effective, it must include absolving a
defendant from liability arising out of negligence. If club had operated machine with
all due care the release may have protected the club. Also with Van Tuyn, can we
expect her to understand what she signed if shes been drinking?

RULE: For an exculpatory clause to be effective, it must clearly state that it
releases the party from liability for its own negligence.

2) Manning v. Brannon
Man goes skydiving, signs release that mentions negligence and also watches video that
outlines dangers. When P jumps his chute wont open, the back up one doesnt work
very well either, P falls into a pond and is injured.

Ct. finds for D that the release was enforceable and said one must ascertain the equality
of bargaining. Here P was free to not skydive, go to another company, etc.

3) Anderson v. Erie Ry. Co.
A priest buys a special clerical ticket thats half-priced. On the back is written that
because he had a reduced fare he had accepted all risks and accidents, whether caused
by negligence or not. Theres a train accident, he dies and then his estate sues.

Ct. finds for D saying the release barred recovery because it waived its right as a
common carrier to exact compensation. The RR had offered him the privilege of riding
in its coaches without charge it he would assume the risk of liability. Neither party was
forced to enter the contract and each party was at liberty to make the deal.

4) Tunkle v. Regents of UC
P admitted to UCLA hospital and upon entering he signed a document setting forth
certain conditions of admission which included releasing the hospital from all liability
for negligence or wrongful acts. P brings a lawsuit alleging injury from the hospital.

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CA SC holds the release is unenforceable and that exculpatory provisions of the sort
may be held unenforceable if they involved the public interest

The court said waivers may be invalid if the exemption involves a transaction with a
business that performs a service for the public, that holds himself out as willing to
perform this service for any member of the public who seeks it, or for those who come
within a certain standard.

RULE: An exculpatory waiver may be held void if as a result of the essential
nature of the service, the party invoking the waiver has an advantage of
bargaining strength against any member of the public who seeks his service.

Also, if the business type is suitable for public regulation and if the party seeking
exculpation is engaged in performing a service of great importance to the public
or, great necessity, then the waiver may be held invalid.

5) Shorter v. Drury
P is a Jehovahs Witness who was in hospital for a D&C procedure to remove fetus. She
understood that procedure involved a possible loss of blood. She signed a waiver that
said for religious reasons she didnt want any blood transfusions and released hospital
from responsibility for unfavorable reactions/results from her refusal to permit blood or
its derivatives.

Procedure goes awry, she needs a transfusion, and she refuses and died. Her husband
sues, claiming doctors performed the D&C negligently and therefore the release had no
use.

The court found that the release was not against public policy (i.e. she could sign
it) and that it did not protect the doctor from negligence suits. The ct. thought this
form was enforceable b/c otherwise, without it, JW would not be able to get
medical care b/c no one would treat them w/o the form.

C) Primary Assumption of the Risk
A doctrine that prevents plaintiffs from recovering for injuries suffered when they freely
undertake dangerous activities.

Unless you can point to negligence in an activity, then assumption of risk is not a concern.

1) Murphy v. Steeplechase
P sees ride called the Flopper at an amusement park and gets on. While on the ride
its jerked to a stop (which is part of its normal course) and he falls onto an unpadded
portion of the ride and breaks his kneecap. He alleges negligence.

The court finds that one who takes part in such a sport accepts the dangers that inhere in
it so far as they are obvious and necessary. The ride was underway and it was apparent
to P what it entailed, he could see what he was getting into. Also, there were a small
number of people injured yearly on the flopper.

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With assumption of risk its similar to SJ, P looses everything. No worrying about how
much hell collect from comparative negligence. Once assumption of risk is proven,
then case is dismissed.

RULE: With assumption of risk, one doesnt have to ask if a defendant was negligent in
operating a ride/activity, all one has to show is that the plaintiff understood he was
assuming a risk.

2) Woodall v. Wayne Steffner Productions
P is known as the human kite and does stunts flying, which is highly dependent on car
going certain speeds. D hires him to work in LA and P offers to bring his driver, D says
no, offers to hire a stunt driver. D tells P the driver is the best in the area. When P meets
driver he instructs him to drive slowly. Instead, driver is reckless and fast causing P to
be injured.

D argued that P had assumed the risk, but court found that P surrendered his judgment
on assurances of safety.

RULE: Assumption of risk must be free and voluntary. If it clearly appears from
Ps word or conduct that he does not consent to the risk, the risk will not be
assumed. And, if he surrenders his better judgment upon an assurance of safety or
a promise of protection, he does not assume the risk, unless the dangers is so
obvious and so extreme that there can be no reasonable reliance upon the
assurance.

3)Cohen v. McIntyre
D brings dog to vet to be neutered b/c he is vicious. Dog snaps at vet when he first
reaches toward dog. P puts muzzle on dog, inspects dog and then when done, removes
muzzle and dog bites P. P sued saying D never put P on notice that dog was a biter and
vicious. D raises assumption of risk defense.

Ct. finds for D who owed P no duty of care. In this case its an occupational hazard that
youll get bit.

4) Neighbarger v. Irwin
P were safety supervisors at a refinery where maintenance contractors were brought in
to do work. The contractors release a stream of petroleum into the work area, which
catches on fire. Ps get injured battling fire. They sue contracting firm for employees
negligence.

D raises assumption of risk defense, however, court says that 3
rd
party (D) owed a duty
to fire fighters because it has no relationship with the firefighters, they have not paid
them nor do they have a relationship. Therefore, they can be L for negligence.

RULE: When a job involves risks, but an injury is caused by a third party
action/negligence, one can sue the third party for negligence despite risks inherent in
job.

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5) Lowe v. California League of Professional Baseball
P is hit in fact by foul ball while sitting in stands. He was watching game, but became
distracted when the tail of the teams mascot hit him in the face.

RULE: Sports teams/arenas have the duty not to increase risks that spectators are
exposed to, or initially assume by watching a sporting event. Ct. finds L for D.

RULE 2: The more an actor can show that a risk is part of a game (i.e. rules against
balls to the head, pucks flying into stands) the more likely that the player/spectator will
have assumed the risk.

6) Hackbart v. Cincinnati Bengals
P was player on football team who, after play, is kneeling on ground. Player for D,
angry from past play, comes up behind P and elbows him in the neck, causing a neck
fracture. P sues D to recover for injuries.

Appeals court finds that striking a player in the head from the rear is not an acceptable
conduct of professional game. And, if its prohibited in the rules, then its L.

RULE: While risk is assumed when playing sports, if the rules prohibit a certain act,
then its most likely L if performed.

D) Secondary Assumption of Risk
D does have a duty to P and may have breached it, and as an affirmative defense, D argues that
P recognized whatever danger resulted from Ds negligence and P voluntarily chose to
encounter it.

SECOND RESTATEMENT
1) A plaintiff does not assume a risk of harm unless he voluntarily accepts the risk.
2) The plaintiffs acceptance of a risk is not voluntary if the defendants tortious conduct has
left him no reasonable alternative course of conduct in order to: a) avert harm to himself or
another, or b) exercise or protect a right or privilege of which the defendant has no right to
deprive him.
EXAMPLE: A is injured and bleeding badly and needs to go to hospital. A asks B to
drive, knowing that Bs car has defective breaks. A assumes risk of injury caused by breaks.

1) Kennedy v. Providence Hockey Club//Hennessey v. Pyne
In Kennedy, P is regular at area hockey games and usually sits away from the ice in an
area where pucks dont travel. At one game, those seats are sold out so she buys the
more expensive seats and sits in an area and gets hit by a puck.

Ct. finds NL b/c contributory negligence and assumption of the risk do not overlap, the
difference if ones free will in encountering the risk. When one acts knowingly, its
immaterial whether he acted reasonably. Plus, with Kennedy she had other choices such
as not going to the game.

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In Hennessey her home is on a golf course. It gets hit with balls several times a day.
One Sunday while shes outside shes hit with a golf ball. She sues, but D argues
assumption of risk. Ct. finds L, no assumption of risk.

In part, look at her choices, she didnt have alternatives.

2) Fagan v. Atnalta/Marshall v. Ranne
In Fagan customer is drinking when staff approaches a rowdy dispute. Those in the
dispute grab the female bartender and try to drag her outside. P jumps in and comes to
her defense, gets injured in the process and sues the bar for negligence. Bar claims he
assumed the risk.

Ct. finds NL, P had a clear choice of alternative actions and he deliberately entered into
the fight.

In Marshall, P was Ds neighbor and both raised hogs. One of Ds boars escapes and
comes onto Ps land and attempts to attack P several times. P warns D of this, D does
nothing. P was going to car when boar charged him, P puts out hand defensively and
boar bites it.

P sues D for damages and D raises assumption of risk. Ct. holds that D was SL for
damage done by boar and that assumption of risk did not apply.

RULE: Assumption of risk will not apply if P has no other alternative to the course of
action.

X. Defamation
Libel consists of publication of defamatory matter by written or printed words, by its embodiment in
physical form or by another other form of communication that has the potentially harmful qualities
characteristic of written or printed words.

Slander consists of the publication of defamatory matter by spoken words, transitory gestures or by any
form of communication other than whats mentioned in libel.

The area of dissemination, the deliberate and premeditated character of its publication and the
persistence of the defamation are factors to be considered in determining whether a publication is a
libel rather than a slander.

A) Defining Defamatory
1) Grant v. Readers Digest/Stevens v. Tillman
In Grant, D wrote that P was the legislative representative of the Communist Party. Ct.
finds L.

In Stevens, the adversary of a elementary school principle (P, Stevens) calls her a racist.
But court finds this to be mere name calling because it is not libel unless it implies the
existence of undisclosed, defamatory facts.

RULE: Truth is an absolute defense in defamation
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RULE 2: When a name is hurled/called unless backed up by facts, does not carry a lot
of weight with a defamation case (i.e. calling someone a crank Dilworth v. Dudley,
what facts used to prove that versus calling one a Community party).

2) Wildstein v. New York Post Co.
P is mentioned in an article about a slain executive. In the article it says P was
associated with deceased who had a number of girlfriends. P sues for defamation and
ct. denies motion to dismiss saying there was no need to impart such emphasis or imply
such connotation.

RULE: Libel can be implied by motion or by emphasis/connotation of words.

3) Saunders v. Board of Directors, WHYY-TV
P is an inmate at a prison. Show on Ds station claims he is an informant to the FBI.
Show airs and P claims statement is a slanderous and willful lie and his life had been
placed in danger because of it.

RULE: For liability for defamation, the impact must be in eyes of respectable
people. Or, the scorn and ridicule must be in a respectable population. Significant
element of the community.

Defamation of a group or class: As a general rule, no action lies for the publication of
defamatory words concerning a large group or class of persons. The words are not
reasonably understood to have any personal application toros any individual unless
there are circumstances to give them such an application. The exception is if the
comment is made to a specific/finite group, or if its about a group and only 1
representative is in the room.

C) Publication
Publication is a necessary part of every defamation suit. The SECOND RESTATEMENT says
that publication of a defamatory is its communication intentionally or by a negligent act to one
other than the person defamed. Or, one who intentionally or unreasonably fails to remove
defamatory matter that he knows to be exhibited on land or chattels in his possession or under
his control is subject to liability for its continued publication.

Exceptions to the rule are bookshops or libraries, unless there are facts or circumstances that
would make librarian/shop keeper aware of circumstances.

Also, one who, whether gratuitously or for hire, carries or transmits a message for another is
not liable for the defamatory character unless he knows it is liableous.

1) Gambrill v. Schooly/Chalkley v. Atlantic Coast
In Gambrill, D dictated a letter to Gambrill to his secretary. P finds it offensive and the
ct. agrees that the dictation to the secretary was publication.

Ct. argues that secretary had her own thoughts and could process the meaning of the
letter. Plus, the argument exists that the author could have typed it himself.
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In Chalkley, P receives notice that he was fired for drinking. D had dictated letter to
stenographer. Ct. finds NL, in part, b/c in this case the communication had to do with
the discharge of ordinary business.

RULE: Most courts find statements are published when made to stenographers
and secretaries, but treat the privileged nature of the statements as a separate
question.

2) Sullivan v. Baptist Memorial
Nurse is fired for stealing equipment When she goes to subsequent job interviews she
has to inform employers when they ask why she was fired. Sues for defamation b/c of
publication to 3
rd
party.

NL for D b/c information was true. And, another reason is that youd be encouraging
employers not to give a reason for firings, which is unfair and unreasonable.

3) Overcast v. Billings Mutual Insurance Co.
P files for insurance benefits when his house burns down. D sends letter saying benefits
are denied because the loss occurred due to Ps act (i.e. arson). When P goes to other
insurance firms hes denied coverage b/c of letter.

Sues D b/c of forced publication. Ct. finds L b/c there was evidence to show that D
knew the allegation of P being an arsonist would need to be published and be published
to third parties.

RULE: If one published to an actor, knowing that matter will come to the
knowledge/hands of a third party, it may be considered defamation.

4) Coffey v. Midland Broadcasting Co.
Radio show is CBS affiliate and broadcasts a show that was aired in NY. Story
mentions P as an ex-con. P sues D for defamation. Ct. finds L for D because he
broadcasted the defamation. He could take actions to guard against risks and insure
himself against losses.

And, D has bargaining power. He could talk to CBS about problems and threaten to
change affiliations.

Emmens v Pottle
Ct. finds no L for D who sells newspaper that contained libelous statement.
Newsvendor does not and should not know what statements might be made in all of the
publications he sells.

D) Defenses to Defamation--Truth

1) Common Interest privilege
Communications may exist when one has a duty to convey the information (i.e.
employee/employer) and it applies only when it is not abused.
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Bad faith is the most common form of abusethe speaker believed he was speaking the
truth. Actual malice is when someone knows a statement is false or is reckless to its
truth/falsity. Express malice is when they dont know, but it is false.

a) Watt v. Longsdon
Employee received letter from co-worker about 3
rd
party co-worker who is
abroad. Letter claims 3
rd
party is cavorting with a whore. D conveys information
to chairman of company and to Ps wife. D doesnt bother to verify information.

Ct. finds there are good faith issue that warrant the telling of the company, but D
had no duty to warn the wife, especially when wife did not ask and D did not
verify information.

RULE: It is permissible to warn a present or prospective employer of the
misconduct or bad character of an employee.

A conditional privilege is recognized where the publisher and the recipient have
a common interest, and the communication is of a kind reasonably calculated to
protect or further it.

b) Flowers v. Smith
Employee of electric company came to home and moved electrical meter to top
of 30-foot pole. Ps wife asks employee why he did that and he responds that
husband has been wiring around the meter. P sues D for defamation, saying he
had accused him of stealing electricity.

Ct. finds words were privileged. In part b/c Ps wife was a customer, too and had
a right to know what was going on with electricity. Also, she asked the
employee, requested information. And, the information was proven, good faith
aspect.

RULE: There is a conditional privilege for defamation with those who have
entered upon, or are considering business dealings with one another, or where
the parties are members of a group with a common pecuniary interest.

c) Yoder v. Workman
D was a justice on the W.Va SC. P was involved in a custody dispute that found
its way to Ds court. P argued that D should recuse herself from case (she was
acquainted with Ps wife) and filed lawsuit against D for civil rights violation. D
posts a press release on the court Web site. P sues for comments, D claims
privilege.

RULE: Judges have no absolute privileges when it comes to non-judicial
statements.

2) Truth
a) Guccione v. Hustler/Buckler v. Sparuldin
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Both deal with truth and extent. In Buckler, D claimed P was a whore and slept
with Mr. X when in fact it was Mr. Y. Ct. finds L for D. Wrong guy no truth.

In Guccione, Hustler Magazine claimed Guccione was an adulterer, when more
accurate statement would have been former adulterer. Ct. finds no L for D -
Substantial truth.

RULE: If facts are incorrect, statement is not true. For a statement to be true, it
must be factually accurate.



E. Constitutional Issues

1) NY Times v. Sullivan
SCOTUS finds that Ps complaints about defamation in newspaper ads laced the
convincing clarity about actual malice that the constitution demands. The court holds
that with a public official, or figure, the evidence of actual malice must be clear and
convincing. Ct. finds no L for D.

And, its not clear that the ad specifically pertained to P. Theres reasonable doubt as to
whether the ad could reasonably be taken to refer to the respondent at all.

RULE: With public officials/figures, one must prove actual malice, knowledge that a
statement was false.

Matters of opinion are proteceted no L for Ds.

RULE 2: For defamation to hold, it must be clear who the statement/action is about.

XI. Invasion of Privacy
2
nd
Restatement
One who gives publicity to a matter concerning the private life of another is subject to liability to the
other for invasion of his privacy if the matter publicized is of a kind that:

A) Would be highly offensive to a reasonable person
B) Is not of legitimate concern to the public.

Publicity means that the matter is made public by communicating it to the public at large, or to so
many person that the matter must be regarded as substantially certain to become one of public
knowledge.

A) Disclosure of Embarrassing Private Facts

1) Briscoe v. Readers Digest
(FULL DECISION)
Court finds that the magazines mention of P as a criminal, was invasion of privacy
despite the fact that this was a public record. L for D.
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Ct. found that a truthful publication was constitutionally protected if: 1) It is
newsworthy, 2) It does not reveal facts so offensive as to shock the communitys
notions of decency. Ct. looked at the fact that Ps family and friends saw this info
and he may have been rehabilitated by that point. Not everyone knew about his
past.

To determine newsworthiness the court looked at: 1)The social value of the facts
published, 2) The depth of the articles intrusion into ostensibly private affairs, 3)
The extent to which the party voluntarily acceded to a position of public notoriety.

Cts. holding would most likely NO LONGER BE GOOD LAW b/c in Cox, court found
NL b/c material in question was from a public record.

Sidis v. F-R Publishing Co.
Ct. finds no L for D (newsmagazine) that publishes story about former child prodigy.
Ct. says that he was a public figure and there was legitimate public interest in his
whereabouts.

2) Doe v. Mills
Ds are anti-abortion protestors who retrieve the names of women (from a dumpster)
about to undergo abortions. Ds protest outside the clinic the next day with signs naming
the individuals and urging them not to have abortions.

Ct. allowed case to go to trial saying it was a factual matter for a jury to decide whether
or not embarrassing facts were revealed. And, that Ps identity were not matters of
legitimate public concern or public matter.

Ct. saw that there was enough of a prima facia case to show that information disclosed
concerned a private matter.

3) Neff v. Time/Daily Times Democrat v. Graham
In Neff, P is part of a crowd at a sporting event thats drunk and rowdy. Photographer
shot thousands of photos from game, but the one used is one of P with his fly down.

Ct. finds NL, saying they doubted Time deliberately showed Neff in an embarrassing
manner. Note, that with Neff perhaps theres an assumption of risk, and he had control
over the misfortune, he could have zipped his fly up, or not have gotten drunk. P also
invited the picture taking.

In Graham, photo of mother with her skirt being blown up at fun house is taken and put
on front page of paper. L found for newspaper. In part, she has no control over the
misfortune. Picture taking was involuntary.

RULE: One who is part of a public scene may be legally photographed as an
incidental part of that scene in his ordinary statues. However, if the scene is
embarrassing to an ordinary person of reasonable sensibility, the actor has not
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forfeited his right to be protected from an invasion of privacy merely b/c the
embarrassment/misfortune happened in a public place.

4) Cox Broadcasting v. Cohn
Ps daughter is raped and murdered. P sues the TV owner/station when daughters name
is revealed, it was gotten off an indictment available in a courtroom.

SCOTUS said that the suit was foreclosed by the 1
st
Amendment b/c the information
appeared on a public record. Finding L would lead to censorship.

In a later case, the court extended the Cox rule to include publication of a rape victims
name even if not gotten from a public record.

5) Haynes v. Alfred Knopf
FULL DECISION
P sues after details of his life 30 years earlier is revealed in a book. P says facts are
embarrassing and reveal a life he no longer lives.

Ct. finds NL because the loss of privacy tort requires that private facts publicized be
such as a reasonable person would be deeply offended by such publicity and that the
facts have no legitimate public interest.

Ct. finds that the facts disclosed have a legitimate public interest b/c the thrust of the
book. And, that the information Lemann disclosed were not offensive or beyond the
legitimate scope of interest.

Its a balancing of offensiveness vs. newsworthiness.
RULE: For a loss of privacy tort the private facts publicized have to deeply offend
a reasonable person and be such that there is no legitimate public interest in the
matter.

B) Intrusion Upon Seclusion

1. From 2
nd
Restatement of Torts
a) one who intentionally intrudes, physically or otherwise, upon the solitude or
seclusion of another or his private affairs or concerns, is subject to liability to the other
for invasion of privacy, if the intrusion would be highly offensive to a reasonable
person

2. Nader v. General Motors
(FULL CASE)
P, author of book on auto safety is suing D, GM, who hired a PI company to
investigate the P. In complaint P alleges 6 offenses court finds some actionable,
others not.

The wire-tapping and eavesdropping creates L for the Def.
Court ruled the regular gathering of known information was not an invasion of privacy.
As long as complaint has some actionable claims cause of action = viable
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RULE: Liability for the person who unreasonably or seriously interferes with the
interests of another in not having his affairs known to other. Gathering
information about a person does not preclude invasion of privacy.

3. Figured v. Paralegal Tech Services
P in auto accident w/ another party. Def = company hired to investigate the injuries
claimed by the plaintiff from the auto accident. Defs agents follow P very closely, but
remain always in the public arena. P alleges invasion of privacy.

Ct finds NL for the Def. All the actions were done in the public arena. Def never delved
into the private matters of the P. Def always had right to be in public area.
RULE: Whatever the public may see from a public place cannot be private


4. Johnson v. K-Mart
K-Mart suspects thievery and drug use in one of its plants. K-Mart hires 2 PIs to act as
employees to case the workers and report back. The reports of the agents include
information both personal and privileged about numerous employees.

Summary Judgment Denied for K-Mart. Issues of fact exist whether this was an
unauthorized invasion of privacy. Ct sees K-Marts actions as intentionally deceptive.
RULE: No SJ when issues of fact exist. This case, issue of fact exist regarding
whether a reasonable person would find K-Marts actions to be offensive or
objectionable intrusion.

5. Dietemann v. Time Inc.
P was a journeyman plumber, also claimed to be a healer. Life magazine sends two
employees pretending to seek help. Dialogue was transmitted via concealed microphone
& also took pictures with hidden camera.

P was arrested for practicing medicine w/o a license. Life runs the story some weeks
later, with pictures and photos from the undercover visit.

P sues for invasion of privacy Ct finds L.
Ct. strongly disagrees with Def use of hidden devices to gather news info.
Although the transmission of things heard and seen by visitors invited in is allowed;
should not expect that info would be broadcasted to the world or public at large.
RULE: 1
st
amendment does not give license to steal, trespass, or intrude by
electronic means into the home of another. It does not become a license simply
because the person is reasonably suspected of a crime.

6. Desnick v. American Broadcasting
(See Same Case in Intentional Torts Trespass)
P owner of ophthalmic clinic, Def were producers of documentary tv show. Def agents
were sent into clinic with hidden cameras & posing as patients.

P sued for trespass & invasion of privacy both claims dismissed.
Ct of Appeals distinguished from DietemannAgree?
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Distinction between Desnick & Johnson v. K-Mart

7. Irivine v. Akron Beacon Journal
P receiving numerous hang-up calls at all hours. Obtained a trap on their phone line,
calls coming from Def telemarketing firm. Def used automatic dialing devices,
programmed to dial new & recently disconnected numbers. The devices were left to
run all night by Def employees.

P sued for invasion of privacy Ct finds Def L
Awards P $250 CD & $100g punitive, Affirmed by Ct. of Appeals

P received upwards of 300 phone calls, mostly hang-ups. Ct sees the Def as acting with
a blatant disregard to rights of others & causing substantial harm.

8. Estate of Berthiaume v. Pratt
P patient at hospital. During surgery, Def, doc, took numerous photographs for his own
use, not shown to others. As death neared, Doc came in to take more photos of patient,
this time apparent refusal, pictures taken anyway.

Ct rules for the P, unwanted photos of face seen as invasion.
There was no consent in this case; but even in case where consent to take photo for
private files only, Def would have no right to exhibit to others w/o permission.
RULE: Face cannot be reproduced w/o consent of individual. The scope of
authorization defines the extent of the acts necessary for consent.

9. Froelich v. Werbin
P suing Def for invasion of privacy. P learned that the Def paid orderly to take a strand
of his hair by taking it from an old band-aid.

Ct rules in favor of Def NL for invasion of privacy.
No evidence presented how the hair was procured; may have been taken from garbage.
P failed to establish physical intrusion, disturbed state of mind

10. Harkey v. Abate
P = patrons at Def skating rink. Def had set up two way mirrors in girls bathroom. Def
denies specifically looking at P; P cannot prove he watched them.

Ct rules for P, Def L for invasion of privacy
Absence of specific proof, not fatal to P case
RULE: Hidden viewing devices alone constitute an interference with privacy that
the reasonable person would find highly offensive.

11. Elmore v. Atlantic Zarye Inc.
Customer at Def dept. store complains of homosexual activity in restroom. Store owner
goes into storage room above restroom and looks into stalls. Observed P taking part in
homosexual sex. Call police.

Ct rules for Def NL, no invasion of privacy
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Ct sees Def had overall duty to patrons to ensure facilities were being used in the
normal, safe fashion. P was abusing that use.
RULE: Right to privacy is not absolute, behavior must be kept within proper
limits.

Appropriation of Name and Likeness

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*One who appropriates to his own use or benefit the name or likeness of another is subject to
liability to the other for invasion of his privacy.

White v. Samsung Electronics America, Inc.
Ct. finds L for D who used a robot figure intended to imitate Vanna White in a
commercial without paying for the use of her likeness (even though her name was not
used). It was clear that D was attempting to use her popularity to their advantage. P has
the right to use her likeness/name where she sees fit and not use it where she does not.

Anderson v. Fisher Broadcasting Co.
Ct. finds no L for D who used photos of P after accident to promo a story they were
running on the news. When a person who does not have nor want a marketable public
identity they cannot claim economic injury. Freedom of information, ideas,
entertainment. His picture was not used in a commercial context.

*Public value

Zacchini v. Fisher Broadcasting Co.
Ct. finds L for D who broadcasts video of Ps human cannonball act on tv after P had
asked him not to. Ct. says a person has the right to have his name and likeness used as
he sees fit. Allowing all to see his act for free on tv would potentially lessen the value
and possibility that others will be willing to pay to see it.

Eastwood v. National Enquirer
Ct. finds L for D who published article about Clint Eastwood being in a love triangle.
The story was untrue and was clearly using his name and celebrity to their advantage.
The freedom of speech does not extend to the magazine in this case because the
information was false.

Estate of Presley v. Russen
Ct. finds L for D who was putting on a concert called the Big El Show featuring an
Elvis impersonator performing Elvis songs. Ct. says the show was clearly a commercial
endeavor exploiting the likeness and celebrity of Elvis without contribution anything of
substantial value to society.

False Light

*Must be highly offensive to a reasonable person

Time, Inc. v. Hill
Ct. finds no L for D where they publish a story that indicated they were abused while
taken hostage when this was not the case. Ct. says that the public interest and value of
this story were enough to restrict L. Ct. says imposing L on D would discourage the
press from exercising free speech in reporting.

Douglass v. Hustler Magazine
Ct. finds L for D who publishes nude photos of P that were intended to be published in
Playboy. Ct. says that the nature of the two magazines is such that one is
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73
distinguishable for the other and her posing in Hustler would be showing her in a false
light when she intended to Playboy. Respectability of a playboy model is much higher
than that of a Hustler model and it would be wrong to imply that P was consenting to
pose for Hustler.

Nuisance

Interfering with the right of a property owner to enjoy his or her property.

Must look at: time, place, reasonableness, duration, benefit/harm ratio

Bamford v. Turnley
Ct. finds no L for D who made bricks on land and disturbed P, neighbor. Ct. says we
must examine all circumstances surrounding the alleged nuisance and reasonableness of
the use. Ct. said it was reasonable use of land and was beneficial to the public good.

Hypo: P owns a house that he operates a bed & breakfast out of on the allure of a
country setting/farm life. Neighbor, D, decides to get rid of his farm and set up a small
airport. Ps bed and breakfast is no longer useful as a country/farm location. P sues for
nuisance. D wins No L here because the public benefit of the airport outweighs the
private benefit of Ps bed and breakfast.

Rockenbach v. Apostle
Ct. finds L for D where they tried to start a funeral home in the middle of a mainly
residential area. Ct. says that the reminder of death has a depressing influence on the
normal person. This would deprive the homeowners of the comfort and repose to which
its owner is entitled.

Adkins v. Thomas Solvent Co.
Ct. finds no L for D who negligently allowed toxic chemicals to spill and contaminate
an area surrounding the factory. Ps property was not affected by the spill or
contaminated, but they claimed their property value went down because of the fear of
contamination. Ct. says that diminished property values based on unfounded fear of
contamination was not sufficient enough to constitute a nuisance.

Coming to Nuisance

Where A is first in possession of the air and B fixes his habitation near A later on, the
nuisance is of Bs own seeking, and may continue. Generally, courts have rejected this
way of thinking in favor of a case by case analysis.

Oehler v. Levy
Ct. finds L for D who operated a newspaper delivery business and keeps horses on his
property for that purpose. Ps complained that horses were smelly and noisy. P had just
moved in to the growing neighborhood and D had been there for quite some time. Ct.
says that the nature of the neighborhood and land was changing and as a matter of
public health and policy it should demand that the business be removed even though it
was operated for many years and in good faith.
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Sensitivity and Spite

Rogers v. Elliott
Ct. finds no L for D where he rings church bell and P is disturbed by it in house across
the street. Ct. said the ringing of the bell was for legitimate church purposes and there
was no evidence that anyone else in the neighborhood was adversely effected by the
bells.

Christie v. Davey
Ct. finds L for D as noises made were not of a legitimate kind according to the ct.
Noises made to combat the noise from music lessons going on in Ps house.

Mayor of Bradford v. Pickles
Ct. finds no L for D because no malice was shown when D dug holes to mine stone on
his property which had a flow of groundwater running under it to Ps property. Mining
caused discoloration and diminishing of groundwater that reached Ps spring. Ct. said
even though there may have been a diminishing effect on Ps springs, it was Ds right to
mine the stone on his property at his own will and to make money. There was no
showing of malice.

Fontainebleau Hotel Corp. v. Forty Five Twenty Five, Inc.
Ct. found no L for D where they planned to build a large addition to their hotel that
would cast a shadow on Ps neighboring hotel. Ct. said a landowner does not have a
legal right to the free flow of air and sunlight across the adjoining land of his neighbor.
The Ds proposal serves a useful and beneficial purpose and it does not matter if it was
to be built partly for spite of Ps.

Barger v. Barringer
Ct. finds L for D who builds a spite fence along the line of Ps property that blocks
sunlight and air from going on to Ps property. Ct. says that the fence was built for no
useful purpose other than spite towards Ps.

Remedies

o Injunctions can be used to order a D to desist.

Madison v. Ducktown Sulpher
The Ct. denied an injunction of a D business that gave of the taxes to the town, and
employed most of the towns residents. They werent going to ruin everything over a
few peoples land.

Whalen v. Union Bag and Paper Co.
Ds mills cost over $1 mill to build and employed 300 ppl. It left water downstream
unusable. Ct. hold that you cant just screw people they should have known the effects
the rich are getting richer.

Boomer v. Atlantic Cement Co
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75
Ds cement plant is one of largest in world. Residents near the plant were awarded
permanent damages

Spur Industries v. Del E. Webb Development Co.
Ds feedlot was coming towards Ps city and becoming a nuisance. Ct granted the
injunction, but said that P should be required to pay Ds costs in relocating.