b"1\n\n\x0cTorts, Volume Two\n\nEric E. Johnson\nAssociate Professor of Law\nUniversity of North Dakota School of Law\n\neLangdell Press 2016\n\n\x0cAbout the Author\nEric E. Johnson is an Associate Professor of Law at the University\nof North Dakota. He has taught torts, intellectual property, sales,\nentertainment law, media law, sports law, employment law, and\nwriting courses. He has twice been selected by students as the\nkeynote speaker for UND Law\xe2\x80\x99s graduation banquet. His writing on\nlegal pedagogy has appeared in the Journal of Legal Education.\nWith scholarly interests in intellectual property and the intersection\nof law and science, Eric\xe2\x80\x99s publications include the Northwestern\nUniversity Law Review, the Boston University Law Review, the University of\nIllinois Law Review, and New Scientist magazine. His work was selected\nfor the Yale/Stanford/Harvard Junior Faculty Forum in 2013.\nEric\xe2\x80\x99s practice experience includes a wide array of business torts,\nintellectual property, and contract matters. As a litigation associate at\nIrell & Manella in Los Angeles, his clients included Paramount,\nMTV, CBS, Touchstone, and the bankruptcy estate of eToys.com.\nAs in-house counsel at Fox Cable Networks, he drafted and\nnegotiated deals for the Fox Sports cable networks.\nEric received his J.D. cum laude from Harvard Law School in 2000,\nwhere he was an instructor of the first-year course in legal reasoning\nand argument. He received his B.A. with Highest and Special\nHonors from the Plan II program at the University of Texas at\nAustin.\nOutside of his legal career, Eric performed as a stand-up comic and\nwas a top-40 radio disc jockey. Eric archives teaching materials on\nhis website at ericejohnson.com. His online exam archive includes\nmore than a dozen torts essay exams and a bank of multiple-choice\nquestions.\n\ni\n\n\x0cFor my mom, Gretchen Johnson\n\nii\n\n\x0cNotices\nThis is the first edition of this casebook, updated December 2016.\nVisit http://elangdell.cali.org/ for the latest version and for revision\nhistory.\n\nThis work (but not including the cover art, CALI logo, and eLangdell\nlogo) is authored by Eric E. Johnson, published by CALI eLangdell\nPress, and licensed under a Creative Commons AttributionShareAlike 4.0 International License (CC BY-SA 4.0). \xc2\xa9 2016 CALI.\nAll rights not expressly granted by this Creative Commons license are\nreserved. No copyright is asserted in U.S. Government works or\nother public domain material included herein.\nIn brief, the terms of the license are that you may copy, distribute,\nand display this work, or make derivative works, so long as\n\xef\x82\xb7\n\nyou give CALI eLangdell Press and the author credit; and\n\n\xef\x82\xb7\n\nyou distribute any works derived from this one under the\nsame licensing terms as this.\n\nSuggested attribution format for original work:\nEric E. Johnson, Torts: Cases and Context, Volume 2, 2016, published\nby CALI eLangdell Press. Available under a Creative Commons BYSA 4.0 License.\n\nThis book is konomarked \xe2\x80\x93 requests for gratis permissions beyond\nthe scope of the Creative Commons license are welcomed. Contact\nfeedback@cali.org.\nCALI\xc2\xae and eLangdell\xc2\xae are United States federally registered\ntrademarks owned by the Center for Computer-Assisted Legal\nInstruction. The cover art design is a copyrighted work of CALI, all\n\niii\n\n\x0crights reserved. The CALI graphical logo is a trademark and may not\nbe used without permission.\nShould you create derivative works based on the text of this book or\nother Creative Commons materials therein, you may not use this\nbook\xe2\x80\x99s cover art and the aforementioned logos, or any derivative\nthereof, to imply endorsement or otherwise without written\npermission from CALI.\nThis material does not contain nor is it intended to be legal advice.\nUsers seeking legal advice should consult with a licensed attorney in\ntheir jurisdiction. The editors have endeavored to provide complete\nand accurate information in this book. However, CALI does not\nwarrant that the information provided is complete and accurate.\nCALI disclaims all liability to any person for any loss caused by errors\nor omissions in this collection of information.\n\nRights Information\nSilkwood v. Kerr-McGee (in Chapter 13, Strict Liability): For the\n\xe2\x80\x9cFACTS,\xe2\x80\x9d all but the first and last paragraphs of the facts are taken,\nnearly verbatim, from James F. McInroy, A True Measure of Exposure:\nThe Karen Silkwood Story, 23 LOS ALAMOS SCIENCE 252 (1995).\nThe website from which this archived article was retrieved contained\nthe following:\nCopyright Notice\nFor Scientific and Technical Information\nOnly\n\xc2\xa9 Copyright 2011 Los Alamos National\nSecurity, LLC All rights reserved\nFor All Information\nUnless otherwise indicated, this information has\nbeen authored by an employee or employees of\nthe Los Alamos National Security, LLC\nemployee or employees of the Los Alamos\nNational Security, LLC (LANS), operator of the\nLos Alamos National Laboratory under\nContract No. DE-AC52-06NA25396 with the\n\niv\n\n\x0cU.S. Department of Energy. The U.S.\nGovernment has rights to use, reproduce, and\ndistribute this information. The public may copy\nand use this information without charge,\nprovided that this Notice and any statement of\nauthorship are reproduced on all copies. Neither\nthe Government nor LANS makes any\nwarranty, express or implied, or assumes any\nliability or responsibility for the use of this\ninformation.\n\nv\n\n\x0cAbout eLangdell Press\nThe Center for Computer-Assisted Legal Instruction (CALI\xc2\xae) is a\nnonprofit organization with over 200 member US law schools, and\nan innovative force pushing legal education toward change for the\nbetter. There are benefits to CALI membership for your school, firm,\nor organization. eLangdell\xc2\xae is our electronic press with a mission to\npublish more open books for legal education.\nHow do we define \xe2\x80\x9copen?\xe2\x80\x9d\n\xef\x82\xb7\n\nCompatibility with devices like smartphones, tablets, and ereaders; as well as print.\n\n\xef\x82\xb7\n\nThe right for educators to remix the materials through more\nlenient copyright policies.\n\n\xef\x82\xb7\n\nThe ability for educators and students to adopt the materials\nfor free.\n\nFind available and upcoming eLangdell titles at elangdell.cali.org.\nShow support for CALI by following us on Facebook and Twitter,\nand by telling your friends and colleagues where you received your\nfree book.\n\nvi\n\n\x0cTable of Contents\nTorts, Volume Two ................................................................................................ 2\nAbout the Author ................................................................................................ i\nNotices ................................................................................................................ iii\nRights Information................................................................................... iv\nAbout eLangdell Press ...................................................................................... vi\nPreface ................................................................................................................ 17\nAcknowledgements ..................................................................................... 22\nPart IV: Dealing with Accidents: Beyond Negligence................................ 24\n13. Strict Liability ......................................................................................... 25\nIntroduction ............................................................................................. 25\nStrict Liability Basics, and Negligence Compared.............................. 26\nThe Absolute Duty of Safety................................................................. 27\nAnimals ..................................................................................................... 28\nCase: Isaacs v. Monkeytown U.S.A. .................................................... 32\nUltrahazardous or Abnormally Dangerous Activities ....................... 37\nWhat Activities Qualify as Ultrahazardous or Abnormally\nDangerous? ........................................................................................ 38\nCase: Rylands v. Fletcher ...................................................................... 40\nThe Economics of Strict Liability......................................................... 44\nCase: Indiana Belt Harbor R.R. v. American Cyanamid ..................... 44\nDefenses and Limitations on Strict Liability....................................... 58\nStrict Liability at Trial: Silkwood v. Kerr-McGee ..................................... 60\nQuestions to Ponder About Silkwood v. Kerr-McGee ..................... 69\n14. Products Liability................................................................................... 71\nIntroduction ............................................................................................. 71\nMultiple Theories of Recovery for Products Liability ....................... 71\nThe Elements of Strict Products Liability ........................................... 73\nSale by a Commercial Manufacturer, Distributor, or Retailer.......... 74\n\n7\n\n\x0cCase: Escola v. Coca-Cola................................................................... 76\nCase: Greenman v. Yuba Power Products ............................................. 80\nWhat Constitutes a Product................................................................... 84\nWhat Constitutes a Defect..................................................................... 85\nManufacturing Defects..................................................................... 86\nDesign Defects .................................................................................. 87\nWarning Defects ............................................................................... 89\nCase: In re Toyota Motor Corp. Unintended Acceleration ..................... 90\nNote on In re Toyota Motor Corp. Unintended Acceleration ............... 98\nReading: DOJ Press Release on Toyota Unintended Acceleration ......... 99\nQuestions to Ponder About In re Toyota Motor Corp. ................. 107\nProblem: Hot Water ......................................................................... 108\n15. Safety and Health Regulation ............................................................ 111\nIntroduction ........................................................................................... 111\nHistory of Administrative Regulation ................................................ 113\nReading: The Jungle ........................................................................... 114\nHistorical Note on The Jungle ......................................................... 124\nQuestions to Ponder About The Jungle......................................... 124\nAdministrative Agencies and the Law Governing Them ............... 125\nHow Regulations are Made.................................................................. 126\nJudicial Review of Regulations ............................................................ 128\nAgency Enforcement of Regulations ................................................. 130\nCase: FDA v. Phusion Products LLC .............................................. 130\nQuestions to Ponder About FDA v. Phusion .............................. 139\nCase: FTC v. Phusion Products LLC ................................................ 140\nHistorical Note on Phusion and Four Loko .............................. 142\nProblem: Boogie Woogie Bugle Boy Beverages .................................... 143\nPart V: Intentional Torts ............................................................................... 144\n16. Introduction to Intentional Torts ..................................................... 145\nThe Context of the Intentional Torts Within Tort Law ................. 145\nA Quick Overview of the Intentional Torts ..................................... 147\nA Preview of Intentional Torts Defenses ......................................... 149\n\n8\n\n\x0cThe Place of Damages in the Intentional Torts ............................... 150\nIntent and its Various Iterations ......................................................... 151\n17. Battery and Assault.............................................................................. 154\nIntroduction ........................................................................................... 154\nBattery ..................................................................................................... 154\nThe Elements of Battery ...................................................................... 154\nBattery: The Act .................................................................................... 155\nBattery: Intent ........................................................................................ 155\nBattery: Harmfulness or Offensiveness ............................................. 156\nBattery: The Touching.......................................................................... 157\nCase: Leichtman v. WLW Jacor ........................................................ 158\nQuestions to Ponder About Leichtman v. WLW......................... 160\nBattery: Damages................................................................................... 161\nCase: Fisher v. Carrousel Motor Hotel ............................................... 161\nQuestions to Ponder About Fisher v. Carrousel Motor Hotel ....... 165\nCase: Bohrmann v. Maine Yankee Atomic Power .............................. 165\nQuestions to Ponder About Bohrmann v. Maine Yankee ............. 169\nAssault ..................................................................................................... 169\nCase: I de S et Ux v. W de S............................................................. 169\nHistorical Note on I de S et Ux v. W de S..................................... 170\nThe Elements of Assault ...................................................................... 171\nAssault: Intent ........................................................................................ 171\nAssault: Immediate Apprehension ..................................................... 172\nAssault: Harmful or Offensive Touching.......................................... 173\nCheck-Your-Understanding Questions on Assault and Battery.... 173\n18. False Imprisonment ............................................................................ 175\nIntroduction ........................................................................................... 175\nThe Elements of False Imprisonment ............................................... 175\nFalse Imprisonment: Intent ................................................................. 176\nFalse Imprisonment: Meaning of Confinement ............................... 176\nFalse Imprisonment: Method of Confinement ................................ 178\n\n9\n\n\x0cFalse Imprisonment: Awareness ......................................................... 179\nFalse Imprisonment: Scope of Privilege or Consent ....................... 180\nCase: Sousanis v. Northwest Airlines ................................................. 180\nQuestions to Ponder About Sousanis v. Northwest Airlines ......... 184\nCase: Montejo v. Martin Memorial..................................................... 185\nQuestions to Ponder About Montejo v. Martin Memorial ............ 194\n19. Intentional Infliction of Emotional Distress .................................. 196\nIntroduction ........................................................................................... 196\nThe Elements of IIED ......................................................................... 196\nIIED: Intent ........................................................................................... 197\nIIED: Extremeness and Outrageousness .......................................... 197\nIIED: Severe Emotional Distress ....................................................... 199\nCase: Wilson v. Monarch Paper ......................................................... 200\nQuestions to Ponder About Wilson v. Monarch Paper ................. 207\nCase: Dzamko v. Dossantos............................................................... 208\nQuestions to Ponder About Dzamko v. Dossantos ...................... 211\nThe First Amendment Defense to IIED .......................................... 212\n20. Trespass to Land ................................................................................. 213\nIntroduction ........................................................................................... 213\nThe Elements of Trespass to Land .................................................... 213\nTrespass to Land: Plaintiff\xe2\x80\x99s Real Property ....................................... 214\nTrespass to Land: Intent ...................................................................... 215\nTrespass to Land: Entry ....................................................................... 216\nTrespass to Land: Failure to Leave or Remove................................ 217\nTrespass to Land: Damages and Scope of Recovery....................... 217\nReading: Trespass by Airplane................................................................. 218\nCase: Boring v. Google .............................................................................. 221\nHistorical Note About Boring v. Google ......................................... 224\nQuestions to Ponder About Boring v. Google................................ 224\nProblem: Champagne Whooshes ....................................................... 225\n21. Trespass to Chattels and Conversion ............................................... 227\n\n10\n\n\x0cIntroduction ........................................................................................... 227\nThe Elements of Trespass to Chattels ............................................... 228\nTrespass to Chattels: Plaintiff\xe2\x80\x99s Right of Possession in Chattel .... 228\nTrespass to Chattels: Intent ................................................................. 229\nTrespass to Chattels: Interference ...................................................... 230\nCase: Intel Corp. v. Hamidi ............................................................... 230\nQuestions to Ponder About Intel v. Hamidi ................................. 252\nThe Elements of Conversion .............................................................. 253\nConversion: Intent ................................................................................ 253\nConversion: Interference and Substantiality to Warrant Remedy . 254\nConversion: The Remedy of Forced Sale (or Forced Purchase) ... 254\nConversion: Intangibles and Capturing Increased Value................ 255\nCase: Moore v. U.C. Regents.............................................................. 256\nQuestions to Ponder About UC Regents v. Moore ....................... 275\n22. Defenses to Intentional Torts ........................................................... 277\nIntroduction ........................................................................................... 277\nConsent ................................................................................................... 277\nExpress Consent ............................................................................. 278\nImplied Consent .............................................................................. 279\nCase: Florida Publishing Co. v. Fletcher ................................................... 281\nNote on the Intermediate Appeals Court in Florida Publishing . 289\nQuestions to Ponder About Florida Publishing ............................ 290\nNote on Media Trespass and Implied Consent ......................... 290\nConsent Implied By Law ............................................................... 292\nConsent Obtained By Invalid Means ........................................... 293\nCase: Food Lion v. Capital Cities / ABC ............................................... 293\nNotes on Food Lion ......................................................................... 299\nExceeding the Scope of Consent ................................................. 299\nCase: Koffman v. Garnett ................................................................... 299\nQuestions to Ponder About Koffman v. Garnett ........................... 303\nSelf-Defense, Defense of Others, Defense of Property ................. 304\n\n11\n\n\x0cCase: Katko v. Brinney....................................................................... 306\nQuestions to Ponder on Katko v. Briney ....................................... 312\nNecessity ................................................................................................. 313\nCases: Vincent v. Lake Erie and Ploof v. Putnam ............................ 314\nQuestions to Ponder on Vincent, Ploof, and Economic Analysis\n............................................................................................................ 318\nCase: Surocco. v. Geary ...................................................................... 319\nHistorical Note on Surocco v. Geary ...................................................... 323\nQuestions to Ponder on Surocco and Economic Analysis ......... 324\nPart VI: Remedies .......................................................................................... 325\n23. General Issues in Remedies ............................................................... 326\nIntroduction ........................................................................................... 326\nLegal and Equitable Remedies ............................................................ 326\nDamages ................................................................................................. 327\nAdditur and Remittitur ......................................................................... 329\nAttorneys Fees ....................................................................................... 330\nTaxation of Damages............................................................................ 334\nTaxes and Fees: The Bottom Line ..................................................... 335\nInjunctions.............................................................................................. 336\nProblem: Injunction on Ivan......................................................... 338\nOther Legal and Equitable Remedies ................................................ 338\n24. Compensatory Damages .................................................................... 340\nThe Idea of Compensatory Damages ................................................ 340\nCase: Texaco v. Pennzoil .................................................................... 342\nQuestions to Ponder on Texaco v. Pennzoil .................................. 353\nHistorical Note on Texaco v. Pennzoil ............................................ 354\nNonpecuniary or General Damages ................................................... 355\nCase: Spell v. McDaniel ..................................................................... 356\nQuestions to Ponder About Spell v. McDaniel ............................. 358\nCaps on Nonpecuniary Damages ....................................................... 359\nMitigation................................................................................................ 360\n\n12\n\n\x0cThe Collateral Source Rule .................................................................. 360\nIssues of Time: Past and Future Losses ............................................ 361\nPre-judgment Interest..................................................................... 361\nFiguring Future Losses................................................................... 362\nReducing Future Losses to Net Present Value and Accounting\nfor Inflation...................................................................................... 363\nProblem on Discounting Future Losses to Net Present Value\n............................................................................................................ 366\n25. Punitive Damages ................................................................................ 367\nThe Basics of Punitive Damages ........................................................ 367\nCase: Mathias v. Accor Economy Lodging ................................................ 368\nArguing for Punitive Damages............................................................ 375\nCase: Silkwood v. Kerr-McGee ........................................................... 376\nIncidence and Magnitude of Punitive Damages .............................. 395\nCaps and Rakes for Punitive Damages Under State Law ............... 395\nFederal Constitutional Limits on Punitive Damages ....................... 397\nCase: State Farm v. Campbell .................................................................. 398\nQuestions to Ponder About State Farm v. Campbell .......................... 413\n26. Multiple Tortfeasors............................................................................ 414\nIntroduction ........................................................................................... 414\nVicarious Liability.................................................................................. 415\nRespondeat Superior ...................................................................... 415\nActing in Concert ............................................................................ 416\nOther Situations and Relevant Statutes ....................................... 416\nJoint and Several Liability \xe2\x80\x93 The Traditional Approach ................. 417\nThe Realities of Shallow-Pocketed Defendants ............................... 419\nOther Practical and Strategic Reasons Some Co-Tortfeasors Don\xe2\x80\x99t\nBecome Defendants.............................................................................. 420\nJoint and Several Liability \xe2\x80\x93 Modifications ....................................... 422\nContribution \xe2\x80\x93 Letting the Defendants Fight It Out ...................... 422\nIndemnification \xe2\x80\x93 Shifting the Loss ................................................... 423\nSettlements in Circumstances Involving Contribution ................... 425\n\n13\n\n\x0cCase: Great Lakes Dredge Dock Company v. Tanker Robert Watt Miller426\nProblem: A Lucky Break for Bad Brakes?......................................... 436\nPart VII: Special Issues with Parties and Actions ..................................... 438\n27. Immunities and Tort Liability of the Government........................ 439\nIntroduction ........................................................................................... 439\nFamily Immunities ................................................................................ 439\nCharitable Immunity ............................................................................. 441\nGovernment Immunities ..................................................................... 441\nImmunities for Individuals in the Government Context ............... 443\nThe Federal Tort Claims Act and Limited Waivers of Sovereign\nImmunity ................................................................................................ 445\nCase: Kohl v. United States ................................................................ 447\nQuestions to Ponder About Kohl v. United States ........................ 460\nDifferent Views of Discretionary Function................................ 461\nDiplomatic Immunity and Immunities for International\nOrganizations ......................................................................................... 463\nThe Firefighter\xe2\x80\x99s Rule ........................................................................... 464\nProblem: Museum Gala ....................................................................... 465\n28. Constitutional Torts ............................................................................ 467\nIntroduction ........................................................................................... 467\nSection 1983 ........................................................................................... 468\nThe Elements of a \xc2\xa7 1983 Action................................................. 469\nPerson ............................................................................................... 469\nActing Under Color of State Law................................................. 470\nDepriving a Person of a Right ...................................................... 471\nCase: Scott v. Harris ................................................................................ 471\nBivens Actions ......................................................................................... 477\nCase: Bivens v. Six Unknown Agents ...................................................... 477\nBivens Since Bivens .................................................................................. 483\nCase: Minneci v. Pollard ........................................................................... 484\nQuestions to Ponder About Minneci v. Pollard ............................ 492\n\n14\n\n\x0c29. Thresholds of Life ............................................................................... 494\nIntroduction ........................................................................................... 494\nWrongful Death..................................................................................... 495\nCase: Benally v. Navajo Nation ............................................................... 496\nQuestions to Ponder About Benally v. Navajo Nation ................. 503\nSurvival Actions..................................................................................... 503\nLoss of Consortium .............................................................................. 504\nProblem: Death on Route 12 ........................................................ 505\nUnborn Plaintiffs................................................................................... 506\nCase: Dobson v. Dobson ........................................................................... 506\nQuestions to Ponder About Dobson v. Dobson ............................ 528\nPart VIII: Oblique Torts ............................................................................... 529\n30. Transactional Torts ............................................................................. 530\nIntroduction ........................................................................................... 530\nIntentional Economic Interference .................................................... 531\nCase: Calbom v. Knudtzon ................................................................. 534\nQuestions to Ponder About Calbom v. Kundtzon ......................... 541\nCase: Speakers of Sport v. ProServ ..................................................... 542\nQuestions to Ponder About Speakers of Sport v. ProServ ............. 547\nFraud ....................................................................................................... 547\nCase: Berger v. Wade.......................................................................... 550\nFraud: Pleading Requirements ...................................................... 553\nCase: Committee on Children\xe2\x80\x99s Television v. General Foods ................ 554\nQuestions to Ponder About Committee on Children\xe2\x80\x99s Television v.\nGeneral Foods ..................................................................................... 564\nBreach of Fiduciary Duty ..................................................................... 564\nCase: April Enterprises v. KTTV ..................................................... 570\nQuestions to Ponder About April v,. KTTV .............................. 575\nHistorical Note on April v. KTTV................................................ 575\nProblem Based on April v. KTTV ................................................ 576\n31. Defamation........................................................................................... 578\nIntroduction ........................................................................................... 578\n\n15\n\n\x0cThe Basic, Unconstitutionalized Doctrine of Defamation ............. 579\nDefamatory Statement.......................................................................... 579\nThe Per Se Categories .................................................................... 580\nBeyond the Per Se Categories ....................................................... 582\nRegarding a Matter of Fact .................................................................. 582\nOf and Concerning the Plaintiff ......................................................... 584\nPublished by the Defendant .......................................................... 584\nThe Necessity of an \xe2\x80\x9cExtra Condition\xe2\x80\x9d ............................................ 585\nCheck-Your-Understanding Questions About the Extra\nCondition.......................................................................................... 587\nDefamation and the First Amendment ............................................. 588\nCase: Bindrim v. Mitchell ................................................................... 591\nQuestions to Ponder About Bindrim v. Mitchell ........................... 603\nCase: Masson v. New Yorker Magazine ............................................ 603\nHistorical Note About Masson v. New Yorker .............................. 625\nQuestions to Ponder About Masson v. New Yorker .................... 626\nDefamation Privileges .......................................................................... 626\n32. Privacy Torts ........................................................................................ 628\nIntroduction ........................................................................................... 628\nFalse Light ........................................................................................ 629\nIntrusion Upon Seclusion and Public Disclosure ...................... 630\nCase: Shulman v. Group W ............................................................... 631\nQuestions to Ponder About Shulman v. Group W ....................... 653\nAftermatter.................................................................................................. 654\nUnmarked Edits Generally .................................................................. 654\nIdiosyncratic Unmarked Edits in this Volume ................................. 655\n\n16\n\n\x0cPreface\n(For both volumes)\nWhat Makes this Casebook Different\nThis book is different from other casebooks in at least three key\nways.\nFirst, and most importantly, this casebook is free. It is free in both\nsenses of the word. In one sense, it is free in that it does not cost the\nreader any money. That is, the price is zero. You can get an\nelectronic copy for free, or you can buy a printed copy for whatever\nthe paper and ink costs. You can also print it out yourself, if you\xe2\x80\x99d\nlike. The no-money sense of free is great, but this casebook is also\nfree in a deeper sense: It is unfettered by proprietary legal claims\nthat would prevent it from being abridged, expanded, repurposed, or\nadapted. That is to say, this book is \xe2\x80\x9copen source.\xe2\x80\x9d Consistent with\nthe terms of the Creative Commons license that this book is\npublished under, generations of instructors and students will be able\nto rip and remix this book to suit their needs.\nNext, this casebook is different from many traditional casebooks in\nthat it has made a deliberate effort to explain the law, rather than\njust present a series of readings and questions. All casebooks contain\nsome explanatory matter, but few casebooks emphasize it. This is\nchanging. More and more casebooks are built around the idea of\nactively explaining concepts to the reader rather than relying solely on\nthe judicial opinions\xe2\x80\x99 internal exposition. This book embraces that\ntrend.\nFinally, this casebook is offered not merely as a one-way\ncommunication. Instead, this book constitutes an invitation to\nyou. If you are an instructor, please get in touch with me. I\xe2\x80\x99d love to\nhear how your class is going, and I would be happy to provide you\nwith notes, slides, advice, and anything else I can. If you are a\nstudent, I would love to hear your comments about how this\ncasebook is working and how it could be improved. An advantage of\nin-person speaking over writing is that you can see from the reactions\n\n17\n\n\x0cof students whether you are doing a good job explaining something.\nSince, in writing this book, I can\xe2\x80\x99t see any faces, I am relying on you\nand other readers to not be shy about telling me what I am doing well\nand what I could be doing better. You can find me at\nericejohnson.com.\nQuestions and Problems\nThere are two types of questions in this book, and they are separately\nlabeled as such. In addition, there are problems for you to work.\nQuestions to Ponder: These questions are intended to be interesting\nand helpful to think about after reading the preceding material. You\nshould not, however, attempt to figure out \xe2\x80\x9cthe answer\xe2\x80\x9d to these\nquestions. They are not meant to have clearly correct answers.\nInstead, the idea is to prompt you to think more deeply about one or\nmore facets of the case.\nCheck-Your-Understanding Questions: These questions are\nintended to help you see if you absorbed the preceding material.\nUnlike \xe2\x80\x9cQuestions to Ponder,\xe2\x80\x9d the questions labeled as \xe2\x80\x9cCheckYour-Understanding Questions\xe2\x80\x9d do have clearly correct answers.\nProblems: The problems in this casebook are much more involved\nthan the questions. Rather than asking for you to ponder ideas or\ncome up with simple answers, the problems call upon you to do\nanalysis. That is, you are expected to apply what you have learned.\nWith the problems, you mirror to some extent the task of the\npracticing lawyer. As you will learn by working through them, some\nof the problems in this book have well-defined solutions. Others are\nmore open-ended and invite creativity. But all are meant to get you to\nutilize doctrine and concepts to generate fresh insights in view of\nnew facts.\nEditing of Cases\nIn editing the cases for inclusion in this book, I have strived primarily\nfor readability and brevity. Thus, I have been quite liberal in cutting\ndown courts\xe2\x80\x99 text, and, in some cases, re-arranging it.\nI have left a record of my editing either in the cases themselves, in\nthe annotations below, or in the aftermatter at the end of the book. I\n\n18\n\n\x0crealize most casebooks do not provide this level of detail about the\nediting, but by thoroughly cataloging my edits, I hope to facilitate the\nrevision and adaptation of this book by others.\nFootnotes\nI have handled footnotes in a slightly unconventional manner. The\nreason why is that this book is being written to work in multiple\nformats, including print, the print-like PDF format, and various ebook formats with variable pagination. Achieving compatibility\nacross formats presents a problem with regard to footnotes.\nFootnotes are no problem in print. But footnotes are often rendered\nawkwardly in e-book formats.\nThis is a particular problem for a casebook. Courts love footnotes.\nGather together a collection of judicial opinions, and footnotes are\neverywhere. In truth, footnotes are a wonderful structural tool for\nwriting, since they give the reader choices. Less essential matter is\nkept out of the text, allowing a time-pressed reader to forge ahead.\nBut if a more probing reader wants to read the footnote material, the\neyes do not have to go far to find it. Unfortunately, standards\ndevelopers have not provided a way of dealing with digital footnotes\nthat preserves all the functionality they exhibit on paper.\nOne way around the problem posed by continuous pagination in\nelectronic formats would be to convert the footnotes to endnotes.\nHyperlinking can then facilitate a reader\xe2\x80\x99s movement from the text to\nthe endnotes and back again. But that does not work in this casebook\nfor two reasons. First, even though clicking links back and forth is\neasier than finding your way through a document with a scroll wheel\nor slide knob, clicking links is still time consuming. And with a lot of\nfootnotes, the clicking time adds up. Second, this book is intended\nalso to work well in a print distribution, and you can\xe2\x80\x99t use hyperlinks\nto avoid page turning in a physical book.\nBecause of these concerns, I have adopted a zero-footnote/zeroendnote policy for this book. Nevertheless, there is footnote material\nin many cases that deserves to be read. So, where I felt footnote\nmaterial was important, I have incorporated into the inline text.\n\n19\n\n\x0cI have adopted this convention for marking footnote material:\n\xef\x81\x81\n\nThe superscript right-pointing descending arrow indicates\nthe beginning of footnote material.\n\xef\x81\x80\n\nThe superscript left-pointing descending arrow indicates the\nend of a passage of footnote material.\nWhile this system works well, there is one wrinkle: Sometimes courts\nput footnote references in the middle of a sentence. Where this has\nhappened, I have had to depart from the exact linear order of the\ntext, usually by inserting the footnote material after the end of the\nsentence.\nEditing Marks\nBecause I think it is good for the reader to be able to get a sense of\nthe relative fidelity of the edited version of a reading compared to the\noriginal, I have left editing marks in many places.\nEditing a casebook presents a special challenge in indicating what\nedits you have made. Courts themselves, when writing opinions,\ninclude an enormous amount of quoted material. Thus, unedited\ncourt opinions are filled with ellipses to show where the quoted\nversion differs from the original. If I used ellipses in editing the\nopinions themselves, how could the reader of this casebook tell my\nedits from the court\xe2\x80\x99s?\nTo avoid such ambiguity, I have used a special mark in lieu of an\nellipse where the chopping was mine:\n~\n\nThe superscript tilda denotes matter omitted.\n\nThe superscript tilda also has the advantage of being less obtrusive\nthan an ellipse.\nInsertions are indicated with brackets \xe2\x80\x93 and generally they are mine if\nthey are not in a quote.\n[] Brackets indicate an insertion. The insertion may be mine\nor the court\xe2\x80\x99s.\n\n20\n\n\x0cAlso, some courts use brackets in and around citations as part of\ntheir adopted citation style. Those brackets, which do not indicate an\ninsertion, are the court\xe2\x80\x99s, not mine.\nAny other editing marks you see are the court\xe2\x80\x99s, not mine.\nUnmarked Edits\nWhile I have sought to indicate significant edits in the text, as I\xe2\x80\x99ve\njust described, I also have made unmarked changes. In such cases, I\nleft them unmarked because marking them in some way would have\nbeen unduly distracting. In particular, throughout the cases I have\nliberally omitted citation matter, including parallel cites, portions of\ncites, and whole cites. (Note that I didn\xe2\x80\x99t remove all citation; in many\nplaces I thought it was essential to what the court was trying to say or\nthat it otherwise made a helpful contribution.) Other unmarked edits\nare cataloged in the aftermatter at the end of this book.\n\n21\n\n\x0cAcknowledgements\n(For both volumes)\nFirst and foremost, I want to acknowledge and thank my students,\nparticularly my torts students over the years at the University of\nNorth Dakota. They helped me immeasurably to grow as a teacher,\nand they provided invaluable feedback for the early forms of material\nthat evolved into this casebook. A particular note of thanks is due my\n2014-2015 torts students. Many of them went above-and-beyond-thecall in helping me ferret out typos and rework unclear passages. I am\ntruly indebted to them. I also owe thanks to the faculty, staff, and\nadministration at the University of North Dakota School of Law for\ntheir considerable support.\nMany other people lent me their time and advice to help with this\nbook. In particular, I grateful to Michael L. Corrado, Patti Alleva,\nMurray Tabb, Paul LeBel, Keith Richotte, James Grijalva, Adam\nGutride, Jim Dedman, Brian Schmidt, Devin Rogers, Pete Boll, Susan\nCarlson, Karen Martin, Jan Stone, and Kit Johnson. I also want to\nthank the anonymous reviewers who, through the CALI editing\nprocess, provided excellent counsel.\nIn addition, I want to thank many people who have helped me in\nindirect but important ways by having illuminating discussions with\nme about torts \xe2\x80\x93 discussions that ultimately helped me frame the\nexplanations that appear in this book. Those people include Sanne\nKnudsen, Paul Gowder, Sandra Sperino, John L. Watts, Bruce L.\nHay, Guido Calabresi, and, most especially, my own torts teacher,\nJon Hanson.\nI am also grateful to Justice Raymond D. Austin who suggested\nBenally v. Navajo Nation to me as a good teaching case, as well as\nJennifer L. Schulz for making the same suggestion with regard to\nDobson v. Dobson.\nFinally, I want to warmly thank Deb Quentel and everyone at CALI\nfor supporting me in this endeavor. I am grateful to them not only\nfor their work with regard to this particular project, but also more\n\n22\n\n\x0cbroadly for their efforts to make legal education more efficient,\neffective, affordable, and accessible.\n\n23\n\n\x0cPart IV: Dealing with\nAccidents: Beyond\nNegligence\n\n\x0c13. Strict Liability\n\xe2\x80\x9c \xe2\x80\x98Danger! What danger do you foresee?\xe2\x80\x99\nHolmes shook his head gravely. \xe2\x80\x98It would cease to\nbe danger if we could define it,\xe2\x80\x99 said he.\xe2\x80\x9d\n\xe2\x80\x93 from \xe2\x80\x9cThe Copper Beeches,\xe2\x80\x9d by Arthur Conan Doyle, 1892\n\nIntroduction\nThe dominant form of legal action for compensation following an\ninjury is the action for negligence, which we explored in Volume\nOne. The action for negligence involves the injured plaintiff showing\nthat the defendant was somehow blameworthy in causing the\nplaintiff\xe2\x80\x99s injury. In particular, laying blame is harnessed to a concept\nof carelessness. In the abstract wisdom of tort law, the thinking goes\nlike this: Because the defendant was not appropriately careful, it is\nsensible to blame the defendant for injuries caused by that lack of\ncare, thereby holding the defendant responsible for the injury. To put\nit another way, with negligence, the law is saying something like,\n\xe2\x80\x9cYou are responsible for the damages caused by this incident because\nyou did something wrong. And what you did wrong was not being careful\nenough.\xe2\x80\x9d\nStrict liability presents a stark contrast \xe2\x80\x93 it is missing the idea of\nblameworthiness that is at negligence\xe2\x80\x99s core. Where strict liability\napplies, the law will hold a defendant responsible even though the\ndefendant did nothing wrong \xe2\x80\x93 that is, regardless of whether the defendant\nwas being careful or not.\nAt first blush, it might seem extremely unfair that the law would\nmake people responsible for accidents even when they did nothing\nwrong. And perhaps most of the time it would be. But strict liability\nonly is available under very particular circumstances. You might find,\nas many others do, that in these limited circumstances, liability\nwithout blameworthiness seems instinctively fair.\nLet\xe2\x80\x99s jump into an example. Suppose you decide to hold a\npyrotechnic demonstration in a crowded downtown area. Your plan\n\n25\n\n\x0cis to wow a crowd of onlookers with fireballs created with a gasolineair mixture and generous heaps of aluminum perchlorate as well as\nother fireworks ingredients. (Aluminum perchlorate is the same\ncompound that was used for the Space Shuttle\xe2\x80\x99s solid rocket\nboosters.) In this situation, if someone gets hurt by an errant fireball,\nstrict liability applies. Carefulness will be irrelevant.\nTo emphasize the point, you could hire a team of the world\xe2\x80\x99s leading\nchemists and pyrotechnics experts and give them an unlimited budget\nfor safety. It still wouldn\xe2\x80\x99t change anything. That\xe2\x80\x99s strict liability: If\nyou set off explosive fireballs in the middle of downtown, you are on\nthe hook if anything goes wrong.\nIt is as if the law says, \xe2\x80\x9cI don\xe2\x80\x99t care how careful you say you were. It\ndoesn\xe2\x80\x99t matter. You\xe2\x80\x99re the one who decided to stage a pyrotechnic\ndisplay downtown. So, you are responsible if anyone gets hurt or\nanyone\xe2\x80\x99s property gets damaged.\xe2\x80\x9d\nThere are defenses and limits to the doctrine. These are important to\nkeep in mind because they do a lot of work to make strict liability\nconform to intuitive notions of fairness. If, for instance, at your\ndowntown pyrotechnics display, some onlookers break past\nbarricades and climb up a structure to get right up next to the\nfireballs, then the onlookers have brought the injury upon\nthemselves, and you will be relieved of liability. (The defense of\ncomparative fault or assumption of risk will do the trick.)\n\nStrict Liability Basics, and Negligence Compared\nHere are the elements of the cause of action for strict liability:\nA plaintiff can establish a prima facie case for\nstrict liability by showing: (1) the defendant\nowed the plaintiff an absolute duty of safety in\nregard to some condition or activity, and that\ncondition or activity was (2) an actual cause and\n(3) a proximate cause of (4) an injury to the\nplaintiff\xe2\x80\x99s person or physical property.\n\nCompare that to the cause of action for negligence:\nA plaintiff can establish a prima facie case for\nnegligence by showing: (1) the defendant owed\n\n26\n\n\x0cthe plaintiff a duty of due care, (2) the\ndefendant breached that duty, and that breach\nwas (3) an actual cause and (4) a proximate\ncause of (5) an injury to the plaintiff\xe2\x80\x99s person or\nphysical property.\n\nYou can see that the first two elements of the negligence case (duty\nof care and breach) have been replaced by a single element of an\n\xe2\x80\x9cabsolute duty of safety.\xe2\x80\x9d The rest of the cause of action is exactly\nthe same as negligence. Actual causation is the same. Proximate\ncausation is the same. The requirement that the plaintiff prove the\nexistence of damages is the same. And, as it turns out, the same\ndefenses that apply in a negligence case generally apply in a strict\nliability case as well.\nSince those topics have all been covered in this casebook under the\nheading of negligence, the main thing we have to do in this chapter is\nto investigate the first element \xe2\x80\x93 the \xe2\x80\x9cabsolute duty of safety.\xe2\x80\x9d After\nthat, we will then look at the economics of strict liability, discuss how\ndefenses and limitations constrain strict liability\xe2\x80\x99s scope, and finally\nwe will see strict liability in action at trial.\n\nThe Absolute Duty of Safety\nAt the outset, a terminology note is in order. When it comes to\ntalking about the \xe2\x80\x9cabsolute duty of safety,\xe2\x80\x9d some commentators take\nissue with the use of the word \xe2\x80\x9cabsolute.\xe2\x80\x9d They note that the duty is\nnot technically \xe2\x80\x9cabsolute.\xe2\x80\x9d And they have a point. When it comes to\nlaw, almost nothing is truly absolute. Indeed, there are various\nlimitations on strict liability, including proximate causation and\ncomparative fault. Yet if you think of \xe2\x80\x9cabsolute duty\xe2\x80\x9d as a term of\nart, there is no danger of confusion. The phrase \xe2\x80\x9cabsolute duty\xe2\x80\x9d\nsignifies that there is no need to show that the defendant did\nsomething wrong.\nIf you\xe2\x80\x99ve become familiar with the cause of action for negligence, it\nmight seem strange that the law would ever impose liability without\nfault. Indeed, scholars and judges have puzzled over whether strict\nliability is justified \xe2\x80\x93 in particular, many have questioned whether it is\neconomically sound.\n\n27\n\n\x0cFor the moment, however, it is helpful to realize that there is, at least,\nan intuitive sense in which we all recognize that some situations are\nappropriate for responsibility without fault. We have all heard\nsomeone say something like, \xe2\x80\x9cOkay, you can do it, but if something\ngoes wrong, it\xe2\x80\x99s your butt on the line.\xe2\x80\x9d Strict liability is when tort law\nsays this to society at large.\nSo when does the law give this eyebrow-raised admonition? Here are\nthe five general categories where the absolute duty of safety is\nimposed:\n\xef\x82\xb7\n\nwild animals\n\n\xef\x82\xb7\n\ntrespassing livestock\n\n\xef\x82\xb7\n\ndomestic animals with known vicious propensities\n\n\xef\x82\xb7\n\nultrahazardous activities\n\n\xef\x82\xb7\n\ndefective products\n\nThese categories do the lion\xe2\x80\x99s share of work in bending strict liability\ndoctrine to conform to our intuitions of fairness. You can see\nimmediately that this list is quite circumscribed, yet the categories\ncarved out by strict liability \xe2\x80\x93 particularly the last two \xe2\x80\x93 have\nconsiderable economic significance.\nThe category of defective products requires considerable elaboration,\nso it is the subject of its own chapter \xe2\x80\x93 which follows immediately\nafter this one. In this chapter, we focus on the first four categories.\n\nAnimals\nOf the categories for the imposition of an absolute duty of safety,\nthree of the five have to do with animals.\nThe first concerns wild animals \xe2\x80\x93 \xe2\x80\x9cferae naturae\xe2\x80\x9d in Latin. If you\nkeep a wild animal, then you are liable for whatever damage it causes.\nMemo to general counsels for zoos and circuses: If a lion escapes and\nhurts some one, you\xe2\x80\x99re on the hook.\nWhat counts as a wild animal? Wild animals are defined in\ncontradistinction to domestic animals: Wild animals are animals that\n\n28\n\n\x0care not domesticated. Domesticated animals \xe2\x80\x93 in Latin \xe2\x80\x9cdomitae\nnaturae\xe2\x80\x9d or \xe2\x80\x9cmansuetae naturae\xe2\x80\x9d \xe2\x80\x93 are those that have been bred to\nbe helpful to humans. Some examples are dogs, cats, cows, pigs, and\nchickens. So, if it hasn\xe2\x80\x99t been bred to be helpful to humans, it is wild.\nIt is important to keep in mind that whether an animal is wild has\nnothing to do with whether it seems dangerous. A lion is wild, of\ncourse, but so is a baby deer. If the baby deer you are keeping\nsomehow causes someone injury, then you are on the hook for the\ndamage \xe2\x80\x93 notwithstanding whatever cuteness it may radiate.\nWhether or not an animal is wild also has nothing to do with whether\nit is being kept as a pet. If you keep a non-domesticated animal as a\npet, it\xe2\x80\x99s still wild. Stories occasionally pop up in the news about\nsomeone keeping a tiger as a pet. If you own a tiger, be aware that\nthat it doesn\xe2\x80\x99t matter if the tiger sits still while you dress it in funny\noutfits and has never eaten anything other than kibble from a bag: it\xe2\x80\x99s\nstill a wild animal. And strict liability applies if it injures anyone.\nAn animal can be tamed and still be wild. Taming and domestication\nare two different things. An animal can be tamed during its lifetime,\nbut a single animal cannot be domesticated. Domestication is\nsomething that happens over generations of animal breeding, and it is\nonly this process that brings animals out of the realm of strict\nliability.\nOf course, not all wild animals give rise to strict liability \xe2\x80\x93 only those\nthat the defendant is keeping or possessing. A wild animal roaming\nacross the defendant\xe2\x80\x99s property will not bring about strict liability.\nBut doing something to keep the animal around \xe2\x80\x93 confining it, or\nmaybe just feeding it and encouraging it to linger \xe2\x80\x93 will bring about\nan absolute responsibility for injuries it causes.\nThe second category imposing an absolute duty of safety is\ntrespassing livestock. The first example to leap to mind might be\nsomething like an escaped bull that gores a neighbor. Certainly those\nfacts would bring about the application of strict liability. But the\nrationale for the trespassing livestock doctrine is not so much that\nlivestock are a threat to people, but rather that they are a threat to\nagriculture. That is, the archetypal injury in a strict liability action for\n\n29\n\n\x0ctrespassing livestock would be crops that have been eaten or\ntrampled.\nSuppose a farmer is growing corn. Next door, a rancher has 200 pigs.\nThe pigs escape their pen and tear up the corn field, rendering the\nyear\xe2\x80\x99s crop a total loss. The farmer can sue the rancher in strict\nliability, and the rancher is on the hook \xe2\x80\x93 no matter how careful the\nrancher was in attempting to confine the pigs.\nThere is an important difference among jurisdictions in the\napplication of strict liability in the case of trespassing livestock. The\ndefault is \xe2\x80\x9cfence in,\xe2\x80\x9d meaning that it\xe2\x80\x99s up to keepers of livestock to\nkeep their animals penned up \xe2\x80\x93 or else be liable for whatever damage\nthey cause. In some places, however, the onus is on farmers to \xe2\x80\x9cfence\nout\xe2\x80\x9d marauding livestock. Respectively, these are fence-in jurisdictions\nand fence-out jurisdictions.\nThe fence-in/fence-out rule could be set at the level of the state, the\ncounty, or even a subdivision of a county. It\xe2\x80\x99s frequently a matter of\nstatutory law. Roughly speaking, farm country tends to follow the\nfence-in rule, while ranch country tends to opt for the fence-out rule.\nSo, in general, if you want to grow crops in ranch country, you\xe2\x80\x99ll need\nto build a fence. If you want to raise livestock in farm country, you\xe2\x80\x99ll\nneed to pen them in.\nA key point to remember is that \xe2\x80\x9clivestock\xe2\x80\x9d is a distinct\ncategorization from \xe2\x80\x9cdomesticated animals.\xe2\x80\x9d Cattle qualify both as\nlivestock and as domesticated animals. But dogs and cats, while\ndomesticated, are not livestock. The distinction is important, because\nit means that trespassing cats and dogs do not give rise to strict\nliability under the common law.\nWhat animals count as livestock? Cattle, sheep, pigs, and horses\ndefinitely count as livestock. Cats and dogs do not. In general,\nlivestock are animals raised by people as part of a farming or\nranching operation. But the exact definition of \xe2\x80\x9clivestock\xe2\x80\x9d is not\nentirely settled. Various cases, regulations, statutes, and other\nauthorities define the term in different ways. Many definitions require\nanimals to be domesticated to qualify as livestock. But not all. Nondomesticated elk, for instance, might qualify as \xe2\x80\x9cnon-traditional\xe2\x80\x9d\n\n30\n\n\x0clivestock if they are raised for food. But at the end of the day,\nwhether wild animals can be counted as livestock does not matter\nmuch for purposes of strict liability. If a wild animal escapes its\nenclosure and trespasses on someone else\xe2\x80\x99s property, it creates strict\nliability for its owner merely by virtue of being a wild animal. It\xe2\x80\x99s\nadditional qualification as livestock for strict-liability purposes would\nbe redundant.\nThe third category of animal-related strict liability concerns domestic\nanimals with known, vicious propensities. Theoretically, this\ncould apply to a number of creatures, but as a practical matter, we are\nreally talking about dogs that bite people. This doctrine is the subject\nof an enormous amount of neighborhood lore. Some people \xe2\x80\x93 even\nsome lawyers \xe2\x80\x93 call this the \xe2\x80\x9cone bite rule\xe2\x80\x9d and recite the doctrine as\n\xe2\x80\x9cevery dog gets one free bite.\xe2\x80\x9d But that description is highly\ninaccurate. The real rule is more complicated.\nStrict liability applies under the common law when the keeper of the\nanimal has subjective knowledge of some propensity of the animal to\ncause harm. Thus, if a dog has previously bitten a person without\nprovocation, the dog\xe2\x80\x99s keeper has subjective knowledge such that the\nnext person to be bitten will be able to recover under strict liability.\nWhere this departs from the \xe2\x80\x9cone free bite\xe2\x80\x9d idea is that, in reality, a\ndog does not need to bite someone in order to give that dog\xe2\x80\x99s keeper\nknowledge of its abnormal propensity to cause harm. For instance, if\nthe dog was tied up and mistreated, and then exhibited abnormal\naggression toward people, that might well be enough for strict\nliability to apply \xe2\x80\x93 even if the dog had yet to bite someone. Some\ncourts have held that a \xe2\x80\x9cbeware of dog\xe2\x80\x9d sign constituted evidence\nthat an owner had the requisite knowledge of a dog\xe2\x80\x99s dangerous\npropensity.\nAnother problem with the free-bite paraphrasing is that it ignores the\nfact that a dog-bite victim can always sue in negligence. Suppose an\nuntrained Rottweiler has a brand new owner. Strict liability for a\nknown dangerous propensity cannot apply, because the owner has no\nknowledge about the dog \xe2\x80\x93 much less any knowledge of dangerous\npropensities. Thus, strict liability will not apply. But if the\n\n31\n\n\x0cRottweiler\xe2\x80\x99s owner leaves a small child alone with the animal, and if\nthe child is bitten, a jury would likely find the Rottweiler\xe2\x80\x99s owner\nliable in negligence, since the reasonable person would not leave a\nsmall child alone with an untrained Rottweiler.\nIt also is frequently possible for dog bite victims to sue using\nnegligence-per-se doctrine. For example, suppose an ordinance\nrequires dogs to be leashed while in the city park. An injury caused by\nan unleashed dog in the park could then subject the dog\xe2\x80\x99s keeper to\nautomatic liability via negligence per se. (See Volume One, Chapter 6\nregarding negligence per se.)\nThe common law and ordinances are not the only important source\nof law on dog bites. In many states, statutory law specifically controls\nliability for dog bites. Frequently, such statutes dictate that dog\nowners are liable for all injuries their dog causes, with a few\nexceptions, such as that the victim was trespassing or that the victim\nprovoked the dog.\nIt should be kept in mind that while strict liability for domestic\nanimals with dangerous propensities is, in practice, mostly about\ndogs, it also applies to other domestic animals, including livestock. If\na horse is known to have kicked people, then the horse\xe2\x80\x99s keeper may\nbe held strictly liable for subsequent kicking injuries.\nFinally, in many jurisdictions, it is important not just that the\ndomesticated animal is known to be vicious, but that its vicious\npropensity is somehow abnormal. A bull, for instance, is normally\ndangerous. Given such a rule, a person injured by a charging bull\n(assuming the bull is not trespassing) cannot use strict liability to sue\nfor injuries sustained in the charge.\nCase: Isaacs v. Monkeytown U.S.A.\nThe following case illustrates many of the key points of strict liability\nfor animals.\n\nIsaacs v. Monkeytown, U.S.A.\nDistrict Court of Appeal of Florida, Second District\nOctober 4, 1972\n\n32\n\n\x0c267 So.2d 864. Scott ISAACS, a minor, by his father and natural\nguardian, Howard Isaacs, Appellant, v. Lester M. POWELL and\nArlyss R. Powell, doing business as Monkeytown, U.S.A.,\nAppellees.\nJudge JOSEPH P. McNULTY:\nThis is a case of first impression in Florida. The question posed\nis whether Florida should adopt the general rule that the owner\nor keeper of a wild animal, in this case a chimpanzee, is liable to\none injured by such animal under the strict liability doctrine, i.e.,\nregardless of negligence on his part, or whether his liability\nshould be predicated on his fault or negligence.~\nPlaintiff-appellant Scott Isaacs was two years and seven months\nold at the times material herein. His father had taken him to\ndefendants-appellees\xe2\x80\x99 monkey farm where, upon purchasing an\nadmission ticket, and as was usual and encouraged by appellees,\nhe also purchased some food to feed the animals. While Scott\nwas feeding a chimpanzee named Valerie, she grabbed his arm\nand inflicted serious injury.\nThe exact details of how Valerie was able to grab Scott\xe2\x80\x99s arm are\nin dispute. Appellees contend that Scott\xe2\x80\x99s father lifted the boy\nabove reasonably sufficient protective barriers to within\nValerie\xe2\x80\x99s reach, while appellants counter that the barriers and\nother protective measures were insufficient. But in any case,\nappellants do not now, nor did they below, rely on any fault of\nappellees. Rather, they rely solely on the aforesaid generally\naccepted strict or, as it is sometimes called, absolute liability\ndoctrine under which negligence or fault on the part of the\nowner or keeper of an animal ferae naturae is irrelevant.\nAppellees, on the other hand, suggest that we should adopt the\nemerging, though yet minority, view that liability should depend\nupon negligence, i.e., a breach of the duty of care reasonably\ncalled for taking into account the nature and specie of the\nanimal involved. We will consider this aspect of the problem\nfirst and will hereinafter discuss available defenses under the\ntheory we adopt.\n\n33\n\n\x0cThe trial judge apparently agreed with the appellees that fault or\nnegligence on the part of the owners of a wild animal must be\nshown. He charged the jury on causation as follows:\nThe issues for your determination are whether\nthe proximate cause of Scott Isaacs\xe2\x80\x99 injuries was\nthe improper protection for paying customers\nof the defendants in the condition of the cage,\nand whether the approximate cause of (sic) the\nplacing of Scott by his father, Howard Isaacs,\nwithin the barrier placed by the defendants for\nthe protection of customers of the defendant.\nIn other words the trial judge asked the jury to decide whether\nScott was injured through the fault of defendants-appellees\nand/or through the fault of his father. The jury returned a\nverdict for the defendants; but obviously, it\xe2\x80\x99s impossible for us\nto determine whether, under the foregoing charge, the jury so\nfound because they were unable to find fault on defendants\xe2\x80\x99\npart, or whether they so found because they believed the cause\nof Scott\xe2\x80\x99s injury to be the fault of the father. If, of course, we\nadopt the negligence theory of liability there would be no error\nin submitting both issues to the jury. But we are of the view that\nthe older and general rule of strict liability, which obviates the\nissue of the owner\xe2\x80\x99s negligence, is more suited to the fast\ngrowing, populous and activity-oriented society of Florida.\nIndeed, our society imposes more than enough risks upon its\nmembers now, and we are reluctant to encourage the addition of\none more particularly when that one more is increasingly\ncontributed by those who, for profit, would exercise their\n\xe2\x80\x9cright\xe2\x80\x9d to harbor wild animals and increase exposure to the\ndangers thereof by luring advertising. Prosser puts it this way:\n\xe2\x80\xa6 (Liability) has been thought to rest on the\nbasis of negligence in keeping the animal at all;\nbut this does not coincide with the modern\nanalysis of negligence as conduct which is\nunreasonable in view of the risk, since it may\nnot be an unreasonable thing to keep a tiger in a\nzoo. It is rather an instance of the strict\nresponsibility placed upon those who, even with\nproper care, expose the community to the risk\n\n34\n\n\x0cof a very dangerous thing. While one or two\njurisdictions insist that there is no liability\nwithout some negligence in keeping the animal,\nby far the greater number impose strict liability.\nAdditionally, we observe that Florida has enacted \xc2\xa7 767.04,\nF.S.A., relating to dogs. \xef\x81\x81This section provides, in pertinent\npart:\nThe owners of any dog which shall bite any\nperson, while such person is on or in a public\nplace, or lawfully on or in a private place,\nincluding the property of the owner of such\ndogs, shall be liable for such damages as may be\nsuffered by persons bitten, regardless of the\nformer viciousness of such dog or the owners\xe2\x80\x99\nknowledge of such viciousness \xe2\x80\xa6; Provided,\nhowever, no owner of any dog shall be liable for\nany damages to any person or his property\nwhen such person shall mischievously or\ncarelessly provoke or aggravate the dog\ninflicting such damage; nor shall any such owner\nbe so liable if at the time of any such injury he\nhad displayed in a prominent place on his\npremises a sign easily readable including the\nwords \xe2\x80\x98Bad Dog.~\xef\x81\x80\n[This statute] abrogates the permissive \xe2\x80\x9cone bite\xe2\x80\x9d rule of the\ncommon law. That rule posited that an owner of a dog is liable\nto one bitten by such dog only if he is chargeable with\n\xe2\x80\x9cscienter,\xe2\x80\x9d i.e., prior knowledge of the viciousness of the dog.\nNecessarily, of course, the cause of action therefor was\npredicated on the negligence of the owner in failing to take\nproper precautions with knowledge of the dog\xe2\x80\x99s vicious\npropensities. \xef\x81\x81This indeed was also basis at common law of\nliability on the part of an owner of any animal domitae naturae.\xef\x81\x80\nOur statute, however, has in effect imposed strict liability on a\ndog owner (from which he can absolve himself only by\ncomplying with the warning proviso of the statute). It would\nresult in a curious anomaly, then, if we were to adopt the\nnegligence concept as a basis for liability of an owner or keeper\nof a tiger, while \xc2\xa7 767.04, supra, imposes potential strict liability\n\n35\n\n\x0cupon him if he should trade the tiger for a dog. We are\ncompelled to adopt, therefore, the strict liability rule in these\ncases.\nConcerning, now, available defenses under this rule we share the\nview, and emphasize, that \xe2\x80\x9cstrict or absolute liability\xe2\x80\x9d does not\nmean the owner or keeper of a wild animal is an absolute insurer\nin the sense that he is liable regardless of any fault on the part of\nthe victim. Moreover, we do not think it means he is liable\nnotwithstanding an intervening, efficient independent fault\nwhich solely causes the result, as was possibly the case here if\nfault on the part of Scott\xe2\x80\x99s father were the sole efficient cause.\nAs to the fault of the victim himself, since the owner or keeper\nof a wild animal is held to a rigorous rule of liability on account\nof the danger inherent in harboring such animal, it has generally\nbeen held that the owner ought not be relieved from such\nliability by slight negligence or want of ordinary care on the part\nof the person injured. The latter\xe2\x80\x99s acts must be such as would\nestablish that, with knowledge of the danger, he voluntarily\nbrought the calamity upon himself. This general rule supports\nthe Restatement of Torts, \xc2\xa7 515, which we now adopt and set\nforth as follows:\n(1) A plaintiff is not barred from recovery by his\nfailure to exercise reasonable care to observe the\npropinquity of a wild animal or an abnormally\ndangerous domestic animal or to avoid harm to\nhis person, land or chattels threatened by it.\n(2) A plaintiff is barred from recovery by\nintentionally and unreasonably subjecting\nhimself to the risk that a wild animal or an\nabnormally dangerous domestic animal will do\nharm to his person, land or chattels.~\n\xef\x81\x81\n\nThis rule is duplicated in \xc2\xa7 484, Restatement, Torts 2d, which\nstates that the plaintiff\xe2\x80\x99s contributory negligence is not a defense\nto the strict liability of the possessor of an animal, except where\nsuch contributory negligence consists in voluntarily and\nunreasonably subjecting himself to the risk of harm from the\nanimal.\xef\x81\x80\n\n36\n\n\x0cWith regard to an intervening fault bringing about the result we\nhave no hesitancy in expanding the foregoing rule to include as\na defense the willful or intentional fault of a third party provided\nsuch fault is of itself an efficient cause and is the sole cause. If a\njury were to decide in this case, therefore, that the sole efficient\ncause of Scott\xe2\x80\x99s injury was the intentional assumption of the\napparent risks on the part of the boy\xe2\x80\x99s father and his placing of\nthe boy within reach of the danger, it would be a defense\navailable to appellees. Clearly, though, this defense would be\nrelated only to causation and is not dependent upon any theory\nof imputation of the father\xe2\x80\x99s fault to the son, which is now\nirrelevant in view of the extent of strict liability in these cases\nand the limited defenses available thereunder.\nThe judgment is reversed and the cause is remanded for a new\ntrial on the theory of strict liability, and the defenses thereto, as\nenunciated above.\nReversed.\nHOBSON, A.C.J., and MANN, J., concur.\n\nCheck-Your-Understanding\nLiability\n\nQuestions\n\nAbout\n\nStrict\n\nA. Suppose an exotic rancher raises non-domesticated ostriches for\nmeat, eggs, feathers, and leather. Some ostriches leave the ranch and\nenter a patio caf\xc3\xa9 where they seriously injure a patron. Can the\ninjured patron recover in strict liability? Why or why not?\nB. A plaintiff sues a zoo for injuries sustained because of an escaped\nboa constrictor. The snake did not actually touch the plaintiff.\nInstead, the snake killed the plaintiff\xe2\x80\x99s friend\xe2\x80\x99s pet cat. But because of\nthe cat\xe2\x80\x99s death, the plaintiff\xe2\x80\x99s friend was not available to help the\nplaintiff repair a stair railing, as had been the plan. The plaintiff was\ninjured when the railing collapsed. Can the plaintiff recover against\nthe zoo in strict liability?\n\nUltrahazardous or Abnormally Dangerous Activities\nIn addition to the specific categories that the law sets out for strict\nliability in connection with animals, there is the large, general category\n\n37\n\n\x0cof strict liability for \xe2\x80\x9cultrahazardous\xe2\x80\x9d or \xe2\x80\x9cabnormally dangerous\xe2\x80\x9d\nactivities.\nThis is another place where terminology might lead you to\nmisunderstand the doctrine. Note that \xe2\x80\x9cultrahazardous\xe2\x80\x9d and\n\xe2\x80\x9cabnormally dangerous\xe2\x80\x9d are not two different categories, but rather\ntwo different labels for one category. The courts employ the two\nterms about equally today. The American Law Institute favored\n\xe2\x80\x9cultrahazardous\xe2\x80\x9d in its First Restatement of Torts, but then switched\nto \xe2\x80\x9cabnormally dangerous\xe2\x80\x9d for its Second Restatement. Both terms,\nhowever, have potential problems.\nThe danger posed by the term \xe2\x80\x9cabnormally dangerous\xe2\x80\x9d is that you\nmight think the words mean what they say. That is, you might think\nthat that for an activity to qualify as \xe2\x80\x9cabnormally dangerous,\xe2\x80\x9d it needs\nto present a danger that is not normal. That, however, is not correct.\nThere are many abnormal dangers that do not qualify for strict\nliability, and many familiar risks from common activities that do.\n\xe2\x80\x9cAbnormally dangerous\xe2\x80\x9d must be thought of as a term of art.\nThe hazard posed by the term \xe2\x80\x9cultrahazardous\xe2\x80\x9d is that you might\nthink that it is the magnitude of the potential harm that causes\nsomething qualify as an ultrahazard. But something can be\n\xe2\x80\x9cultrahazardous\xe2\x80\x9d even if it threatens only one person. What is good\nabout \xe2\x80\x9cultrahazardous\xe2\x80\x9d as a label, however, is that it is clearly a madeup word, and thus it is easily identifiable as a term of art.\nIn this book, we\xe2\x80\x99ll use both terms as synonyms.\nWhat Activities Qualify as Ultrahazardous or\nAbnormally Dangerous?\nWhat causes something to qualify as an ultrahazardous or abnormally\ndangerous activity for strict liability purposes? There is no simple,\nconcise answer. With animals, the qualifications for strict liability are\nfairly specific. By contrast, the category of strict liability for\nultrahazardous activities is a more recent development in the law, and\nits boundaries are considerably fuzzier.\nThe core idea is less about the characteristics of the activity and more\nabout a policy judgment that people who undertake certain activities\n\n38\n\n\x0cmust be responsible for any harm that results, regardless of how\nmuch care is taken. The policy judgment inherent in the task mirrors\nthe policy judgment involved in deciding whether a defendant owes a\nduty of care for purposes of a negligence action. And as is the case\nwith the existence of a duty in negligence, whether an activity\nqualifies for strict liability is generally a legal question \xe2\x80\x93 to be\ndetermined by a court, rather than a jury.\nHere are some examples of activities have that been held to give rise\nto strict liability under the ultrahazardous classification:\n\xef\x82\xb7\n\nblasting\n\n\xef\x82\xb7\n\nfumigation\n\n\xef\x82\xb7\n\ncrop dusting\n\n\xef\x82\xb7\n\nactivities involving nuclear reactions or radioactivity\n\n\xef\x82\xb7\n\npile driving\n\n\xef\x82\xb7\n\noil drilling\n\n\xef\x82\xb7\n\nactivities involving explosives or highly toxic chemicals\n(including manufacturing, transporting, storing, and using)\n\nYou can see that many of these activities are quite \xe2\x80\x9cnormal\xe2\x80\x9d in the\nsense that they go on all the time. To the extent one could say that\nthere is something abnormal about them, perhaps it is that relatively\nfew people in society engage in them. There are many farmers for\ninstance, but there are comparatively few providers of crop-dusting\nservices. And while everybody uses gasoline and other products\nderived from petroleum, very few people in society go drilling for\npetroleum.\nRichard A. Epstein writes, \xe2\x80\x9cThere is no obvious conceptual line that\nwalls off abnormally dangerous activities from their relatively benign\ncounterparts.\xe2\x80\x9d Nonetheless, Epstein sees a thread that binds them all\ntogether: \xe2\x80\x9cUltrahazardous activities and substances all fall into the\nclass where small triggers, physical or chemical, can release far larger\nforces.\xe2\x80\x9d RICHARD A. EPSTEIN, TORTS, p. 348 (1999).\n\n39\n\n\x0cOne way to make sense of strict liability for abnormally dangerous\nactivities is to note the conceptual similarities with the doctrine of\nstrict liability for wild animals. Take, for instance, Justice Blackburn\xe2\x80\x99s\npronouncement in Rylands, below, that whoever \xe2\x80\x9cbrings, or\naccumulates, on his land anything which, if it should escape, may\ncause damage to his neighbour, he does so at his peril.\xe2\x80\x9d That\nlanguage could be talking about a lion just as much as it could be\ntalking about a huge volume of water or a concentration of\nradionuclides.\nCase: Rylands v. Fletcher\nThe case credited with starting the general doctrine of strict liability\nfor ultrahazards is the classic English case of Rylands v. Fletcher.\n\nRylands v. Fletcher\nHouse of Lords\nJuly 17, 1868\n3 HL 330, [1868] UKHL 1. JOHN RYLANDS AND JEHU\nHORROCKS, PLAINTIFFS v. THOMAS FLETCHER,\nDEFENDANT.\nThe Lord Chancellor, Lord CAIRNS (Hugh Cairns, 1st\nEarl Cairns):\nMy Lords, in this case the Plaintiff~ is the occupier of a mine\nand works under a close of land. The Defendants are the owners\nof a mill in his neighbourhood, and they proposed to make a\nreservoir for the purpose of keeping and storing water to be\nused about their mill upon another close of land, which, for the\npurposes of this case, may be taken as being adjoining to the\nclose of the Plaintiff, although, in point of fact, some\nintervening land lay between the two. Underneath the close of\nland of the Defendants on which they proposed to construct\ntheir reservoir there were certain old and disused mining\npassages and works. There were five vertical shafts, and some\nhorizontal shafts communicating with them. The vertical shafts\nhad been filled up with soil and rubbish, and it does not appear\nthat any person was aware of the existence either of the vertical\nshafts or of the horizontal works communicating with them. In\n\n40\n\n\x0cthe course of the working by the Plaintiff of his mine, he had\ngradually worked through the seams of coal underneath the\nclose, and had come into contact with the old and disused works\nunderneath the close of the Defendants.\nIn that state of things the reservoir of the Defendants was\nconstructed. It was constructed by them through the agency and\ninspection of an engineer and contractor. Personally, the\nDefendants appear to have taken no part in the works, or to\nhave been aware of any want of security connected with them.\nAs regards the engineer and the contractor, we must take it from\nthe case that they did not exercise, as far as they were\nconcerned, that reasonable care and caution which they might\nhave exercised, taking notice, as they appear to have taken\nnotice, of the vertical shafts filled up in the manner which I have\nmentioned. However, my Lords, when the reservoir was\nconstructed, and filled, or partly filled, with water, the weight of\nthe water bearing upon the disused and imperfectly filled-up\nvertical shafts, broke through those shafts. The water passed\ndown them and into the horizontal workings, and from the\nhorizontal workings under the close of the Defendants it passed\non into the workings under the close of the Plaintiff, and\nflooded his mine, causing considerable damage, for which this\naction was brought.~\nMy Lords, the principles on which this case must be determined\nappear to me to be extremely simple. The Defendants, treating\nthem as the owners or occupiers of the close on which the\nreservoir was constructed, might lawfully have used that close\nfor any purpose for which it might in the ordinary course of the\nenjoyment of land be used; and if, in what I may term the\nnatural user of that land, there had been any accumulation of\nwater, either on the surface or underground, and if, by the\noperation of the laws of nature, that accumulation of water had\npassed off into the close occupied by the Plaintiff, the Plaintiff\ncould not have complained that that result had taken place. If he\nhad desired to guard himself against it, it would have lain upon\nhim to have done so, by leaving, or by interposing, some barrier\nbetween his close and the close of the Defendants in order to\nhave prevented that operation of the laws of nature.\n\n41\n\n\x0cAs an illustration of that principle, I may refer to a case which\nwas cited in the argument before your Lordships, the case of\nSmith v. Kenrick in the Court of Common Pleas.\nOn the other hand if the Defendants, not stopping at the natural\nuse of their close, had desired to use it for any purpose which I\nmay term a non-natural use, for the purpose of introducing into\nthe close that which in its natural condition was not in or upon\nit, for the purpose of introducing water either above or below\nground in quantities and in a manner not the result of any work\nor operation on or under the land, \xe2\x80\x93 and if in consequence of\ntheir doing so, or in consequence of any imperfection in the\nmode of their doing so, the water came to escape and to pass\noff into the close of the Plaintiff, then it appears to me that that\nwhich the Defendants were doing they were doing at their own\nperil; and, if in the course of their doing it, the evil arose to\nwhich I have referred, the evil, namely, of the escape of the\nwater and its passing away to the close of the Plaintiff and\ninjuring the Plaintiff, then for the consequence of that, in my\nopinion, the Defendants would be liable. As the case of Smith v.\nKenrick is an illustration of the first principle to which I have\nreferred, so also the second principle to which I have referred is\nwell illustrated by another case in the same Court, the case of\nBaird v. Williamson, which was also cited in the argument at the\nBar.\nMy Lords, these simple principles, if they are well founded, as it\nappears to me they are, really dispose of this case.\nThe same result is arrived at on the principles referred to by Mr.\nJustice Blackburn in his judgment, in the Court of Exchequer\nChamber, where he states the opinion of that Court as to the\nlaw in these words: \xe2\x80\x9cWe think that the true rule of law is, that\nthe person who, for his own purposes, brings on his land and\ncollects and keeps there anything likely to do mischief if it\nescapes, must keep it in at his peril; and if he does not do so, is\nprim\xc3\xa2 facie answerable for all the damage which is the natural\nconsequence of its escape. He can excuse himself by shewing\nthat the escape was owing to the Plaintiff\xe2\x80\x99s default; or, perhaps,\nthat the escape was the consequence of vis major, or the act of\n\n42\n\n\x0cGod; but as nothing of this sort exists here, it is unnecessary to\ninquire what excuse would be sufficient. The general rule, as\nabove stated, seems on principle just. The person whose grass\nor corn is eaten down by the escaping cattle of his neighbour, or\nwhose mine is flooded by the water from his neighbour\xe2\x80\x99s\nreservoir, or whose cellar is invaded by the filth of his\nneighbour\xe2\x80\x99s privy, or whose habitation is made unhealthy by the\nfumes and noisome vapours of his neighbour\xe2\x80\x99s alkali works, is\ndamnified without any fault of his own; and it seems but\nreasonable and just that the neighbour who has brought\nsomething on his own property (which was not naturally there),\nharmless to others so long as it is confined to his own property,\nbut which he knows will be mischievous if it gets on his\nneighbour\xe2\x80\x99s, should be obliged to make good the damage which\nensues if he does not succeed in confining it to his own\nproperty. But for his act in bringing it there no mischief could\nhave accrued, and it seems but just that he should at his peril\nkeep it there, so that no mischief may accrue, or answer for the\nnatural and anticipated consequence. And upon authority this\nwe think is established to be the law, whether the things so\nbrought be beasts, or water, or filth, or stenches.\xe2\x80\x9d\nMy Lords, in that opinion, I must say I entirely concur.\nTherefore, I have to move your Lordships that the judgment of\nthe Court of Exchequer Chamber be affirmed, and that the\npresent appeal be dismissed with costs.\nLord CRANWORTH (Robert Rolfe, 1st Baron Cranworth):\nMy Lords, I concur with my noble and learned friend in\nthinking that the rule of law was correctly stated by Mr. Justice\nBlackburn in delivering the opinion of the Exchequer Chamber.\nIf a person brings, or accumulates, on his land anything which,\nif it should escape, may cause damage to his neighbour, he does\nso at his peril. If it does escape, and cause damage, he is\nresponsible, however careful he may have been, and whatever\nprecautions he may have taken to prevent the damage.~\n\n43\n\n\x0cThe Economics of Strict Liability\nStrict liability has been a focal point for theorists of law and\neconomics. They question whether strict liability can be justified as\nsound economic policy.\nNegligence, in general, does not face this criticism. The doctrine of\nnegligence seems to lend itself to economic justification quite readily:\nWe want to provide an incentive for people to engage in the\nappropriate level of care when undertaking their activities. Therefore,\nwe hold them liable when injury results from their care falling below\nthis level.\nSo, since we have negligence, why should we ever need strict liability?\nIf we want to encourage transporters of explosives to engage in the\nappropriate level of care, then why not leave intact the requirement\nthat plaintiffs prove negligence?\nA response might be to say that there are some activities that are\npotentially so social pernicious, we not only want people to be\ncareful, we want them to think long and hard about whether they\nshould engage in the activity at all. If people are responsible for all\ninjuries caused by a certain activity \xe2\x80\x93 regardless of how careful they\nare \xe2\x80\x93 then people might engage in that activity less often, or they\nmight move the location of their activity to someplace where less\nharm is likely to result if something goes wrong.\nCase: Indiana Belt Harbor R.R. v. American Cyanamid\nIn this modern classic, Judge Richard A. Posner, a leading figure in\nthe law-and-economics movement, brings economic analysis to bear\non the decision of whether the transportation of toxic chemicals\nshould be subject to strict liability. This case has been praised by\nsome and lambasted by others. Ask yourself whether you find the\nanalysis convincing.\n\nIndiana Belt Harbor R.R. v. American Cyanamid\nUnited States Court of Appeals for the Seventh Circuit\nOctober 18, 1990\n\n44\n\n\x0c916 F.2d 1174. INDIANA HARBOR BELT RAILROAD\nCOMPANY,\nPlaintiff-Appellee,\nCross-Appellant,\nv.\nAMERICAN CYANAMID COMPANY, Defendant-Appellant,\nCross-Appellee. Nos. 89-3703, 89-3757. United States Court of\nAppeals, Seventh Circuit. Before POSNER, MANION and\nKANNE, Circuit Judges.\n\nCircuit Judge RICHARD A. POSNER:\nAmerican Cyanamid Company, the defendant in this diversity\ntort suit governed by Illinois law, is a major manufacturer of\nchemicals, including acrylonitrile, a chemical used in large\nquantities in making acrylic fibers, plastics, dyes, pharmaceutical\nchemicals, and other intermediate and final goods. On January\n2, 1979, at its manufacturing plant in Louisiana, Cyanamid\nloaded 20,000 gallons of liquid acrylonitrile into a railroad tank\ncar that it had leased from the North American Car\nCorporation. The next day, a train of the Missouri Pacific\nRailroad picked up the car at Cyanamid\xe2\x80\x99s siding. The car\xe2\x80\x99s\nultimate destination was a Cyanamid plant in New Jersey served\nby Conrail rather than by Missouri Pacific. The Missouri Pacific\ntrain carried the car north to the Blue Island railroad yard of\nIndiana Harbor Belt Railroad, the plaintiff in this case, a small\nswitching line that has a contract with Conrail to switch cars\nfrom other lines to Conrail, in this case for travel east. The Blue\nIsland yard is in the Village of Riverdale, which is just south of\nChicago and part of the Chicago metropolitan area.\nThe car arrived in the Blue Island yard on the morning of\nJanuary 9, 1979. Several hours after it arrived, employees of the\nswitching line noticed fluid gushing from the bottom outlet of\nthe car. The lid on the outlet was broken. After two hours, the\nline\xe2\x80\x99s supervisor of equipment was able to stop the leak by\nclosing a shut-off valve controlled from the top of the car. No\none was sure at the time just how much of the contents of the\ncar had leaked, but it was feared that all 20,000 gallons had, and\nsince acrylonitrile is flammable at a temperature of 30\xc2\xb0\nFahrenheit or above, highly toxic, and possibly carcinogenic\n(Acrylonitrile, 9 International Toxicity Update, no. 3, May-June\n1989, at 2, 4), the local authorities ordered the homes near the\n\n45\n\n\x0cyard evacuated. The evacuation lasted only a few hours, until the\ncar was moved to a remote part of the yard and it was\ndiscovered that only about a quarter of the acrylonitrile had\nleaked. Concerned nevertheless that there had been some\ncontamination of soil and water, the Illinois Department of\nEnvironmental Protection ordered the switching line to take\ndecontamination measures that cost the line $981,022.75, which\nit sought to recover by this suit.\nOne count of the two-count complaint charges Cyanamid with\nhaving maintained the leased tank car negligently. The other\ncount asserts that the transportation of acrylonitrile in bulk\nthrough the Chicago metropolitan area is an abnormally\ndangerous activity, for the consequences of which the shipper\n(Cyanamid) is strictly liable to the switching line, which bore the\nfinancial brunt of those consequences because of the\ndecontamination measures that it was forced to take.~\nThe question whether the shipper of a hazardous chemical by\nrail should be strictly liable for the consequences of a spill or\nother accident to the shipment en route is a novel one in Illinois,\ndespite the switching line\xe2\x80\x99s contention that the question has\nbeen answered in its favor by two decisions of the Illinois\nAppellate Court that the district judge cited in granting summary\njudgment. In both Fallon v. Indiana Trail School, 148 Ill.App.3d\n931, 934~(1986), and Continental Building Corp. v. Union Oil Co.,\n152 Ill.App.3d 513, 516~(1987), the Illinois Appellate Court\ncited the district court\xe2\x80\x99s first opinion in this case with approval\nand described it as having held that the transportation of\nacrylonitrile in the Chicago metropolitan area is an abnormally\ndangerous activity, for which the shipper is strictly liable. These\ndiscussions are dicta. The cases did not involve acrylonitrile \xe2\x80\x93 or\nfor that matter transportation \xe2\x80\x93 and in both cases the court held\nthat the defendant was not strictly liable. The discussions were\ncareless dicta, too, because the district court had not in its first\nopinion, the one they cited, held that acrylonitrile was in fact\nabnormally dangerous. It merely had declined to grant a motion\nto dismiss the strict liability count for failure to state a claim. We\ndo not wish to sound too censorious; this court has twice made\nthe same mistake in interpreting the district court\xe2\x80\x99s first opinion.\n\n46\n\n\x0cMartin v. Harrington & Richardson, Inc., 743 F.2d 1200, 1203 (7th\nCir.1984); City of Bloomington v. Westinghouse Elec. Corp., 891 F.2d\n611, 615 (7th Cir.1989). But mistake it is. The dicta in Fallon and\nContinental cannot be considered reliable predictors of how the\nSupreme Court of Illinois would rule if confronted with the\nissue in this case. We are not required to follow even the holdings\nof intermediate state appellate courts if persuaded that they are\nnot reliable predictors of the view the state\xe2\x80\x99s highest court\nwould take. No court is required to follow another court\xe2\x80\x99s dicta.\nHere they are not even considered or well-reasoned dicta,\nfounded as they are on the misreading of an opinion.\nThe parties agree that the question whether placing acrylonitrile\nin a rail shipment that will pass through a metropolitan area\nsubjects the shipper to strict liability is, as recommended in\nRestatement (Second) of Torts \xc2\xa7 520, comment l (1977), a\nquestion of law, so that we owe no particular deference to the\nconclusion of the district court. They also agree (and for this\nproposition, at least, there is substantial support in the Fallon\nand Continental opinions) that the Supreme Court of Illinois\nwould treat as authoritative the provisions of the Restatement\ngoverning abnormally dangerous activities. The key provision is\nsection 520, which sets forth six factors to be considered in\ndeciding whether an activity is abnormally dangerous and the\nactor therefore strictly liable.\nThe roots of section 520 are in nineteenth-century cases. The\nmost famous one is Rylands v. Fletcher, 1 Ex. 265, aff\xe2\x80\x99d, L.R. 3\nH.L. 300 (1868), but a more illuminating one in the present\ncontext is Guille v. Swan, 19 Johns. (N.Y.) 381 (1822). A man\ntook off in a hot-air balloon and landed, without intending to, in\na vegetable garden in New York City. A crowd that had been\nanxiously watching his involuntary descent trampled the\nvegetables in their endeavor to rescue him when he landed. The\nowner of the garden sued the balloonist for the resulting\ndamage, and won. Yet the balloonist had not been careless. In\nthe then state of ballooning it was impossible to make a\npinpoint landing.\n\n47\n\n\x0cGuille is a paradigmatic case for strict liability. (a) The risk\n(probability) of harm was great, and (b) the harm that would\nensue if the risk materialized could be, although luckily was not,\ngreat (the balloonist could have crashed into the crowd rather\nthan into the vegetables). The confluence of these two factors\nestablished the urgency of seeking to prevent such accidents. (c)\nYet such accidents could not be prevented by the exercise of\ndue care; the technology of care in ballooning was insufficiently\ndeveloped. (d) The activity was not a matter of common usage,\nso there was no presumption that it was a highly valuable\nactivity despite its unavoidable riskiness. (e) The activity was\ninappropriate to the place in which it took place \xe2\x80\x93 densely\npopulated New York City. The risk of serious harm to others\n(other than the balloonist himself, that is) could have been\nreduced by shifting the activity to the sparsely inhabited areas\nthat surrounded the city in those days. (f) Reinforcing (d), the\nvalue to the community of the activity of recreational ballooning\ndid not appear to be great enough to offset its unavoidable risks.\nThese are, of course, the six factors in section 520. They are\nrelated to each other in that each is a different facet of a\ncommon quest for a proper legal regime to govern accidents\nthat negligence liability cannot adequately control. The\ninterrelations might be more perspicuous if the six factors were\nreordered. One might for example start with (c), inability to\neliminate the risk of accident by the exercise of due care. The\nbaseline common law regime of tort liability is negligence. When\nit is a workable regime, because the hazards of an activity can be\navoided by being careful (which is to say, nonnegligent), there is\nno need to switch to strict liability. Sometimes, however, a\nparticular type of accident cannot be prevented by taking care\nbut can be avoided, or its consequences minimized, by shifting\nthe activity in which the accident occurs to another locale, where\nthe risk or harm of an accident will be less ((e)), or by reducing\nthe scale of the activity in order to minimize the number of\naccidents caused by it ((f)). Bethlehem Steel Corp. v. EPA, 782 F.2d\n645, 652 (7th Cir.1986); Shavell, Strict Liability versus Negligence, 9\nJ. Legal Stud. 1 (1980). By making the actor strictly liable \xe2\x80\x93 by\ndenying him in other words an excuse based on his inability to\n\n48\n\n\x0cavoid accidents by being more careful \xe2\x80\x93 we give him an\nincentive, missing in a negligence regime, to experiment with\nmethods of preventing accidents that involve not greater\nexertions of care, assumed to be futile, but instead relocating,\nchanging, or reducing (perhaps to the vanishing point) the\nactivity giving rise to the accident. Anderson v. Marathon Petroleum\nCo., 801 F.2d 936, 939 (7th Cir.1986). The greater the risk of an\naccident ((a)) and the costs of an accident if one occurs ((b)), the\nmore we want the actor to consider the possibility of making\naccident-reducing activity changes; the stronger, therefore, is the\ncase for strict liability. Finally, if an activity is extremely common\n((d)), like driving an automobile, it is unlikely either that its\nhazards are perceived as great or that there is no technology of\ncare available to minimize them; so the case for strict liability is\nweakened.\nThe largest class of cases in which strict liability has been\nimposed under the standard codified in the Second Restatement\nof Torts involves the use of dynamite and other explosives for\ndemolition in residential or urban areas. Restatement, supra, \xc2\xa7\n519, comment d; City of Joliet v. Harwood, 86 Ill. 110 (1877).\nExplosives are dangerous even when handled carefully, and we\ntherefore want blasters to choose the location of the activity\nwith care and also to explore the feasibility of using safer\nsubstitutes (such as a wrecking ball), as well as to be careful in\nthe blasting itself. Blasting is not a commonplace activity like\ndriving a car, or so superior to substitute methods of demolition\nthat the imposition of liability is unlikely to have any effect\nexcept to raise the activity\xe2\x80\x99s costs.\nAgainst this background we turn to the particulars of\nacrylonitrile. Acrylonitrile is one of a large number of chemicals\nthat are hazardous in the sense of being flammable, toxic, or\nboth; acrylonitrile is both, as are many others. A table in the\nrecord~ contains a list of the 125 hazardous materials that are\nshipped in highest volume on the nation\xe2\x80\x99s railroads.\nAcrylonitrile is the fifty-third most hazardous on the list.\nNumber 1 is phosphorus (white or yellow), and among the other\nmaterials that rank higher than acrylonitrile on the hazard scale\nare anhydrous ammonia, liquified petroleum gas, vinyl chloride,\n\n49\n\n\x0cgasoline, crude petroleum, motor fuel antiknock compound,\nmethyl and ethyl chloride, sulphuric acid, sodium metal, and\nchloroform. The plaintiff\xe2\x80\x99s lawyer acknowledged at argument\nthat the logic of the district court\xe2\x80\x99s opinion dictated strict\nliability for all 52 materials that rank higher than acrylonitrile on\nthe list, and quite possibly for the 72 that rank lower as well,\nsince all are hazardous if spilled in quantity while being shipped\nby rail. Every shipper of any of these materials would therefore\nbe strictly liable for the consequences of a spill or other accident\nthat occurred while the material was being shipped through a\nmetropolitan area. The plaintiff\xe2\x80\x99s lawyer further acknowledged\nthe irrelevance, on her view of the case, of the fact that\nCyanamid had leased and filled the car that spilled the\nacrylonitrile; all she thought important is that Cyanamid\nintroduced the product into the stream of commerce that\nhappened to pass through the Chicago metropolitan area. Her\nconcession may have been incautious. One might want to\ndistinguish between the shipper who merely places his goods on\nhis loading dock to be picked up by the carrier and the shipper\nwho, as in this case, participates actively in the transportation.\nBut the concession is illustrative of the potential scope of the\ndistrict court\xe2\x80\x99s decision.\nNo cases recognize so sweeping a liability. Several reject it,\nthough none has facts much like those of the present case.~\nWith National Steel Service Center v. Gibbons, 693 F.2d 817 (8th\nCir.1982), which held a railroad strictly liable for transporting\npropane gas \xe2\x80\x93 but under Iowa law, which uses a different\nstandard from that of the Restatement \xe2\x80\x93 we may pair Seaboard\nCoast Line R.R. v. Mobil Chemical Co., 172 Ga.App. 543, 323\nS.E.2d 849 (1984), which refused to impose strict liability on\nfacts similar to those in this case, but again on the basis of a\nstandard different from that of the Restatement. Zero Wholesale\nCo. v. Stroud, 264 Ark. 27 (1978), refused to hold that the\ndelivery of propane gas was not an ultrahazardous activity as a\nmatter of law. But the delivery in question was to a gas-storage\nfacility, and the explosion occurred while gas was being pumped\nfrom the tank truck into a storage tank. This was a highly,\nperhaps unavoidably, dangerous activity.\n\n50\n\n\x0cSiegler v. Kuhlman, 81 Wash.2d 448, 502 P.2d 1181 (1972), also\nimposed strict liability on a transporter of hazardous materials,\nbut the circumstances were again rather special. A gasoline truck\nblew up, obliterating the plaintiff\xe2\x80\x99s decedent and her car. The\ncourt emphasized that the explosion had destroyed the evidence\nnecessary to establish whether the accident had been due to\nnegligence; so, unless liability was strict, there would be no\nliability \xe2\x80\x93 and this as the very consequence of the defendant\xe2\x80\x99s\nhazardous activity. 81 Wash.2d at 454-55, 502 P.2d at 1185. But\nwhen the Supreme Court of Washington came to decide the\nNew Meadows case, supra, it did not distinguish Siegler on this\nground, perhaps realizing that the plaintiff in Siegler could have\novercome the destruction of the evidence by basing a negligence\nclaim on the doctrine of res ipsa loquitur. Instead it stressed that\nthe transmission of natural gas through underground pipes, the\nactivity in New Meadows, is less dangerous than the\ntransportation of gasoline by highway, where the risk of an\naccident is omnipresent. 102 Wash.2d at 502-03, 687 P.2d at\n216-17. We shall see that a further distinction of great\nimportance between the present case and Siegler is that the\ndefendant there was the transporter, and here it is the shipper.\nCases such as McLane v. Northwest Natural Gas Co., 255 Or. 324\n(1970)~ that impose strict liability for the storage of a dangerous\nchemical provide a potentially helpful analogy to our case. But\nthey can be distinguished on the ground that the storer (like the\ntransporter, as in Siegler) has more control than the shipper.\nSo we can get little help from precedent, and might as well apply\nsection 520 to the acrylonitrile problem from the ground up. To\nbegin with, we have been given no reason, whether the reason in\nSiegler or any other, for believing that a negligence regime is not\nperfectly adequate to remedy and deter, at reasonable cost, the\naccidental spillage of acrylonitrile from rail cars. Cf. Bagley v.\nControlled Environment Corp., 127 N.H. 556, 560 (1986).\nAcrylonitrile could explode and destroy evidence, but of course\ndid not here, making imposition of strict liability on the theory\nof the Siegler decision premature. More important, although\nacrylonitrile is flammable even at relatively low temperatures,\nand toxic, it is not so corrosive or otherwise destructive that it\n\n51\n\n\x0cwill eat through or otherwise damage or weaken a tank car\xe2\x80\x99s\nvalves although they are maintained with due (which essentially\nmeans, with average) care. No one suggests, therefore, that the\nleak in this case was caused by the inherent properties of\nacrylonitrile. It was caused by carelessness \xe2\x80\x93 whether that of the\nNorth American Car Corporation in failing to maintain or\ninspect the car properly, or that of Cyanamid in failing to\nmaintain or inspect it, or that of the Missouri Pacific when it\nhad custody of the car, or that of the switching line itself in\nfailing to notice the ruptured lid, or some combination of these\npossible failures of care. Accidents that are due to a lack of care\ncan be prevented by taking care; and when a lack of care can\n(unlike Siegler) be shown in court, such accidents are adequately\ndeterred by the threat of liability for negligence.\nIt is true that the district court purported to find as a fact that\nthere is an inevitable risk of derailment or other calamity in\ntransporting \xe2\x80\x9clarge quantities of anything.\xe2\x80\x9d 662 F.Supp. at 642.\nThis is not a finding of fact, but a truism: anything can happen.\nThe question is, how likely is this type of accident if the actor\nuses due care? For all that appears from the record of the case\nor any other sources of information that we have found, if a\ntank car is carefully maintained the danger of a spill of\nacrylonitrile is negligible. If this is right, there is no compelling\nreason to move to a regime of strict liability, especially one that\nmight embrace all other hazardous materials shipped by rail as\nwell. This also means, however, that the amici curiae who have\nfiled briefs in support of Cyanamid cry wolf in predicting\n\xe2\x80\x9cdevastating\xe2\x80\x9d effects on the chemical industry if the district\ncourt\xe2\x80\x99s decision is affirmed. If the vast majority of chemical\nspills by railroads are preventable by due care, the imposition of\nstrict liability should cause only a slight, not as they argue a\nsubstantial, rise in liability insurance rates, because the\nincremental liability should be slight. The amici have\nmomentarily lost sight of the fact that the feasibility of avoiding\naccidents simply by being careful is an argument against strict\nliability.\nThis discussion helps to show why Siegler is indeed\ndistinguishable even as interpreted in New Meadows. There are so\n\n52\n\n\x0cmany highway hazards that the transportation of gasoline by\ntruck is, or at least might plausibly be thought, inherently\ndangerous in the sense that a serious danger of accident would\nremain even if the truckdriver used all due care (though Hawkins\nand other cases are contra). Which in turn means, contrary to our\nearlier suggestion, that the plaintiff really might have difficulty\ninvoking res ipsa loquitur, because a gasoline truck might well\nblow up without negligence on the part of the driver. The\nplaintiff in this case has not shown that the danger of a\ncomparable disaster to a tank car filled with acrylonitrile is as\ngreat and might have similar consequences for proof of\nnegligence. And to repeat a previous point, if the reason for\nstrict liability is fear that an accident might destroy the critical\nevidence of negligence we should wait to impose such liability\nuntil such a case appears.\nThe district judge and the plaintiff\xe2\x80\x99s lawyer make much of the\nfact that the spill occurred in a densely inhabited metropolitan\narea. Only 4,000 gallons spilled; what if all 20,000 had done so?\nIsn\xe2\x80\x99t the risk that this might happen even if everybody were\ncareful sufficient to warrant giving the shipper an incentive to\nexplore alternative routes? Strict liability would supply that\nincentive. But this argument overlooks the fact that, like other\ntransportation networks, the railroad network is a hub-andspoke system. And the hubs are in metropolitan areas. Chicago\nis one of the nation\xe2\x80\x99s largest railroad hubs. In 1983, the latest\nyear for which we have figures, Chicago\xe2\x80\x99s railroad yards handled\nthe third highest volume of hazardous-material shipments in the\nnation. East St. Louis, which is also in Illinois, handled the\nsecond highest volume. Office of Technology Assessment,\nTransportation of Hazardous Materials 53 (1986). With most\nhazardous chemicals (by volume of shipments) being at least as\nhazardous as acrylonitrile, it is unlikely \xe2\x80\x93 and certainly not\ndemonstrated by the plaintiff \xe2\x80\x93 that they can be rerouted around\nall the metropolitan areas in the country, except at prohibitive\ncost. Even if it were feasible to reroute them one would hardly\nexpect shippers, as distinct from carriers, to be the firms best\nsituated to do the rerouting. Granted, the usual view is that\ncommon carriers are not subject to strict liability for the carriage\n\n53\n\n\x0cof materials that make the transportation of them abnormally\ndangerous, because a common carrier cannot refuse service to a\nshipper of a lawful commodity. Restatement, supra, \xc2\xa7 521. Two\ncourts, however, have rejected the common carrier exception.\nNational Steel Service Center, Inc. v. Gibbons, 319 N.W.2d 269\n(Ia. 1982); Chavez v. Southern Pacific Transportation Co., 413 F.Supp.\n1203, 1213-14 (E.D.Cal. 1976). If it were rejected in Illinois, this\nwould weaken still further the case for imposing strict liability\non shippers whose goods pass through the densely inhabited\nportions of the state.\nThe difference between shipper and carrier points to a deep flaw\nin the plaintiff\xe2\x80\x99s case. Unlike Guille, and unlike Siegler, and unlike\nthe storage cases, beginning with Rylands itself, here it is not the\nactors \xe2\x80\x93 that is, the transporters of acrylonitrile and other\nchemicals \xe2\x80\x93 but the manufacturers, who are sought to be held\nstrictly liable. Cf. City of Bloomington v. Westinghouse Elec. Corp.,\nsupra, 891 F.2d at 615-16. A shipper can in the bill of lading\ndesignate the route of his shipment if he likes, 49 U.S.C. \xc2\xa7\n11710(a)(1), but is it realistic to suppose that shippers will\nbecome students of railroading in order to lay out the safest\nroute by which to ship their goods? Anyway, rerouting is no\npanacea. Often it will increase the length of the journey, or\ncompel the use of poorer track, or both. When this happens, the\nprobability of an accident is increased, even if the consequences\nof an accident if one occurs are reduced; so the expected\naccident cost, being the product of the probability of an accident\nand the harm if the accident occurs, may rise.~ It is easy to see\nhow the accident in this case might have been prevented at\nreasonable cost by greater care on the part of those who\nhandled the tank car of acrylonitrile. It is difficult to see how it\nmight have been prevented at reasonable cost by a change in the\nactivity of transporting the chemical. This is therefore not an apt\ncase for strict liability.\nWe said earlier that Cyanamid, because of the role it played in\nthe transportation of the acrylonitrile \xe2\x80\x93 leasing, and especially\nloading, and also it appears undertaking by contract with North\nAmerican Car Corporation to maintain, the tank car in which\nthe railroad carried Cyanamid\xe2\x80\x99s acrylonitrile to Riverdale \xe2\x80\x93 might\n\n54\n\n\x0cbe viewed as a special type of shipper (call it a \xe2\x80\x9cshippertransporter\xe2\x80\x9d), rather than as a passive shipper. But neither the\ndistrict judge nor the plaintiff\xe2\x80\x99s counsel has attempted to\ndistinguish Cyanamid from an ordinary manufacturer of\nchemicals on this ground, and we consider it waived. Which is\nnot to say that had it not been waived it would have changed the\noutcome of the case. The very fact that Cyanamid participated\nactively in the transportation of the acrylonitrile imposed upon it\na duty of due care and by doing so brought into play a threat of\nnegligence liability that, for all we know, may provide an\nadequate regime of accident control in the transportation of this\nparticular chemical.\nIn emphasizing the flammability and toxicity of acrylonitrile\nrather than the hazards of transporting it, as in failing to\ndistinguish between the active and the passive shipper, the\nplaintiff overlooks the fact that ultrahazardousness or abnormal\ndangerousness is, in the contemplation of the law at least, a\nproperty not of substances, but of activities: not of acrylonitrile,\nbut of the transportation of acrylonitrile by rail through\npopulated areas. Natural gas is both flammable and poisonous,\nbut the operation of a natural gas well is not an ultrahazardous\nactivity.~ The plaintiff does not suggest that Cyanamid should\nswitch to making some less hazardous chemical that would\nsubstitute for acrylonitrile in the textiles and other goods in\nwhich acrylonitrile is used. Were this a feasible method of\naccident avoidance, there would be an argument for making\nmanufacturers strictly liable for accidents that occur during the\nshipment of their products (how strong an argument we need\nnot decide). Apparently it is not a feasible method.\nThe relevant activity is transportation, not manufacturing and\nshipping. This essential distinction the plaintiff ignores. But\neven if the plaintiff is treated as a transporter and not merely a\nshipper, it has not shown that the transportation of acrylonitrile\nin bulk by rail through populated areas is so hazardous an\nactivity, even when due care is exercised, that the law should\nseek to create \xe2\x80\x93 perhaps quixotically \xe2\x80\x93 incentives to relocate the\nactivity to nonpopulated areas, or to reduce the scale of the\nactivity, or to switch to transporting acrylonitrile by road rather\n\n55\n\n\x0cthan by rail, perhaps to set the stage for a replay of Siegler v.\nKuhlman. It is no more realistic to propose to reroute the\nshipment of all hazardous materials around Chicago than it is to\npropose the relocation of homes adjacent to the Blue Island\nswitching yard to more distant suburbs. It may be less realistic.\nBrutal though it may seem to say it, the inappropriate use to\nwhich land is being put in the Blue Island yard and\nneighborhood may be, not the transportation of hazardous\nchemicals, but residential living. The analogy is to building your\nhome between the runways at O\xe2\x80\x99Hare.\nThe briefs hew closely to the Restatement, whose approach to\nthe issue of strict liability is mainly allocative rather than\ndistributive. By this we mean that the emphasis is on picking a\nliability regime (negligence or strict liability) that will control the\nparticular class of accidents in question most effectively, rather\nthan on finding the deepest pocket and placing liability there. At\nargument, however, the plaintiff\xe2\x80\x99s lawyer invoked distributive\nconsiderations by pointing out that Cyanamid is a huge firm and\nthe Indiana Harbor Belt Railroad a fifty-mile-long switching line\nthat almost went broke in the winter of 1979, when the accident\noccurred. Well, so what? A corporation is not a living person\nbut a set of contracts the terms of which determine who will\nbear the brunt of liability. Tracing the incidence of a cost is a\ncomplex undertaking which the plaintiff sensibly has made no\neffort to assume, since its legal relevance would be dubious. We\nadd only that however small the plaintiff may be, it has mighty\nparents: it is a jointly owned subsidiary of Conrail and the Soo\nline.\nThe case for strict liability has not been made. Not in this suit in\nany event. We need not speculate on the possibility of imposing\nstrict liability on shippers of more hazardous materials, such as\nthe bombs carried in Chavez v. Southern Pacific Transportation Co.,\nsupra, any more than we need differentiate (given how the\nplaintiff has shaped its case) between active and passive\nshippers. We noted earlier that acrylonitrile is far from being the\nmost hazardous among hazardous materials shipped by rail in\nhighest volume. Or among materials shipped, period. The\nDepartment of Transportation has classified transported\n\n56\n\n\x0cmaterials into sixteen separate classes by the degree to which\ntransporting them is hazardous. Class number 1 is radioactive\nmaterial. Class number 2 is poisons. Class 3 is flammable gas\nand 4 is nonflammable gas. Acrylonitrile is in Class 5. 49 C.F.R.\n\xc2\xa7\xc2\xa7 172.101, Table; 173.2(a).\nOrdinarily when summary judgment is denied, the movant\xe2\x80\x99s\nrights are not extinguished; the case is simply set down for trial.\nIf this approach were followed here, it would require remanding\nthe case for a trial on whether Cyanamid should be held strictly\nliable. Yet that would be a mistake. The parties have agreed that\nthe question whether the transportation of acrylonitrile through\ndensely populated areas is abnormally dangerous is one of law\nrather than of fact; and trials are to determine facts, not law.\nMore precisely \xe2\x80\x93 for there is no sharp line between \xe2\x80\x9claw\xe2\x80\x9d and\n\xe2\x80\x9cfact\xe2\x80\x9d \xe2\x80\x93 trials are to determine adjudicative facts rather than\nlegislative facts. The distinction is between facts germane to the\nspecific dispute, which often are best developed through\ntestimony and cross-examination, and facts relevant to shaping a\ngeneral rule, which, as the discussion in this opinion illustrates,\nmore often are facts reported in books and other documents not\nprepared specially for litigation or refined in its fires. Again the\nline should not be viewed as hard and fast. If facts critical to a\ndecision on whether a particular activity should be subjected to a\nregime of strict liability cannot be determined with reasonable\naccuracy without an evidentiary hearing, such a hearing can and\nshould be held, though we can find no reported case where this\nwas done. Some courts treat the question whether an activity is\nabnormally dangerous as one of fact, and then there must be an\nevidentiary hearing to decide it.~ Here we are concerned with\ncases in which the question is treated as one of law but in which\nfactual disputes of the sort ordinarily resolved by an evidentiary\nhearing may be germane to answering the question. An\nevidentiary hearing would be of no use in the present case,\nhowever, because the plaintiff has not indicated any facts that it\nwants to develop through such a hearing.~\nThe defendant concedes that if the strict liability count is\nthrown out, the negligence count must be reinstated, as\nrequested by the cross-appeal.~ It is not over now. But with\n\n57\n\n\x0cdamages having been fixed at a relatively modest level by the\ndistrict court and not challenged by the plaintiff, and a\nvoluminous record having been compiled in the summary\njudgment proceedings, we trust the parties will find it possible\nnow to settle the case. Even the Trojan War lasted only ten\nyears.\nThe judgment is reversed (with no award of costs in this court)\nand the case remanded for further proceedings, consistent with\nthis opinion, on the plaintiff\xe2\x80\x99s claim for negligence.\nREVERSED AND REMANDED, WITH DIRECTIONS.\n\nQuestions to Ponder About Indiana Belt Harbor\nA. Are you persuaded that economic analysis is the correct basis\nupon which to decide whether strict liability ought to be applied in a\nparticular context?\nB. Speaking more broadly, do you think economic analysis is the\nright yardstick by which to measure the wisdom of legal doctrines in\ngeneral? If not, what else could be?\nC. Supposing that economic analysis is the correct basis upon which\nto decide whether strict liability ought to apply, are you persuaded\nthat this case does a good job with the economic analysis? Are some\naspects of the economic analysis weak?\nD. Again, supposing that economic analysis is the correct basis upon\nwhich to decide whether strict liability ought to apply, do you think\ncourts are the appropriate entities to engage in such reasoning?\nWould legislatures or administrative agencies do better?\n\nDefenses and Limitations on Strict Liability\nIn general, the same defenses that apply to negligence also apply to\nstrict liability, with one important exception: Contributory negligence,\nin those jurisdictions still using it, is generally not considered a viable\ndefense in a strict liability action.\nOther defenses apply as they would with negligence. Comparative\nnegligence, in those jurisdictions following it, functions as a defense\nfor strict liability as it does for negligence: The plaintiff\xe2\x80\x99s negligence\n\n58\n\n\x0cwill serve to reduce the total recovery. The only sticky issue is the\nname \xe2\x80\x9ccomparative negligence.\xe2\x80\x9d Indeed, comparative negligence is\noften called \xe2\x80\x9ccomparative fault\xe2\x80\x9d \xe2\x80\x93 at least in part so that it does not\nseem out of place in the strict liability context.\nAssumption of the risk also may be used as a defense in strict liability\nsituations as well, and where it applies, it will bar recovery altogether.\nThere is also an important limitation on strict liability that grows out\nof the application of proximate causation. For strict liability to apply,\nthere must be a tight connection between the means of injury and the\nreason for invoking strict liability.\nAn example will illustrate this: Suppose the defendant retail store is\ncleaning floors with a nuclear vacuum cleaner. The plaintiff trips over\nthe vacuum when a careless employee pushes it into the plaintiff\xe2\x80\x99s\npath, and as a result the plaintiff suffers a broken arm. The plaintiff\ncan sue in negligence, but a cause of action for strict liability will not\napply. Why not? After all, nuclear technologies are generally\ncategorized as ultrahazardous. The plaintiff\xe2\x80\x99s problem lies in\nproximate causation. Proximate causation is lacking for strict liability\nbecause the ultrahazardous nature of the activity is not germane to\nthe injury. Stated in other terms: The strict liability case here fails the\nharm-within-the-risk test: Was the kind of harm suffered by the\nplaintiff the kind that caused the absolute duty of safety to arise? No,\nso strict liability does not apply.\nNote that the plaintiff could still sue in negligence. Proximate\ncausation will not be a problem in the negligence case, since there is a\ntight connection between the careless pushing of the vacuum cleaner\nand the plaintiff\xe2\x80\x99s broken bone.\nAnother limitation on strict liability comes out of a line of cases\nholding that strict liability for abnormally dangerous activities will not\napply where the injury would not have occurred but for an\nabnormally sensitive plaintiff. In the famous case of Foster v. Preston\nMill Co., 44 Wash.2d 440 (Wash. 1954), the defendant\xe2\x80\x99s blasting\noperations disturbed operations on a nearby mink ranch. The ranch\xe2\x80\x99s\nmanager testified that after a blast rattled cages, mother minks would\nrun back and forth and kill their kittens. Between 35 and 40 kittens\n\n59\n\n\x0cwere killed this way, according to testimony. The court refused to\napply strict liability, writing:\nThe relatively moderate vibration and noise\nwhich appellant\xe2\x80\x99s blasting produced at a\ndistance of two and a quarter miles was no more\nthan a usual incident of the ordinary life of the\ncommunity. The trial court specifically found\nthat the blasting did not unreasonably interfere\nwith the enjoyment of their property by nearby\nlandowners, except in the case of respondent\xe2\x80\x99s\nmink ranch.\nIt is the exceedingly nervous disposition of\nmink, rather than the normal risks inherent in\nblasting operations, which therefore must, as a\nmatter of sound policy, bear the responsibility\nfor the loss here sustained. We subscribe to the\nview~ that the policy of the law does not impose\nthe rule of strict liability to protect against\nharms incident to the plaintiff\xe2\x80\x99s extraordinary\nand unusual use of land.\n\nStrict Liability at Trial: Silkwood v. Kerr-McGee\nThe following case nicely illustrates how strict liability can work to\nthe benefit of a plaintiff by short-circuiting the many pitfalls of a\nnegligence case. Unlike most of the case readings in this book, this is\nnot a judicial opinion written by a judge. Instead, it is a neutral view\nof the facts, followed by the closing argument of one of the\nattorneys.\n\nSilkwood v. Kerr-McGee\nUnited States District Court for the Western District of Oklahoma\n1979\nBill M. SILKWOOD, Administrator of the Estate of Karen G.\nSilkwood, deceased, Plaintiff, v. Kerr-McGee CORPORATION\net al., Defendants. Civ. A. No. 76-0888-Theis. In the United\nStates District Court for the Western District of Oklahoma.\nHon. Judge Frank G. Theis, U.S. District Judge, District of\nKansas, sitting by designation. Except for the first paragraph\n\n60\n\n\x0cand the last two paragraphs, the facts derive nearly verbatim\nfrom James F. McInroy, \xe2\x80\x9cA True Measure of Exposure: The\nKaren Silkwood Story,\xe2\x80\x9d 23 Los Alamos Science 252 (1995) (see\nremarks in Aftermatter at the end of this book).\nThe FACTS:\nIn August 1972, Karen Silkwood took a job as a technician at\nthe Cimarron Fuel Fabrication Site in Crescent, Oklahoma,\noperated by Kerr-McGee Corporation. The plant produced\nmixed-oxide plutonium-uranium fuel for use in powergenerating nuclear reactors. As a plant-worker, Silkwood became\ninvolved in the Oil, Chemical & Atomic Workers Union and\nparticipated in a strike. Later, in the fall of 1974, Silkwood\ninvestigated health and safety issues on behalf of the union and\nreported serious violations to the Atomic Energy Commission.\nOn November 5, 1974, Silkwood was working in a glovebox in\nthe metallography laboratory where she was grinding and\npolishing plutonium pellets that would be used in fuel rods. At\n6:30 P.M., she decided to monitor herself for alpha activity with\nthe detector that was mounted on the glove box. The right side\nof her body read 20,000 disintegrations per minute, or about 9\nnanocuries, mostly on the right sleeve and shoulder of her\ncoveralls. She was taken to the plant\xe2\x80\x99s Health Physics Office\nwhere she was given a test called a \xe2\x80\x9cnasal swipe,\xe2\x80\x9d which\nmeasures a person\xe2\x80\x99s exposure to airborne plutonium, but might\nalso measure plutonium that got on the person\xe2\x80\x99s nose from their\nhands. The swipe showed a radioactivity level of 160\ndisintegrations per minute (\xe2\x80\x9cdpm\xe2\x80\x9d), a modest positive result.\nThe two gloves in the glovebox Silkwood had been using were\nreplaced. Strangely, the gloves were found to have plutonium on\nthe \xe2\x80\x9coutside\xe2\x80\x9d surfaces that were in contact with Silkwood\xe2\x80\x99s\nhands; no leaks were found in the gloves. No plutonium was\nfound on the surfaces in the room where she had been working\nand filter papers from the two air monitors in the room showed\nthat there was no significant plutonium in the air. By 9:00 P.M.,\nSilkwood\xe2\x80\x99s cleanup had been completed, and as a precautionary\nmeasure, Silkwood was put on a program in which her total\nurine and feces were collected for \xef\xac\x81ve days for plutonium\n\n61\n\n\x0cmeasurements. She returned to the laboratory and worked until\n1:10 A.M., but did no further work in the glove boxes. As she\nleft the plant, she monitored herself and found nothing.\nSilkwood arrived at work at 7:30 A.M. on November 6. She\nexamined metallographic prints and performed paperwork for\none hour, then monitored herself as she left the laboratory to\nattend a meeting. Although she had not worked at the glovebox\nthat morning, the detector registered alpha activity on her hands.\nHealth physics staff members found further activity on her right\nforearm and the right side of her neck and face, and proceeded\nto decontaminate her. At her request, a technician checked her\nlocker and automobile with an alpha detector, but no activity\nwas found.\nOn November 7, Silkwood reported to the Health Physics\nOf\xef\xac\x81ce at about 7:50 in the morning with her bioassay kit\ncontaining four urine samples and one fecal sample. A nasal\nswipe was taken and signi\xef\xac\x81cant levels of alpha activity were\ndetected (about 45,000 disintegrations per minute (dpm) in each\nnostril and 40,000 dpm on and around her nose). This was\nespecially surprising because her left nostril had been almost\ncompletely blocked since a childhood accident. Other parts of\nher body also showed signi\xef\xac\x81cant alpha activity (1,000 to 4,000\ndpm on her hands, arm, chest, neck, and right ear). A\npreliminary examination of her bioassay samples showed\nextremely high levels of activity (30,000 to 40,000 counts per\nminute in the fecal sample). Her locker and automobile were\nchecked again, and essentially no alpha activity was found.\nFollowing her cleanup, the Kerr-McGee health physicists\naccompanied her to her apartment, which she shared with\nanother laboratory analyst, Sherri Ellis. The apartment was\nsurveyed. Significant levels of activity were found in the\nbathroom and kitchen, and lower levels of activity were found in\nother rooms.\nOn November 13, 1974, when Silkwood was driving her white\nHonda Civic to meet a reporter from the New York Times to\ndeliver documents concerning health and safety violations at the\n\n62\n\n\x0cplant, she was killed in a suspicious accident. No other cars were\ninvolved. Many suspected that Silkwood was murdered.\nThe plaintiff\xe2\x80\x99s attorney was Gerry L. Spence of Spence,\nMoriarity & Schuster of Jackson Hole, Wyoming. Kerr-McGee\nwas represented by William G. Paul of Crowe, Dunlevy,\nThweatt, Swinford, Johnson & Burdick of Oklahoma City.\nGERRY L. SPENCE, Esq., delivered the plaintiff\xe2\x80\x99s\nCLOSING ARGUMENT:\n~Well,\n\nwhat we\xe2\x80\x99re going to talk about here isn\xe2\x80\x99t hard. If a\ncountry lawyer from Wyoming can understand it \xe2\x80\x93 if I can\nexplain it to my kids \xe2\x80\x93 if Mr. Paul [lead defense attorney] can\nunderstand it \xe2\x80\x93 and his kids \xe2\x80\x93 then we all can understand it.\n\xe2\x80\x9cWhat\xe2\x80\x99s going on, and who proves what?\xe2\x80\x9d Well, we talked about\n\xe2\x80\x9cstrict liability\xe2\x80\x9d at the outset, and you\xe2\x80\x99ll hear the court tell you\nabout \xe2\x80\x9cstrict liability,\xe2\x80\x9d and it simply means: \xe2\x80\x9cIf the lion got\naway, Kerr-McGee has to pay.\xe2\x80\x9d\nIt\xe2\x80\x99s that simple. That\xe2\x80\x99s the law. You remember what I told you\nin the opening statement about strict liability? It came out of the\nOld English common law. Some guy brought an old lion on his\nground, and he put it in a cage \xe2\x80\x93 and lions are dangerous \xe2\x80\x93 and\nthrough no negligence of his own \xe2\x80\x93 through no fault of his own,\nthe lion got away.\nNobody knew how \xe2\x80\x93 like in this case, \xe2\x80\x9cnobody knew how.\xe2\x80\x9d\nAnd, the lion went out and he ate up some people, and they\nsued the man. And they said, you know, \xe2\x80\x9cPay. It was your lion,\nand he got away.\xe2\x80\x9d And, the man says, \xe2\x80\x9cBut I did everything in\nmy power. I had a good cage, had a good lock on the door. I did\neverything that I could. I had security. I had trained people\nwatching the lion. And it isn\xe2\x80\x99t my fault that he got away.\xe2\x80\x9d Why\nshould you punish him? They said, \xe2\x80\x9cWe have to punish him. We\nhave to punish you; you have to pay. You have to pay because it\nwas your lion \xe2\x80\x93 unless the person who was hurt let the lion out\nhimself.\xe2\x80\x9d\nThat\xe2\x80\x99s the only defense in this case. Unless in this case Karen\nSilkwood was the one who intentionally took the plutonium out,\n\n63\n\n\x0cand \xe2\x80\x9clet the lion out,\xe2\x80\x9d that is the only defense, and that is why\nwe have heard so much about it.\nStrict liability: If the lion gets away, Kerr-McGee has to pay.\nUnless Karen Silkwood let the lion loose.\nWhat do we have to prove? Strict liability. Now, can you see\nwhat that is? The lion gets away. We have to do that. It\xe2\x80\x99s already\nadmitted. It\xe2\x80\x99s admitted in the evidence. They admit it was their\nplutonium. They admit it\xe2\x80\x99s in Karen Silkwood\xe2\x80\x99s apartment. It\ngot away. And, we have to prove that Karen Silkwood was\ndamaged. That\xe2\x80\x99s all we have to prove.\nOur case has been proved long ago, and I\xe2\x80\x99m not going to labor\nyou with the facts that prove that. It\xe2\x80\x99s almost an admitted fact,\nthat it got away, and that she was damaged.\nDoes Silkwood prove how the lion got away? You remember\nthis \xe2\x80\x93 Mr. Paul walking up to you and saying, at the beginning of\nthe trial, \xe2\x80\x9cListen, it\xe2\x80\x99s important to find out how the lion got\naway.\xe2\x80\x9d Well, it is important, because they have to prove how.\nBut we don\xe2\x80\x99t. And the court will instruct you on that. As a\nmatter of fact, I think you will hear the court say exactly this,\nand listen to the instruction: It is unnecessary for you to decide\nhow plutonium escaped from the plant \xe2\x80\x93 how it entered her\napartment \xe2\x80\x93 or how it caused her contamination, since it is a\nstipulated fact \xe2\x80\x93 stipulated between the parties \xe2\x80\x93 that the\nplutonium in Silkwood\xe2\x80\x99s apartment was from the defendants\xe2\x80\x99\nplant.\nSo, the question is, \xe2\x80\x9cWho has to prove how the lion got away?\xe2\x80\x9d\nThey have to prove it. They have to prove that Karen Silkwood\ncarried it out. If they can\xe2\x80\x99t prove that by a preponderance of the\nevidence, they\xe2\x80\x99ve lost. Kerr-McGee has to prove that.\nWhy? Well, it\xe2\x80\x99s obvious. It\xe2\x80\x99s their lion \xe2\x80\x93 not Karen Silkwood\xe2\x80\x99s\nlion. It\xe2\x80\x99s the law. It\xe2\x80\x99s that simple.\nNow, I told you there was only one legal defense, didn\xe2\x80\x99t I?\nThat\xe2\x80\x99s defense of Karen Silkwood having supposedly taken this\nstuff from the plant. Well, I\xe2\x80\x99ll tell you a bigger defense than that,\nand that\xe2\x80\x99s getting drowned in mud springs. Now, that isn\xe2\x80\x99t an\noriginal statement by me. One of my favorite \xe2\x80\x93 I guess my\n\n64\n\n\x0cfavorite \xe2\x80\x93 jurist, and one you know very well, has an old saying\nhe has told us many times. He says if you want to clear up the\nwater, you\xe2\x80\x99ve got to get the hogs out of the spring. And, if you\ncan\xe2\x80\x99t get the hogs out of the spring, I guarantee you can\xe2\x80\x99t clear\nup the water. And I want you to know that getting jurors\nconfused is not a proper part of jurisprudence, and getting\npeople down in mud springs is not the way to try a case.\nSomehow, somebody has the responsibility, as an attorney, to\nhelp you understand what the issues are \xe2\x80\x93 to come forward and\nhold their hand out and say: These are the honest issues, this is\nthe law, this is what you can rely on, because I am reliable, and\nI\xe2\x80\x99m not going to confuse you with irrelevancies and numbercrunching and number games and word games and gobbledygook and stuff and details \xe2\x80\x93 and on and on and on. And the\nthing that I say to you is: Keep out of the mud springs in your\ndeliberations.\nYou are not scientists. I\xe2\x80\x99m not a scientist \xe2\x80\x93 my only power is my\ncommon sense. Keep out of the mud springs. You\xe2\x80\x99ll be invited\nthere. Use your common sense. You\xe2\x80\x99ll be invited to do numbercrunching of your own. You\xe2\x80\x99ll be invited to play word games.\nYou\xe2\x80\x99ll be invited to get into all kinds of irrelevancies. And I only\nsay to you that you have one hope \xe2\x80\x93 don\xe2\x80\x99t get into mud springs.\nKeep your common sense, and take it with you into the jury\nroom.~\nSPENCE\ndelivered\nthe\nCLOSING ARGUMENT:\n\nrebuttal\n\nof\n\nplaintiff\xe2\x80\x99s\n\n~The\n\nissue that seems to be one that everyone wants to talk\nabout is not really an issue \xe2\x80\x93 it is the only possible defense that\nKerr-McGee has, and it is one that they have talked about. We\nare right back where we started from: \xe2\x80\x9cIf the lion gets away,\nKerr-McGee has to pay.\xe2\x80\x9d\nYou remember Mr. Paul was critical of me for not trying to\nexplain to you how the lion got away. Do you remember his\ncriticalness, his sort of accusation that somehow we had failed in\nour obligation?\n\n65\n\n\x0cIt is like this \xe2\x80\x93 listen to the story: \xe2\x80\x9cMy lion got away. Why is my\nlion on your property?\xe2\x80\x9d That is the question he asked me. \xe2\x80\x9cWhy\nis my lion on your property? It is on your property. Tell me why\nmy lion is on your property. Explain it.\xe2\x80\x9d\nAnd, I say, \xe2\x80\x9cBut, ah hah, ah hah, ah hah.\xe2\x80\x9d And, he says: \xe2\x80\x9cIt\nwasn\xe2\x80\x99t there two hours ago. It wasn\xe2\x80\x99t there last night.\xe2\x80\x9d And, he\nsays, \xe2\x80\x9cWait a minute. Your kids don\xe2\x80\x99t get along with my kids.\nThat is why my lion is on your property.\xe2\x80\x9d And, then he says,\n\xe2\x80\x9cWhy did you let my lion eat you? You let my lion on your\nproperty,\xe2\x80\x9d he says. \xe2\x80\x9cI accuse you \xe2\x80\x93 I accuse you \xe2\x80\x93 I blame you,\nand why don\xe2\x80\x99t you explain it?\xe2\x80\x9d\nAnd, I say, \xe2\x80\x9cBut, it isn\xe2\x80\x99t my lion; it is your lion. It is your lion\nthat got away.\xe2\x80\x9d\nNow, the court says \xe2\x80\x93 and I want this, I want to put it to rest,\nbecause I don\xe2\x80\x99t want you jumping in mud springs on this one \xe2\x80\x93\nthere are too many other places for you to jump into mud\nsprings on. Please hear it. It is unnecessary for you to decide\nhow plutonium escaped from the plant, how it entered her\napartment, or how it caused her contamination, since it is a\nstipulated fact that the plutonium in Karen Silkwood\xe2\x80\x99s\napartment was from the defendants\xe2\x80\x99 plant.\nNow, Mr. Paul, that is why we haven\xe2\x80\x99t explained how your lion\ngot on our property. The court says that is not our obligation. It\nis your lion, Mr. Paul. You must explain it.\n[The law says] that it is for the defendants to prove to you, by a\npreponderance of the evidence, that it was Karen Silkwood who\ntook it. Failing their proof \xe2\x80\x93 please hear the word \xe2\x80\x9cproof\xe2\x80\x9d \xe2\x80\x93 it is\nthe word \xe2\x80\x9cproof\xe2\x80\x9d \xe2\x80\x93 failing which proof Kerr-McGee has to pay.\nThe lion got away, Karen Silkwood was damaged. Does Karen\nSilkwood prove how the lion got away? The court says no. You\nwill hear it again tomorrow. Why? Because it is their lion.\nSo if the lion got away, and Kerr-McGee can\xe2\x80\x99t prove how, then\nKerr-McGee has to pay. Now, that\xe2\x80\x99s the law, the law of strict\nliability, and it is that simple.\n\n66\n\n\x0cNow, I heard Mr. Paul say this: \xe2\x80\x9cMy heart reaches out praying\nfor answers based upon the evidence.\xe2\x80\x9d \xe2\x80\x9cPraying for answers\nbased upon the evidence.\xe2\x80\x9d\nI would think he would pray for answers based upon the\nevidence, because he hasn\xe2\x80\x99t got any.\nHe doesn\xe2\x80\x99t have any more now that he ever did. All that you\never heard Mr. Paul say, as he stood up here and pointed his\nfinger toward Karen Silkwood \xe2\x80\x93 and I want you to stop and\nremember, ladies and gentlemen, please, that this is a free\ncountry \xe2\x80\x93 and the one thing that makes this country different\nfrom all the other countries in the world is that when somebody\nmakes the accusation against a citizen of this country, alive or\ndead, they have to make the proof.\nMr. Paul doesn\xe2\x80\x99t have the right to come into a court and say, \xe2\x80\x9cI\nthink this happened.\xe2\x80\x9d and \xe2\x80\x9cI think that happened.\xe2\x80\x9d and \xe2\x80\x9cMaybe\nthis happened.\xe2\x80\x9d and \xe2\x80\x9cIsn\xe2\x80\x99t it probable that that happened.\xe2\x80\x9d and\n\xe2\x80\x9cI think the circumstances of this, and the circumstances of\nthat.\xe2\x80\x9d And to take a whole series of unrelated events and put\nthem together and try to tell you somehow that I have the\nresponsibility that the judge and the law doesn\xe2\x80\x99t place upon me,\nand to mislead you in that fashion. And I\xe2\x80\x99m angry about that.\nI expect that when a corporation of the size of this one comes\ninto this courtroom that they should bring to you honest, fair,\ndocumented evidence, that they shouldn\xe2\x80\x99t hide behind little\npeople, and that they should bring you the facts that they know.\nNow, listen. I have some problems here in being straight with\nyou, and I want to put them right here on the table. If we want\nto play guess-um \xe2\x80\x93 that is, point the finger, the game of playing,\nof pointing the finger \xe2\x80\x93 I can play that game. But when I do that\nI become as bad as Mr. Paul. You want me to do that? Is that\nthe way you want to decide the case? Tell me. If that is the way\nyou think the case ought to be decided in a court of American\njurisprudence, to see who can make the biggest accusations\nagainst the other one, then I\xe2\x80\x99m willing to play that game. But,\nwhen I do it, I want you to know it isn\xe2\x80\x99t right, because I can\xe2\x80\x99t\nprove that any more than they can prove it.\n\n67\n\n\x0cI can give you motive. What was the motive for them to do\nthat? \xe2\x80\x9cShe was a troublemaker. She was doing union\nnegotiations. She was on her way \xe2\x80\x93 she was gathering\ndocuments \xe2\x80\x93 every day in that union, everybody in that\ncompany, everybody in management knew that.\xe2\x80\x9d Nobody would\nadmit it, but they knew it.~\nCompare the motive, just for the fun of it. Supposing that\nyou\xe2\x80\x99ve got to weigh those motives. Here is Karen Silkwood. The\nmotive was she was furious. We found out that she wasn\xe2\x80\x99t\nfurious. Their own witness, Mr. \xe2\x80\x93 what is his name \xe2\x80\x93 Phillip,\nsays she was miffed, wasn\xe2\x80\x99t that the word? Their witness, under\noath, said she was miffed. \xe2\x80\x9cWas she furious?\xe2\x80\x9d \xe2\x80\x9cNo, she wasn\xe2\x80\x99t\nfurious. She was miffed.\xe2\x80\x9d \xe2\x80\x9cShe was furious,\xe2\x80\x9d he said.\nDid Karen Silkwood \xe2\x80\x93 and you have listened to her voice talking\nin private to Steve Wodka [a union official] \xe2\x80\x93 did she sound like\na kook to you? Did she sound nuts? Did she sound like she was\nacting under some kind of compulsive behavior that suggested\nit? There isn\xe2\x80\x99t any proof to that. It comes out of Mr. Paul\xe2\x80\x99s\nmouth. He says it over and over, and over, and over, and over\nagain.\nCompare that motive with the motive of people to stop her.\n\xe2\x80\x9cShe knew too much.\xe2\x80\x9d What would she do had she gotten to\nthe New York Times? These people, if you want to talk about\nmotives, had a motive to stop her, and she was stopped. We are\nnot to talk about her \xe2\x80\x93 I won\xe2\x80\x99t talk about it \xe2\x80\x93 but she never got\nthere with her X rays.\nNow, I don\xe2\x80\x99t think that is the way I want to defend my case. I\ndon\xe2\x80\x99t think that is the way I want to present it to you. I\xe2\x80\x99ve only\nbrought these matters out because in the course of this trial it\nseems too patently unfair to continually point their finger at a\nwoman who can\xe2\x80\x99t defend herself about matters that they have\nno proof of and never had any proof of to begin with, and knew\nfrom the beginning that they would never have any more proof\nof, as evidenced by Mr. McGee\xe2\x80\x99s initial letter: \xe2\x80\x9cIt is not likely\nthat the source of her contamination will ever be known.\xe2\x80\x9d\n\n68\n\n\x0cHe knew that. Mr. Paul knew it. It was the only thing available\nto them, and I congratulate them for making a lot out of that,\nbut it is sad to me that they didn\xe2\x80\x99t call the witnesses that knew \xe2\x80\x93\nthey didn\xe2\x80\x99t give us the information, and that is sad to me.\nIt is sad to me that one of the mightiest \xe2\x80\x93 you know, in history it\nwill go down, this case, I can see it in the history books: \xe2\x80\x9cOne of\nthe mightiest corporations of the United States of America, a\nmultinational corporation, with, two billion dollars in assets, and\ntwo billion dollars in annual income, goes down in history with\nall that power, with all of those resources, with the only thing\nthat they could do was to accuse, and not prove.\xe2\x80\x9d\nWell, the key \xe2\x80\x93 please forgive my raging, but you are listening to\na man who is angry \xe2\x80\x93 the key, ladies and gentlemen, is simple. I\nwill have to tell you what it is. It is proof. They have the burden\nof proving that she took it. The judge says they have the burden\nto proving it. They have to prove it by a preponderance of the\nevidence.\nNow, that is something, that phrase \xe2\x80\x9cpreponderance of the\nevidence,\xe2\x80\x9d which you will hear His Honor use tomorrow, isn\xe2\x80\x99t\njust a phony phrase. It means the greater weight of the evidence.\nThere isn\xe2\x80\x99t any evidence here that she did it, not one iota of\nevidence. There are only the accusations. But, if there was any\nevidence, it would have to be the greatest weight of evidence,\nnot suspicions, not the greatest weight of suspicions, not the\none who can accuse the worst \xe2\x80\x93 but the greatest weight of the\nevidence.\nThe burden of proof is on the defendant Kerr-McGee Nuclear\nCorporation to establish that Karen Silkwood took the\nplutonium from work to her apartment where she was injured.\nThat is the court\xe2\x80\x99s instruction.\n\nQuestions to Ponder About Silkwood v. Kerr-McGee\nA. To the extent you can extrapolate from this example, how is a\nclosing argument to a jury different from a judge\xe2\x80\x99s written opinion?\nHow are they similar?\n\n69\n\n\x0cB. What was your reaction to this as a law student? Do you think\nyour reaction would have been different if you had read this before\nbeginning law school? What do you think your reaction would have\nbeen if you had sat through the entire trial and were watching it in\nperson?\nC. Mr. Spence uses a powerful metaphor for legally irrelevant\narguments and evidence: He calls them \xe2\x80\x9cmud springs.\xe2\x80\x9d What does\nMr. Spence point out as being legally irrelevant on Kerr-McGee\xe2\x80\x99s side\nof the case? How much of that do you agree is actually irrelevant?\nD. Does Mr. Spence lead the jury into mud springs himself? If so,\nhow and for what purpose?\nE. One might say that judges are not immune from getting into mud\nsprings in their written opinions. Can you think of anything you\xe2\x80\x99ve\nread in a judicial opinion that strikes you as mud springs?\n\n70\n\n\x0c14. Products Liability\n\xe2\x80\x9cHappy Fun Ball! \xe2\x80\xa6 Get one today! Warning: Pregnant women,\nthe elderly, and children under 10 should avoid prolonged\nexposure to Happy Fun Ball. Caution: Happy Fun Ball may\nsuddenly accelerate to dangerous speeds. \xe2\x80\xa6 Do not taunt\nHappy Fun Ball.\xe2\x80\x9d\n\xe2\x80\x93 Saturday Night Live, 1991\n\nIntroduction\nWe live in a consumer society, where all of us are constantly\nbombarded with marketing aimed at getting us to buy more stuff. In\nAmerica\xe2\x80\x99s early days, what we now think of as \xe2\x80\x9cproducts\xe2\x80\x9d were\nrarities. Items used in the household were commonly handmade by a\nmember of that household. People made their own clothing, canned\ntheir own fruit, and built their own furniture. Other items were made\nin one-off fashion by craftspeople \xe2\x80\x93 cobblers made shoes, coopers\nmade barrels, blacksmiths made hardware. Mass manufacturing\nchanged all that. In 1893, the first Sears Roebuck & Company catalog\nwas distributed, offering for sale jewelry and watches, and by the next\nyear, saddles, bicycles, baby carriages, firearms, clothing, and many\nother items.\nToday, we are dependent in our modern lives on an uncountable\nmultitude of commercial firms to provide us with the items we use\nminute by minute. And many of these products have the potential to\nhurt us. When things go wrong, doctrines of products liability\ndetermine who can be held liable.\n\nMultiple Theories of Recovery for Products Liability\nThere are multiple ways for a plaintiff to sue for damages stemming\nfrom a product. Three in particular are important: warranty,\nnegligence, and strict products liability. A plaintiff might sue on all\nthree theories in the same lawsuit.\nThe first important theory for recovery in products liability is a\nwarranty theory. Warranties used as a basis for suit can be express or\n\n71\n\n\x0cimplied. We will not discuss warranty actions at length in this book,\nbut there are two important things you should know about warranty\nactions before we move on. First, and most importantly, a warranty\nis not a particular kind of contract. A warranty might be a\nprovision in a contract, but a warranty is capable of its own legal\nexistence outside of the context of a contract. So, in contrast to a\nbreach-of-contract action, a warranty action does not require privity.\nThat is, while a person generally must be a party to a contract to sue\nfor breach of contract, there is no such requirement for warranty\nclaims. Also, a warranty, to be enforceable through a legal action,\ndoes not require consideration or a mutuality of obligation. You\nmight ask, how come a warranty doesn\xe2\x80\x99t need to be a contract to be\nenforceable? The fact is, various state and federal laws provide an\nindependent form of action for breach of warranty. Put still another\nway, contract law is not required for warranties because warranties\nare enforceable under warranty law. Warranties are their own beast \xe2\x80\x93\nneither contract, tort, nor property. The second thing you should\nknow is that warranties can provide a basis for suit even where\nthere is no personal injury or property damage. That is, a product\nbreaking down and needing replacement could give rise to a breach\nof warranty action. A suit in negligence or strict liability, by contrast,\nrequires a showing of personal injury or property damage.\nThe next theory that can be used for products liability is a\nnegligence theory. For the most part, a negligence suit for products\nliability proceeds as any other negligence suit would \xe2\x80\x93 although some\njurisdictions have different or additional requirements for a\nnegligence action concerning products. As with other negligence\nactions, a products liability action in negligence requires showing a\nrelevant duty of care and a breach of that duty. As a general matter,\nproving a negligence-based product liability claim tends to be more\ndifficult than proving a parallel strict liability claim. Nonetheless,\nthere are circumstances under which it makes sense for a plaintiff to\npursue a products liability action in negligence. In some jurisdictions,\nthe law may not make strict liability available for certain kinds of\nproduct injuries, in which case negligence is the required path to\nrecovery. Moreover, negligence might be a tactical choice, since it\n\n72\n\n\x0cmay allow for the introduction at trial of evidence of carelessness \xe2\x80\x93\nevidence that, without the negligence action \xe2\x80\x93 might be deemed\nirrelevant and therefore inadmissible. As will be discussed below,\nstrict products liability requires showing the existence of a defect, and\nnegligence has no such requirement. So if proving a defect is\nproblematic, a negligence action may allow recovery where strict\nproducts liability will not. Finally, negligence might reach some\ndefendants that strict liability cannot reach.\nThe dominant theory of liability for injuries caused by products is\nstrict liability, often called \xe2\x80\x9cstrict products liability.\xe2\x80\x9d The key to\nproving a case for strict liability is showing the existence of a product\ndefect. If the product can be shown to be defective, then, for eligible\ndefendants, it will not matter whether all due care was taken or not.\nWe will see, later on, that the determination of what counts as a\n\xe2\x80\x9cdefect\xe2\x80\x9d in many ways is similar to the determination of whether the\ndefendant has breached the duty of care. An important limitation on\nthe doctrine is that only certain defendants can be sued under a strict\nliability theory for products: manufacturers, distributors, and\ncommercial sellers.\nFor the remainder of the chapter, we will discuss strict products\nliability.\n\nThe Elements of Strict Products Liability\nThe formulation of the elements of an action for strict liability differ\nsomewhat among courts, as so much in the common law does. Here,\nhowever, is a solid formulation that captures the essentials:\nA plaintiff can establish a prima facie case for\nstrict products liability by showing: The\ndefendant (1) was engaged in the business of\nselling or supplying the product at issue,\nwhether as a manufacturer, distributor, or\nretailer, (2) the product was defective when sold\nor supplied, (3) the product reached the plaintiff\nin essentially unchanged condition, and the\ndefect was (4) an actual cause and (5) a\nproximate cause of (6) an injury to the plaintiff\xe2\x80\x99s\nperson or physical property.\n\n73\n\n\x0cIt is instructive to compare the elements of strict products liability to\nnegligence:\nA plaintiff can establish a prima facie case for\nnegligence by showing: (1) the defendant owed\nthe plaintiff a duty of due care, (2) the\ndefendant breached that duty, and that breach\nwas (3) an actual cause and (4) a proximate\ncause of (5) an injury to the plaintiff\xe2\x80\x99s person or\nphysical property.\n\nYou can see that the requirement in negligence that the defendant\nowes the plaintiff a duty of care is replaced by the requirement in\nstrict products liability with the commercial selling/supplying\nrequirement. And the breach element is replaced by a requirement\nthat the plaintiff show there was a defect. (We will see that what the\nplaintiff must do to prove a defect is in many ways similar to what a\nplaintiff must do to prove a breach of the duty of care.) Actual\ncausation, proximate causation, and the injury requirement are the\nsame, although it is possible to find some differences jurisdiction to\njurisdiction.\nOur focus in this chapter will be on elements 1 and 2, since they are\nthe places where strict products liability departs from negligence.\n\nSale by a Commercial Manufacturer, Distributor, or\nRetailer\nStrict products liability is notable for its range of eligible defendants.\nManufacturers, distributors, and retailers can all be held liable. To be\nliable, an entity merely needs to be in the business of supplying\nproducts of the kind at issue and must have supplied the particular\nproduct at issue in a defective state. It does not matter whether the\ndefendant introduced the defect into the product.\nThis feature of strict products liability has tremendous practical\nimportance for a plaintiff. Suppose you purchase a defective bottle of\nsoda pop from a sidewalk vendor. (Bottled pop is a good example\nbecause it was the product at issue in many early cases.) The sidewalk\nvendor of a bottle of soda pop might be judgment proof \xe2\x80\x93 meaning\nthat the vendor won\xe2\x80\x99t have enough money to pay a substantial\n\n74\n\n\x0cjudgment. But the manufacturer and the distributor will likely have\ndeep enough pockets to be useful defendants. Alternatively, suppose\nyou go to a large retailer \xe2\x80\x93 something along the lines of Target or\nWalmart \xe2\x80\x93 and purchase an off-brand portable electric heater, which\nhas a defect and starts a fire. The heater might have been made\noverseas by a company that does no direct business in the United\nStates. Merely finding out the identity of such a manufacturer could\nbe difficult, and serving a summons could be a practical impossibility.\nBut there is no need to get the manufacturer into court, since you can\nsue the retailer.\nIt is also very important to notice that there is no requirement that\nthe defendant sold the defective product to the plaintiff. The plaintiff\nneed not be connected through any stream of transactional\nrelationships to the defendant. The plaintiff could have received the\ndefective product as a gift. The plaintiff could even be an injured\nbystander \xe2\x80\x93 one who never touched the product, much less\npurchased it.\nStrict products liability applies to entities engaged in the business of\nsupplying products. While generally this is discussed in terms of a\n\xe2\x80\x9csale,\xe2\x80\x9d other forms of commercial transactions \xe2\x80\x93 such as leasing \xe2\x80\x93\nwill qualify as well. The supplier must, however, be commercial. If you\nhold an occasional garage sale, you will not be considered a\ncommercial supplier for purposes of strict products liability.\nIt might seem unfair for the retailer to be on the hook for a defect\nthat originated with a foreign manufacturer. But that is not\nnecessarily what happens in reality. A goliath retailer like Walmart can\neasily shift that burden right back onto the foreign manufacturer.\nSmaller retailers \xe2\x80\x93 ones that do not deal directly with overseas\nmanufacturers \xe2\x80\x93 can shift the burden back onto the larger\ndistributors they deal with. Those distributors, in turn, can reach the\nmanufacturer. The point is that instead of the injured person needing\nto figure out who is the truly responsible party, the injured person\ncan sue whomever is most convenient, and the burden of laying\nblame among manufacturers, distributors, and retailers becomes a\nproblem for those parties to sort out among themselves \xe2\x80\x93 normally in\na separate lawsuit.\n\n75\n\n\x0cThe way in which strict products liability works to draw lines of\nresponsibility and liability among far-flung parties, and the rationale\nfor doing so, is the subject of the next two cases.\nCase: Escola v. Coca-Cola\nThe following case played a pivotal role in the history of strict\nproducts liability by laying out the intellectual foundation of the\ndoctrine \xe2\x80\x93 albeit in a concurring opinion.\n\nEscola v. Coca-Cola\nSupreme Court of California\nJuly 5, 1944\n24 Cal.2d 453. GLADYS ESCOLA, Respondent, v. COCA\nCOLA BOTTLING COMPANY OF FRESNO (a\nCorporation), Appellant. S. F. No. 16951. Gibson, C.J., wrote\nthe opinion of the court in which Shenk, J., Curtis, J., Carter, J.,\nand Schauer, J. joined. Traynor, J. wrote a separate concurring\nopinion.\n\nChief Justice PHIL S. GIBSON:\nPlaintiff, a waitress in a restaurant, was injured when a bottle of\nCoca Cola broke in her hand. She alleged that defendant\ncompany, which had bottled and delivered the alleged defective\nbottle to her employer, was negligent in selling \xe2\x80\x9cbottles\ncontaining said beverage which on account of excessive pressure\nof gas or by reason of some defect in the bottle was dangerous\n... and likely to explode.\xe2\x80\x9d This appeal is from a judgment upon a\njury verdict in favor of plaintiff.\nDefendant\xe2\x80\x99s driver delivered several cases of Coca Cola to the\nrestaurant, placing them on the floor, one on top of the other,\nunder and behind the counter, where they remained at least\nthirty-six hours. Immediately before the accident, plaintiff\npicked up the top case and set it upon a near-by ice cream\ncabinet in front of and about three feet from the refrigerator.\nShe then proceeded to take the bottles from the case with her\nright hand, one at a time, and put them into the refrigerator.\nPlaintiff testified that after she had placed three bottles in the\nrefrigerator and had moved the fourth bottle about eighteen\n\n76\n\n\x0cinches from the case \xe2\x80\x9cit exploded in my hand.\xe2\x80\x9d The bottle broke\ninto two jagged pieces and inflicted a deep five-inch cut,\nsevering blood vessels, nerves and muscles of the thumb and\npalm of the hand. Plaintiff further testified that when the bottle\nexploded, \xe2\x80\x9cIt made a sound similar to an electric light bulb that\nwould have dropped. It made a loud pop.\xe2\x80\x9d Plaintiff\xe2\x80\x99s employer\ntestified, \xe2\x80\x9cI was about twenty feet from where it actually\nhappened and I heard the explosion.\xe2\x80\x9d A fellow employee, on the\nopposite side of the counter, testified that plaintiff \xe2\x80\x9chad the\nbottle, I should judge, waist high, and I know that it didn\xe2\x80\x99t bang\neither the case or the door or another bottle ... when it popped.\nIt sounded just like a fruit jar would blow up. ...\xe2\x80\x9d The witness\nfurther testified that the contents of the bottle \xe2\x80\x9cflew all over\nherself and myself and the walls and one thing and another.\xe2\x80\x9d\nThe top portion of the bottle, with the cap, remained in\nplaintiff\xe2\x80\x99s hand, and the lower portion fell to the floor but did\nnot break. The broken bottle was not produced at the trial, the\npieces having been thrown away by an employee of the\nrestaurant shortly after the accident. Plaintiff, however,\ndescribed the broken pieces, and a diagram of the bottle was\nmade showing the location of the \xe2\x80\x9cfracture line\xe2\x80\x9d where the\nbottle broke in two.\nOne of defendant\xe2\x80\x99s drivers, called as a witness by plaintiff,\ntestified that he had seen other bottles of Coca Cola in the past\nexplode and had found broken bottles in the warehouse when\nhe took the cases out, but that he did not know what made them\nblow up.\nPlaintiff then rested her case, having announced to the court\nthat being unable to show any specific acts of negligence she\nrelied completely on the doctrine of res ipsa loquitur.~\nThe judgment is affirmed.\nJustice ROGER J. TRAYNOR, concurring:\nI concur in the judgment, but I believe the manufacturer\xe2\x80\x99s\nnegligence should no longer be singled out as the basis of a\nplaintiff\xe2\x80\x99s right to recover in cases like the present one. In my\nopinion it should now be recognized that a manufacturer incurs\n\n77\n\n\x0can absolute liability when an article that he has placed on the\nmarket, knowing that it is to be used without inspection, proves\nto have a defect that causes injury to human beings. McPherson v.\nBuick Motor Co., 217 N.Y. 382, established the principle,\nrecognized by this court, that irrespective of privity of contract,\nthe manufacturer is responsible for an injury caused by such an\narticle to any person who comes in lawful contact with it. In\nthese cases the source of the manufacturer\xe2\x80\x99s liability was his\nnegligence in the manufacturing process or in the inspection of\ncomponent parts supplied by others. Even if there is no\nnegligence, however, public policy demands that responsibility\nbe fixed wherever it will most effectively reduce the hazards to\nlife and health inherent in defective products that reach the\nmarket. It is evident that the manufacturer can anticipate some\nhazards and guard against the recurrence of others, as the public\ncannot. Those who suffer injury from defective products are\nunprepared to meet its consequences. The cost of an injury and\nthe loss of time or health may be an overwhelming misfortune\nto the person injured, and a needless one, for the risk of injury\ncan be insured by the manufacturer and distributed among the\npublic as a cost of doing business. It is to the public interest to\ndiscourage the marketing of products having defects that are a\nmenace to the public. If such products nevertheless find their\nway into the market it is to the public interest to place the\nresponsibility for whatever injury they may cause upon the\nmanufacturer, who, even if he is not negligent in the\nmanufacture of the product, is responsible for its reaching the\nmarket. However intermittently such injuries may occur and\nhowever haphazardly they may strike, the risk of their\noccurrence is a constant risk and a general one. Against such a\nrisk there should be general and constant protection and the\nmanufacturer is best situated to afford such protection.\nThe injury from a defective product does not become a matter\nof indifference because the defect arises from causes other than\nthe negligence of the manufacturer, such as negligence of a\nsubmanufacturer of a component part whose defects could not\nbe revealed by inspection, or unknown causes that even by the\ndevice of res ipsa loquitur cannot be classified as negligence of\n\n78\n\n\x0cthe manufacturer. The inference of negligence may be dispelled\nby an affirmative showing of proper care. If the evidence against\nthe fact inferred is \xe2\x80\x9cclear, positive, uncontradicted, and of such a\nnature that it cannot rationally be disbelieved, the court must\ninstruct the jury that the nonexistence of the fact has been\nestablished as a matter of law.\xe2\x80\x9d (Blank v. Coffin, 20 Cal.2d 457,\n461.) An injured person, however, is not ordinarily in a position\nto refute such evidence or identify the cause of the defect, for he\ncan hardly be familiar with the manufacturing process as the\nmanufacturer himself is. In leaving it to the jury to decide\nwhether the inference has been dispelled, regardless of the\nevidence against it, the negligence rule approaches the rule of\nstrict liability. It is needlessly circuitous to make negligence the\nbasis of recovery and impose what is in reality liability without\nnegligence. If public policy demands that a manufacturer of\ngoods be responsible for their quality regardless of negligence\nthere is no reason not to fix that responsibility openly.\nIn the case of foodstuffs, the public policy of the state is\nformulated in a criminal statute. Section 26510 of the Health\nand Safety Code prohibits the manufacturing, preparing,\ncompounding, packing, selling, offering for sale, or keeping for\nsale, or advertising within the state, of any adulterated food.\nSection 26470 declares that food is adulterated when \xe2\x80\x9cit has\nbeen produced, prepared, packed, or held under insanitary\nconditions whereby it may have been rendered diseased,\nunwholesome or injurious to health.\xe2\x80\x9d The statute imposes\ncriminal liability not only if the food is adulterated, but if its\ncontainer, which may be a bottle (26451), has any deleterious\nsubstance (26470 (6)), or renders the product injurious to health.\n(26470 (4)). The criminal liability under the statute attaches\nwithout proof of fault, so that the manufacturer is under the\nduty of ascertaining whether an article manufactured by him is\nsafe. (People v. Schwartz, 28 Cal.App.2d Supp. 775.) Statutes of\nthis kind result in a strict liability of the manufacturer in tort to\nthe member of the public injured. (See cases cited in Prosser,\nTorts, p. 693, note 69.)\nThe statute may well be applicable to a bottle whose defects\ncause it to explode. In any event it is significant that the statute\n\n79\n\n\x0cimposes criminal liability without fault, reflecting the public\npolicy of protecting the public from dangerous products placed\non the market, irrespective of negligence in their manufacture.\nWhile the Legislature imposes criminal liability only with regard\nto food products and their containers, there are many other\nsources of danger. It is to the public interest to prevent injury to\nthe public from any defective goods by the imposition of civil\nliability generally.~\nAs handicrafts have been replaced by mass production with its\ngreat markets and transportation facilities, the close relationship\nbetween the producer and consumer of a product has been\naltered. Manufacturing processes, frequently valuable secrets, are\nordinarily either inaccessible to or beyond the ken of the general\npublic. The consumer no longer has means or skill enough to\ninvestigate for himself the soundness of a product, even when it\nis not contained in a sealed package, and his erstwhile vigilance\nhas been lulled by the steady efforts of manufacturers to build\nup confidence by advertising and marketing devices such as\ntrade-marks. Consumers no longer approach products warily but\naccept them on faith, relying on the reputation of the\nmanufacturer or the trade mark. Manufacturers have sought to\njustify that faith by increasingly high standards of inspection and\na readiness to make good on defective products by way of\nreplacements and refunds. The manufacturer\xe2\x80\x99s obligation to the\nconsumer must keep pace with the changing relationship\nbetween them; it cannot be escaped because the marketing of a\nproduct has become so complicated as to require one or more\nintermediaries. Certainly there is greater reason to impose\nliability on the manufacturer than on the retailer who is but a\nconduit of a product that he is not himself able to test.\nThe manufacturer\xe2\x80\x99s liability should, of course, be defined in\nterms of the safety of the product in normal and proper use, and\nshould not extend to injuries that cannot be traced to the\nproduct as it reached the market.\n\nCase: Greenman v. Yuba Power Products\nThe Greenman case, coming nearly 20 years after Escola v. Coca-Cola,\ngave birth to strict products liability.\n\n80\n\n\x0cGreenman v. Yuba Power Products\nSupreme Court of California\nJanuary 24, 1963\n59 Cal.2d 57. WILLIAM B. GREENMAN, Plaintiff and\nAppellant, v. YUBA POWER PRODUCTS, INC., Defendant\nand Appellant; THE HAYSEED, Defendant and Respondent.\nL. A. No. 26976.\n\nTraynor, J, wrote the opinion of the court, in which Gibson, C.\nJ., Schauer, J., McComb, J., Peters, J., Tobriner, J., and Peek, J.,\njoined.\nJustice ROGER J. TRAYNOR:\nPlaintiff brought this action for damages against the retailer and\nthe manufacturer of a Shopsmith, a combination power tool\nthat could be used as a saw, drill, and wood lathe. He saw a\nShopsmith demonstrated by the retailer and studied a brochure\nprepared by the manufacturer. He decided he wanted a\nShopsmith for his home workshop, and his wife bought and\ngave him one for Christmas in 1955. In 1957 he bought the\nnecessary attachments to use the Shopsmith as a lathe for\nturning a large piece of wood he wished to make into a chalice.\nAfter he had worked on the piece of wood several times without\ndifficulty, it suddenly flew out of the machine and struck him on\nthe forehead, inflicting serious injuries. About 10 1/2 months\nlater, he gave the retailer and the manufacturer written notice of\nclaimed breaches of warranties and filed a complaint against\nthem alleging such breaches and negligence.\nAfter a trial before a jury, the court ruled that there was no\nevidence that the retailer was negligent or had breached any\nexpress warranty and that the manufacturer was not liable for\nthe breach of any implied warranty. Accordingly, it submitted to\nthe jury only the cause of action alleging breach of implied\nwarranties against the retailer and the causes of action alleging\nnegligence and breach of express warranties against the\nmanufacturer. The jury returned a verdict for the retailer against\nplaintiff and for plaintiff against the manufacturer in the amount\nof $65,000. The trial court denied the manufacturer\xe2\x80\x99s motion for\n\n81\n\n\x0ca new trial and entered judgment on the verdict. The\nmanufacturer and plaintiff appeal. Plaintiff seeks a reversal of\nthe part of the judgment in favor of the retailer, however, only\nin the event that the part of the judgment against the\nmanufacturer is reversed.\nPlaintiff introduced substantial evidence that his injuries were\ncaused by defective design and construction of the Shopsmith.\nHis expert witnesses testified that inadequate set screws were\nused to hold parts of the machine together so that normal\nvibration caused the tailstock of the lathe to move away from\nthe piece of wood being turned permitting it to fly out of the\nlathe. They also testified that there were other more positive\nways of fastening the parts of the machine together, the use of\nwhich would have prevented the accident. The jury could\ntherefore reasonably have concluded that the manufacturer\nnegligently constructed the Shopsmith. The jury could also\nreasonably have concluded that statements in the manufacturer\xe2\x80\x99s\nbrochure were untrue, that they constituted express warranties,\nand that plaintiff\xe2\x80\x99s injuries were caused by their breach.\xef\x81\x81In this\nrespect the trial court limited the jury to a consideration of two\nstatements in the manufacturer\xe2\x80\x99s brochure. (1) \xe2\x80\x9cWhen\nShopsmith Is in Horizontal Position--Rugged construction of\nframe provides rigid support from end to end. Heavy centerlessground steel tubing insures perfect alignment of components.\xe2\x80\x9d\n(2) \xe2\x80\x9cShopsmith maintains its accuracy because every component\nhas positive locks that hold adjustments through rough or\nprecision work.\xe2\x80\x9d\xef\x81\x80\nThe manufacturer contends, however, that plaintiff did not give\nit notice of breach of warranty within a reasonable time and that\ntherefore his cause of action for breach of warranty is barred by\nsection 1769 of the Civil Code.~ The notice requirement of\nsection 1769, however, is not an appropriate one for the court\nto adopt in actions by injured consumers against manufacturers\nwith whom they have not dealt. \xe2\x80\x9cAs between the immediate\nparties to the sale [the notice requirement] is a sound\ncommercial rule, designed to protect the seller against unduly\ndelayed claims for damages. As applied to personal injuries, and\n\n82\n\n\x0cnotice to a remote seller, it becomes a booby-trap for the\nunwary. The injured consumer is seldom \xe2\x80\x98steeped in the\nbusiness practice which justifies the rule,\xe2\x80\x99 and at least until he\nhas had legal advice it will not occur to him to give notice to one\nwith whom he has had no dealings.\xe2\x80\x9d (Prosser, Strict Liability to\nthe Consumer, 69 Yale L. J. 1099, 1130, footnotes omitted.)~\nMoreover, to impose strict liability on the manufacturer under\nthe circumstances of this case, it was not necessary for plaintiff\nto establish an express warranty as defined in section 1732 of\nthe Civil Code. A manufacturer is strictly liable in tort when an\narticle he places on the market, knowing that it is to be used\nwithout inspection for defects, proves to have a defect that\ncauses injury to a human being. Recognized first in the case of\nunwholesome food products, such liability has now been\nextended to a variety of other products that create as great or\ngreater hazards if defective.\nAlthough in these cases strict liability has usually been based on\nthe theory of an express or implied warranty running from the\nmanufacturer to the plaintiff, the abandonment of the\nrequirement of a contract between them, the recognition that\nthe liability is not assumed by agreement but imposed by law,\nand the refusal to permit the manufacturer to define the scope\nof its own responsibility for defective products make clear that\nthe liability is not one governed by the law of contract\nwarranties but by the law of strict liability in tort. Accordingly,\nrules defining and governing warranties that were developed to\nmeet the needs of commercial transactions cannot properly be\ninvoked to govern the manufacturer\xe2\x80\x99s liability to those injured\nby its defective products unless those rules also serve the\npurposes for which such liability is imposed.~\nThe purpose of such liability is to insure that the costs of\ninjuries resulting from defective products are borne by the\nmanufacturers that put such products on the market rather than\nby the injured persons who are powerless to protect themselves.\nSales warranties serve this purpose fitfully at best. In the present\ncase, for example, plaintiff was able to plead and prove an\nexpress warranty only because he read and relied on the\n\n83\n\n\x0crepresentations of the Shopsmith\xe2\x80\x99s ruggedness contained in the\nmanufacturer\xe2\x80\x99s brochure. Implicit in the machine\xe2\x80\x99s presence on\nthe market, however, was a representation that it would safely\ndo the jobs for which it was built. Under these circumstances, it\nshould not be controlling whether plaintiff selected the machine\nbecause of the statements in the brochure, or because of the\nmachine\xe2\x80\x99s own appearance of excellence that belied the defect\nlurking beneath the surface, or because he merely assumed that\nit would safely do the jobs it was built to do. It should not be\ncontrolling whether the details of the sales from manufacturer to\nretailer and from retailer to plaintiff\xe2\x80\x99s wife were such that one or\nmore of the implied warranties of the sales act arose. \xe2\x80\x9cThe\nremedies of injured consumers ought not to be made to depend\nupon the intricacies of the law of sales.\xe2\x80\x9d To establish the\nmanufacturer\xe2\x80\x99s liability it was sufficient that plaintiff proved that\nhe was injured while using the Shopsmith in a way it was\nintended to be used as a result of a defect in design and\nmanufacture of which plaintiff was not aware that made the\nShopsmith unsafe for its intended use.~\nThe judgment is affirmed.\n\nWhat Constitutes a Product\nStrict products liability applies only to damages caused by a product.\nIn general, a product is a tangible item that is created by humans to\nbe sold or otherwise commercially distributed.\nThere is a trend in business to call everything a \xe2\x80\x9cproduct\xe2\x80\x9d \xe2\x80\x93 even\nservices. A bank might advertise, \xe2\x80\x9cTalk to us about our full range of\ninvestment products.\xe2\x80\x9d Business-marketing jargon aside, however,\nbanking and investment services are not really products. And\nproducts liability does not extend to services, activities, or conditions.\nOn the other hand, commercially prepared foods are products. This is\ntrue even though it a restaurateur might blanch at the idea of offering\na menu of \xe2\x80\x9cappetizer products.\xe2\x80\x9d\nThinking of restaurant food is also a good reminder that products\ncome in many shapes, sizes, and price ranges. When talking about\nstrict products liability, it is common think in terms of a factory\n\n84\n\n\x0cmodel, where an assembly line churns out \xe2\x80\x9cwidgets\xe2\x80\x9d of some sort.\nThis model makes for good examples, and, indeed, it was factory\nproduction and attenuated chains of distribution that spurred the\ndevelopment of strict products liability doctrine. But contemporary\nproducts liability can extend to everything from a handmade\nrefrigerator magnet purchased through Etsy to a multi-million-dollar\njumbo jet.\nAlthough products are generally tangible, movable items, some\nauthorities have extended the definition of products in order to\nexpand the scope of strict products liability. Some authorities include\nreal property as a product in certain contexts, such as when houses\nare produced in a way that is analogous to the mass manufacturing of\nmore traditional products. Some authorities even consider electricutility services to implicate strict products liability. In doing so, they\ncall electricity a product, even though with AC power, nothing\ntangible actually flows from the power plant to the customer. Of\ncourse, the motivation for expanding the definition of products in\nthese ways comes from an understanding of the underlying policy\nrationale of strict products liability. That\xe2\x80\x99s one reason it\xe2\x80\x99s helpful to\nsee the roots of that rationale in the Escola and Greenman cases, above.\n\nWhat Constitutes a Defect\nNot every product-caused injury implicates products liability. The\ninjury must have been caused by a defect in the product. Every car\naccident, for instance, involves a product \xe2\x80\x93 the car, namely. But only\na relatively few car accidents happen because of an automobile\ndefect.\nThe question of whether a particular product is defective is where\nmost of the action is in a products-liability dispute. Questions of\ncommercial sale and whether something is a product are usually\nstraightforward. But whether or not something counts as a defect will\nalmost always be hotly contested in litigation, and it is the issue for\nwhich products liability has the most developed doctrine.\nCourts have helpfully divided the universe of potential product\ndefects into three categories: manufacturing defects, design\n\n85\n\n\x0cdefects, and warning defects. This typology is useful, because each\ncategory has its own unique set of issues that must be considered.\nManufacturing Defects\nManufacturing defects result when something goes wrong in the\nmanufacturing process causing a product to differ from its intended\ndesign. A bad weld or a missing bolt are examples.\nStrict liability for manufacturing defects is very much like strict\nliability for ultrahazardous activities, which we discussed in Chapter\n13. Carefulness is irrelevant. The focus is on the kind of danger the\nproduct presents.\nThe archetypal birthplace of a manufacturing defect is on the factory\nfloor. The person whose actions are most closely connected with the\ngenesis of a manufacturing defect is likely a worker earning an hourly\nwage.\nSome commentators describe a manufacturing defect as occurring\nwhen one individual item coming off the assembly line is different\nfrom all the other items. This can be a helpful way to think of the\nconcept of a manufacturing defect, just keep in mind that multiple\nitems or even entire lots could share the same manufacturing defect.\nMold contamination, for instance, could cause millions of units of\nprocessed food to be defective.\nOf course, not every variation on the manufacturing line will render a\nproduct defective for purposes of strict products liability. Under the\ninfluential \xc2\xa7 402A of the Restatement (Second) of Torts, a product is\ndefective where it is \xe2\x80\x9cunreasonably dangerous to the user or\nconsumer or to his property.\xe2\x80\x9d So some things that are defects from\nthe perspective of a quality inspector at the factory are not defects for\nthe purpose of tort law. A blue car that comes off the assembly line\nwith one red door would be rejected by the quality-control team. And\na blemish in the finish on a fender might be called a \xe2\x80\x9cpaint defect.\xe2\x80\x9d\nBut for something to be a defect in the tort sense, it must render the\nproduct unreasonably dangerous. A red door or fender blemish\nmight be annoying to look at, but it doesn\xe2\x80\x99t make a car more\ndangerous.\n\n86\n\n\x0cThe \xc2\xa7 402A definition is useful in pairing down the universe of\npotential defects by specifying that a defect, to count, must make the\nproduct unreasonably dangerous. But the definition leave\nunanswered the question of what it means to be unreasonably\ndangerous.\nOne way the courts have conceptualized whether a product is\nunreasonably dangerous is the consumer-expectations test. This\ntest asks whether a reasonable consumer would expect the danger\nalleged to have developed into the plaintiff\xe2\x80\x99s injury. Under this view,\na kitchen knife is not unreasonably dangerous on account of it being\nsharp enough to cut deeply into flesh. Why not? The reasonable\nconsumer expects a kitchen knife to be sharp enough to cut flesh.\nOn the other hand, suppose a kitchen knife is prone to suddenly\nsplintering when pressed on a cutting board, or has a tendency for\nthe blade to disengage from the hilt and careen upward in the\ndirection from which pressure is applied. Consumers would not\nexpect this kind of behavior from a kitchen knife; thus, these things\nwould indicate that the product is defective.\nSo, using the consumer-expectations test, an actionable\nmanufacturing defect occurs when both: (a) the product differs in its\nmanufacturing from its intended design and, (b) that difference\nrenders the product \xe2\x80\x9cunreasonably dangerous\xe2\x80\x9d so that a reasonable\nconsumer would not have expected to be harmed by it.\nDesign Defects\nA design defect is a problem with how the product was designed. A\ndecision by managers to save money by gluing parts rather than\nwelding them, for instance, could be an example of a design defect. A\nmistake by an engineer in composing lines of software code to be\nused in a controller unit might be another example of a design defect.\nIn contrast to manufacturing defects, the archetypal birthplace of a\ndesign defect is not on the factory floor but up in the office tower.\nAnd instead of being a one-off bad unit that makes it past inspectors,\nthe archetypal design defect can be found in all units coming off the\nassembly line that share the same design.\n\n87\n\n\x0cA design defect could reflect fine choices made in the blueprints for a\nproduct. Examples could include making a strut too thin or placing\ntwo moving components too close to one another. But the defect\ncould also result from the natural properties of materials. Asbestos,\nfor instance, which is a naturally occurring mineral, may be found to\nmake asbestos insulation defective on account of its friability and\ncapacity to interact pathogenically with lung tissue. The design defect\ncould also be the failure to install a safety feature. That is, the defect\nmight not be what the product has, but what the product lacks, such\nas an electrical failsafe, a mechanical interlock, or a flame arrestor.\nWhile the cause of action for design defects is correctly called \xe2\x80\x9cstrict\nproducts liability,\xe2\x80\x9d it works in practice less like strict liability for\nultrahazardous activities, and more like negligence. That is because\ndetermining what counts as a design defect involves an inquiry that is\nsimilar to deciding whether a defendant has breached the duty of due\ncare.\nA design defect might result from a company lagging behind others\nin the industry when it comes to adopting a safer technology,\nrendering its products more dangerous than those of competitors.\nOn the other hand, an entire industry\xe2\x80\x99s products could prove\ndefective so long as there was a feasible safer design that could have\nbeen adopted and would have prevented the plaintiff\xe2\x80\x99s injury.\nIn deciding whether an aspect of a product\xe2\x80\x99s design has rendered it\nunreasonably dangerous, courts sometimes employ the consumerexpectations test. That test, however, can lead to some strange results\nin design defects cases. Take portable gasoline containers, which\nwent through an industry-wide re-design a few years ago. Suppose\nthat consumers are aware that the re-designed containers are prone to\nspills and sprays of gasoline. Because of this knowledge, consumers\nmight expect the modern gasoline containers to be unsafe, and thus a\ncourt might hold that an injured plaintiff fails the consumerexpectation test, even if there was an easy fix to the design that could\nhave prevented all injuries.\nThis sort of argument has been successful in court. For instance, in\nOrfield v. International Harvester Co., 535 F.2d 959 (6th Cir 1976), the\n\n88\n\n\x0cSixth Circuit held that where a bulldozer lacked a canopy or cage and,\ntherefore, obviously left the operator vulnerable to being crushed by\nfalling trees, the operator could not succeed with a design defect\nclaim for failure to pass the consumer-expectations test.\nOn the other hand, the consumer-expectations test could also lead to\npro-consumer results that seem incongruous. Suppose an important\nproduct is designed with state-of-the-art technology and no safer\nalternative exists, yet it injures a plaintiff in a way that no consumer\nwould expect. A broad application of the consumer-expectation test\nmight allow recovery in such a situation, even though it would seem\nto run counter to the spirit of the doctrine.\nAn alternative to the consumer-expectations test, preferred by many\nauthorities for alleged design defects, is the risk-utility test, which is\nalso called the \xe2\x80\x9crisk-benefit test.\xe2\x80\x9d This test balances the risk of the\nproduct and cost of a design change on the one hand, against the\nbenefits of a safer design on the other hand.\nThe risk-utility test bears strong similarities to negligence. In fact, the\nrisk-utility test is really the same as the Hand Formula for negligence,\nin which there is liability if the burden of undertaking a precaution is\noutweighed by the probability of a loss multiplied by the magnitude\nof the loss. (See the section titled \xe2\x80\x9cThe Negligence Calculus,\xe2\x80\x9d in\nChapter 6 of Volume One.) The Hand Formula, however, is\nexplicitly invoked in negligence cases only infrequently, with far more\nattention heaped on it by scholars than judges. By contrast, the riskutility test is bread-and-butter doctrine for products liability.\nWarning Defects\nA warning defect arises where the problem is not with the product as\nsuch, but instead with the instructions or information provided with\nthe product. A weak, easily deformed carabiner keyring that, by its\nappearance, looks like it could be used to support the weight of a\nrock climber, might be defective if it does not clearly indicate that it is\nnot to be used for climbing. (Check a nearby carabiner \xe2\x80\x93 you may\nfind exactly this warning.)\n\n89\n\n\x0cWarning defects can be thought of as a particular category of design\ndefects, where the \xe2\x80\x9cdesign\xe2\x80\x9d comprises the instructions written on the\nproduct and in the accompanying documentation.\nCase: In re Toyota Motor Corp. Unintended\nAcceleration\nThis case considers claims of manufacturing defect, design defect,\nand warning defect, and it analyzes those claims under the heightened\npleading requirements set forth in the recent \xe2\x80\x9cTwiqbal\xe2\x80\x9d decisions of\nthe U.S. Supreme Court interpreting the Federal Rules of Civil\nProcedure.\n\nIn re Toyota Motor Corp. Unintended Acceleration\nMarketing, Sales Practices and Products Liability\nLitigation\nUnited States District Court for the Central District of California\nDecember 9, 2010\n754 F.Supp.2d 1208. Case No. 8:10ML 02151 JVS (FMOx).\nJudge JAMES V. SELNA:\nThis multi-district litigation arises out of Plaintiffs\xe2\x80\x99 purchase of\nvehicles designed, manufactured, distributed, marketed and sold\nby Defendants Toyota Motor Corporation dba Toyota Motor\nNorth America, Inc. (\xe2\x80\x9cTMC\xe2\x80\x9d), and its subsidiary, Toyota Motor\nSales, U.S.A., Inc. (\xe2\x80\x9cTMS\xe2\x80\x9d) (collectively, \xe2\x80\x9cToyota\xe2\x80\x9d or\n\xe2\x80\x9cDefendants\xe2\x80\x9d). Presently before the Court are Toyota\xe2\x80\x99s Motions\nto Dismiss claims asserted by Plaintiffs claiming personal injury\nand/or wrongful death as a result of events of sudden,\nunintended acceleration (\xe2\x80\x9cSUA\xe2\x80\x9d) of Toyota vehicles.\nThis ruling applies to all of Toyota\xe2\x80\x99s Motions to Dismiss, unless\notherwise noted.~\nI. Factual Allegations\nIn support of its Motions to Dismiss certain personal\ninjury/wrongful death complaints, Toyota cites to four exemplar\ncomplaints. The complaints collectively raise the following\nclaims under California law: (1) negligence, (2) products liability,\n(3) breach of express and implied warranties, and (4) fraudulent\n\n90\n\n\x0cconcealment.~ As it must pursuant to the relevant legal standard,\nfor the purposes of Toyota\xe2\x80\x99s Motions to Dismiss, the Court\naccepts as true all well-pled factual allegations set forth in the\ncomplaints.\nA. Roberts\nPlaintiff Omar Roberts (\xe2\x80\x9cRoberts\xe2\x80\x9d) is a resident of Brooklyn,\nNew York. Roberts was the owner of a 2009 Toyota Camry. On\nOctober 7, 2008, Roberts was driving his Toyota Camry at a safe\nrate of speed when the vehicle \xe2\x80\x9csuddenly accelerated at a high\nrate of speed and he was unable to stop the vehicle by braking.\xe2\x80\x9d\nRoberts\xe2\x80\x99 car struck the car in front of him, and as a result of the\ncollision, Roberts suffered numerous traumatic injuries,\nincluding broken legs and torn tendons. Residual effects of the\naccident continue to impact Roberts\xe2\x80\x99 daily life, including his\nmobility. At all relevant times, Roberts was unaware of his\nvehicle\xe2\x80\x99s hidden defects.\nB. Scott\nPlaintiffs Saundra Hill Scott (\xe2\x80\x9cMrs. Scott\xe2\x80\x9d) and Raleigh Scott\n(\xe2\x80\x9cMr. Scott\xe2\x80\x9d), husband and wife, reside in Lee County, Florida.\nOn April 12, 2010, while Mrs. Scott was driving her 2004\nToyota Prius in Miami Gardens, Florida, the Prius suddenly and\nunexpectedly accelerated. Mrs. Scott attempted to control the\nsudden acceleration by stepping on the brake pedal. However,\nthe vehicle would not stop and instead accelerated through four\nlanes of traffic, and collided with a fence and a tree. The Florida\nTraffic Crash Report associated with the incident read, \xe2\x80\x9cDriver\n1 stated the accelerator of the vehicle got stuck and she could\nnot control the vehicle.\xe2\x80\x9d The crash resulted in injury and\ndamage to Mrs. Scott. Toyota never provided a warning to Mrs.\nScott regarding the dangerous propensities of her vehicle.\nC. Akamike\nPlaintiff Romanus Akamike (\xe2\x80\x9cAkamike\xe2\x80\x9d) is a resident of Texas.\nAkamike purchased a 2007 Toyota Camry, alleging that at the\ntime of purchase, he thought \xe2\x80\x9che was investing in a safe and\nreliable vehicle\xe2\x80\x9d and that he was \xe2\x80\x9cunaware of the vehicle\xe2\x80\x99s\nconcealed and potentially lethal defects of which Toyota was or\n\n91\n\n\x0cshould have been aware.\xe2\x80\x9d On December 15, 2009, Akamike was\ndriving his Toyota Camry when his car \xe2\x80\x9csuddenly accelerated,\ncausing the car to flip several times before coming to a stop.\xe2\x80\x9d\nAkamike suffered general bruising over his entire body, left\nshoulder pain, and a large subdural hematoma. The day after the\naccident, Akamike \xe2\x80\x9cwas found unresponsive\xe2\x80\x9d and transported\nby ambulance to a nearby medical center, where he was\ndiagnosed as having a head injury. He was taken by helicopter to\na different facility, where he had brain surgery and was\ndischarged on December 19, 2009. Since the accident, Akamike\nalleges that he has undergone brain surgery and physical therapy\nas a result of his injuries.\nD. Riegel Breit\nPlaintiff Suzanne Riegel Breit (\xe2\x80\x9cRiegel Breit\xe2\x80\x9d) is a resident of\nVirginia and is the administrator for the estate of Decedent\nWava Joy Riegel (\xe2\x80\x9cRiegel\xe2\x80\x9d). On September 24, 2009, Riegel was\ndriving her 2010 Toyota Camry in an intended and foreseeable\nmanner when it suddenly and unexpectedly accelerated. The\nvehicle collided with a tree, resulting in fatal injuries to Riegel.\nRiegel Breit alleges that at no time prior to September 24, 2009\nwas Riegel warned of the dangerous propensities within Riegel\xe2\x80\x99s\nCamry.\nII. Legal Standard\nTo survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a\nplaintiff must state \xe2\x80\x9cenough facts to state a claim to relief that is\nplausible on its face.\xe2\x80\x9d Bell Atl. Corp. v. Twombly, 550 U.S. 544,\n570 (2007).\nIII. Plaintiffs\xe2\x80\x99 Products Liability~ Claims\nToyota argues that Plaintiffs\xe2\x80\x99 products liability and negligence\nclaims are deficient under Twombly and Iqbal because they fail to\noffer specific allegations of an actual defect in Toyota\xe2\x80\x99s\nelectronic throttle control system (\xe2\x80\x9cETCS\xe2\x80\x9d or \xe2\x80\x9cETCS-i\xe2\x80\x9d).\nAccording to Toyota, Plaintiffs do not identify or describe any\nalleged defect in the ETCS-i, or sufficiently allege that the\nETCS-i defect was a substantial factor in causing any of the\naccidents that led to Plaintiffs\xe2\x80\x99 injuries. Instead, Plaintiffs rely on\n\n92\n\n\x0cconclusory allegations regarding past incidents of SUA events\ncompiled from media reports, NHTSA databases, and third\nparty complaints. In Toyota\xe2\x80\x99s view, because products liability\nand negligence claims must be plausible, Plaintiffs\xe2\x80\x99 failure to\nidentify \xe2\x80\x9cwhat specific defect, if any, is causing the alleged\n[SUA] events\xe2\x80\x9d renders their allegations insufficient. Thus,\nToyota reasons, Plaintiffs\xe2\x80\x99 products liability and negligence\nclaims should be dismissed because Plaintiffs have \xe2\x80\x9cconcluded,\nnot shown, that the subject accidents were caused by a specific\ndefect in the ETCS-i.\xe2\x80\x9d Toyota concludes, therefore, that \xe2\x80\x9c[i]f the\nholdings of Iqbal and Twombly have any purpose, it is that the\nToyota Defendants do not have to guess or speculate as to\nPlaintiffs\xe2\x80\x99 allegation of the cause of the alleged acceleration\nevents.\xe2\x80\x9d\nPlaintiffs respond that they properly allege that their Toyota\nvehicles are defective because they suddenly accelerate on their\nown and lack a brake override system to prevent, mitigate, or\nstop an SUA event. Plaintiffs allege that their vehicles failed to\nperform as safely as an ordinary consumer would expect when\nused in an intended or reasonably foreseeable manner, and\nPlaintiffs argue that they are not required to plead, let alone\nprove at trial, a more specific \xe2\x80\x9cdefect\xe2\x80\x9d to prevail under\nCalifornia design defect law. Moreover, under Twombly and Iqbal,\nPlaintiffs contend that their claims suffice because \xe2\x80\x9c \xe2\x80\x98the very\nnature of a products liability action\xe2\x80\x99 makes it difficult \xe2\x80\x98to know\nwith specificity before discovery what was the likely source of\nthe defect,\xe2\x80\x99 or \xe2\x80\x98to pinpoint a specific source of a defect.\xe2\x80\x99\xe2\x80\x9d Thus,\nPlaintiffs argue that by \xe2\x80\x9cdetailing the product\xe2\x80\x99s problem, the\nconsequences of that problem,\xe2\x80\x9d alleging that Plaintiffs \xe2\x80\x9cused the\nproduct,\xe2\x80\x9d and the \xe2\x80\x9cconsequences that occurred[,]\xe2\x80\x9d their\nallegations \xe2\x80\x9care more than sufficient\xe2\x80\x9d under Iqbal to \xe2\x80\x9cnudge\nclaims across the line from conceivable to plausible.\xe2\x80\x9d Plaintiffs\ndescribe in detail the SUA problem with Toyota vehicles, the\nalleged causes of SUA, Plaintiffs\xe2\x80\x99 use of the products in an\nordinary and reasonably foreseeable manner, and the adverse\nconsequences of that use. For these reasons, Plaintiffs argue that\nToyota\xe2\x80\x99s motion should be denied.\nA. Products Liability Claims\n\n93\n\n\x0c\xe2\x80\x9cA manufacturer may be held strictly liable for placing a\ndefective product on the market if the plaintiff\xe2\x80\x99s injury results\nfrom a reasonably foreseeable use of the product.\xe2\x80\x9d Saller v.\nCrown Cork & Seal Co., Inc., 187 Cal.App.4th 1220, 1231 (2010).\nCalifornia recognizes strict liability for three types of products\nliability claims: design defects, manufacturing defects, and\nwarning defects.\nHere, each exemplar complaint asserts products liability claims\nfor design and warning defects. It appears that the Scott and\nRiegel Breit complaints also assert claims for manufacturing\ndefects. The Court addresses the sufficiency of the pleadings\nunder each theory of liability.\n1. Design Defects\n\xe2\x80\x9cDefective design may be established under two theories: (1) the\nconsumer expectations test, which asks whether the product\nperformed as safely as an ordinary consumer would expect when\nused in an intended and reasonably foreseeable manner; or (2)\nthe risk/benefit test, which asks whether the benefits of the\nchallenged design outweigh the risk of danger inherent in the\ndesign.\xe2\x80\x9d The consumer expectations test is used when \xe2\x80\x9c\xe2\x80\x98the\nproduct is one within the common experience of ordinary\nconsumers.\xe2\x80\x99\xe2\x80\x9d If the facts do not \xe2\x80\x9cpermit an inference that the\nproduct\xe2\x80\x99s performance did not meet minimum safety\nexpectations of its ordinary users,\xe2\x80\x9d the design defect must be\nanalyzed under the risk-benefit test.\nTo meet the strictures of Twombly and Iqbal, Plaintiffs should\nidentify which design defect theory is being utilized and allege\nfacts to support that theory. For example, under the \xe2\x80\x9cconsumer\nexpectations test,\xe2\x80\x9d plaintiff \xe2\x80\x9c\xe2\x80\x98should describe how the [product]\nfailed to meet the minimum safety expectations of an ordinary\nconsumer\xe2\x80\x99\xe2\x80\x9d of that product. Similarly, under the \xe2\x80\x9crisk-benefit\ntest,\xe2\x80\x9d a plaintiff \xe2\x80\x9cshould allege that the risks of the design\noutweigh the benefits, and then \xe2\x80\x9cexplain how the particular\ndesign of the [product] caused [plaintiff] harm\xe2\x80\x9d.\xe2\x80\x9d A bare\nallegation that the product \xe2\x80\x9csuffered from a \xe2\x80\x98design defect\xe2\x80\x99 is an\ninsufficient legal conclusion\xe2\x80\x9d under Twombly and Iqbal.\n\n94\n\n\x0cHere, the Court finds that the exemplar complaints allege\nsufficient facts under both the consumer expectations and riskbenefit tests. For example, the Roberts complaint alleges that\nPlaintiff was \xe2\x80\x9cdriving at a safe rate of speed\xe2\x80\x9d when the \xe2\x80\x9cvehicle\nsuddenly accelerated at a high rate of speed.\xe2\x80\x9d Plaintiff was\n\xe2\x80\x9cunable to stop the vehicle by braking\xe2\x80\x9d and consequently\n\xe2\x80\x9cstruck the car ahead of him,\xe2\x80\x9d resulting in numerous injuries\nincluding \xe2\x80\x9cbroken legs and torn tendons.\xe2\x80\x9d Plaintiff further\nalleges that Toyota vehicles with \xe2\x80\x9cthe electronic throttle control\nsystem ... contain design defects that cause sudden and\nuncontrolled acceleration to speeds of up to 100 miles per hour\nor more,\xe2\x80\x9d and that these vehicles are defective because they\nexperience SUA events and \xe2\x80\x9clack a mechanism, such as a brake\noverride system, to prevent, mitigate, or stop [an SUA] event.\nPlaintiff identifies three design defects that cause or contribute\nto SUA events, including: (1) an inadequate fault detection\nsystem, (2) an ETCS system that is \xe2\x80\x9chighly susceptible to\nmalfunction caused by various electronic failures, including ...\nshort circuits, software glitches, and electromagnetic\ninterference from outside sources,\xe2\x80\x9d and (3) the absence of a\nbrake override system. According to Plaintiff, \xe2\x80\x9c[t]hese defects\nalone, or in combination, render certain Toyota vehicles\nunreasonably dangerous and unable to perform as an ordinary\nconsumer would expect.\xe2\x80\x9d By 2007, Toyota was aware that a\nbrake override system could prevent the SUA defect and \xe2\x80\x9ccould\nhave easily implemented a brake override system,\xe2\x80\x9d but instead\n\xe2\x80\x9chid the problem and proposed inadequate and misleading\nsolutions\xe2\x80\x9d that led to \xe2\x80\x9cnumerous fatalities and injuries, including\nthose suffered by Plaintiff.\xe2\x80\x9d Based on the foregoing, Plaintiff\nbrings claims for design defects under the consumer\nexpectations test and risk-benefit test.\nThe Court has no trouble discerning sufficient facts in the\nRoberts complaint that support a design-defect claim under the\nconsumer expectations test and the risk-benefit test. Under the\nconsumer expectations test, Toyota vehicles do not meet\nconsumer expectations because they suddenly and unexpectedly\naccelerate and cannot be stopped upon proper application of the\nbrake pedal, which happened to Plaintiff Roberts and caused his\n\n95\n\n\x0ccrash and injuries. Similarly, under the risk-benefit test, the\nETCS-i system is defective because it causes SUA events owing\nto an inadequate fault detection system, electronic failures, and\nthe absence of a brake override system, and the risks of SUA are\nnot outweighed by any purported benefits.\nToyota argues that Plaintiffs \xe2\x80\x9cfail to identify a defective cause\nof the alleged acceleration incidents\xe2\x80\x9d and, as an issue of \xe2\x80\x9cfair\nnotice,\xe2\x80\x9d Plaintiffs must state \xe2\x80\x9cwhat is allegedly wrong with the\nvehicles other than conjecture that a brake override system\ncould prevent an occurrence.\xe2\x80\x9d Toyota demands a level of\nspecificity that is not required at the pleadings stage. The defect\nis identified: Plaintiffs\xe2\x80\x99 cars suddenly and unexpectedly\naccelerate and do not stop upon proper application of the brake\npedal. Causes of the defect are identified: an inadequate fault\ndetection system and electronic failures. An alternative design\n(that allegedly would have prevented the defect from injuring\nPlaintiffs) is identified: a brake override system. These\nallegations do more than merely recite the elements required for\ndesign defect claims under California law, and plausibly give rise\nto an entitlement to relief.\nAccordingly, Toyota\xe2\x80\x99s motion is denied as it pertains to\nPlaintiffs\xe2\x80\x99 allegations of design defects.\n2. Warning Defect\nUnder a \xe2\x80\x9cwarning defect\xe2\x80\x9d theory, \xe2\x80\x9ca product may be defective\neven though it is manufactured or designed flawlessly.\xe2\x80\x9d Saller,\n187 Cal.App.4th at 1238. Liability under this theory \xe2\x80\x9crequires\nthat the manufacturer knows, or should have known, of the\ndanger of the product at the time it is sold or distributed,\xe2\x80\x9d and\nthat \xe2\x80\x9cthe plaintiff prove that defendant \xe2\x80\x98did not adequately warn\nof a particular risk that was known or knowable in light of the\ngenerally recognized and prevailing best scientific and medical\nknowledge available at the time of the manufacture and\ndistribution.\xe2\x80\x99\xe2\x80\x9d\nHere, the Court finds that the exemplar complaints allege\nsufficient facts to establish a claim for a \xe2\x80\x9cwarning defect.\xe2\x80\x9d For\nexample, the Roberts complaint alleges the danger of SUA, and\n\n96\n\n\x0cthat \xe2\x80\x9cToyota was aware of the defective nature of the\nacceleration control and throttle system in its vehicles since at\nleast 2002, but failed to adequately and accurately disclose these\nfacts to Plaintiff, the public, and NHTSA.\xe2\x80\x9d Paragraphs 49\nthrough 78 contain allegations about Toyota\xe2\x80\x99s knowledge of the\nalleged defects, including numerous consumer complaints and\ninvestigations by NHTSA. Paragraphs 105 through 125 contain\nallegations that Toyota concealed the danger of these defects\nfrom the public, including hiding reports of SUA and denying\nthat SUA existed. Paragraphs 126 through 129 contain\nallegations that Toyota tried to cover up the alleged ETCS-i\ndefects by focusing on mechanical problems with the floor mats\nand sticky pedals. Plaintiff also alleges that he did not know of\nthe dangers of SUA.\nTaken together, these allegations are sufficient to support a\nclaim under a warning defect theory of liability: the particular\nrisk allegedly known by Toyota was SUA, and that risk was not\ndisclosed to Plaintiff. To the extent that Toyota argues more\nspecificity is required, the Court disagrees.\nAccordingly, Toyota\xe2\x80\x99s motion is denied as it pertains to\nPlaintiffs\xe2\x80\x99 allegations of warning defects.\n3. Manufacturing Defects\nUnder a \xe2\x80\x9cmanufacturing defect\xe2\x80\x9d theory, \xe2\x80\x9c\xe2\x80\x98a defective product is\none that differs from the manufacturer\xe2\x80\x99s intended result or from\nother ostensibly identical units of the same product line.\xe2\x80\x99\xe2\x80\x9d Lucas,\n726 F.Supp.2d at 1154. The \xe2\x80\x9cmanufacturing defect\xe2\x80\x9d theory\nposits that \xe2\x80\x9ca suitable design is in place, but that the\nmanufacturing process has in some way deviated from that\ndesign.\xe2\x80\x9d In re Coordinated Latex Glove Litig., 99 Cal.App.4th 594,\n613 (2002). To satisfy Twombly and Iqbal, plaintiffs should\n\xe2\x80\x9cidentify/explain how the [product] either deviated from\n[defendant\xe2\x80\x99s] intended result/design or how the [product]\ndeviated from other seemingly identical [product] models.\xe2\x80\x9d~\nHere, the Court finds that the Scott and Riegel Breit complaints do\nnot adequately assert claims for manufacturing defects under\nTwombly and Iqbal. For example, the Scott complaint alleges that\n\n97\n\n\x0cthe \xe2\x80\x9cETCS systems and their various components were\ndefectively designed and manufactured in that they were highly\nsusceptible to malfunction caused by various electronic failures,\nincluding but not limited to short circuits and electromagnetic\ninterference from electromagnetic sources outside the vehicle.\xe2\x80\x9d\n(italics added). Plaintiff further alleges that \xe2\x80\x9cthe Subject Prius,\nwhich was being used in a reasonably foreseeable manner, failed\nto perform as an ordinary consumer would have expected, failed\nto conform with its manufacturing specifications, failed to contain\nadequate warnings, and its design was a substantial factor in\ncausing injuries.\xe2\x80\x9d (italics added). Taken together, these two\nallegations seemingly allege a manufacturing defect. However,\nthe Scott complaint does not offer any allegations of how the\nvehicle deviated from Toyota\xe2\x80\x99s intended design or other product\nmodels. See Lucas, 726 F.Supp.2d at 1155. Instead, the Scott\ncomplaint offers bare allegations of a manufacturing defect, and\nthus dismissal is warranted.\nAccordingly, Toyota\xe2\x80\x99s motion is granted as it pertains to Scott\nand Riegel Breit\xe2\x80\x99s allegations of manufacturing defects. The\ndismissal is without prejudice.\xef\x81\x81Leave to amend should be\ngranted when amendment would not be futile. Because it is\nconceivable that Plaintiffs could allege facts sufficient to support\na claim under a manufacturing defects theory of liability, the\nCourt grants leave to amend.\xef\x81\x80\nWith respect to Plaintiffs\xe2\x80\x99 design and warning defect claims,\nToyota cannot credibly claim that it does not comprehend\nPlaintiffs\xe2\x80\x99 theory from the pleadings, nor that it is handicapped\nin responding to the Complaint.~\nIT IS SO ORDERED\n\nNote on In re Toyota Motor Corp. Unintended\nAcceleration\nAlthough the plaintiffs in In re Toyota contended that Toyota hid\ninformation about unintended acceleration events, the car company\ntrumpeted its openness and denied that defects were to blame for the\nplaintiffs\xe2\x80\x99 injuries. In November 2013, Carly Schaffner, spokesperson\nfor Toyota Motor Sales U.S.A., was quoted as saying in an e-mail\n\n98\n\n\x0cabout the litigation before Judge Selna, \xe2\x80\x9cDespite nearly three years of\nlitigating this case and unprecedented access to Toyota\xe2\x80\x99s source code,\nplaintiff\xe2\x80\x99s counsel have never replicated unintended acceleration in a\nToyota vehicle and have failed to demonstrate that any alleged defect\nactually caused the accident at issue in this case.\xe2\x80\x9d\nAbout a month later, however, Judge Selna announced that Toyota\nwas asking for a temporary halt to the litigation to begin an \xe2\x80\x9cintensive\nsettlement process.\xe2\x80\x9d\nSomething had changed, causing Toyota\xe2\x80\x99s sudden move to resolve\nthe tort cases against it.\nOne factor seems to have been a parallel criminal prosecution being\npursued against Toyota. The U.S. Department of Justice charged\nToyota with committing criminal wire fraud in the course of covering\nup safety problems. Wire fraud, under 18 U.S.C. \xc2\xa71343, requires a\nscheme to intentionally deceive someone in order get money from\nthem, plus the use of interstate wire communications (such as\ntelephone or internet) to accomplish this.\nThe DOJ action ended in March 2014 when Toyota agreed to pay a\nrecord fine of $1.2 billion and to submit to independent monitoring\nas part of a deferred prosecution agreement. Toyota also signed a\nstatement saying, \xe2\x80\x9cToyota admits that it misled U.S. consumers by\nconcealing and making deceptive statements about two safety issues\naffecting its vehicles ... \xe2\x80\x9d\nThe Toyota episode suggests how criminal law and administrative\nregulations can interact with tort liability in the defective products\narea.\nReading: DOJ Press Release on Toyota Unintended\nAcceleration\nThe U.S. Department of Justice issued a press release following its\ndeferred prosecution agreement with Toyota. The document\nprovides a fuller account of the facts leading up to Toyota\xe2\x80\x99s decision\nto start settling the cases against it.\n\n99\n\n\x0cJustice Department Announces Criminal Charge\nAgainst Toyota Motor Corporation and Deferred\nProsecution Agreement with $1.2 Billion Financial\nPenalty\nUnited States Department of Justice Office of Public Affairs\nMarch 19, 2014\n~In\n\nthe fall of 2009, Toyota deceived consumers and its U.S.\nregulator, the National Highway Traffic Safety Administration\n(\xe2\x80\x9cNHTSA\xe2\x80\x9d), by claiming that it had \xe2\x80\x9caddressed\xe2\x80\x9d the \xe2\x80\x9croot\ncause\xe2\x80\x9d of unintended acceleration in its vehicles through a\nlimited safety recall of eight models for floor-mat entrapment, a\ndangerous condition in which an improperly secured or\nincompatible all-weather floor mat can \xe2\x80\x9ctrap\xe2\x80\x9d a depressed gas\npedal causing the car to accelerate to a high speed. Such public\nassurances deceived customers and NHTSA in two ways: First,\nat the time the statements were made, Toyota knew that it had\nnot recalled some cars with design features that made them just\nas susceptible to floor-mat entrapment as some of the recalled\ncars. Second, only weeks before these statements were made,\nToyota had taken steps to hide from NHTSA another type of\nunintended acceleration in its vehicles, separate and apart from\nfloor-mat entrapment: a problem with accelerators getting stuck\nat partially depressed levels, known as \xe2\x80\x9csticky pedal.\xe2\x80\x9d\nFloor-Mat Entrapment: A Fatal Problem\nToyota issued its misleading statements, and undertook its acts\nof concealment, against the backdrop of intense public concern\nand scrutiny over the safety of its vehicles following a widely\npublicized Aug. 28, 2009 accident in San Diego, Calif., that\nkilled a family of four. A Lexus dealer had improperly installed\nan incompatible all-weather floor mat into the Lexus ES350 in\nwhich the family was traveling, and that mat entrapped the\naccelerator at full throttle. A 911 emergency call made from the\nout-of-control vehicle, which was speeding at over 100 miles per\nhour, reported, \xe2\x80\x9cWe\xe2\x80\x99re in a Lexus ... and we\xe2\x80\x99re going north on\n125 and our accelerator is stuck ... there\xe2\x80\x99s no brakes ... we\xe2\x80\x99re\napproaching the intersection ... Hold on ... hold on and pray ...\n\n100\n\n\x0cpray.\xe2\x80\x9d The call ended with the sound of the crash that killed\neveryone in the vehicle.\nThe San Diego accident was not the first time that Toyota had\nfaced a problem with floor-mat entrapment. In 2007, following\na series of reports alleging unintended acceleration in Toyota\nand Lexus vehicles, NHTSA opened a defect investigation into\nthe Lexus ES350 model (the vehicle involved in the 2009 San\nDiego accident), and identified several other Toyota and Lexus\nmodels it believed might likewise be defective. Toyota, while\ndenying to NHTSA the need to recall any of its vehicles,\nconducted an internal investigation in 2007 which revealed that\ncertain Toyota and Lexus models, including most of the ones\nthat NHTSA had identified as potentially problematic, had\ndesign features rendering entrapment of the gas pedal by an allweather floor mat more likely. Toyota did not share these results\nwith NHTSA. In the end, the Company negotiated a limited\nrecall of 55,000 mats (no vehicles) \xe2\x80\x93 a result that Toyota\nemployees touted internally as a major victory: \xe2\x80\x9chad the agency\n... pushed for recall of the throttle pedal assembly (for instance),\nwe would be looking at upwards of $100 million + in\nunnecessary costs.\xe2\x80\x9d\nShortly after Toyota announced its 2007 mat recall, company\nengineers revised internal design guidelines to provide for,\namong other things, a minimum clearance of 10 millimeters\nbetween a fully depressed gas pedal and the floor. But Toyota\ndecided those revised guidelines would only apply where a\nmodel was receiving a \xe2\x80\x9cfull model redesign\xe2\x80\x9d \xe2\x80\x93 something each\nToyota and Lexus model underwent only about once every three\nto five years. As a result, even after the revised guidelines had\nbeen adopted internally, many new vehicles produced and sold\nby Toyota \xe2\x80\x93 including the Lexus ES350 involved in the 2009\nSan Diego accident \xe2\x80\x93 did not comply with Toyota\xe2\x80\x99s 2007\nguidelines.\nAfter the fatal and highly publicized San Diego accident, Toyota\nagreed to recall eight of its models, including the ES350, for\nfloor-mat entrapment susceptibility. Thereafter, as part of an\neffort to defend its brand image, Toyota began issuing public\n\n101\n\n\x0cstatements assuring customers that this limited recall had\n\xe2\x80\x9caddressed the root cause of unintended acceleration\xe2\x80\x9d in its\nU.S.-sold vehicles.\nAs Toyota knew from internal testing it had completed by the\ntime these statements were made, the eight-model recall had not\nin fact \xe2\x80\x9caddressed the root cause\xe2\x80\x9d of even the floor-mat\nentrapment problem. Models not recalled \xe2\x80\x93 and therefore still\non the road \xe2\x80\x93 bore design features rendering them just as\nsusceptible to floor-mat entrapment as those within the recall\npopulation. One engineer working at a Toyota facility in\nCalifornia had concluded that the Corolla, a top-selling car that\nhad not been recalled, was among the three \xe2\x80\x9cworse\xe2\x80\x9d vehicles for\nfloor-mat entrapment. In October 2009, Toyota engineers in\nJapan circulated a chart showing that the Corolla had the lowest\nrating for floor-mat entrapment under their analysis. None of\nthese findings or this data were shared with NHTSA at the time.\nThe Sticky Pedal Problem\nWhat is more misleading, at the same time it was assuring the\npublic that the \xe2\x80\x9croot cause\xe2\x80\x9d of unintended acceleration had\nbeen \xe2\x80\x9caddressed\xe2\x80\x9d by the 2009 eight-model floor-mat\nentrapment recall, Toyota was hiding from NHTSA a second\ncause of unintended acceleration in its vehicles: the sticky pedal.\nSticky pedal, a phenomenon affecting pedals manufactured by a\nU.S. company (\xe2\x80\x9cA-Pedal Company\xe2\x80\x9d) and installed in many\nToyota brand vehicles in North America as well as Europe,\nresulted from the use of a plastic material inside the pedals that\ncould cause the accelerator pedal to become mechanically stuck\nin a partially depressed position. The pedals incorporating this\nplastic were installed in, among other models, the Camry, the\nMatrix, the Corolla, and the Avalon sold in the United States.\nThe sticky pedal problem surfaced in Europe in 2008. There,\nreports reflected instances of \xe2\x80\x9cuncontrolled acceleration\xe2\x80\x9d and\nunintended acceleration to \xe2\x80\x9cmaximum RPM,\xe2\x80\x9d and customer\nconcern that the condition was \xe2\x80\x9cextremely dangerous.\xe2\x80\x9d\nIn early 2009, Toyota circulated to European Toyota\ndistributors information about the sticky pedal problem and\n\n102\n\n\x0cinstructions for addressing the problem if it presented itself in a\ncustomer\xe2\x80\x99s vehicle. These instructions identified the issue as\n\xe2\x80\x9cSudden RPM increase/vehicle acceleration due to accelerator\npedal sticking,\xe2\x80\x9d and stated that should a customer complain of\npedal sticking, the pedal should be replaced with pedals\nmanufactured by a company other than A-Pedal Company.\nContemporaneous internal Toyota documents described the\nsticky pedal problem as a \xe2\x80\x9cdefect\xe2\x80\x9d that was \xe2\x80\x9c[i]mportant in\nterms of safety because of the possibility of accidents.\xe2\x80\x9d\nToyota did not then inform its U.S. regulators of the sticky\npedal problem or conduct a recall. Instead, beginning in the\nspring of 2009, Toyota quietly directed A-Pedal Company to\nchange the pedals in new productions of affected models in\nEurope, and to plan for the same design changes to be rolled\nout in the United States (where the same problematic pedals\nwere being used) beginning in the fall of 2009. The design\nchange was to substitute the plastic used in the affected pedal\nmodels with another material and to change the length of the\nfriction lever in the pedal.\nMeanwhile, the sticky pedal problem was manifesting itself in\nU.S. vehicles. On or about the same day the San Diego floormat entrapment accident occurred, staff at a U.S. Toyota\nsubsidiary in California sent a memorandum to staff at Toyota\nin Japan identifying as \xe2\x80\x9ccritical\xe2\x80\x9d an \xe2\x80\x9cunintended acceleration\xe2\x80\x9d\nissue separate and apart from floor-mat entrapment that had\nbeen identified in an accelerator pedal of a Toyota Matrix\nvehicle in Arizona. The problem identified, and then reproduced\nduring testing of the pedal on Sept. 17, 2009, was the sticky\npedal problem. Also in August, the sticky pedal problem\ncropped up in a U.S. Camry.\nOn Sept. 9, 2009, an employee of a U.S. Toyota subsidiary who\nwas concerned about the sticky pedal problem in the United\nStates and believed that Toyota should address the problem\nprepared a \xe2\x80\x9cMarket Impact Summary\xe2\x80\x9d listing (in addition to the\nAugust 2009 Matrix and Camry) 39 warranty cases that he\nbelieved involved potential manifestations of the sticky pedal\nproblem. This document, which was circulated to Toyota\n\n103\n\n\x0cengineers and, later, to staff in charge of recall decisions in\nJapan, designated the sticky pedal problem as priority level \xe2\x80\x9cA,\xe2\x80\x9d\nthe highest level.\nBy no later than September 2009, Toyota recognized internally\nthat the sticky pedal problem posed a risk of a type of\nunintended acceleration \xe2\x80\x93 or \xe2\x80\x9coverrun,\xe2\x80\x9d as Toyota sometimes\ncalled it \xe2\x80\x93 in many of its U.S. vehicles. A September 2009\npresentation made by a manager at a U.S. Toyota subsidiary to\nToyota executives gave a \xe2\x80\x9ccurrent summary of O/R [overrun]\ntypes in NA [North American] market\xe2\x80\x9d that listed the three\nconfirmed types as: \xe2\x80\x9cmat interference\xe2\x80\x9d (i.e., floor-mat\nentrapment), \xe2\x80\x9cmaterial issue\xe2\x80\x9d (described as \xe2\x80\x9cpedal stuck and ...\npedal slow return/deformed\xe2\x80\x9d) and \xe2\x80\x9csimultaneous pedal press\xe2\x80\x9d\nby the consumer. The presentation further listed the models\naffected by the \xe2\x80\x9cmaterial issue\xe2\x80\x9d as including \xe2\x80\x9cCamry, Corolla,\nMatrix, Avalon.\xe2\x80\x9d\nHiding Sticky Pedal from NHTSA and the Public\nAs noted, Toyota had by this time developed internal plans to\nimplement design changes for all A-Pedal-Companymanufactured pedals in U.S. Toyota models to address, on a\ngoing-forward basis, the still-undisclosed sticky pedal problem\nthat had already been resolved for new vehicles in Europe. On\nOct. 5, 2009, Toyota engineers issued to A-Pedal Company the\nfirst of the design change instructions intended to prevent sticky\npedal in the U.S. market. This was described internally as an\n\xe2\x80\x9curgent\xe2\x80\x9d measure to be implemented on an \xe2\x80\x9cexpress\xe2\x80\x9d basis, as a\n\xe2\x80\x9cmajor\xe2\x80\x9d change \xe2\x80\x93 meaning that the part number of the subject\npedal was to change, and that all inventory units with the old\npedal number should be scrapped.\nOn Oct. 21, 2009, however, in the wake of the San Diego floormat entrapment accident, and in the midst of Toyota\xe2\x80\x99s\ndiscussions with NHTSA about its eight-model entrapment\nrecall, engineers at Toyota and the leadership of Toyota\xe2\x80\x99s recall\ndecision group decided to cancel the design change instruction\nthat had already been issued and to suspend all remaining design\nchanges planned for A-Pedal Company pedals in U.S. models.\nU.S. Toyota subsidiary employees who had been preparing for\n\n104\n\n\x0cimplementation of the changes were instructed, orally, to alert\nthe manufacturing plants of the cancellation. They were also\ninstructed not to put anything about the cancellation in writing.\nA-Pedal Company itself would receive no written cancellation at\nthis time; instead, contrary to Toyota\xe2\x80\x99s own standard\nprocedures, the cancellation was to be effected without a paper\ntrail.\nToyota decided to suspend the pedal design changes in the\nUnited States, and to avoid memorializing that suspension, in\norder to prevent NHTSA from learning about the sticky pedal\nproblem.\nIn early November 2009, Toyota and the leadership of a U.S.\nToyota subsidiary became aware of three instances of sticky\npedal in U.S. Corollas. Shortly thereafter, the leadership of the\nrecall decision group within Toyota discussed a plan to finally\ndisclose the sticky pedal problem to NHTSA. The recall\ndecision group was aware at this time not only of the problems\nin the three Corollas in the United States but also of the\nproblems that had surfaced in a Matrix and a Camry in August\n2009 and been reproduced through testing in September 2009.\nThe group was also familiar with the sticky pedal problem in\nEurope, the design changes that had been implemented there,\nand the cancellation and suspension of similar planned design\nchanges in the United States. Knowing all of this, the group\xe2\x80\x99s\nleadership decided that (a) it would not disclose the September\n2009 Market Impact Summary to NHTSA; (b) if any disclosure\nwere to be made to NHTSA, it would be limited to a disclosure\nthat there were some reports of unintended acceleration\napparently unrelated to floor-mat entrapment; and (c) NHTSA\nshould be told that Toyota had made no findings with respect to\nthe sticky pedal problem reflected in the reports concerning the\nthree U.S. Corollas, and that the investigation of the problem\nhad just begun.\nOn Nov. 17, 2009, before Toyota had negotiated with NHTSA\na final set of remedies for the eight models encompassed by the\nfloor-mat entrapment recall, Toyota informed NHTSA of the\nthree Corolla reports and several other reports of unintended\n\n105\n\n\x0cacceleration in Toyota model vehicles equipped with pedals\nmanufactured by A\xe2\x80\x91 Pedal Company. In Toyota\xe2\x80\x99s disclosure to\nNHTSA, Toyota did not reveal its understanding of the sticky\npedal problem as a type of unintended acceleration, nor did it\nreveal the problem\xe2\x80\x99s manifestation and the subsequent design\nchanges in Europe, the planned, cancelled, and suspended\ndesign changes in the United States, the August 2009 Camry and\nMatrix vehicles that had suffered sticky pedal, or the September\n2009 Market Impact Summary.\nToyota\xe2\x80\x99s Misleading Statements\nAfter the August 2009 fatal floor-mat entrapment accident in\nSan Diego, several articles critical of Toyota appeared in U.S.\nnewspapers. The articles reported instances of Toyota\ncustomers allegedly experiencing unintended acceleration and\nthe authors accused Toyota of, among other things, hiding\ndefects related to unintended acceleration.\nOn Nov. 25, 2009, Toyota, through a U.S. subsidiary,\nannounced its floor-mat entrapment resolution with NHTSA. In\na press release that had been approved by Toyota, the U.S.\nsubsidiary assured customers: \xe2\x80\x9cThe safety of our owners and the\npublic is our utmost concern and Toyota has and will continue\nto thoroughly investigate and take appropriate measures to\naddress any defect trends that are identified.\xe2\x80\x9d A spokesperson\nfor the subsidiary stated during a press conference the same day,\n\xe2\x80\x9cWe\xe2\x80\x99re very, very confident that we have addressed this issue.\xe2\x80\x9d\nIn truth, the issue of unintended acceleration had not been\n\xe2\x80\x9caddressed\xe2\x80\x9d by the remedies announced. A-Pedal Company\npedals which could experience stickiness were still on the road\nand still, in fact, being installed in newly-produced vehicles. And\nthe best-selling Corolla, the Highlander, and the Venza \xe2\x80\x93 which\nhad design features similar to models that had been included in\nthe earlier floor-mat entrapment recall \xe2\x80\x93 were not being\n\xe2\x80\x9caddressed\xe2\x80\x9d at all.\nAgain, on Dec. 23, 2009, Toyota responded to media\naccusations that it was continuing to hide defects in its vehicles\nby authorizing a U.S. Toyota subsidiary to publish the following\n\n106\n\n\x0cmisleading statements on the subsidiary\xe2\x80\x99s website: \xe2\x80\x9cToyota has\nabsolutely not minimized public awareness of any defect or issue\nwith respect to its vehicles. Any suggestion to the contrary is\nwrong and borders on irresponsibility. We are confident that the\nmeasures we are taking address the root cause and will reduce\nthe risk of pedal entrapment.\xe2\x80\x9d In fact, Toyota had \xe2\x80\x9cminimized\npublic awareness of\xe2\x80\x9d both sticky pedal and floor-mat\nentrapment. Further, the measures Toyota had taken did not\n\xe2\x80\x9caddress the root cause\xe2\x80\x9d of unintended acceleration, because\nToyota had not yet issued a sticky pedal recall and had not yet\nrecalled the Corolla, the Venza, or the Highlander for floor-mat\nentrapment.\nToyota\xe2\x80\x99s False Timeline\nWhen, in early 2010, Toyota finally conducted safety recalls to\naddress the unintended acceleration issues it had concealed\nthroughout the fall of 2009, Toyota provided to the American\npublic, NHTSA and the United States Congress an inaccurate\ntimeline of events that made it appear as if Toyota had learned\nof the sticky pedal in the United States in \xe2\x80\x9cOctober 2009,\xe2\x80\x9d and\nthen acted promptly to remedy the problem within 90 days of\ndiscovering it. In fact, Toyota had begun its investigation of\nsticky pedal in the United States no later than August 2009, had\nalready reproduced the problem in a U.S. pedal by no later than\nSeptember 2009, and had taken active steps in the months\nfollowing that testing to hide the problem from NHTSA and the\npublic.\n\nQuestions to Ponder About In re Toyota Motor Corp.\nA. Three spheres of law played a part in the Toyota unintended\nacceleration controversy: federal regulation, federal criminal law, and\ntort law. Are all three necessary? Do you think the full story would\nhave come to light if legal action occurred in only one sphere or two?\nB. Do you agree with the Judge Selna\xe2\x80\x99s opinion that the plaintiffs\xe2\x80\x99\nallegations are sufficient under modern pleading requirements?\nShould they be? What is to be made of Toyota\xe2\x80\x99s argument that it\nlacked \xe2\x80\x9cfair notice\xe2\x80\x9d of what was allegedly wrong with the vehicles.\n\n107\n\n\x0cC. If Toyota had continued to vigorously defend the civil lawsuits\nagainst it following the announcement of the deferred prosecution\nagreement, what do you think would have been the result? If you\nwere advising Toyota on how to proceed, what factors would you\ntake into account? What are the pros and cons of continuing a\nhardline defensive posture versus openly soliciting settlements?\nProblem: Hot Water\nTomorrow Temp, a manufacturer, is the exclusive supplier of water\nheaters to Home Hangar, a retail chain of do-it-yourself stores.\nTomorrow Temp\xe2\x80\x99s XH-70 model has a temperature-control\nadjustment knob near the bottom of the unit. The knob is set to the\noff position when the black line on the face of the knob points\nstraight down \xe2\x80\x93 6 o\xe2\x80\x99clock if it were a clockface. Directly below the\nknob, on the control-unit faceplate, is the word OFF. The knob can\nbe turned clockwise until it reaches the 5 o\xe2\x80\x99clock position, where the\nfaceplate has the word HIGHEST. The only other indications on the\nfaceplate are 10 regularly spaced black dots arranged in a circle\naround the knob between OFF and HIGHEST.\nThree customers \xe2\x80\x93 Alexis, Burton, and Charlie \xe2\x80\x93 bought the XH-70\nat Home Hangar and installed it themselves. Alexis\xe2\x80\x99s unit was\nmanufactured first, followed by Burton\xe2\x80\x99s and then Charlie\xe2\x80\x99s. Another\nperson, Dinara, didn\xe2\x80\x99t by an XH-70, but she stayed in a house where\none was installed.\nAlexis likes hot water, so she set the temperature control to the\n3 o\xe2\x80\x99clock position. For her first shower, she turned the faucet lever to\nthe hottest setting and let the water run for a couple of minutes. She\nthen walked under the spray of water. The water was so hot that she\nreceived third-degree burns. She required weeks of hospitalization\nand extensive skin grafts.\nBurton set the temperature control to the 12 o\xe2\x80\x99clock position.\nBurton\xe2\x80\x99s shower has separate hot and cold knobs. He turned both on\nfor a mixture and let the shower warm up. He then walked under the\nstream of water and received second and third degree burns. His\ninjuries required emergency room treatment and follow-up outpatient\ncare. Unlike Alexis\xe2\x80\x99s unit, Burton\xe2\x80\x99s later-manufactured unit has a\n\n108\n\n\x0csticker above the temperature control unit that states \xe2\x80\x9cWARNING:\nEXTREMELY HOT WATER CAN BURN.\xe2\x80\x9d Tomorrow Temp began\nadding the sticker to all new XH-70 units after receiving various\ncustomer complaints.\nCharlie set the temperature control to the 10 o\xe2\x80\x99clock position. His\nbathtub has separate hot and cold taps. He made a bath using only\nthe hot tap, and then he waited 10 minutes before getting in. The\nwater was so hot that he received second- and third-degree burns\nover most of his body. Like Burton\xe2\x80\x99s unit, Charlie\xe2\x80\x99s unit shipped with\nthe warning sticker above the control knob. In addition, Charlie\xe2\x80\x99s\nunit included an updated 67-page instruction manual. Thanks to\ncomplaints from the likes of Alexis and Burton, the manual that\nshipped with Charlie\xe2\x80\x99s unit contains the following statement on page\n59: \xe2\x80\x9cTomorrow Temp water heaters are powerful because our\ncustomers have told us they want to be able to fill a bathtub,\nleave the house for two hours, and come back to a bath that is\nstill steamy hot. If you do not need this capability \xe2\x80\x93 perhaps\nbecause you take showers or because you use the bathtub\nrelatively soon after filling it \xe2\x80\x93 then you should turn the\ntemperature control knob to the 8 o\xe2\x80\x99clock position or lower.\nOtherwise, you run the risk of having uncomfortably hot or even\nscalding water.\xe2\x80\x9d\nDinara was housesitting at a home where an XH-70 had been\ninstalled by a professional contractor. The water heater \xe2\x80\x93 an older\nunit without either the warning sticker or the updated instructional\nmanual \xe2\x80\x93 had not been adjusted since it was installed by the\ncontractor. When Dinara arrived at the house, one of the first things\nshe did was look at the water heater. Always thoughtful of others,\nDinara wanted to keep utility usage down during her stay. Plus, she\nwas concerned about safety \xe2\x80\x93 after all, she had recently seen\nsomething on the television news about burns from super-heated tap\nwater. Seeing that the temperature control had been set to a position\nbetween the 4 o\xe2\x80\x99clock dot and the HIGHEST setting, Dinara decided\nto turn the knob down to below the 7 o\xe2\x80\x99clock dot. Unfortunately for\nDinara, in this particular water heater, the temperature control\n\n109\n\n\x0cassembly underneath the faceplate was inserted backward at the\nfactory. Because of this, \xe2\x80\x9cturning down\xe2\x80\x9d the temperature actually\ncaused the water temperature to go up. When Dinara took a shower,\nshe received extensive third degree burns requiring skin grafts and\nmonths of hospitalization.\nA. Analyze Alexis\xe2\x80\x99s case for products liability.\nB. Analyze Burton\xe2\x80\x99s case for products liability.\nC. Analyze Charlie\xe2\x80\x99s case for products liability.\nD. Analyze Dinara\xe2\x80\x99s case for products liability.\n\n110\n\n\x0c15. Safety and Health\nRegulation\n\xe2\x80\x9cThe atmosphere of officialdom would kill anything that\nbreathes the air of human endeavour, would extinguish hope\nand fear alike in the supremacy of paper and ink.\xe2\x80\x9d\n\xe2\x80\x93 Joseph Conrad, The Shadow-Line, 1915\n\n\xe2\x80\x9cBefore OSHA was created 43 years ago, an estimated 14,000\nworkers were killed on the job every year. \xe2\x80\xa6 Today, workplaces\nare much safer and healthier. We\xe2\x80\x99ve gone from 38 fatal injuries a\nday to 12. But there is still much work to be done.\xe2\x80\x9d\n\xe2\x80\x93 David Michaels, Assistant Secretary of Labor for Occupational\nSafety and Health, 2014\n\nIntroduction\nTort law generally works in an ex post manner. The phrase ex post is\nshort for ex post facto, which is Latin for \xe2\x80\x9cafter the fact.\xe2\x80\x9d For the most\npart, when tort law comes in, the damage has already been done.\nThus, tort law is largely about shifting the burden of loss from one\nparty to the other, thus making the best of a bad situation.\nNevertheless, because tort law provides a way of shifting the burden\nof loss after the fact, it undoubtedly has a strong \xe2\x80\x93 albeit indirect \xe2\x80\x93\neffect of preventing harm: The anticipation of being forced to pay\nafter-the-fact damages will incentivize persons to be more careful on\nthe front end.\nThe courts do have a more direct role to play in the prevention of\naccidents and injuries. Although rarely invoked, basic principles of\nequity can be used to get a court to order an injunction prohibiting\nconduct that is deemed unreasonably risky. In Harris Stanley Coal &\nLand Co. v. Chesapeake & Ohio Railway Co., 154 F.2d. 450 (6th Cir.\n1946), a railroad running on tracks above an underground coal mine\n\n111\n\n\x0cwon an injunction to prohibit the mine from conducting an operation\ncalled \xe2\x80\x9cpulling the pillars,\xe2\x80\x9d in which columns of coal originally left\nintact to support the mine\xe2\x80\x99s ceiling would be demolished so that the\ncoal could be recovered. The railroad argued that pillar-pulling\noperations could cause the ground underneath the train to subside,\nleading to a derailment. The court agreed with the railroad, deciding\nthat when lives were at stake, an ex post award of damages would not\nbe adequate to set things right again.\nCourt orders to halt risky activities are, however, infrequent. By far,\nthe most common way for the law to try to directly prevent accidents\nand injuries is through administrative regulation. Unlike the\nrelatively few general principles of tort law, government regulations\nare legion, and their provisions can be extraordinarily specific.\nThe Code of Federal Regulations, which contains the federal body of\nregulatory law, fills about 200 volumes when printed in book form.\nNot all of that concerns safety. Many regulations govern the\ndistribution of various government-granted entitlements \xe2\x80\x93 everything\nfrom patents to Social Security payments. Another large fraction\nconcerns taxes and tariffs. But notwithstanding these varied subjects,\nit is fair to say that preventing injuries, accidents, health problems,\nand other tort-type harms is a major preoccupation of federal\nregulation. Safety regulations run the gamut from 49 C.F.R. \xc2\xa7382.207,\nwhich prohibits commercial-vehicle drivers from performing \xe2\x80\x9csafetysensitive functions\xe2\x80\x9d within four hours of drinking alcohol, to\n21 C.F.R. \xc2\xa7556.200, which limits concentrations of the antibiotic\ndihydrostreptomycin in swine kidney meat to 2.0 parts per million.\nSpecific regulations of this sort are subordinate to a layer of law that\ngoverns the authority of agencies to make and enforce regulations, as\nwell as the ability of citizens to challenge agency actions. This body of\nlaw is known as administrative law, and it is the focus of an upperdivision elective course at most law schools.\nThe object of this chapter is not to comprehensively teach you\nadministrative law, nor to teach you the substance of the huge body\nof regulatory law of the United States. Rather, the aim is to give you a\nfeel for how agencies use regulation to prevent injury and to allow\n\n112\n\n\x0cyou to see the regulatory system as counterpoint to the common-law\nscheme of torts.\n\nHistory of Administrative Regulation\nThrough most of the 1800s, there were fewer than a dozen federal\nagencies. With industrialization, federal agencies began to multiply\nand take on a greater role in governance and the economy. In this\nearlier stage of the administrative state, much of the function of\nagencies was rate regulation. The Interstate Commerce Commission,\nfor instance, established by the Interstate Commerce Act of 1887,\nregulated the rates charged by common carriers such as railroads and\ntelegraph companies. The aim was to prevent such companies from\nusing their natural monopoly power to engage in rate discrimination\nthat would be unfair to consumers and that could stifle the economic\ngrowth.\nThe blossoming of administrative agencies as a means of ex ante\nprevention of personal harm occurred in the 20th Century. A turning\npoint occurred in 1906, when public disgust with the meat-packing\nindustry was brought on by Upton Sinclair\xe2\x80\x99s novel, The Jungle.\nCongress responded with a wave of regulation.\nThe true boom years of administrative agency creation occurred from\nthe 1930s through the 1970s. In response to the Great Depression,\nFranklin D. Roosevelt\xe2\x80\x99s New Deal programs massively increased the\nsize and scope of the federal administrative state. Then, after World\nWar II, Congress brought organization to the administrative system\nwith the Administrative Procedure Act of 1946. The project of\nbuilding the government bureaucracy continued through the\nincreasing economic sophistication of industry in the 1950s and 60s,\nand the environmental movement of the 1970s.\nThe 1980s saw a growing skepticism of regulation, part of larger\nmovement against \xe2\x80\x9cbig government.\xe2\x80\x9d A widely held sentiment of the\nera is typified by President Ronald Reagan\xe2\x80\x99s cynical quip about the\nrole of government: \xe2\x80\x9cIf it moves, tax it. If it keeps moving, regulate\nit. And if it stops moving, subsidize it.\xe2\x80\x9d\n\n113\n\n\x0cIf Reagan\xe2\x80\x99s presidency marked a new era of distrust of administrative\nregulation, it did not by any means mark the end of the administrative\npower. Today the number of federal agencies is probably in the\nthousands, although, in a boon to critics, the government itself has\nbeen unable to pin down an exact figure.\nReading: The Jungle\nAt the dawn of the 20th Century the work of butchering animals for\nmeat, which had previously been done on a local basis, became\ncentralized in huge meat-packing operations. The biggest\nconcentration of slaughtering and butchering activity was in\nChicago\xe2\x80\x99s \xe2\x80\x9cPackingtown.\xe2\x80\x9d\nWith market power concentrated in just four companies, and given a\nstream of willing immigrant laborers arriving from overseas, the\npacking industry was able to impose extremely harsh working\nconditions. When the packing companies broke a meat-worker\xe2\x80\x99s\nstrike in 1904, a socialist magazine, Appeal to Reason, prodded 26-yearold New York City writer Upton Sinclair to go to Chicago to\ninvestigate. Over two months, he conducted interviews and\nwitnessed factory operations firsthand. His product was a serialized\nnovel published in the magazine. Sinclair\xe2\x80\x99s subsequent attempts to\npublish the manuscript as a book met with failure until he paid for\nthe first printing himself in February 1906. The book then caused a\nsensation, and the political forces it helped unleash changed the face\nof American law.\n\nThe Jungle\na novel by\nUpton Sinclair\nFebruary 1906\nJurgis was confident of his ability to get work for himself,\nunassisted by any one. As we have said before, he was not\nmistaken in this. He had gone to Brown\xe2\x80\x99s and stood there not\nmore than half an hour before one of the bosses noticed his\nform towering above the rest, and signaled to him. The colloquy\nwhich followed was brief and to the point:\n\n114\n\n\x0c\xe2\x80\x9cSpeak English?\xe2\x80\x9d\n\xe2\x80\x9cNo; Lit-uanian.\xe2\x80\x9d (Jurgis had studied this word carefully.)\n\xe2\x80\x9cJob?\xe2\x80\x9d\n\xe2\x80\x9cJe.\xe2\x80\x9d (A nod.)\n\xe2\x80\x9cWorked here before?\xe2\x80\x9d\n\xe2\x80\x9cNo \xe2\x80\x99stand.\xe2\x80\x9d\n(Signals and gesticulations on the part of the boss. Vigorous\nshakes of the head by Jurgis.)\n\xe2\x80\x9cShovel guts?\xe2\x80\x9d\n\xe2\x80\x9cNo \xe2\x80\x99stand.\xe2\x80\x9d (More shakes of the head.)\n\xe2\x80\x9cZarnos. Pagaiksztis. Szluofa!\xe2\x80\x9d (Imitative motions.)\n\xe2\x80\x9cJe.\xe2\x80\x9d\n\xe2\x80\x9cSee door. Durys?\xe2\x80\x9d (Pointing.)\n\xe2\x80\x9cJe.\xe2\x80\x9d\n\xe2\x80\x9cTo-morrow, seven o\xe2\x80\x99clock. Understand? Rytoj! Prieszpietys!\nSeptyni!\xe2\x80\x9d\n\xe2\x80\x9cDekui, tamistai!\xe2\x80\x9d (Thank you, sir.) And that was all. Jurgis\nturned away, and then in a sudden rush the full realization of his\ntriumph swept over him, and he gave a yell and a jump, and\nstarted off on a run. He had a job! He had a job! And he went all\nthe way home as if upon wings, and burst into the house like a\ncyclone, to the rage of the numerous lodgers who had just\nturned in for their daily sleep.\n\xef\x82\x9b\nFor one evening the old man came home in a great state of\nexcitement, with the tale that he had been approached by a man\nin one of the corridors of the pickle rooms of Durham\xe2\x80\x99s, and\nasked what he would pay to get a job. He had not known what\nto make of this at first; but the man had gone on with matter-offact frankness to say that he could get him a job, provided that\nhe were willing to pay one-third of his wages for it. Was he a\n\n115\n\n\x0cboss? Antanas had asked; to which the man had replied that that\nwas nobody\xe2\x80\x99s business, but that he could do what he said.\nJurgis had made some friends by this time, and he sought one of\nthem and asked what this meant. The friend, who was named\nTamoszius Kuszleika, was a sharp little man who folded hides\non the killing beds, and he listened to what Jurgis had to say\nwithout seeming at all surprised. They were common enough, he\nsaid, such cases of petty graft. It was simply some boss who\nproposed to add a little to his income. After Jurgis had been\nthere awhile he would know that the plants were simply\nhoneycombed with rottenness of that sort \xe2\x80\x93 the bosses grafted\noff the men, and they grafted off each other; and some day the\nsuperintendent would find out about the boss, and then he\nwould graft off the boss. Warming to the subject, Tamoszius\nwent on to explain the situation. Here was Durham\xe2\x80\x99s, for\ninstance, owned by a man who was trying to make as much\nmoney out of it as he could, and did not care in the least how he\ndid it; and underneath him, ranged in ranks and grades like an\narmy, were managers and superintendents and foremen, each\none driving the man next below him and trying to squeeze out\nof him as much work as possible. And all the men of the same\nrank were pitted against each other; the accounts of each were\nkept separately, and every man lived in terror of losing his job, if\nanother made a better record than he. So from top to bottom\nthe place was simply a seething caldron of jealousies and\nhatreds; there was no loyalty or decency anywhere about it, there\nwas no place in it where a man counted for anything against a\ndollar. And worse than there being no decency, there was not\neven any honesty. The reason for that? Who could say? It must\nhave been old Durham in the beginning; it was a heritage which\nthe self-made merchant had left to his son, along with his\nmillions.\nJurgis would find out these things for himself, if he stayed there\nlong enough; it was the men who had to do all the dirty jobs,\nand so there was no deceiving them; and they caught the spirit\nof the place, and did like all the rest. Jurgis had come there, and\nthought he was going to make himself useful, and rise and\nbecome a skilled man; but he would soon find out his error \xe2\x80\x93\n\n116\n\n\x0cfor nobody rose in Packingtown by doing good work. You\ncould lay that down for a rule \xe2\x80\x93 if you met a man who was rising\nin Packingtown, you met a knave. That man who had been sent\nto Jurgis\xe2\x80\x99 father by the boss, he would rise; the man who told\ntales and spied upon his fellows would rise; but the man who\nminded his own business and did his work \xe2\x80\x93 why, they would\n\xe2\x80\x9cspeed him up\xe2\x80\x9d till they had worn him out, and then they would\nthrow him into the gutter.\nJurgis went home with his head buzzing. Yet he could not bring\nhimself to believe such things \xe2\x80\x93 no, it could not be so.\nTamoszius was simply another of the grumblers. He was a man\nwho spent all his time fiddling; and he would go to parties at\nnight and not get home till sunrise, and so of course he did not\nfeel like work. Then, too, he was a puny little chap; and so he\nhad been left behind in the race, and that was why he was sore.\nAnd yet so many strange things kept coming to Jurgis\xe2\x80\x99 notice\nevery day!\nHe tried to persuade his father to have nothing to do with the\noffer. But old Antanas had begged until he was worn out, and all\nhis courage was gone; he wanted a job, any sort of a job. So the\nnext day he went and found the man who had spoken to him,\nand promised to bring him a third of all he earned; and that\nsame day he was put to work in Durham\xe2\x80\x99s cellars. It was a\n\xe2\x80\x9cpickle room,\xe2\x80\x9d where there was never a dry spot to stand upon,\nand so he had to take nearly the whole of his first week\xe2\x80\x99s\nearnings to buy him a pair of heavy-soled boots. He was a\n\xe2\x80\x9csqueedgie\xe2\x80\x9d man; his job was to go about all day with a longhandled mop, swabbing up the floor. Except that it was damp\nand dark, it was not an unpleasant job, in summer.\nNow Antanas Rudkus was the meekest man that God ever put\non earth; and so Jurgis found it a striking confirmation of what\nthe men all said, that his father had been at work only two days\nbefore he came home as bitter as any of them, and cursing\nDurham\xe2\x80\x99s with all the power of his soul. For they had set him to\ncleaning out the traps; and the family sat round and listened in\nwonder while he told them what that meant. It seemed that he\nwas working in the room where the men prepared the beef for\n\n117\n\n\x0ccanning, and the beef had lain in vats full of chemicals, and men\nwith great forks speared it out and dumped it into trucks, to be\ntaken to the cooking room. When they had speared out all they\ncould reach, they emptied the vat on the floor, and then with\nshovels scraped up the balance and dumped it into the truck.\nThis floor was filthy, yet they set Antanas with his mop slopping\nthe \xe2\x80\x9cpickle\xe2\x80\x9d into a hole that connected with a sink, where it was\ncaught and used over again forever; and if that were not enough,\nthere was a trap in the pipe, where all the scraps of meat and\nodds and ends of refuse were caught, and every few days it was\nthe old man\xe2\x80\x99s task to clean these out, and shovel their contents\ninto one of the trucks with the rest of the meat!\nThis was the experience of Antanas; and then there came also\nJonas and Marija with tales to tell. Marija was working for one\nof the independent packers, and was quite beside herself and\noutrageous with triumph over the sums of money she was\nmaking as a painter of cans. But one day she walked home with\na pale-faced little woman who worked opposite to her, Jadvyga\nMarcinkus by name, and Jadvyga told her how she, Marija, had\nchanced to get her job. She had taken the place of an\nIrishwoman who had been working in that factory ever since\nany one could remember. For over fifteen years, so she declared.\nMary Dennis was her name, and a long time ago she had been\nseduced, and had a little boy; he was a cripple, and an epileptic,\nbut still he was all that she had in the world to love, and they\nhad lived in a little room alone somewhere back of Halsted\nStreet, where the Irish were. Mary had had consumption, and all\nday long you might hear her coughing as she worked; of late she\nhad been going all to pieces, and when Marija came, the\n\xe2\x80\x9cforelady\xe2\x80\x9d had suddenly decided to turn her off. The forelady\nhad to come up to a certain standard herself, and could not stop\nfor sick people, Jadvyga explained. The fact that Mary had been\nthere so long had not made any difference to her \xe2\x80\x93 it was\ndoubtful if she even knew that, for both the forelady and the\nsuperintendent were new people, having only been there two or\nthree years themselves. Jadvyga did not know what had become\nof the poor creature; she would have gone to see her, but had\nbeen sick herself. She had pains in her back all the time, Jadvyga\n\n118\n\n\x0cexplained, and feared that she had womb trouble. It was not fit\nwork for a woman, handling fourteen-pound cans all day.\nIt was a striking circumstance that Jonas, too, had gotten his job\nby the misfortune of some other person. Jonas pushed a truck\nloaded with hams from the smoke rooms on to an elevator, and\nthence to the packing rooms. The trucks were all of iron, and\nheavy, and they put about threescore hams on each of them, a\nload of more than a quarter of a ton. On the uneven floor it was\na task for a man to start one of these trucks, unless he was a\ngiant; and when it was once started he naturally tried his best to\nkeep it going. There was always the boss prowling about, and if\nthere was a second\xe2\x80\x99s delay he would fall to cursing; Lithuanians\nand Slovaks and such, who could not understand what was said\nto them, the bosses were wont to kick about the place like so\nmany dogs. Therefore these trucks went for the most part on\nthe run; and the predecessor of Jonas had been jammed against\nthe wall by one and crushed in a horrible and nameless manner.\nAll of these were sinister incidents; but they were trifles\ncompared to what Jurgis saw with his own eyes before long.\nOne curious thing he had noticed, the very first day, in his\nprofession of shoveler of guts; which was the sharp trick of the\nfloor bosses whenever there chanced to come a \xe2\x80\x9cslunk\xe2\x80\x9d calf.\nAny man who knows anything about butchering knows that the\nflesh of a cow that is about to calve, or has just calved, is not fit\nfor food. A good many of these came every day to the packing\nhouses \xe2\x80\x93 and, of course, if they had chosen, it would have been\nan easy matter for the packers to keep them till they were fit for\nfood. But for the saving of time and fodder, it was the law that\ncows of that sort came along with the others, and whoever\nnoticed it would tell the boss, and the boss would start up a\nconversation with the government inspector, and the two would\nstroll away. So in a trice the carcass of the cow would be cleaned\nout, and entrails would have vanished; it was Jurgis\xe2\x80\x99 task to slide\nthem into the trap, calves and all, and on the floor below they\ntook out these \xe2\x80\x9cslunk\xe2\x80\x9d calves, and butchered them for meat, and\nused even the skins of them.\n\n119\n\n\x0cOne day a man slipped and hurt his leg; and that afternoon,\nwhen the last of the cattle had been disposed of, and the men\nwere leaving, Jurgis was ordered to remain and do some special\nwork which this injured man had usually done. It was late,\nalmost dark, and the government inspectors had all gone, and\nthere were only a dozen or two of men on the floor. That day\nthey had killed about four thousand cattle, and these cattle had\ncome in freight trains from far states, and some of them had got\nhurt. There were some with broken legs, and some with gored\nsides; there were some that had died, from what cause no one\ncould say; and they were all to be disposed of, here in darkness\nand silence. \xe2\x80\x9cDowners,\xe2\x80\x9d the men called them; and the packing\nhouse had a special elevator upon which they were raised to the\nkilling beds, where the gang proceeded to handle them, with an\nair of businesslike nonchalance which said plainer than any\nwords that it was a matter of everyday routine. It took a couple\nof hours to get them out of the way, and in the end Jurgis saw\nthem go into the chilling rooms with the rest of the meat, being\ncarefully scattered here and there so that they could not be\nidentified. When he came home that night he was in a very\nsomber mood, having begun to see at last how those might be\nright who had laughed at him for his faith in America.\n\xef\x82\x9b\nJurgis heard of these things little by little, in the gossip of those\nwho were obliged to perpetrate them. It seemed as if every time\nyou met a person from a new department, you heard of new\nswindles and new crimes. There was, for instance, a Lithuanian\nwho was a cattle butcher for the plant where Marija had worked,\nwhich killed meat for canning only; and to hear this man\ndescribe the animals which came to his place would have been\nworthwhile for a Dante or a Zola. It seemed that they must have\nagencies all over the country, to hunt out old and crippled and\ndiseased cattle to be canned. There were cattle which had been\nfed on \xe2\x80\x9cwhisky-malt,\xe2\x80\x9d the refuse of the breweries, and had\nbecome what the men called \xe2\x80\x9csteerly\xe2\x80\x9d \xe2\x80\x93 which means covered\nwith boils. It was a nasty job killing these, for when you plunged\nyour knife into them they would burst and splash foul-smelling\nstuff into your face; and when a man\xe2\x80\x99s sleeves were smeared\n\n120\n\n\x0cwith blood, and his hands steeped in it, how was he ever to wipe\nhis face, or to clear his eyes so that he could see? It was stuff\nsuch as this that made the \xe2\x80\x9cembalmed beef\xe2\x80\x9d that had killed\nseveral times as many United States soldiers as all the bullets of\nthe Spaniards; only the army beef, besides, was not fresh\ncanned, it was old stuff that had been lying for years in the\ncellars.\nThen one Sunday evening, Jurgis sat puffing his pipe by the\nkitchen stove, and talking with an old fellow whom Jonas had\nintroduced, and who worked in the canning rooms at Durham\xe2\x80\x99s;\nand so Jurgis learned a few things about the great and only\nDurham canned goods, which had become a national\ninstitution. They were regular alchemists at Durham\xe2\x80\x99s; they\nadvertised a mushroom-catsup, and the men who made it did\nnot know what a mushroom looked like. They advertised\n\xe2\x80\x9cpotted chicken,\xe2\x80\x9d \xe2\x80\x93 and it was like the boardinghouse soup of\nthe comic papers, through which a chicken had walked with\nrubbers on. Perhaps they had a secret process for making\nchickens chemically \xe2\x80\x93 who knows? said Jurgis\xe2\x80\x99 friend; the things\nthat went into the mixture were tripe, and the fat of pork, and\nbeef suet, and hearts of beef, and finally the waste ends of veal,\nwhen they had any. They put these up in several grades, and sold\nthem at several prices; but the contents of the cans all came out\nof the same hopper. And then there was \xe2\x80\x9cpotted game\xe2\x80\x9d and\n\xe2\x80\x9cpotted grouse,\xe2\x80\x9d \xe2\x80\x9cpotted ham,\xe2\x80\x9d and \xe2\x80\x9cdeviled ham\xe2\x80\x9d \xe2\x80\x93 de-vyled,\nas the men called it. \xe2\x80\x9cDe-vyled\xe2\x80\x9d ham was made out of the waste\nends of smoked beef that were too small to be sliced by the\nmachines; and also tripe, dyed with chemicals so that it would\nnot show white; and trimmings of hams and corned beef; and\npotatoes, skins and all; and finally the hard cartilaginous gullets\nof beef, after the tongues had been cut out. All this ingenious\nmixture was ground up and flavored with spices to make it taste\nlike something. Anybody who could invent a new imitation had\nbeen sure of a fortune from old Durham, said Jurgis\xe2\x80\x99 informant;\nbut it was hard to think of anything new in a place where so\nmany sharp wits had been at work for so long; where men\nwelcomed tuberculosis in the cattle they were feeding, because it\nmade them fatten more quickly; and where they bought up all\n\n121\n\n\x0cthe old rancid butter left over in the grocery stores of a\ncontinent, and \xe2\x80\x9coxidized\xe2\x80\x9d it by a forced-air process, to take away\nthe odor, rechurned it with skim milk, and sold it in bricks in the\ncities! Up to a year or two ago it had been the custom to kill\nhorses in the yards \xe2\x80\x93 ostensibly for fertilizer; but after long\nagitation the newspapers had been able to make the public\nrealize that the horses were being canned. Now it was against\nthe law to kill horses in Packingtown, and the law was really\ncomplied with \xe2\x80\x93 for the present, at any rate. Any day, however,\none might see sharp-horned and shaggy-haired creatures\nrunning with the sheep and yet what a job you would have to\nget the public to believe that a good part of what it buys for\nlamb and mutton is really goat\xe2\x80\x99s flesh!\nThere was another interesting set of statistics that a person\nmight have gathered in Packingtown \xe2\x80\x93 those of the various\nafflictions of the workers. When Jurgis had first inspected the\npacking plants with Szedvilas, he had marveled while he listened\nto the tale of all the things that were made out of the carcasses\nof animals, and of all the lesser industries that were maintained\nthere; now he found that each one of these lesser industries was\na separate little inferno, in its way as horrible as the killing beds,\nthe source and fountain of them all. The workers in each of\nthem had their own peculiar diseases. And the wandering visitor\nmight be skeptical about all the swindles, but he could not be\nskeptical about these, for the worker bore the evidence of them\nabout on his own person \xe2\x80\x93 generally he had only to hold out his\nhand.\nThere were the men in the pickle rooms, for instance, where old\nAntanas had gotten his death; scarce a one of these that had not\nsome spot of horror on his person. Let a man so much as scrape\nhis finger pushing a truck in the pickle rooms, and he might\nhave a sore that would put him out of the world; all the joints in\nhis fingers might be eaten by the acid, one by one. Of the\nbutchers and floorsmen, the beef-boners and trimmers, and all\nthose who used knives, you could scarcely find a person who\nhad the use of his thumb; time and time again the base of it had\nbeen slashed, till it was a mere lump of flesh against which the\nman pressed the knife to hold it. The hands of these men would\n\n122\n\n\x0cbe criss-crossed with cuts, until you could no longer pretend to\ncount them or to trace them. They would have no nails, \xe2\x80\x93 they\nhad worn them off pulling hides; their knuckles were swollen so\nthat their fingers spread out like a fan. There were men who\nworked in the cooking rooms, in the midst of steam and\nsickening odors, by artificial light; in these rooms the germs of\ntuberculosis might live for two years, but the supply was\nrenewed every hour. There were the beef-luggers, who carried\ntwo-hundred-pound quarters into the refrigerator-cars; a fearful\nkind of work, that began at four o\xe2\x80\x99clock in the morning, and\nthat wore out the most powerful men in a few years. There were\nthose who worked in the chilling rooms, and whose special\ndisease was rheumatism; the time limit that a man could work in\nthe chilling rooms was said to be five years. There were the\nwool-pluckers, whose hands went to pieces even sooner than\nthe hands of the pickle men; for the pelts of the sheep had to be\npainted with acid to loosen the wool, and then the pluckers had\nto pull out this wool with their bare hands, till the acid had eaten\ntheir fingers off. There were those who made the tins for the\ncanned meat; and their hands, too, were a maze of cuts, and\neach cut represented a chance for blood poisoning. Some\nworked at the stamping machines, and it was very seldom that\none could work long there at the pace that was set, and not give\nout and forget himself and have a part of his hand chopped off.\nThere were the \xe2\x80\x9choisters,\xe2\x80\x9d as they were called, whose task it was\nto press the lever which lifted the dead cattle off the floor. They\nran along upon a rafter, peering down through the damp and the\nsteam; and as old Durham\xe2\x80\x99s architects had not built the killing\nroom for the convenience of the hoisters, at every few feet they\nwould have to stoop under a beam, say four feet above the one\nthey ran on; which got them into the habit of stooping, so that\nin a few years they would be walking like chimpanzees. Worst of\nany, however, were the fertilizer men, and those who served in\nthe cooking rooms. These people could not be shown to the\nvisitor, \xe2\x80\x93 for the odor of a fertilizer man would scare any\nordinary visitor at a hundred yards, and as for the other men,\nwho worked in tank rooms full of steam, and in some of which\nthere were open vats near the level of the floor, their peculiar\n\n123\n\n\x0ctrouble was that they fell into the vats; and when they were\nfished out, there was never enough of them left to be worth\nexhibiting, \xe2\x80\x93 sometimes they would be overlooked for days, till\nall but the bones of them had gone out to the world as\nDurham\xe2\x80\x99s Pure Leaf Lard!\n\nHistorical Note on The Jungle\nSinclair hoped his novel would inspire the public to support the\nsocialist struggle for workers\xe2\x80\x99 welfare. The most pronounced effect,\nhowever, was to focus the public on questions of food safety.\nPresident Theodore Roosevelt conducted his own follow-up\nfactfinding and found conditions even worse than those described in\nthe book. Roosevelt eventually invited Sinclair to the White House to\nconsult on how to improve inspections. Congress was spurred to\npass two landmark statutes on June 30, 1906 \xe2\x80\x93 the Federal Meat\nInspection Act and the Pure Food and Drug Act, the later of which\nestablished the modern Food and Drug Administration.\nQuestions to Ponder About The Jungle\nA. What does this reading suggest about the relative value of tort law\nand administrative law in preventing injuries to workers?\nB. Would the injured workers have been likely to sue Durham\xe2\x80\x99s?\nWhy or why not? To what extent might the relative scarcity of jobs\nand abundance of applicants play a role in plaintiffs\xe2\x80\x99 decisions to sue?\nWhat about the power dynamics within the managerial hierarchy? If\nthey sued in tort, what would be their chances of obtaining a\nrecovery? Considering your answers to the foregoing, to what extent\ndo you think Durham\xe2\x80\x99s would adjust the working environment and\noperational practices as a response to prospective tort liability?\nC. What does this reading suggest about the relative value of tort law\nand administrative law in preventing consumers from receiving\nadulterated foods?\nD. Would the consumers who ended up eating human remains have\nbeen likely to sue Durham\xe2\x80\x99s? Why or why not? To what extent does\nthe economic power of Durham\xe2\x80\x99s play a role in the likelihood of\nconsumers suing? Assuming unwitting consumers of human remains\n\n124\n\n\x0csued Durham\xe2\x80\x99s in tort, what causes of action could they use? And\nwhat would be the likely outcome?\n\nAdministrative Agencies and the Law Governing\nThem\nA myriad of federal agencies produce, enforce, and interpret health\nand safety regulations. Some of these agencies are devoted primarily\nto the prevention of injury. Standout examples include the National\nHighway Traffic Safety Administration (\xe2\x80\x9cNHTSA,\xe2\x80\x9d regulating\nautomobile manufacture), the Occupational Safety & Health\nAdministration (\xe2\x80\x9cOSHA,\xe2\x80\x9d regulating workplace safety), and the U.S.\nConsumer Product Safety Commission (\xe2\x80\x9cthe CPSC,\xe2\x80\x9d regulating toys,\ntools, and other products that do not come under an agency with\nmore specific jurisdiction). Other agencies have broader regulatory\nmandates, but safety is a large part of what they do \xe2\x80\x93 a good example\nbeing the Federal Aviation Administration (\xe2\x80\x9cFAA,\xe2\x80\x9d regulating airlines\nand airplanes, and providing air traffic control).\nWithin their spheres of expertise, agencies exercise elements of\nlegislative, judicial, and executive power. Agencies make law by\npromulgating regulations. They act as units of executive power by\nconducting investigations and bringing enforcement actions against\nprivate parties. And agencies exercise a judicial function through\nadministrative tribunals that are presided over by administrative law\njudges.\nAgencies are one of the most salient aspects of the anatomy of\ntoday\xe2\x80\x99s federal government. Yet they are not mentioned in the\nConstitution. Instead, agencies are created by statute, and their\nauthority to act derives from statute. For instance, the Consumer\nProduct Safety Act (15 U.S.C. \xc2\xa7\xc2\xa7 2051-2089) established the CPSC.\nThat same act provided the CPSC with the authority it used to ban\nlawn darts. (Lawn darts are huge, oversized darts that can be sued to\nplay an outdoor game similar to horseshoes. They caused numerous\ndeaths and brain injuries through skull punctures, many of the\nvictims being children.) A different statute, the Federal Hazardous\nSubstances Act of 1960 (15 U.S.C. \xc2\xa7\xc2\xa7 1261-1278) gave the CPSC the\nauthority it used to ban lead paint. (Lead is poisonous, and bits of\n\n125\n\n\x0clead paint, when ingested or inhaled by children, can affect brain\ndevelopment.)\nThe process that an agency must follow in rulemaking or adjudication\ncomes from statute as well. For many agencies, certain processes are\ndictated by the statute that first brought the agency into existence \xe2\x80\x93\nvariously called the \xe2\x80\x9cenabling act,\xe2\x80\x9d \xe2\x80\x9cenabling legislation,\xe2\x80\x9d or \xe2\x80\x9corganic\nact.\xe2\x80\x9d This is the statutory law that established the agency and that,\ngoing forward, governs its essential operation. To the extent its\nenabling act does not specify otherwise, an agency\xe2\x80\x99s procedure is\ngoverned by the overarching \xe2\x80\x9cAPA\xe2\x80\x9d \xe2\x80\x93 the Administrative Procedure\nAct of 1946 (5 U.S.C. \xc2\xa7\xc2\xa7 500, et seq.). Amended several times since\nits original passage, the APA is the generic default law that applies to\nadministrative agencies across the board.\n\nHow Regulations are Made\nThe APA sets out two possible methods of rulemaking.\nThe first, formal rulemaking, requires the agency to hold a\nproceeding similar to a courtroom trial, in which evidence is\nintroduced on the record and a decision to promulgate a rule is based\non that record. The APA, by itself, does not require this procedure. It\nis only required if the relevant enabling statute requires it. And few\nenabling statutes do. Some new regulations of the Food and Drug\nAdministration are required to follow the formal rulemaking\nprocedure, but for the most part, formal rulemaking is a relic of a\npast era when a primary concern of administrative regulation was\nrate-setting for railroads and the like.\nThe second method \xe2\x80\x93 and the procedure by which nearly all new\nregulation is promulgated \xe2\x80\x93 is known as notice-and-comment\nrulemaking. This method is the default procedure for rulemaking\nunder the APA, and it applies to all regulation-creation unless a\nspecific provision of enabling statutory law provides otherwise.\nToday, nearly all regulations are promulgated this way.\nAn alternative name for notice-and-comment rulemaking is informal\nrulemaking \xe2\x80\x93 but it\xe2\x80\x99s only \xe2\x80\x9cinformal\xe2\x80\x9d in comparison to old-school\nformal rulemaking. First, an agency must issue an official notice of\n\n126\n\n\x0cproposed rulemaking in the Federal Register, which is a daily\npublication of the U.S. government. At the same time as it gives\nnotice, the agency invites comment from interested groups and\nmembers of the public.\nThe comment period usually must be at least 30 days, but agencies\nfrequently allow a longer comment period than the minimum because\nof a sincere interest in getting informed opinions from people who\nhave a strong interest in the matter \xe2\x80\x93 \xe2\x80\x9cstakeholders\xe2\x80\x9d in agency jargon.\nAfter receiving comments, the agency deliberates. Then, unless it has\nbeen persuaded to abandon its efforts, the agency will decide on a\nfinal rule. The final rule might be quite different than the proposed\nrule. In some cases, comments persuade the agency that it needs to\ngo in a different direction than it had been contemplating with its\nproposed rule. If the newly contemplated rule is different enough\nfrom the original proposal, the agency must re-propose the rule in its\nnew incarnation and solicit a new round of comments. For instance,\nif a proposed rule would have banned the use of a certain chemical in\ntoys, and the new rule would ban it in all industrial and consumer\nsettings, then the notice-and-comment process would need to be\nstarted anew to give newly implicated stakeholders a chance to weigh\nin.\nAfter deciding on a final rule, most agencies in the federal\ngovernment then face an additional step before officially\npromulgating the regulation: They must send the rule to the White\nHouse\xe2\x80\x99s Office of Information and Regulatory Affairs, where the\npresident\xe2\x80\x99s staff can squelch the regulation or send it back to the\nagency with instructions to do revisions or additional research. When\na rule is finally adopted, it is codified in the Code of Federal\nRegulations, where it has the force of law.\nDepending on the relevant enabling statute, agencies can sometimes\nadopt an emergency regulation without providing for notice and\ncomment ahead of time. But ordinarily such a regulation is only valid\non a temporary basis. In the meantime, the agency can use the regular\nmeans of rulemaking to promulgate a permanent regulation that will\nbe effective after the emergency regulation expires. For example,\n\n127\n\n\x0cOSHA is authorized by \xc2\xa7 6(c) of the Occupational Safety and Health\nAct of 1970 to adopt \xe2\x80\x9cemergency temporary standards\xe2\x80\x9d in cases\nwhere the Secretary of Labor determines that the rule is necessary to\nprotect workers from a \xe2\x80\x9cgrave danger.\xe2\x80\x9d The rule is effective as soon\nas it is published in the Federal Register, and it can last a maximum\nof six months. During that time, OSHA must use an elaborate\nprocedure under \xc2\xa7 6(b) of the OSHA Act involving public review and\npublic hearings if it wants a permanent rule.\n\nJudicial Review of Regulations\nPersons opposing regulations can seek to have them overturned by\njudicial review. But doing so requires finding a legal basis upon which\nto mount a challenge.\nThe most powerful source for challenging a regulation may be the\nagency\xe2\x80\x99s enabling act. Agency-specific statutes sometimes provide a\nway to challenge rules on the merits \xe2\x80\x93 such as by arguing that the\n\xe2\x80\x9cproblem\xe2\x80\x9d addressed by the rule lacks significance. On the other\nhand, a given enabling act may provide an agency with extra-wide\ndiscretion, in which case there may be little foothold for challengers.\nAs an across-the-board matter, the APA provides generic grounds for\ncourts to set aside regulations. The first ground for overturning a\nregulation is finding it to be arbitrary or capricious. 5 U.S.C.\n\xc2\xa7 706(2)(A). This is a high burden for the challenger to meet. It\nmeans that a court cannot set aside a regulation simply because the\ncourt disagrees with the agency, or even because the court is\nconvinced the regulation is a ruinously bad idea. Arbitrary-orcapricious review means, in some sense, that the court must find that\nthe agency has lain down on the job. Thus, arbitrary-or-capricious\nreview is quite limited. But it does provide a way for courts to keep\nagency rulemaking in check at the outer boundaries.\nAnother key basis upon which to set aside a regulation is failure to\nobserve required procedure. 5 U.S.C. \xc2\xa7 706(2)(D). Proper\nprocedure is very important under the APA. \xe2\x80\x9cProcedure\xe2\x80\x9d is, after all,\nthe APA\xe2\x80\x99s middle name. But so long as agencies are good at\nfollowing procedure \xe2\x80\x93 and they usually are \xe2\x80\x93 they can keep their\nregulations safe from this sort of challenge.\n\n128\n\n\x0cOne sure-fire way of getting a court to overturn a regulation is\nconvincing the court that the agency promulgating the regulation has\nexceeded its statutory grant of authority in doing so. The only\nthing that allows an agency to issue a regulation with the force of law\nis that Congress has, by law, provided the agency with the authority\nto do so. So if an agency exceeds it\xe2\x80\x99s authority, the regulation is dead\nin the water. Yet it is an uphill battle to persuade a court that an\nagency has exceeded its statutory power because of a doctrine called\nChevron deference. Under this doctrine, named for the Supreme\nCourt\xe2\x80\x99s decision in Chevron U.S.A., Inc. v. Natural Resources Defense\nCouncil, Inc., 467 U.S. 837 (1984), agencies have a great deal of power\nto interpret their own governing statutes. This is important, because\nit means agencies are allowed to interpret their enabling legislation\nbroadly, giving themselves the broadest possible regulatory power.\nUnder Chevron, if Congressional intent is unclear as to the scope of\nagency power, then the agency can choose any permissible\ninterpretation, and that interpretation will be deemed the correct one.\nFrom Chevron:\nThe power of an administrative agency to\nadminister a congressionally created program\nnecessarily requires the formulation of policy\nand the making of rules to fill any gap left,\nimplicitly or explicitly, by Congress. If Congress\nhas explicitly left a gap for the agency to fill,\nthere is an express delegation of authority to the\nagency to elucidate a specific provision of the\nstatute by regulation. Such legislative regulations\nare given controlling weight unless they are\narbitrary, capricious, or manifestly contrary to\nthe statute. Sometimes the legislative delegation\nto an agency on a particular question is implicit\nrather than explicit. In such a case, a court may\nnot substitute its own construction of a\nstatutory\nprovision\nfor\na\nreasonable\ninterpretation made by the administrator of an\nagency.\n\nChevron, 467 U.S. at 834-44 (internal quotes, footnotes, and ellipses\nomitted).\n\n129\n\n\x0cThe bottom line is that agencies wield tremendous quasi-legislative\npower, and the ability of others to challenge disliked regulations can\nbe quite limited.\n\nAgency Enforcement of Regulations\nAdministrative agencies are not only given the power to make\nregulations, but also to enforce them and, through administrative\ntribunals, to adjudicate those enforcement efforts. By putting\nrulemaking, enforcement, and adjudication all together in one agency\nwith a large pool of technical expertise, agencies are able to move\nmuch faster than legislatures and courts in responding to fastemerging questions about product safety and other health concerns.\nOf course, depending on whether you are a safety advocate or a\nbusiness investor, that may or may not be a good thing.\nCase: FDA v. Phusion Products LLC\nIn 2005, a start-up company in Ohio named Phusion began selling an\nalcoholic energy beverage called Four Loko. The product was a\nsugar-sweetened concoction of alcohol, caffeine, and additional\n\xe2\x80\x9cenergy\xe2\x80\x9d ingredients of taurine and guarana. The idea of a drink that\nsimultaneously relaxes and stimulates the imbiber found broad\nappeal. Phusion enjoyed strong sales growth. Hip-hop songs sang the\ndrink\xe2\x80\x99s praises. Then, in 2010, reports surfaced connecting Four\nLoko to hospitalizations. Soon, multiple deaths were blamed on the\nbeverage. A media firestorm ensued.\nThe safety questions caught the attention of federal regulators. In the\nfollowing letter, the FDA took the position that Four Loko was\nunlawful because it violated federal statutory law on food safety and\nits accompanying regulations. The key statute, 21 U.S.C. \xc2\xa7\n342(a)(2)(C), provides: \xe2\x80\x9cA food shall be deemed to be adulterated ...\nif it is or if it bears or contains (i) any food additive that is unsafe\nwithin the meaning of section 348 of this title ... \xe2\x80\x9d\n\nFDA v. Phusion Products LLC\nDepartment of Health and Human Services\nPublic Health Service\n\n130\n\n\x0cFood and Drug Administration\nCollege Park, MD 20740\nNOV 17, 2010\nWARNING LETTER\nOVERNIGHT MAIL via UPS\n\nMr. Jaisen Freeman\nMr. Chris Hunter\nMr. Jeff Wright\nPhusion Projects, LLC (dba Drink Four Brewing Company)\n1658 N. Milwaukee Avenue, Suite 424\nChicago, IL 60647\n\nRe: 134051\nDear Messrs. Freeman, Hunter, and Wright\nThe Food and Drug Administration (FDA) has reviewed the\nregulatory status of the ingredients declared on the label of your\nproduct, \xe2\x80\x9cFour Loko\xe2\x80\x9d which contains caffeine that has been\ndirectly added to an alcoholic beverage and packaged in\ncombined caffeine and alcohol form. As it is used in your\nproduct, caffeine is an unsafe food additive, and therefore your\nproduct is adulterated under section 402(a)(2)(C) of the Federal\nFood, Drug, and Cosmetic Act (the Act) [21 U.S.C. \xc2\xa7\n342(a)(2)(C)]. Regulations on the general provisions for food\nadditives are located in Title 21, Code of Federal Regulations,\nPart 170 (21 CFR 170). You may find copies of the Act and\nthese regulations through links in FDA\xe2\x80\x99s Internet home page at\nhttp://www.fda.gov.\n\n131\n\n\x0cAs defined in section 201(s) of the Act [21 U.S.C. \xc2\xa7 321(s)], the\nterm \xe2\x80\x9cfood additive\xe2\x80\x9d refers to any substance the intended use of\nwhich results in its becoming a component of any food, unless\nthe substance is the subject of a prior sanction or is generally\nrecognized as safe (GRAS) among qualified experts under the\nconditions of its intended use. Under section 409 of the Act [21\nU.S.C. \xc2\xa7 348], a food additive is unsafe unless a regulation is in\neffect that prescribes the conditions under which the additive\nmay be safely used, and the additive and its use or intended use\nare in conformity with that regulation. There is no food additive\nregulation authorizing the use of caffeine as a direct addition to\nalcoholic beverages, and we are not aware of any information to\nestablish that caffeine added directly to alcoholic beverages is\nthe subject of a prior sanction. Likewise, we are not aware of\nany basis to conclude that caffeine is GRAS under these\nconditions of use.\nFDA\xe2\x80\x99s regulations in 21 CFR Part 170 describe the eligibility\ncriteria for classification of a substance added to food as GRAS.\nUnder 21 CFR 170.30(a)-(c), general recognition of safety must\nbe based on the views of qualified experts. The basis of such\nviews may be either (1) scientific procedures or (2) in the case of\na substance used in food prior to January 1, 1958, through\nexperience based on common use in food. Further, general\nrecognition of safety requires common knowledge about the\nsubstance throughout the scientific community knowledgeable\nabout the safety of substances directly added to food.\nFDA\xe2\x80\x99s regulations in 21 CFR Part 170 define \xe2\x80\x9ccommon use in\nfood\xe2\x80\x9d and establish eligibility criteria for classification as GRAS\nthrough experience based on common use in food. Under 21\nCFR 170.30, common use in food means \xe2\x80\x9ca substantial history\nof consumption of a substance for food use by a significant\nnumber of consumers.\xe2\x80\x9d Under 21 CFR 170.30(c)(1), \xe2\x80\x9c[g]eneral\nrecognition of safety through experience based on common use\nin food prior to January 1, 1958, shall be based solely on food\nuse of the substance prior to January 1, 1958, and shall\nordinarily be based upon generally available data and\ninformation.\xe2\x80\x9d Importantly, however, the fact that a substance\nwas added to food before 1958 does not, in itself, demonstrate\n\n132\n\n\x0cthat such use is safe, unless the pre-1958 use is sufficient to\ndemonstrate to qualified experts that the substance is safe when\nadded to food. See section 201(s) of the Act [21 U.S.C. \xc2\xa7 321(s)];\nsee also Fmali Herb, Inc. v. Heckler, 715 F.2d 1385, 1389-90 (9th\nCir. 1983) (\xe2\x80\x9cUnder the statute, \xe2\x80\x98common use in food\xe2\x80\x99 of an\ningredient does not automatically exempt the substance from\npretesting requirements. Instead, \xe2\x80\x98common use in food\xe2\x80\x99 merely\ndescribes one form of evidence that may be introduced by a\nproponent for the purpose of meeting the ultimate\nstandard ... \xe2\x80\x9d).\nSimilarly, FDA\xe2\x80\x99s regulations in 21 CFR Part 170 define\n\xe2\x80\x9cscientific procedures\xe2\x80\x9d and establish eligibility criteria for\nclassification as GRAS through scientific procedures. Under 21\nCFR 170.3(h), scientific procedures \xe2\x80\x9cinclude those human,\nanimal, analytical, and other scientific studies, whether published\nor unpublished, appropriate to establish the safety of a\nsubstance.\xe2\x80\x9d Under 21 CFR 170.30(b), general recognition of\nsafety based upon scientific procedures \xe2\x80\x9cshall require the same\nquantity and quality of scientific evidence as is required to\nobtain approval of a food additive regulation for the ingredient.\xe2\x80\x9d\nSection 170.30(b) further states that general recognition of\nsafety through scientific procedures is ordinarily based upon\npublished studies, which may be corroborated by unpublished\nstudies and other data and information.\nFDA\xe2\x80\x99s regulations in 21 CFR Part 170 also define \xe2\x80\x9csafe\xe2\x80\x9d and\n\xe2\x80\x9csafety.\xe2\x80\x9d Under 21 CFR 170.3(i), \xe2\x80\x9c[s]afe or safety means that\nthere is a reasonable certainty in the minds of competent\nscientists that the substance is not harmful under the intended\nconditions of use.\xe2\x80\x9d The regulations identify factors to be\nconsidered in determining the safety of a substance added to\nfood. 21 CFR 170.3(i).\nBy letter dated November 12, 2009, FDA requested that, within\n30 days, your company provide evidence of the rationale, along\nwith supporting data and information, for concluding that the\nuse of caffeine in your product is GRAS or prior sanctioned.\nThe letter informed your company that if FDA determined that\nthe use of caffeine in your alcoholic beverage is neither GRAS\n\n133\n\n\x0cnor the subject of a prior sanction, the agency would take\nappropriate action to ensure that the product is removed from\nthe marketplace. FDA\xe2\x80\x99s letter also reiterated that it is the\ncontinuing responsibility of your company to ensure that the\nfoods it markets are safe and in compliance with all applicable\nlegal and regulatory requirements.\nFDA acknowledges that, in response to the agency\xe2\x80\x99s November\n12 letter, your firm submitted a letter within the 30 day\ntimeframe requested, indicating that you would submit a GRAS\nNotice pursuant to proposed 21 CFR 170.36 (62 FR 18938;\nApril 17, 1997) at a later date. The agency received your GRAS\nNotice (GRN No. 000347) (\xe2\x80\x9cGRAS Notice\xe2\x80\x9d), dated June 25,\n2010, and filed it on June 30, 2010. But, as discussed in more\ndetail below, FDA has reviewed that notice and continues to\nhave safety concerns about your caffeinated alcoholic beverage\nproduct. Accordingly, the agency is issuing this warning letter.\nTo establish that the use of a substance in food is GRAS under\nits specific conditions of use (for example, the GRAS status of\ncaffeine when directly added to an alcoholic beverage), there\nmust be consensus among qualified experts that the substance is\nsafe under its conditions of use, based on publicly available data\nand information. FDA is aware that, based on the publicly\navailable literature, a number of qualified experts have concerns\nabout the safety of caffeinated alcoholic beverages. Moreover,\nthe agency is not aware of data or other information to establish\nthe safety of the relevant conditions of use for your product.\nTherefore, the criteria for GRAS status have not been met for\nthe caffeine in your beverage.\nBased upon the publicly available literature, FDA has the\nfollowing specific concerns about the safety of caffeine when\nused in the presence of alcohol.\xef\x81\x81As used in the discussion\nbelow, the term \xe2\x80\x9cenergy drink\xe2\x80\x9d identifies beverages that contain\na significant amount of calories and caffeine as well as other\ningredients, such as taurine, herbal extracts, or vitamins\n(Heckman et al., 2010).\xef\x81\x80\n\xef\x82\xb7\n\nReports in the scientific literature have described\nbehavioral effects that may occur in young adults when\n\n134\n\n\x0cenergy drinks are consumed along with alcoholic\nbeverages (O\xe2\x80\x99Brien et al., 2008; Thombs et al., 2010;\nMiller, 2008).\n\xef\x82\xb7\n\nStudies suggest that the combined ingestion of caffeine\nand alcohol may lead to hazardous and life-threatening\nsituations because caffeine counteracts some, but not\nall, of alcohol\xe2\x80\x99s adverse effects. In one study, a mixture\nof an energy drink and alcohol reduced subjects\xe2\x80\x99\nsubjective perception of intoxication but did not\nimprove diminished motor coordination or slower\nvisual reaction times using objective measures (Ferreira\net al., 2006). In a dual-task model, subjects coadministered caffeine and alcohol reported reduced\nperception of intoxication but no reduction of alcoholinduced impairment of task accuracy (Marczinski and\nFillmore, 2006).\n\n\xef\x82\xb7\n\nBecause caffeine alters the perception of alcohol\nintoxication, the consumption of pre-mixed products\ncontaining added caffeine and alcohol may result in\nhigher amounts of alcohol consumed per drinking\noccasion, a situation that is particularly dangerous for\nna\xc3\xafve drinkers (Oteri et al., 2007).\n\nGRAS status is not an inherent property of a substance, but\nmust be assessed in the context of the intended conditions of\nuse of the substance (section 201(s) of the Act [21 U.S.C. \xc2\xa7\n321(s)]). The assessment includes a consideration of the\npopulation that will consume the substance (21 CFR 170.30(b);\nsection 409(b) of the Act [21 U.S.C. \xc2\xa7 348(b)]). Therefore, the\nscientific data and information that support a GRAS\ndetermination must consider the conditions under which the\nsubstance is safe for the use for which it is marketed. Reports in\nthe scientific literature have raised concerns regarding the\nformulation and packaging of pre-mixed products containing\nadded caffeine and alcohol. For example, these products,\npresented as fruity soft drinks in colorful single-serving\npackages, seemingly target the young adult user. Furthermore,\nthe marketing of the caffeinated versions of this class of\n\n135\n\n\x0calcoholic beverage appears to be specifically directed to young\nadults (Bonnie and O\xe2\x80\x99Connell, 2004). FDA is concerned that the\nyoung adults to whom these pre-mixed, added caffeine and\nalcohol products are marketed are especially vulnerable to the\nadverse behavioral effects associated with consuming caffeine\nadded to alcohol, a concern reflected in the publicly available\nliterature (O\xe2\x80\x99Brien et al., 2008; Simon and Mosher, 2007).\nIt is FDA\xe2\x80\x99s view that the caffeine content of your beverage\ncould result in central nervous system effects if a consumer\ndrank one or more containers of your product. Therefore, FDA\nbelieves that the consumption of your product, \xe2\x80\x9cFour Loko,\xe2\x80\x9d\nmay result in adverse behavioral outcomes because the caffeine\nis likely to counteract some, but not all, of the adverse effects of\nalcohol. The agency is unaware of any data that address the\ncomplex, potentially hazardous behaviors that have been\nidentified in the scientific literature as associated with these\nbeverages or that otherwise alleviate our concerns about the\neffects of consuming these pre-mixed caffeine and alcohol\nbeverages. Moreover, FDA is not aware of any publicly available\ndata to establish affirmatively safe conditions of use for caffeine\nadded directly to alcoholic beverages and packaged in a\ncombined form.\nAs noted, FDA has reviewed the information in your GRAS\nNotice as well as other publically available information and\ncontinues to have safety concerns about your caffeinated\nalcoholic beverage product. In considering the totality of the\ninformation presented in the GRAS Notice, FDA notes that the\nGRAS Notice did not cite any scientific literature of which the\nagency was not already aware.\xef\x81\x81We note that in an e-mail dated\nAugust 10, 2010, the Office of Food Additive Safety did request\nthree references cited within your GRAS Notice. We had been\naware of these references but due to their age, had not been able\nto locate them.\xef\x81\x80 Furthermore, we wish to comment generally\non two lines of argument presented in your GRAS Notice.\nFirst, your GRAS Notice relies primarily upon safety studies of\ncaffeine alone (i.e., not in the presence of alcohol) to support\nyour view that caffeine is safe under the relevant conditions of\n\n136\n\n\x0cuse (that is, in combination with alcohol). Importantly, however,\nthe current scientific literature, which we cite above, establishes\nthat significant safety concerns are raised by the coconsumption of caffeine and alcohol. Accordingly, data and\ninformation addressing the safety of caffeine alone are not\nsufficient to establish the safety, and the general recognition of\nthe safety, of beverages that combine caffeine with alcohol.\nSecond, we note that one section of your GRAS Notice reviews\nsome of the studies that have reported the adverse behavioral\neffects elicited by the co-consumption of caffeine and alcohol\nand identifies purported deficiencies in the design and\ninterpretation of these studies. Even if certain studies in the\nscientific literature have limitations due to their design or the\ninterpretation of their results, the peer-reviewed literature as a\nwhole is sufficient to raise, among qualified experts, safety\nconcerns about alcoholic beverages to which caffeine has been\ndirectly added. Similarly, even if the results from no single study\nare sufficiently comprehensive to characterize fully the potential\nresponses to beverages containing caffeine added to alcohol,\nthese studies are collectively sufficient to raise concerns about\nconsumption of this combination and to support the conclusion\nthat more research is required. Furthermore, FDA is not aware\nof any reports in the literature that refute the association\nbetween the co-consumption of alcohol and caffeine and\nadverse behavioral results or that otherwise affirmatively\nestablish the safety of these beverages. Indeed, our review of\nthis literature, as well as certain related studies in animals, shows\nthat there are currently no studies or other information that\nrefute the safety concerns or otherwise affirmatively establish\nthe safety of caffeine directly added to alcoholic beverages.\nTherefore, we are not aware of a sufficient basis to support a\nconclusion that caffeine, when directly added to alcohol to form\na single beverage, is generally recognized as safe.\nThe agency is aware that your company received a\nCertification/Exemption of Label/Bottle Approval (COLA)\nfrom the Alcohol and Tobacco Tax and Trade Bureau (TTB)\nand that, as part of your application for the COLA, you\ninformed TTB that your product would contain caffeine. A\n\n137\n\n\x0cCOLA does not constitute a food additive petition approval, a\nstatement regarding GRAS status, or a prior sanction, and you\nare obligated to abide by the provisions of the Federal Food,\nDrug, and Cosmetic Act.\nIn light of the safety concerns identified above, the use of added\ncaffeine in the alcoholic beverage product \xe2\x80\x9cFour Loko\xe2\x80\x9d does\nnot satisfy the criteria for GRAS status outlined above. Further,\nFDA is aware of no other exemption from the food additive\ndefinition that would apply to caffeine when used as an\ningredient in an alcoholic beverage product. Therefore, caffeine\nas used in your product is a food additive under section 201(s)\nof the Act [21 U.S.C. \xc2\xa7 321(s)] and is subject to the provisions of\nsection 409 of the Act [21 U.S.C. \xc2\xa7 348]. Under the latter, a food\nadditive is required to be approved by FDA for its proposed\nconditions of use prior to marketing. Because caffeine is not an\napproved food additive for its use in your product, \xe2\x80\x9cFour\nLoko,\xe2\x80\x9d this product is adulterated within the meaning of section\n402(a)(2)(C) of the Act [21 U.S.C. \xc2\xa7 342 (a)(2)(C)].\nYou should take prompt action to correct this violation and\nprevent its recurrence. Failure to do so may result in\nenforcement action without further notice. The Act authorizes\nthe seizure of illegal products and injunctions and prosecutions\nagainst manufacturers and distributors of those products.~\nPlease advise this office in writing within fifteen (15) days from\nyour receipt of this letter as to the specific steps you have taken\nto correct the violation identified above and to assure that\nsimilar violations do not occur. Your response should include\nany documentation necessary to show that correction has been\nachieved. If you cannot complete all corrections within the 15\ndays, please explain the reason for your delay and the date by\nwhich each such item will be corrected and documented.\nPlease send your reply to Seyra Hammond, Food and Drug\nAdministration, Center for Food Safety and Applied Nutrition,\nOffice of Compliance (HFS-605), 5100 Paint Branch Parkway,\nCollege Park, MD 20740.\n\n138\n\n\x0cSincerely,\n/s/\nJoann M. Givens\nActing Director\nOffice of Compliance\nCenter for Food Safety and Applied Nutrition,\ncc: Food and Drug Administration Chicago District Office\n\nQuestions to Ponder About FDA v. Phusion\nA. Before Phusion came along, professional bartenders and amateur\npartiers alike mixed 80-proof liquor or even 200-proof grain alcohol\nwith energy drinks containing caffeine. And even before energy\ndrinks came on the scene, it was common to mix caffeine and\nalcohol. The popularity of one particular combination during the\nWorld War II era is memorialized in the Andrews Sisters\xe2\x80\x99 song,\n\xe2\x80\x9cRum & Coca-Cola.\xe2\x80\x9d Should those historical facts matter to the\ninterpretation of 21 CFR 170.3?\nB. Should it matter under 21 CFR 170.3 that the alleged harmful\neffect of a food additive is behaviorally mediated? In other words,\ndoes it matter that a food additive is not directly physically\ndangerous, but instead is risky solely because of its link with behavior\nand the choices people make?\nC. Should it matter that Phusion\xe2\x80\x99s products are \xe2\x80\x9cpresented as fruity\nsoft drinks in colorful single-serving packages\xe2\x80\x9d and that they\n\xe2\x80\x9cseemingly target the young adult user\xe2\x80\x9d? Do either of these facts bear\non whether the drinks are \xe2\x80\x9cadulterated\xe2\x80\x9d?\nD. Based on what you read, how would you characterize Phusion\xe2\x80\x99s\nsituation in terms of tort liability? Apparently, at the time the letter\nwas written, the prospect of tort liability had not caused Phusion to\nstop selling caffeinated alcohol drinks. Why not?\nE. Did Phusion\xe2\x80\x99s prospective tort liability change as a result of this\nletter and the fact that Phusion received it? What impact could the\nletter and its analysis have in a tort lawsuit against Phusion? Put\nyourself in the position of Phusion\xe2\x80\x99s general counsel: After receipt of\nthis letter, would you advise Phusion to stop selling caffeinated\n\n139\n\n\x0calcoholic beverages? To what extent does tort law play a role in your\nanalysis?\nCase: FTC v. Phusion Products LLC\nOn the same day that the FDA sent its letter, the FTC wrote to\nPhusion to add its concern that the marketing of Four Loko might\nconstitute a violation of the broad provisions of 15 U.S.C. \xc2\xa7 45(a),\nwhich provides: \xe2\x80\x9c(1) Unfair methods of competition in or affecting\ncommerce, and unfair or deceptive acts or practices in or affecting\ncommerce, are hereby declared unlawful. (2) The Commission is\nhereby empowered and directed to prevent persons, partnerships, or\ncorporations \xe2\x80\xa6 from using unfair methods of competition in or\naffecting commerce and unfair or deceptive acts or practices in or\naffecting commerce.\xe2\x80\x9d\n\nFTC v. Phusion Products LLC\nUNITED STATES OF AMERICA\nFEDERAL TRADE COMMISSION\nWASHINGTON, D.C. 20580\n\nBureau of Consumer Protection\nDivision of Advertising Practices\nNovember 17, 2010\nVia Electronic Mail\nAndrew J. Strenio, Jr.\nSidley Austin LLP\n1501 K Street, N.W.\nWashington, D.C. 20005\n\nRE: NOTICE OF POTENTIALLY ILLEGAL MARKETING\nOF CAFFEINATED ALCOHOL PRODUCTS\n\n140\n\n\x0cDear Mr. Strenio:\nYour client, Phusion Products LLC (\xe2\x80\x9cPhusion\xe2\x80\x9d), markets and\nsells Four Loko and Four Maxed, alcohol beverages containing\ncaffeine directly added as a separate ingredient. Four Loko, a\ncarbonated malt beverage that comes in several fruity flavors, is\nsold in 23.5 fluid ounce cans containing 11% to 13% alcohol by\nvolume (depending on the state), plus added caffeine, taurine,\nand guarana. Thus, one can of this product contains the same\nalcohol content as four regular or five light beers. Four Maxed,\nalso a carbonated malt beverage with added caffeine that comes\nin fruity flavors, is sold in 16 fluid ounce cans containing 10%\nalcohol by volume (equivalent to about three regular beers).\nThese products sell for less than $3.00 a can. This letter serves\nto advise Phusion that its marketing and sale of Four Loko and\nFour Maxed may constitute an unfair or deceptive act or\npractice in violation of the Federal Trade Commission Act, 15\nU.S.C. \xc2\xa7 45. \xef\x81\x81The Federal Trade Commission enforces the\nFederal Trade Commission Act, which, among other things,\nprohibits unfair or deceptive acts or practices in or affecting\ncommerce, id., and the false advertising of food, drugs, devices,\nservices, or cosmetics, 15 U.S.C. \xc2\xa7 52. The Food and Drug\nAdministration is responsible, among other things, for ensuring\nthat any food, drug, device, or cosmetic is not adulterated,\nmisbranded, or otherwise improperly labeled. See generally\nFederal Food, Drug, and Cosmetic Act, 21 U.S.C. \xc2\xa7\xc2\xa7 321 et seq.\xef\x81\x80\nConsumer safety is among the highest priorities of the Federal\nTrade Commission (\xe2\x80\x9cFTC\xe2\x80\x9d). Safety concerns have, in the past,\ncontributed to the Commission\xe2\x80\x99s decision to take action against\nalcohol marketers. We are aware of a number of recent incidents\nsuggesting that alcohol containing added caffeine may present\nunusual risks to health and safety.\xef\x81\x81Over the past several\nmonths, consumers in at least four states have been hospitalized\nfollowing consumption of caffeinated alcohol.\xef\x81\x80 These incidents\nsuggest that consumers, particularly young adults, may not fully\nappreciate the potential effects of consuming caffeinated alcohol\nbeverages such as Four Loko and Four Maxed.\n\n141\n\n\x0cWe have further been advised that the Food and Drug\nAdministration (\xe2\x80\x9cFDA\xe2\x80\x9d) has warned you that caffeine, as used\nin your product, Four Loko, is an \xe2\x80\x9cunsafe food additive\xe2\x80\x9d under\nthe Federal Food, Drug, and Cosmetic Act. As a result, this\nproduct is deemed adulterated.\nThe FDA\xe2\x80\x99s warning that caffeine is an \xe2\x80\x9cunsafe food additive,\xe2\x80\x9d\nas used in Four Loko, is a relevant consideration in the FTC\xe2\x80\x99s\nanalysis of whether the marketing of caffeinated alcohol\nproducts such as Four Loko and Four Maxed is deceptive or\nunfair under the Federal Trade Commission Act. In the past, the\nFTC has accorded significant weight to FDA findings regarding\nproduct safety and efficacy.\nThe FTC staff therefore strongly urges you to take swift and\nappropriate steps to protect consumers. Even in the absence of\nexpress safety claims, the very act of offering goods for sale\ncreates an implied representation that the goods are reasonably\nfit for their intended uses and free of gross safety hazards. In\naddition, the non-disclosure of rare but serious safety risks may\nconstitute an unfair practice.\nPlease notify Janet M. Evans~ and Carolyn L. Hann~ in writing,\nwithin 15 days, of the specific actions you have taken to address\nour concerns. You may contact Ms. Evans and Ms. Hann by\nemail or, alternatively, by mail~.\nVery truly yours,\n/s/\nMary K. Engle\nAssociate Director\nDivision of Advertising Practices\n\nHistorical Note on Phusion and Four Loko\nAs it turns out, Phusion did not fight the FDA. On the same date as\nthe letters, November 17, 2010, Phusion announced that it would\nvoluntarily remove caffeine from its formula for Four Loko.\n\n142\n\n\x0cJust five days later, Kansas\xe2\x80\x99s Department of Alcoholic Beverage\nControl used its administrative power to ban Four Loko within the\nstate. And the next month, special agents of the Virginia Department\nof Alcoholic Beverage Control conducted a sting operation to arrest a\nman for selling alcoholic beverages without a license. The man used\nCraigslist to unwittingly meet an undercover officer to sell eight cans\nof Four Loko for $80. The Kansas and Virginia experiences illustrate\nhow state administrative agencies often have overlapping regulatory\njurisdiction with federal authorities.\nProblem: Boogie Woogie Bugle Boy Beverages\nSuppose that after Phusion removed the caffeine from Four Loko, a\nnew group of entrepreneurs see an opening in the market. They form\nCompany B LLC and begin marketing a bottled drink called Boogie\nWoogie Bugle Boy Rum and Cola. To advertise, they produce a\nvideos featuring mash-ups of the Andrew Sisters\xe2\x80\x99 recordings of\n\xe2\x80\x9cBoogie Woogie Bugle Boy\xe2\x80\x9d and \xe2\x80\x9cRum & Coca-Cola,\xe2\x80\x9d both\noriginally recorded in the 1940s. The company focus-group tests the\nvideos, the product packaging, and the product itself, exclusively with\npersons aged 70 or older, and it finds that all elements work well with\nthis demographic. Shortly after the drink hits the market, however, a\nsocial media buzz \xe2\x80\x93 entirely unorchestrated by Company B \xe2\x80\x93 causes\nsales to skyrocket among persons in the 21- to 24-year-old age range.\nThis demographic soon accounts for 87% of sales. This effect was\nnot unexpected. The entrepreneurs were hoping for a kind of retroreverse coolness effect to happen, since they were familiar with\nsimilar phenomena in recent years concerning brands of clothing and\ndeodorant. Does Company B have anything to worry about in terms\nof FDA or FTC regulation?\n\n143\n\n\x0cPart V: Intentional Torts\n\n144\n\n\x0c16. Introduction to Intentional\nTorts\n\xe2\x80\x9cWhat did you mean to do? And why was I the only one you\ndidn\xe2\x80\x99t do it to?\xe2\x80\x9d\n\xe2\x80\x93 Fiyero Tiggular in Wicked, by Winnie Holzman, 2003\n\nThe Context of the Intentional Torts Within Tort Law\nThere are seven traditional intentional torts \xe2\x80\x93 battery, assault, false\nimprisonment, intentional infliction of emotional distress, trespass to\nland, trespass to chattels, and conversion. These are the subject of the\nnext several chapters.\nThe intentional torts are the most basic tort causes of action. And\nmost of the doctrine of intentional torts pre-dates the development\nof negligence. Because of this, many torts courses start with\nintentional torts.\nWhether you are starting to read the book here, or whether you\nstudied the preceding chapters first, it is helpful to take a moment\nhere to compare intentional torts to accidental torts.\n\nThe intent/damages trade-off: When it comes to the accidental\ntorts, such as negligence, it is no defense for the defendant to say, \xe2\x80\x9cI\ndidn\xe2\x80\x99t mean to do it.\xe2\x80\x9d The law can hold a person responsible for loss\neven without intent. But the accidental torts require as part of the\nprima facie case that the plaintiff show an actual injury \xe2\x80\x93 physical\ndamage to the plaintiff\xe2\x80\x99s person or property.\nIn contrast, the intentional torts do not require proof of physical\ninjury or damage. So, for example, intentionally spitting on someone\nqualifies as the tort of battery \xe2\x80\x93 even if there is no injury.\nAt the broadest level, considering both intentional and accidental\ntorts together, there is a sense in which we can think of the\ndefendant\xe2\x80\x99s intent as an alternative to the existence of damages. If the\ndefendant intended to invade your legally protected interests in your\n\n145\n\n\x0cbody or property, then you may be able to recover regardless of\nwhether actual harm has been suffered. That\xe2\x80\x99s intentional torts. On\nthe other hand, if you have actually been hurt, then you may be able\nto recover regardless of whether the defendant intended any harm or\noffense.\nSo when we look at the intentional torts and the accidental torts\ntogether, tort law seems to take the stance that unless you\xe2\x80\x99ve been\nhurt, or unless the defendant acted with bad intent, you should not\nbring your grievance to court.\n\nDifferences in doctrinal structure: Another point of contrast\nbetween the intentional torts and the accidental torts is how the\ndoctrine is structured. For accidents, there is really just one big cause\nof action \xe2\x80\x93 negligence, which takes care of the vast majority of claims\narising from accidents. The other causes of action \xe2\x80\x93 strict liability,\nproducts liability, and informed-consent actions \xe2\x80\x93 could be\ncategorized as modifications of negligence that are relevant in limited\ncircumstances. By contrast, in intentional torts, there is no general\ntort of \xe2\x80\x9cintentigence.\xe2\x80\x9d Instead we have seven specific intentional\ntorts.\nPainting with a broad brush, we can make some additional\ngeneralizations: While negligence is broad and flexible, the intentional\ntorts tend toward the narrow and rigid. Correspondingly, while the\ndoctrine of negligence is complex and its contours fuzzy, intentional\ntorts doctrine is comparatively simple, with harder, more well-defined\nedges.\nTake, for instance, the cause of action for battery. The elements are:\n(1) an action, that is (2) intentional, and which results in a (3) harmful\nor offensive (4) touching of the plaintiff. Those elements are mostly\nself-explanatory. There are a few clarifications that will have to be\nmade. For instance, does hitting someone with a thrown object count\nas a \xe2\x80\x9ctouching\xe2\x80\x9d? (It does.) But such questions are relatively\nstraightforward, and they have relatively straightforward answers. By\ncontrast, the first element of the negligence cause of action is that\n\xe2\x80\x9cthe defendant owed the plaintiff a duty of due care.\xe2\x80\x9d That is not\n\n146\n\n\x0cself-explanatory at all. Understanding what it means requires a lot of\nwork.\nNone of this is to say that there are no difficult cases in intentional\ntorts. There are, of course, hard cases on the margins. And novel\nfacts can pose challenges to established doctrine. But, by and large,\nthe intentional torts are generally about applying well-formed rules,\nnot about balancing factors or making policy choices.\nThe bottom line is that moving between accidental torts and the\nintentional torts requires a little bit of a mental adjustment. So if\nyou\xe2\x80\x99re starting out with intentional torts, don\xe2\x80\x99t expect the same\ndegree of rule-intensiveness when you move to negligence. And if\nyou are arriving here after studying negligence, you can look forward\nto legal questions that tend more to have a \xe2\x80\x9cright answer.\xe2\x80\x9d\n\nA Quick Overview of the Intentional Torts\nLet\xe2\x80\x99s take a fast look at the basics of the seven intentional torts.\nFirst up are the four personal intentional torts \xe2\x80\x93 battery, assault, false\nimprisonment, and intentional infliction of emotional distress.\nThe most basic of these is battery. Battery is the intentional touching\nof the plaintiff in a harmful or offensive way. The concept of\n\xe2\x80\x9ctouching\xe2\x80\x9d is quite broad. It would include, for instance, poisoning\nthe plaintiff\xe2\x80\x99s meal. But in keeping with the theme of the intentional\ntorts, no actual harm need be done. A sturdy plaintiff, for instance,\nmight not be harmed at all by a punch thrown by a weak defendant.\nRegardless, a punch is \xe2\x80\x9charmful or offensive,\xe2\x80\x9d even if no harm\nresults, so a punch is an actionable battery.\nNext is assault. Assault is the intentional creation of an immediate\napprehension of a harmful or offensive touching. That is to say, an\nassault is the apprehension of an oncoming battery. Throwing a\npunch and missing is an assault.\nThe third intentional tort is false imprisonment, which is the\nintentional confinement of the plaintiff to a bounded area by force,\nthreat of force, or improper assertion of legal authority. Locking the\nplaintiff in the cellar would count. So would brandishing a firearm\nand saying, \xe2\x80\x9cMove and I shoot.\xe2\x80\x9d False imprisonment is a civil cause\n\n147\n\n\x0cof action that is analogous to \xe2\x80\x93 though not completely overlapping\nwith \xe2\x80\x93 the crime of kidnapping.\nThe last personal intentional tort is intentional infliction of\nemotional distress, often abbreviated \xe2\x80\x9cIIED,\xe2\x80\x9d and sometimes\nknown by its shorter and pithier name, outrage. This tort results when\nthe defendant intentionally engages in outrageous conduct that causes\nthe plaintiff severe mental distress. The key is that the action has to\nbe truly outrageous. Telling someone that a close family member is dead\n\xe2\x80\x93 when that\xe2\x80\x99s not true \xe2\x80\x93 would likely qualify. Teasing or insulting\nsomeone, however, is usually not enough. Also, the mental distress\nthe suffered by the plaintiff must be severe. Physical effects \xe2\x80\x93 such as\ncardiac problems or tooth-grinding damage \xe2\x80\x93 are not necessary, but\nwhere they occur, they are helpful in showing the required severity.\nIt should be said that IIED is something of anomaly among the\nintentional torts for a couple reasons. First, intent is not strictly\nrequired. Recklessness will suffice. Also, IIED is an arguable\nexception to our general observation that the intentional torts do not\nrequire a showing of damages. While there is no need to prove\nphysical injury, property damage, lost wages, or the like, there is the\nrequirement that the plaintiff suffer actual distress. If a plaintiff,\nperhaps because of a reserve of inner strength, were not caused\nsevere distress despite the plaintiff\xe2\x80\x99s intentional and outrageous\nconduct, then there would be no cause of action.\nThe remaining three intentional torts are trespass to land, trespass to\nchattels, and conversion \xe2\x80\x93 all of which involve invasions of rights\nover tangible property.\nThe tort of trespass to land is the intentional tort that applies to\ninvasions of interests in real property, which includes land and things\nattached to the land, such as trees, buildings, improvements, and\nfixtures. An action for trespass to land requires an intentional act to\ninvade someone\xe2\x80\x99s real property. Traipsing across someone else\xe2\x80\x99s land\n\xe2\x80\x93 or even putting a foot on it \xe2\x80\x93 satisfies the elements. The invasion\ncan be momentary and does not need to do any damage to be\nactionable.\n\n148\n\n\x0cThe remaining two intentional torts are for invasions of interests in\nchattels. Chattels are the moveable kind of property, and they include\nany item of tangible property that is not part of real property. Cars,\ncomputers, clothing, and animals are all examples of chattels.\nThe tort of trespass to chattels requires an intentional action that\nsubstantially interferes with a plaintiff\xe2\x80\x99s chattel. What counts as\n\xe2\x80\x9cinterfering\xe2\x80\x9d is a little tricky. The law here is stricter than it is with\ntrespass to land. With trespass to land, merely putting a foot on the\nplaintiff\xe2\x80\x99s land creates liability. The analogous is not true for trespass\nto chattels. Merely running up and touching the plaintiff\xe2\x80\x99s chattel\ndoes not count. Making a substantial use of the plaintiff\xe2\x80\x99s chattels\ndoes count as interference, as does depriving the plaintiff of the\nopportunity to use them. Damage, where it occurs, always counts as\ninterference.\nThe last intentional tort is conversion. An alternative to trespass to\nchattels, the tort of conversion is an intentional interference with the\nplaintiff\xe2\x80\x99s chattel that is so severe that it warrants a forced sale of the\nchattel to the defendant. Conversion is essentially trespass to chattels,\nbut with a heightened threshold that triggers a more powerful\nremedy. Here\xe2\x80\x99s an example: A defendant steals the plaintiff\xe2\x80\x99s car, puts\na cinder block on the gas pedal, and causes it to propel itself off a\ncliff. That plaintiff has an excellent cause of action for conversion.\nThus, the plaintiff can get the market value of the car before it was\ntaken, and the defendant will take title to the smoldering wreck at the\nbottom of the canyon.\n\nA Preview of Intentional Torts Defenses\nAffirmative defenses play a starring role in the world of the\nintentional torts. The main defenses are consent, self-defense,\ndefense of others, and necessity.\nMost importantly, consent is a complete defense to the intentional\ntorts. You can\xe2\x80\x99t successfully sue your invited party guests for trespass\nto land because you consented to their entry on your land. Likewise,\nyou can\xe2\x80\x99t successfully sue your aunt for giving you a big hug, because\nyou consented \xe2\x80\x93 impliedly if not expressly \xe2\x80\x93 to her touching you.\n\n149\n\n\x0cAnd of, course, if someone tries to hurt you, you\xe2\x80\x99re entitled to use\nforce in self-defense. If someone runs at you with a knife, you can\nsweep the leg and knock them to the ground without incurring\nliability for battery. Similarly, defense of others allows you to avoid\nassault liability for aiming a gun at the assailant who is mugging your\nfriend.\nFinally, the defense of necessity allows you to avoid tort liability\nwhen you are acting to prevent a greater harm. For instance, you\xe2\x80\x99ll\nincur no trespass-to-chattels liability for absconding with a bowl of\npunch if you\xe2\x80\x99re using to put out a fire.\n\nThe Place of Damages in the Intentional Torts\nAs already emphasized, it is possible to plead and prove a claim an\nintentional tort claim without a showing of damages. Nonetheless,\nthe concept of damages does have an important place with the\nintentional torts.\nAt the outset, we need to note that there is often little point in\nbringing a lawsuit unless it is for damages. Therefore, in the real\nworld, intentional tort cases will often include claims for\ncompensatory damages.\nAlso, for many intentional torts, proving damages may be the\nquickest path to proving a prima facie case. For a battery claim,\nproving a physical injury makes it unnecessary to debate the issue as\nto whether the touching counts as \xe2\x80\x9charmful or offensive.\xe2\x80\x9d In an\naction for trespass to chattels, proving that the plaintiff\xe2\x80\x99s actions\ndamage the chattel means the \xe2\x80\x9csubstantial interference\xe2\x80\x9d requirement\nis fulfilled \xe2\x80\x93 end of discussion.\nBut what about situations in which the plaintiff never succeeds in\nproving compensatory damages? What does the plaintiff get for\nprevailing in such a lawsuit? In such situations, courts will award\nnominal damages. \xe2\x80\x9cNominal\xe2\x80\x9d here means \xe2\x80\x9cin name only.\xe2\x80\x9d\nNominal damages are usually one dollar, or a similar amount.\nWhy would anyone bother to file a lawsuit to get nominal damages of\n$1? Well, they almost never do. But there are a few reasons that a\nplaintiff might be motivated to pursue an intentional tort claim\n\n150\n\n\x0cwithout damages. For one, an award of nominal damages might be\nuseful as a means of establishing a legal right. A judgment in a\ntrespass to land case, even without damages, can be used as the basis\nfor an injunction against future trespasses. Then, further trespassing\ncan be deterred by the threat of contempt sanctions.\nProbably the most lucrative function of nominal damages is as a\nhook upon which to hang an award of punitive damages. Let\xe2\x80\x99s go\nback to the case of a defendant spitting on the plaintiff, but let\xe2\x80\x99s\nembellish it a little: Suppose the defendant is a spoiled A-list movie\nstar who spits on a waiter at a restaurant. On top of nominal damages\nof $1, the waiter might convince a jury to award punitive damages in\nan amount sufficient to deter the defendant from such conduct in the\nfuture. And such an amount, for a rich celebrity, might be quite a lot\nof money.\nPutting all practicality aside, a victory in court and $1 in nominal\ndamages might, if nothing else, give a wronged plaintiff a feeling of\nsatisfaction. And suing out of a sense of indignity happens more\noften than you might imagine.\n\nIntent and its Various Iterations\nNow that we have a sketch of the intentional torts and understand\ntheir relation to negligence and other torts, it is helpful to look a little\nmore closely at the concept of intent itself.\nIn general, \xe2\x80\x9cintent\xe2\x80\x9d means that the defendant either acts with the\npurpose or goal of bringing about a certain consequence, or at least\ndoes so with substantial certainty that the consequence will occur.\nThe substantial certainty idea expands the concept of intent beyond\nthe defendant\xe2\x80\x99s goals.\nSuppose a defendant testifies in court, \xe2\x80\x9cI didn\xe2\x80\x99t really want to shoot\nthe plaintiff. What I wanted to do was shoot the jukebox that the\nplaintiff was standing in front of. So, yeah, I pretty much knew the\nplaintiff was going to get shot. But that wasn\xe2\x80\x99t my goal.\xe2\x80\x9d Here, the\ndefendant\xe2\x80\x99s testimony establishes the requisite intent, since the\ndefendant acted with substantial certainty. It doesn\xe2\x80\x99t matter that\nshooting the plaintiff wasn\xe2\x80\x99t the goal.\n\n151\n\n\x0cBeyond the fundamentals, the concept of intent begins to diverge\namong the various intentional torts. We said that intent means that\nthe plaintiff acted purposely or with substantial certainty of\nproducing a certain consequence. What \xe2\x80\x9cconsequence\xe2\x80\x9d must be intended\ndepends on the tort. With battery, for instance, the defendant\ngenerally must intend to commit a battery. But for trespass to land,\nthe defendant does not need to intend a trespass at all \xe2\x80\x93 the\ndefendant only needs to intend the action that causes the trespass. So,\nthe intent to walk a certain path \xe2\x80\x93 even if undertaken in the earnest\nattempt to stay off the defendant\xe2\x80\x99s property \xe2\x80\x93 will satisfy the intent\nrequirement of trespass to land. That is, the intent to put one foot in\nfront of another is intent enough, even if it was a genuine mistake to\ncross the property line. By contrast, the intent to raise your arms is\nnot requisite intent for battery if you didn\xe2\x80\x99t think doing so would\ninflict a harmful or offensive touching on anyone.\nStrangely, there is one intentional tort \xe2\x80\x93 intentional infliction with\nemotional distress \xe2\x80\x93 that, despite the word \xe2\x80\x9cintentional\xe2\x80\x9d in its name,\nrequires only proof that the defendant acted with recklessness. (This\nmay be one reason many people prefer the name \xe2\x80\x9coutrage\xe2\x80\x9d for the\ntort.)\nOur discussion of intent is not complete without mention of the\nplaintiff-friendly doctrine of transferred intent. Where it applies, the\ndoctrine of transferred intent allows the intent required by one\nintentional tort claim to be satisfied by showing the defendant\xe2\x80\x99s\nintent to commit a different intentional tort. Intent is said to be able\nto \xe2\x80\x9ctransfer\xe2\x80\x9d from tort to tort or from person to person, or even\nbetween torts and persons at the same time.\nThe concept is best explained with an example: If a defendant\nintends to hit Bart with a baseball, but errantly throws wide left so\nthat the ball whizzes right by Ashanti\xe2\x80\x99s head, then the tortious intent\nto inflict a battery on Bart can be \xe2\x80\x9ctransferred\xe2\x80\x9d to Ashanti for an\nassault claim. In this case, the intent transfers both from battery to\nassault and from Bart to Ashanti.\nUnder the most traditional view of transferred intent, intent can\ntransfer among persons and among any of the torts of battery,\n\n152\n\n\x0cassault, false imprisonment, trespass to land, and trespass to chattels.\nThus, acting with the purpose of trespassing on land could count as\nthe requisite intent for a battery. Many courts today, however, apply\ntransferred intent more narrowly, restricting tort-to-tort transfer to\nassault and battery only.\nOne last thing to point out is that intent is an issue for the jury. You\nmay have wondered, how can you truly know what another person\nintended? In a metaphysical sense, perhaps there is no way to truly\nknow the subjective mental experience of another person. But a jury\xe2\x80\x99s\njob isn\xe2\x80\x99t to engage in metaphysics. A jury decides, based on the\npreponderance of the evidence, whether the defendant acted with the\nrequisite intent. The defendant might testify under oath that she or\nhe did not intend the tortious action, but the jury can choose to\ndisbelieve the defendant and decide, looking reasonably at the\ncircumstances, that the defendant in fact did act with intent. That\nmight not count as \xe2\x80\x9cproof\xe2\x80\x9d for a philosopher, but it counts as proof\nin a courtroom.\nThat\xe2\x80\x99s the general lay of the land with intent. The main takeaway\nshould be that you cannot guess at what intent means based on your\ncommon understanding of the word \xe2\x80\x9cintent.\xe2\x80\x9d You will need to\ncarefully apply the specific rules \xe2\x80\x93 explained in the following chapters\n\xe2\x80\x93 for each intentional tort.\n\n153\n\n\x0c17. Battery and Assault\n\xe2\x80\x9cWhat villain touch\xe2\x80\x99d his body, that did stab, and not for\njustice?\xe2\x80\x9d\nBrutus, in Julius Caesar, by William Shakespeare, 1599\n\nIntroduction\nIn this chapter we will explore the torts of assault and battery, two\nclaims that are often found together. Each one is almost as ancient as\ntort law itself.\n\nBattery\nBattery may be the most basic tort of all. Battery is intentionally\ntouching someone in a harmful or offensive way.\nAlong with the torts of trespass to land and trespass to chattels,\nbattery traces its history in English law as far back as tort law goes, to\nan action called the writ of trespass vi et armis (\xe2\x80\x9cby force and arms\xe2\x80\x9d).\nAs part of a set with trespass to land and trespass to chattels, the tort\nof battery could just as well be called trespass to the body. That\xe2\x80\x99s the\nessence of the complaint \xe2\x80\x93 a physical intrusion by one person on\nanother\xe2\x80\x99s flesh \xe2\x80\x93 whether accomplished by stabbing, spitting,\ngrabbing, kicking, caressing, shoving, shooting, or any of a million\nother unwelcome ways.\n\nThe Elements of Battery\nHere is a blackletter statement of the elements of the tort of battery:\nA plaintiff can establish a prima facie case for\nbattery by showing: (1) the defendant\nundertook an act, (2) with intent, effecting a (3)\nharmful or offensive (4) touching of the\nplaintiff.\n\nLet\xe2\x80\x99s take the elements in turn.\n\n154\n\n\x0cBattery: The Act\nFirst, there must be an act of the defendant. This is a simple\nrequirement that is almost always very easy to meet. All it requires is\nthat the defendant engage in some volitional action. This requirement\nwill not exclude many cases, but it will exclude a battery claim where\nthe touching of the plaintiff is caused by some motor reflex or\nunconscious movement on the part of the defendant. So a\nsleepwalker could escape liability by pointing to the lack of an act, as\ncould a jumpy person whose limbs flailed in reaction to a noise.\nThe act requirement also excludes cases where the plaintiff\xe2\x80\x99s\ncomplaint is that the defendant failed to act to prevent a touching.\nStanding by and watching someone get hit by an object, even when a\nslight exertion would have deflected it, does not meet the act\nrequirement. But note that persuading someone with words to stand\nin a certain spot where she or he will suffer a harmful or offensive\ntouching would count as an act for the purpose of battery.\n\nBattery: Intent\nNext is intent. As is the case with intentional torts generally (and as\ndiscussed in Chapter 16), acting either with purpose or with\nsubstantial certainty suffices as intent. Closing your eyes and swinging\nyour arms widely in a tightly packed room \xe2\x80\x93 even if solely for the\npurpose of expressing an overwhelming joie de vivre \xe2\x80\x93 can suffice as\nintent for battery, because it\xe2\x80\x99s substantially certain that you will hit\nsomeone. Keep in mind, of course, that intent is a jury issue, so its\ndetermination depends ultimately on what the jury believes.\nWe still are left with this question: What is it that the defendant must\nintend? Unless transferred intent applies, the required object of intent\nis a battery. That is, the defendant must intended to inflict a harmful\nor offensive touching. This means that merely intending to move\none\xe2\x80\x99s limbs is not enough to meet the intent requirement. Suppose\nyou intend to pitch a baseball dangerously near an unaware\nbystander. That does not count as intent for battery. Now, it might\nbe correctly characterized as negligence, and if the bystander is\nharmed, the thrower might be liable via a negligence claim. But the\nintent for battery would not satisfied.\n\n155\n\n\x0cRemember, too, that the doctrine of transferred intent expands the\nscope of intent so that a defendant who intends to commit a battery\non Arthur, but who misses and commits a battery instead on\nBeatrice, has acted with requisite intent for a claim by Beatrice.\nAnd in addition to transferring intent among persons, the\ntransferred-intent doctrine permits transfers of intent between assault\nand battery. And courts adhering to the most traditional view allow\ntransfer among any of the torts of battery, assault, false\nimprisonment, trespass to land, and trespass to chattels. So, if a\ndefendant intends not to punch the plaintiff, but only to create the\nimmediate apprehension of a punch, and if the defendant misjudges\nthe angles and actually punches the plaintiff, then there is sufficient\nintent to suffice for a battery claim.\nIntent can even transfer simultaneously from person to person and\ntort to tort. Throwing a hatchet with the aim of making a near-miss\nof Anne, but missing and grazing Burl, will suffice for intent to\ncommit a battery against Burl.\n\nBattery: Harmfulness or Offensiveness\nPeople get touched by others all the time. One person may tap\nanother on the shoulder to ask for the time. Persons in a crowd will\nunavoidably bump into one another. What keeps these touches from\nbeing actionable as batteries is the requirement of harmfulness or\noffensiveness. If it weren\xe2\x80\x99t for the harmful-or-offensive element,\nmillions of battery claims would arise every second.\nA touching that causes actual harm is harmful \xe2\x80\x93 and there is no need\nto take the analysis any further. But a touching need not inflict harm\nto be considered harmful or offensive. Nor is there a requirement\nthat the plaintiff be \xe2\x80\x9coffended\xe2\x80\x9d in the sense of being affronted. A\ntouching is \xe2\x80\x9coffensive\xe2\x80\x9d in the battery sense if it intrudes upon a\nperson\xe2\x80\x99s reasonable sense of dignity.\nTo put it more plainly, people have the right to not be \xe2\x80\x9cmessed\nwith,\xe2\x80\x9d and the harmful-or-offensive element tracks this. Any\ntouching of a person in a way that is not socially sanctioned under\n\n156\n\n\x0cthe circumstances and that a person would reasonably find\nobjectionable is a battery.\nSocietal convention plays a large role here. Tapping a stranger on the\nshoulder to ask the time is not battery because it\xe2\x80\x99s generally\nunderstood that this is how members of society interact with one\nanother even when they are strangers. But tapping someone\nrepeatedly on the shoulder to ask the time over and over again would\nbe battery because, to sum it up in vernacular, \xe2\x80\x9cThat\xe2\x80\x99s weird.\xe2\x80\x9d\nWhat counts as harmful or offensive may even differ geographically.\nIn Boston, strangers brush into each other on sidewalks all the time.\nIn Los Angeles \xe2\x80\x93 provided they are out of their cars and walking\naround \xe2\x80\x93 pedestrians don\xe2\x80\x99t touch. In Manhattan during the lunch\nhour, people unhesitatingly pack into elevators in such a way that\nthere is substantial touching. But in the rural Midwest, people will\nwait for the next elevator rather than get cozy. Yet geographical\ndifferences only go so far. Even in Manhattan, if the elevator is\notherwise empty and you sidle up and stand so that you are touching\nthe next person, you have transcended social convention and likely\ncommitted a battery.\nRegardless of whether some touchings \xe2\x80\x93 like the tap on the shoulder\n\xe2\x80\x93 are socially acceptable as a general matter, once a person has put\nanother on warning, social convention yields to the individual\xe2\x80\x99s right\nto be let alone. Even a friendly hug of a close friend can constitute a\nbattery after the friend bellows, \xe2\x80\x9cDon\xe2\x80\x99t touch me right now!\xe2\x80\x9d\n\nBattery: The Touching\nThe prototypical case of battery would involve a defendant who\npunches the plaintiff in the face. That certainly is a touching. But you\nshould think about \xe2\x80\x9ctouching\xe2\x80\x9d broadly.\nThe touching can, for instance, be indirect. Sneakily removing\nsomeone\xe2\x80\x99s chair as they go to sit down, thereby causing them to fall\nto the floor, will count as a \xe2\x80\x9ctouching.\xe2\x80\x9d So can putting some foul\nsubstance in a person\xe2\x80\x99s drink. Laying a trap for someone that doesn\xe2\x80\x99t\nspring until years later would be a touching as well.\n\n157\n\n\x0cCase: Leichtman v. WLW Jacor\nThe following case confronts the question of what constitutes a\ntouching in the contentious context of talk radio.\n\nLeichtman v. WLW Jacor\nCourt of Appeals of Ohio, Hamilton County\nJanuary 26, 1994\n92 Ohio App.3d 232. LEICHTMAN, Appellant, v. WLW\nJACOR COMMUNICATIONS, INC. et al., Appellees. No. C920922. DOAN, P.J., and HILDEBRANDT and GORMAN,\nJJ., concurred.\n\nPER CURIAM:\nIn his complaint, [Aaron] Leichtman claims to be \xe2\x80\x9ca nationally\nknown\xe2\x80\x9d antismoking advocate. Leichtman alleges that, on the\ndate of the Great American Smokeout, he was invited to appear\non the WLW Bill Cunningham radio talk show to discuss the\nharmful effects of smoking and breathing secondary smoke. He\nalso alleges that, while he was in the studio, [Andy] Furman,\nanother WLW talk-show host, lit a cigar and repeatedly blew\nsmoke in Leichtman\xe2\x80\x99s face \xe2\x80\x9cfor the purpose of causing physical\ndiscomfort, humiliation and distress.\xe2\x80\x9d~\nLeichtman contends that Furman\xe2\x80\x99s intentional act constituted a\nbattery. The Restatement of the Law 2d, Torts (1965), states:\nAn actor is subject to liability to another for\nbattery if\n(a) he acts intending to cause a harmful or\noffensive contact with the person of the other\n\xe2\x80\xa6 , and\n(b) a harmful contact with the person of the\nother directly or indirectly results[; or]\n(c) an offensive contact with the person of the\nother directly or indirectly results.\nIn determining if a person is liable for a battery, the Supreme\nCourt has adopted the rule that \xe2\x80\x9c[c]ontact which is offensive to\na reasonable sense of personal dignity is offensive contact.\xe2\x80\x9d It\n\n158\n\n\x0chas defined \xe2\x80\x9coffensive\xe2\x80\x9d to mean \xe2\x80\x9cdisagreeable or nauseating or\npainful because of outrage to taste and sensibilities or affronting\ninsultingness.\xe2\x80\x9d Furthermore, tobacco smoke, as \xe2\x80\x9cparticulate\nmatter,\xe2\x80\x9d has the physical properties capable of making contact.\nR.C. 3704.01(B) and 5709.20(A); Ohio Adm. Code 3745-17.\nAs alleged in Leichtman\xe2\x80\x99s complaint, when Furman intentionally\nblew cigar smoke in Leichtman\xe2\x80\x99s face, under Ohio common law,\nhe committed a battery. No matter how trivial the incident, a\nbattery is actionable, even if damages are only one dollar. The\nrationale is explained by Roscoe Pound in his essay \xe2\x80\x9cLiability\xe2\x80\x9d:\n\xe2\x80\x9c[I]n civilized society men must be able to assume that others\nwill do them no intentional injury \xe2\x80\x93 that others will commit no\nintentioned aggressions upon them.\xe2\x80\x9d\nOther jurisdictions also have concluded that a person can\ncommit a battery by intentionally directing tobacco smoke at\nanother. We do not, however, adopt or lend credence to the\ntheory of a \xe2\x80\x9csmoker\xe2\x80\x99s battery,\xe2\x80\x9d which imposes liability if there is\nsubstantial certainty that exhaled smoke will predictably contact\na nonsmoker. Also, whether the \xe2\x80\x9csubstantial certainty\xe2\x80\x9d prong of\nintent from the Restatement of Torts translates to liability for\nsecondary smoke via the intentional tort doctrine in\nemployment cases as defined by the Supreme Court~, need not\nbe decided here because Leichtman\xe2\x80\x99s claim for battery is based\nexclusively on Furman\xe2\x80\x99s commission of a deliberate act. Finally,\nbecause Leichtman alleges that Furman deliberately blew smoke\ninto his face, we find it unnecessary to address offensive contact\nfrom passive or secondary smoke~.\nNeither Cunningham nor WLW is entitled to judgment on the\nbattery claim under Civ.R. 12(B)(6). Concerning Cunningham, at\ncommon law, one who is present and encourages or incites\ncommission of a battery by words can be equally liable as a\nprincipal. Leichtman\xe2\x80\x99s complaint states, \xe2\x80\x9cAt Defendant\nCunningham\xe2\x80\x99s urging, Defendant Furman repeatedly blew cigar\nsmoke in Plaintiff\xe2\x80\x99s face.\xe2\x80\x9d\nWith regard to WLW, an employer is not legally responsible for\nthe intentional torts of its employees that do not facilitate or\npromote its business. However, whether an employer is liable\n\n159\n\n\x0cunder the doctrine of respondeat superior because its employee\nis acting within the scope of employment is ordinarily a question\nof fact. Accordingly, Leichtman\xe2\x80\x99s claim for battery with the\nallegations against the three defendants in the second count of\nthe complaint is sufficient to withstand a motion to dismiss\nunder Civ.R. 12(B)(6).~\nArguably, trivial cases are responsible for an avalanche of\nlawsuits in the courts. They delay cases that are important to\nindividuals and corporations and that involve important social\nissues. The result is justice denied to litigants and their counsel\nwho must wait for their day in court. However, absent\ncircumstances that warrant sanctions for frivolous appeals under\nApp.R. 23, we refuse to limit one\xe2\x80\x99s right to sue. Section 16,\nArticle I, Ohio Constitution states, \xe2\x80\x9cAll courts shall be open,\nand every person, for an injury done him in his land, goods,\nperson, or reputation, shall have remedy by due course of law,\nand shall have justice administered without denial or delay.\xe2\x80\x9d\nThis case emphasizes the need for some form of alternative\ndispute resolution operating totally outside the court system as a\nmeans to provide an attentive ear to the parties and a resolution\nof disputes in a nominal case. Some need a forum in which they\ncan express corrosive contempt for another without dragging\ntheir antagonist through the expense inherent in a lawsuit. Until\nsuch an alternative forum is created, Leichtman\xe2\x80\x99s battery claim,\npreviously knocked out by the trial judge in the first round, now\nsurvives round two to advance again through the courts into\nround three.~\nJudgment accordingly.\n\nQuestions to Ponder About Leichtman v. WLW\nA. Do you agree that contact with smoke should qualify as a touching\nfor purposes of battery? If so, how far should this be taken? To\nperfume? To bad breath? At a fundamental level, even noise involves\nphysical touch \xe2\x80\x93 with one molecule in the air transferring kinetic\nenergy to the next as part of the process of propagating soundwaves.\nWhere would you draw the line?\n\n160\n\n\x0cB. Is this a trivial case? Is that the implication when the court says,\n\xe2\x80\x9cArguably, trivial cases are responsible for an avalanche of lawsuits in\nthe courts.\xe2\x80\x9d? Is it important that the courts should be available for\ncases such as this?\nC. If there needs to be a place for disputes such as this, do you agree\nwith the court that some alternative dispute resolution forum would\nbe better?\nD. If you were arguing that the courts should stay available for cases\nsuch as this, what societal interests could be said to be served by\njudicial resolution of disputes such as these?\n\nBattery: Damages\nBattery does not require damages for a prima facie case. A successful\nclaim for battery without any proof of physical harm will entitle the\nplaintiff to nominal damages. On the other hand, any bodily injury\nthat is sustained will serve to meet the requirement of harmfulness or\noffensiveness. In this sense, you might say that injury is sufficient but\nnot necessary to round out a case for battery.\nIt should be kept in mind that although proof of compensatory\ndamages is not required for a prima facie case for battery, a battery\naction will definitely be more financially enticing if it supports a\nsignificant compensatory damages claim. Any bodily injury that is a\nresult of the battery will support a claim for compensatory damages.\nBut plaintiffs can also generally recover compensatory damages that\ndo not have a physical basis, so long as they stem from the battery.\nCase: Fisher v. Carrousel Motor Hotel\nThis case explores the availability of damages for a battery that has\nno physical-injury component.\n\nFisher v. Carrousel Motor Hotel, Inc.\nSupreme Court of Texas\nDecember 27, 1967\n424 S.W.2d 627. Emmit E. FISHER, Petitioner, v.\nCARROUSEL MOTOR HOTEL, INC., et al., Respondents.\nNo. B-342.\n\n161\n\n\x0cJustice JOE R. GREENHILL:\nThis is a suit for actual and exemplary damages growing out of\nan alleged assault and battery. The plaintiff Fisher was a\nmathematician with the Data Processing Division of the\nManned Spacecraft Center, an agency of the National\nAeronautics and Space Agency, commonly called NASA, near\nHouston. The defendants were the Carrousel Motor Hotel, Inc.,\nlocated in Houston, the Brass Ring Club, which is located in the\nCarrousel, and Robert W. Flynn, who as an employee of the\nCarrousel was the manager of the Brass Ring Club. Flynn died\nbefore the trial, and the suit proceeded as to the Carrousel and\nthe Brass Ring. Trial was to a jury which found for the plaintiff\nFisher. The trial court rendered judgment for the defendants\nnotwithstanding the verdict. The Court of Civil Appeals\naffirmed. The questions before this Court are whether there was\nevidence that an actionable battery was committed, and, if so,\nwhether the two corporate defendants must respond in\nexemplary as well as actual damages for the malicious conduct\nof Flynn.\nThe plaintiff Fisher had been invited by Ampex Corporation\nand Defense Electronics to a one day\xe2\x80\x99s meeting regarding\ntelemetry equipment at the Carrousel. The invitation included a\nluncheon. The guests were asked to reply by telephone whether\nthey could attend the luncheon, and Fisher called in his\nacceptance. After the morning session, the group of 25 or 30\nguests adjourned to the Brass Ring Club for lunch. The\nluncheon was buffet style, and Fisher stood in line with others\nand just ahead of a graduate student of Rice University who\ntestified at the trial. As Fisher was about to be served, he was\napproached by Flynn, who snatched the plate from Fisher\xe2\x80\x99s\nhand and shouted that he, a Negro, could not be served in the\nclub. Fisher testified that he was not actually touched, and did\nnot testify that he suffered fear or apprehension of physical\ninjury; but he did testify that he was highly embarrassed and hurt\nby Flynn\xe2\x80\x99s conduct in the presence of his associates.\nThe jury found that Flynn \xe2\x80\x9cforceably dispossessed plaintiff of\nhis dinner plate\xe2\x80\x9d and \xe2\x80\x9cshouted in a loud and offensive manner\xe2\x80\x9d\n\n162\n\n\x0cthat Fisher could not be served there, thus subjecting Fisher to\nhumiliation and indignity. It was stipulated that Flynn was an\nemployee of the Carrousel Hotel and, as such, managed the\nBrass Ring Club. The jury also found that Flynn acted\nmaliciously and awarded Fisher $400 actual damages for his\nhumiliation and indignity and $500 exemplary damages for\nFlynn\xe2\x80\x99s malicious conduct.\nThe Court of Civil Appeals held that there was no assault\nbecause there was no physical contact and no evidence of fear\nor apprehension of physical contact. However, it has long been\nsettled that there can be a battery without an assault, and that\nactual physical contact is not necessary to constitute a battery, so\nlong as there is contact with clothing or an object closely\nidentified with the body. In Prosser, Law of Torts 32 (3d Ed.\n1964), it is said:\n\xe2\x80\x9cThe interest in freedom from intentional and\nunpermitted contacts with the plaintiff\xe2\x80\x99s person\nis protected by an action for the tort commonly\ncalled battery. The protection extends to any\npart of the body, or to anything which is\nattached to it and practically identified with it.\nThus contact with the plaintiff\xe2\x80\x99s clothing, or\nwith a cane, a paper, or any other object held in\nhis hand will be sufficient; * * * The plaintiff\xe2\x80\x99s\ninterest in the integrity of his person includes all\nthose things which are in contact or connected\nwith it.\xe2\x80\x9d\nUnder the facts of this case, we have no difficulty in holding\nthat the intentional grabbing of plaintiff\xe2\x80\x99s plate constituted a\nbattery. The intentional snatching of an object from one\xe2\x80\x99s hand\nis as clearly an offensive invasion of his person as would be an\nactual contact with the body. \xe2\x80\x9cTo constitute an assault and\nbattery, it is not necessary to touch the plaintiff\xe2\x80\x99s body or even\nhis clothing; knocking or snatching anything from plaintiff\xe2\x80\x99s\nhand or touching anything connected with his person, when\ndone in an offensive manner, is sufficient.\xe2\x80\x9d Morgan v. Loyacomo,\n190 Miss. 656 (1941).~\n\n163\n\n\x0cThe rationale for holding an offensive contact with such an\nobject to be a battery is explained in 1 Restatement of Torts 2d\n\xc2\xa7 18 (Comment p. 31) as follows:\n\xe2\x80\x9cSince the essence of the plaintiff\xe2\x80\x99s grievance\nconsists in the offense to the dignity involved in\nthe unpermitted and intentional invasion of the\ninviolability of his person and not in any\nphysical harm done to his body, it is not\nnecessary that the plaintiff\xe2\x80\x99s actual body be\ndisturbed. Unpermitted and intentional contacts\nwith anything so connected with the body as to\nbe customarily regarded as part of the other\xe2\x80\x99s\nperson and therefore as partaking of its\ninviolability is actionable as an offensive contact\nwith his person. There are some things such as\nclothing or a cane or, indeed, anything directly\ngrasped by the hand which are so intimately\nconnected with one\xe2\x80\x99s body as to be universally\nregarded as part of the person.\xe2\x80\x9d\nWe hold, therefore, that the forceful dispossession of plaintiff\nFisher\xe2\x80\x99s plate in an offensive manner was sufficient to constitute\na battery, and the trial court erred in granting judgment\nnotwithstanding the verdict on the issue of actual damages.\nIn Harned v. E-Z Finance Co., 151 Tex. 641, 254 S.W.2d 81\n(1953), this Court refused to adopt the \xe2\x80\x9cnew tort\xe2\x80\x9d of intentional\ninterference with peace of mind which permits recovery for\nmental suffering in the absence of resulting physical injury or an\nassault and battery. This cause of action has long been\nadvocated by respectable writers and legal scholars.~ However, it\nis not necessary to adopt such a cause of action in order to\nsustain the verdict of the jury in this case. The Harned case\nrecognized the well established rule that mental suffering is\ncompensable in suits for willful torts \xe2\x80\x9cwhich are recognized as\ntorts and actionable independently and separately from mental\nsuffering or other injury.\xe2\x80\x9d Damages for mental suffering are\nrecoverable without the necessity for showing actual physical\ninjury in a case of willful battery because the basis of that action\nis the unpermitted and intentional invasion of the plaintiff\xe2\x80\x99s\nperson and not the actual harm done to the plaintiff\xe2\x80\x99s body.\n\n164\n\n\x0cPersonal indignity is the essence of an action for battery; and\nconsequently the defendant is liable not only for contacts which\ndo actual physical harm, but also for those which are offensive\nand insulting. We hold, therefore, that plaintiff was entitled to\nactual damages for mental suffering due to the willful battery,\neven in the absence of any physical injury.~\n\nQuestions to Ponder About Fisher v. Carrousel Motor\nHotel\nA. Compare this case with Leichtman v. WLW. How important is it\nthat the courts were available to hear Fisher\xe2\x80\x99s complaint? Would an\nalternative dispute forum have served as well?\nB. Consider that the Civil Rights Act of 1964 prohibits race-based\ndiscrimination by public accommodations such as hotels. Also note\nthat the statute allows the United States to seek a federal injunction\nto prohibit what the Carrousel Motor Hotel did in this case. Even\nwhere such a legal tool is available, is it still important for a plaintiff\nto be able to bring a cause of action under tort law in a circumstance\nsuch as this?\nCase: Bohrmann v. Maine Yankee Atomic Power\nThis next case confronts questions of what constitutes a touching\nand the necessity of injury in the context of a nuclear power plant\nwith radioactive emissions.\n\nBohrmann v. Maine Yankee Atomic Power\nUnited States District Court for the District of Maine\nMay 1, 1996\n926 F.Supp. 211. Erich BOHRMANN, Andrew Daniels, Jeffrey\nGagnon, Nevena Novkovic, and Eric Ortman, Plaintiffs, v.\nMAINE YANKEE ATOMIC POWER COMPANY,\nDefendant. Civil No. 95-359-P-C.\n\nChief Judge GENE CARTER:\nPlaintiffs, several University of Southern Maine students, have\nfiled the present action against Maine Yankee Atomic Power\nCompany (\xe2\x80\x9cMaine Yankee\xe2\x80\x9d) for injuries they allegedly sustained\n\n165\n\n\x0cafter being exposed to radiation when touring Defendant\xe2\x80\x99s\nnuclear power plant in Wiscasset, Maine.~\nThe facts alleged in the Complaint are as follows. Plaintiffs are\nfive University of Southern Maine students who were among a\ngroup of chemistry students invited to tour Defendant\xe2\x80\x99s facility.\nPlaintiffs allege that approximately two weeks before their tour,\nthere was a radioactive gas leak in Defendant\xe2\x80\x99s primary auxiliary\nbuilding (PAB) as a result of design flaws and faulty engineering\nwhen Defendant \xe2\x80\x9csluiced the demineralizers in its Chemical and\nVolume Control System.\xe2\x80\x9d The students toured Maine Yankee\non the morning of October 11, 1994, at which time, Defendant\nallegedly was in the process of repairing the leakage problem.\nPlaintiffs claim that \xe2\x80\x9cMaine Yankee officials had decided to\nflush out resin \xe2\x80\x98hot spots\xe2\x80\x99 in the demineralizer\xe2\x80\x9d and scheduled\nthe procedure to occur during Plaintiffs\xe2\x80\x99 tour. Plaintiffs further\nallege that the officials were aware that the flushing procedure\nwould release radioactive gases. Plaintiffs claim that they were\nnever apprised of the problems at Defendant\xe2\x80\x99s facility.\nPlaintiffs allege that each student was given a pocket-sized SelfReading Dosimeter, which measures only gamma radiation. The\nstudents were not provided with Thermo-Luminescent\nDosimeters, which also measure beta radiation and which are\nworn by the employees of Defendant.\nPlaintiffs claim that despite his being warned that radioactive\ngases would be released in the PAB, the lead tour guide led the\nstudents into the \xe2\x80\x9chot\xe2\x80\x9d side of the plant. Plaintiffs allege that the\ntour guides knowingly took the students through a plume of\nunfiltered radioactive gases. While the students were walking\nthrough the radioactive gases, the continuous air monitor in the\nPAB was sounding an alarm. After spending thirty to forty\nminutes on the \xe2\x80\x9chot\xe2\x80\x9d side of the plant, the students returned to\nthe \xe2\x80\x9chot\xe2\x80\x9d side\xe2\x80\x99s entry point and stepped into portal monitors.\nPlaintiffs and the tour guides allegedly \xe2\x80\x9calarmed out,\xe2\x80\x9d indicating\nthat they had all been exposed to excessive radioactive\ncontamination from the tour. In fact, Plaintiffs Bohrmann and\nOrtman continued to \xe2\x80\x9calarm out\xe2\x80\x9d up to twenty minutes after\nthey left the PAB.\n\n166\n\n\x0cPlaintiffs allege that Maine Yankee employees never suggested\nthat the students remove their contaminated clothing or that the\nstudents take a shower and wash themselves. Two hours after\nthe exposure to radioactive gases, Defendant told a few students\nthat they needed to go for a \xe2\x80\x9cwhole body count\xe2\x80\x9d to assess their\nradiation exposure. Plaintiff Gagnon allegedly was told that he\nhad nothing to worry about and was not told to undergo a\nwhole body count. Plaintiffs claim that Maine Yankee\nemployees falsely told them that they had not been subjected to\ngamma radiation and that only gamma radiation was \xe2\x80\x9cbad.\xe2\x80\x9d\nDefendant\xe2\x80\x99s employees allegedly told Plaintiffs that they had not\nbeen exposed to anything that would pose a health risk.\nPlaintiffs assert that Defendant did not promptly or accurately\ndetermine the radiation dose to which they had been subjected.\nAlthough urinalyses were done for the tour guides to determine\npossible inhalation of Strontium 89, Defendant did not offer to\nconduct such tests on Plaintiffs. Plaintiffs allege that Defendant\nbelatedly used a whole body counter on a few of the students,\nbut the device was not properly programmed to provide\naccurate readings. Defendant allegedly failed to calculate\naccurately the dose exposure for the students because\nDefendant\xe2\x80\x99s readings of exposure amounts were at least thirty to\nforty percent too low. It is not known how much radioactive gas\neach student inhaled.\nPlaintiffs assert that Defendant deliberately failed to report the\ncontamination of Plaintiffs and the tour guides to the Nuclear\nRegulatory Commission or the State Nuclear Safety Inspector\nuntil after the contamination was reported in the media several\ndays later. Plaintiffs allegedly did not become aware of the\nextent of their exposure until they read a newspaper report of\nthe incident later that week. Defendant allegedly destroyed the\ncharts showing the level of radioactive gases in the PAB soon\nafter October 11, 1994. Plaintiffs assert that such destruction\nmakes it impossible to quantify the release of radiation to which\nthey had been exposed and allegedly constitutes a violation of\nfederal regulations mandating the retention of the records.\n\n167\n\n\x0cPlaintiff Bohrmann claims to have suffered a significant\ndecrease in his white blood cell count. In addition, Plaintiffs\nallege that they live with \xe2\x80\x9cthe significant distress and uncertainty\ncaused by exposure to unreasonably high levels of nuclear\nradiation.\xe2\x80\x9d Plaintiffs now seek compensatory and punitive\ndamages.~\nAs concerns Plaintiffs\xe2\x80\x99 claims for damages pursuant to theories\nof intentional infliction of emotional distress and battery, the\nCourt concludes that such intentional tort claims are not\ninconsistent with the federal safety standards. To recover on\neither theory, Plaintiffs must demonstrate that Defendant\nintentionally exposed Plaintiffs to radiation without their\nconsent, and that such intentional conduct on the part of\nDefendant caused them damages. See, e.g., Latremore v. Latremore,\n584 A.2d 626, 631 (Me. 1990) (setting forth elements of\nintentional infliction of emotional distress); Pattershall v. Jenness,\n485 A.2d 980, 984 (Me. 1984) (an element of battery is an\nintentional act). \xef\x81\x81The Court intimates no opinion as to whether\nthe facts as alleged by Plaintiffs amount to physical contact so as\nto constitute a battery.\xef\x81\x80\nThere is no reason apparent to this Court to believe that\nCongress intended that a defendant be insulated from liability\nfor its intentional acts solely by complying with the federal\nsafety standards. Instead, compliance with the federal\nregulations merely demonstrates the absence of negligence. See\nColey, 768 F.Supp. at 629. The federal safety standards have no\nbearing on a defendant\xe2\x80\x99s liability for its intentional acts. While a\nplaintiff may recover on an intentional tort theory without\nproving exposure to radiation exceeding the federal safety\nstandards, a plaintiff may not recover without first proving that\nhe sustained damages, and such proof may be difficult to\nestablish in the absence of proving a violation of the federal\nsafety standards. See, e.g., Laswell v. Brown, 683 F.2d 261, 269\n(8th Cir.1982) (concluding that \xe2\x80\x9clawsuit for personal injuries\ncannot be based only upon the mere possibility of some future\nharm\xe2\x80\x9d), cert. denied, 459 U.S. 1210, 103 S.Ct. 1205, 75 L.Ed.2d\n446 (1983); Johnston v. United States, 597 F.Supp. 374, 425-26\n\n168\n\n\x0c(D.Kan.1984); Bubash v. Philadelphia Elec. Co., 717 F.Supp. 297,\n300 (M.D.Pa.1989) (concluding that mere exposure to radiation\nis not an actionable physical injury). Nevertheless, the absence\nof a violation of the federal standards does not necessarily\nestablish the absence of an actual injury.~\nAccordingly, it is ORDERED that~ Defendant\xe2\x80\x99s Motion to\nDismiss be, and it is hereby, DENIED as to [battery].\n\nQuestions to Ponder About Bohrmann v. Maine Yankee\nA. Should intentional exposure to radioactivity count as battery? Is\nyour position consistent with your position on tobacco smoke? If you\nwould find one to be battery, but not the other, what distinguishes\nthe two?\nB. Compare this case to Fisher v. Carrousel Motor Hotel. Why do you\nthink the plaintiffs here was not able to recover for mental distress\ndamages?\n\nAssault\nAn assault happens when the defendant intentionally creates for the\nplaintiff an immediate apprehension of a battery. That is, you\xe2\x80\x99re\nassaulted when you are made to think you\xe2\x80\x99re about to be harmfully or\noffensively touched.\nAssault might seem like a strange tort. Before law school, you\nprobably had an intuitive idea of battery. That is, you could probably\nguess that you could sue someone over a harmful or offensive\ntouching. But it might come as a surprise that you can sue someone\njust for giving you the apprehension of such a touching. Nonetheless,\nassault is a long-established part of the common law\xe2\x80\x99s package of\nrights meant to foster and protect our civilized society. We all have\nthe right to be free from the perception of imminent attack, and we\ncan sue to enforce it. It\xe2\x80\x99s a right that has existed in the common law\nfor centuries.\nCase: I de S et Ux v. W de S\nThe following case is credited as the first to recognize the action of\nassault. Many of the details are lost to history. We don\xe2\x80\x99t even know\nthe litigants names, save their initials. yet even though we are\n\n169\n\n\x0cseparated from the litigants by many centuries, the hatchet swing in\nthis case still paints a vivid picture.\n\nI de S et Ux v. W de S\nAt the Assizes\nUnknown month and date, 1348\nY.B.Lib Assessonum folio 99, placitum 60\nI de S and M, his wife, complain of W de S concerning this that\nthe said W, in the year etc., with force and arms (vi et armis) did\nmake an assault upon the said M at S and beat her. And W\npleaded not guilty. And it was found by the verdict of the\nInquest that the said W came at night to the house of the said I\nand sought to buy of his wine, but the door of the Tavern was\nshut and he beat upon the door with a hatchet which he had in\nhis hand, and the wife of the plaintiff put her head out of a\nwindow and commanded him to stop, and he saw and he struck\n(at her) with the hatchet but he did not hit the woman.\nWhereupon the Inquest said that it seemed to them that there\nwas no trespass since no harm (was) done.\nTHORPE, C.J. There is harm done and a trespass for which he\nshall recover damages since he made an assault upon the\nwoman, as has been found, although he did no other harm.\nWherefore tax the damages, etc., and they taxed the damages at\nhalf a mark. Thorpe awarded that they should recovered their\ndamages etc. and that the other should be taken. And so note\nthat for an assault made a man shall recover damages, etc.\n\nHistorical Note on I de S et Ux v. W de S\nThe recognition of an action for assault in I de S et Ux v. W de S,\nwhere there was only a mental harm and no physical contact,\nrepresented a great step in the evolution of tort law to its modern\nform. William Prosser\xe2\x80\x99s classic torts casebook calls I de S et Ux \xe2\x80\x9cthe\ngreat-grandparent of all assault cases.\xe2\x80\x9d Victor E. Schwartz et al.,\nPROSSER, WADE AND SCHWARTZ\xe2\x80\x99S TORTS 37 (11th ed. 2005). To the\nextent that is true, and given that assault itself can be credited with\nsprouting still other torts, I de S et Ux has a claim on being be the\ngreat-great-grandparent of all actions for negligent infliction of\n\n170\n\n\x0cemotional distress and intentional infliction of emotional distress\n(discussed in chapters 9 and 19, respectively).\nWhile 1348 was an important year in tort law, English history\nremembers the year mostly for something else. In June 1348, ships\ncrossing the English Channel first brought bubonic plague to Dorset\non the southern edge of England. The ensuing epidemic \xe2\x80\x93 the Black\nDeath \xe2\x80\x93 moved across England to kill half the country\xe2\x80\x99s population\nbefore the end of the year.\nOne wonders how I de S et Ux fits into that history. Perhaps the case\nrepresents the eve of catastrophe \xe2\x80\x93 a moment when English society\nhad a high enough standard of living that it had the luxury of\nrecognizing fundamental rights of people to be left alone even where\nno physical harm was suffered. Or perhaps I de S et Ux came down\nwhile the epidemic raged. If that were true, it might be seen as a stand\ntaken against the breakdown of civil order despite mass death and an\nimpending sense of doom.\n\nThe Elements of Assault\nHere is a blackletter statement of assault doctrine as it exists today:\nA plaintiff can establish a prima facie case for\nassault by showing: (1) the defendant\nundertook an act, (2) with intent, effecting (3)\nthe immediate apprehension of (4) a harmful or\noffensive (5) touching of the plaintiff.\n\nLet\xe2\x80\x99s take the elements in turn.\n\nAssault: Intent\nTo meet the requisite intent for assault, the defendant must intend to\ncreate the apprehension in the plaintiff that is the essence of the tort.\nOtherwise, the plaintiff can use the transferred-intent doctrine \xe2\x80\x93\ntransferring intent from person-to-person and from tort-to-tort.\nIn the assault context, person-to-person transference of intent takes\nplace when the defendant intends to create an immediate\napprehension in X, but in fact causes an immediate apprehension in\nY. In such a case, Y can show the requisite intent for the prima facie\ncase.\n\n171\n\n\x0cTort-to-tort transference of intent takes place between battery and\nassault. Suppose the defendant intends to strike the plaintiff in the\nback \xe2\x80\x93 thus intending to commit a battery but not an assault. This\nintent suffices for the intent element of an assault claim. So if, for\ninstance, the plaintiff turns around just before the defendant strikes,\nand thus is able to move out of the way, the plaintiff has a good\ncause of action for assault.\nAs explained previously, transferred intent can also work two ways at\nonce. If the defendant intends to commit a battery by throwing a\nbeer bottle at Jill, but throws wide left so that Kai has to duck out of\nthe way, the defendant has exhibited the requisite intent for Kai\xe2\x80\x99s\nclaim against the defendant for assault.\nNote that under the older, traditional view of transferred intent,\ntransference is allowed among any of the torts of assault, battery,\nfalse imprisonment, trespass to land, and trespass to chattels.\n\nAssault: Immediate Apprehension\nAssault requires that the plaintiff experience an immediate\napprehension of a battery.\nApprehension is distinguished from fear. Fear is not required for\nan assault case. Suppose a small child \xe2\x80\x93 cranky and weak from having\nmissed an afternoon nap \xe2\x80\x93 swats at a mixed-martial arts champion.\nNo fear results. But there is an actionable assault. It might be a dumb\nmove as far as public image goes, but the MMA champ can sue the\nchild for assault and win.\nIt is also important to keep in mind that the apprehension must be\nimmediate. Threats of harm that might occur in the future \xe2\x80\x93 even in\nthe quite near future \xe2\x80\x93 will not support an apprehension claim.\nHaving the plaintiff anticipate a battery the next day or even in the\nnext minute or two is not enough. The apprehension must be in the\nmoment.\nIt does not matter, by the way, if the threatened battery could not\ncome to fruition. Aiming an unloaded gun at a person \xe2\x80\x93 so long as\nthe person believes the gun to be loaded \xe2\x80\x93 counts as an assault.\n\n172\n\n\x0cTraditionally, there must be some physical act or movement to effect\nan assault. It might be raising a stick for a swing, or even reaching\ninto a pocket. Sometimes courts say that \xe2\x80\x9cwords alone cannot\nconstitute an assault.\xe2\x80\x9d Many courts, however, when pressed, would\nprobably agree that surrounding circumstances could make for a\nsituation in which an assault would lie for words alone. A plaintiff\nalready held at gunpoint by a third party, for instance, would likely\nhave a good claim for assault against the interloping defendant who\nyells \xe2\x80\x9cFire!\xe2\x80\x9d\nAuthorities acknowledge that words can have the effect of alleviating\nthe potential for an apprehension. Suppose the defendant says, \xe2\x80\x9cI\ndon\xe2\x80\x99t have any bullets, which is a shame,\xe2\x80\x9d at which point the\ndefendant pulls out a pistol and says, \xe2\x80\x9cbecause if I did, I would shoot\nyou right now.\xe2\x80\x9d There is no assault in such a situation.\n\nAssault: Harmful or Offensive Touching\nThe requirement for a harmful or offensive touching is the same as it\nis for battery. The apprehended touch could be violent, disgusting,\namorous, or all of those things. It might be slight or severe. What\nmatters legally is only that it is harmful or offensive.\n\nCheck-Your-Understanding Questions on Assault and\nBattery\nA. Betty and Harvey are two campers at Lake Monaveit Summer\nCamp. Betty, wanting to get Harvey back for pushing her into the\nlake during canoe races, sneaks up on Harvey as he is sleeping and\nspoons peanut butter onto his hair. When Harvey wakes up, Betty is\nsitting there grinning. Harvey runs his hands through his hair, feels\nthe peanut butter, licks a finger, and breaks out into hearty laughter.\nDoes Harvey have a good claim against Betty for assault? For\nbattery?\nB. Stephen is giving Gerald a haircut. Gerald is a working model who\ndoes mostly catalog work, although lately he has been struggling. He\nhas asked Stephen for a little off the top \xe2\x80\x93 just a trim. As Stephen\nworks, Gerald is absorbed in his cell phone. When he finally looks up\nin the mirror, he sees that Stephen has changed his entire look,\n\n173\n\n\x0cmaking his hair much, much shorter. Stephen\xe2\x80\x99s intention is to give\nGerald\xe2\x80\x99s career a boost, and he\xe2\x80\x99s convinced that the haircut will get\nhim more work. After Gerald leaves the salon, as he is walking down\nthe street, he runs into Freda, an acquaintance who is the chief\nmarketing officer of a major retailer. As soon as Freda sees Gerald,\nshe begins running her fingers through his hair. She loves the haircut,\nand based on his new look, she offers him a $1.5 million exclusive\ncontract to be the new face of her company\xe2\x80\x99s L\xe2\x80\x99Homme au Travail\nclothing line. Does Gerald have a good claim against Stephen for\nassault? For battery? Does Gerald have a good claim against Freda\nfor assault? For battery?\n\n174\n\n\x0c18. False Imprisonment\n\xe2\x80\x9cThey shut me up in Prose \xe2\x80\x93\nAs when a little Girl\nThey put me in the Closet \xe2\x80\x93\nBecause they liked me \xe2\x80\x98still\xe2\x80\x99 \xe2\x80\x93 \xe2\x80\x9d\n\xe2\x80\x93 Emily Dickinson, 1951\n\nIntroduction\nThe tort of false imprisonment gives plaintiffs a claim to assert when\nthey are held against their will.\nIt is tempting to think of false imprisonment as an ancient relic, a tort\nwith only very rare applicability. The examples that come most easily\nto mind might be pirates and highwaymen, working in remote places\nfar from the arm of the law. Yet the tort of false imprisonment is\nrelevant all over the landscape of modern life \xe2\x80\x93 as close by as\ndepartment stores and parking garages.\nAt the outset it is helpful to note that you should not try to make\nsense of this tort by its name. \xe2\x80\x9cFalse imprisonment\xe2\x80\x9d is a double\nmisnomer. First, there is no requirement that the plaintiff be put in\nprison. All that is necessary is confinement, which might be\naccomplished without any walls or physical restraints of any kind. For\ninstance, compelling a plaintiff at knifepoint to not move is sufficient\nconfinement for false imprisonment. Second, in so far as people\nunderstand the word \xe2\x80\x9cfalse\xe2\x80\x9d to mean \xe2\x80\x9cnot true,\xe2\x80\x9d then that is a\nmisnomer as well, because a prima facie case requires true\nconfinement. In the false imprisonment context, think of \xe2\x80\x9cfalse\xe2\x80\x9d as\nmeaning wrongful or illegitimate.\n\nThe Elements of False Imprisonment\nHere is a blackletter statement of false imprisonment:\nA plaintiff can establish a prima facie case of\nfalse imprisonment by showing the defendant\n(1) intentionally (2) confined the plaintiff, and\n\n175\n\n\x0cthat the plaintiff (3) was aware of the\nconfinement.\n\nLet\xe2\x80\x99s take the elements in turn.\n\nFalse Imprisonment: Intent\nThe intent required for false imprisonment is the intent to confine.\nThe defendant need not have bad intentions, nor must the defendant\nintend that the confinement be illegal, tortious, or even improper.\nWorking with the best of intentions and a conviction of being on the\nright side of the law is perfectly compatible with the requisite intent\nto confine.\nAs with the other intentional torts, false imprisonment observes\nparty-to-party transferred intent. If Amy intends to confine Bella, but\nwinds up confining Constance, then Amy has the requisite intent for\nConstance\xe2\x80\x99s prima facie case against Amy for false imprisonment.\nRemember, too, that some courts allow tort-to-tort transferred intent\namong any of assault, battery, false imprisonment, trespass to land,\nand trespass to chattels.\n\nFalse Imprisonment: Meaning of Confinement\nTo be confined for the purpose of false imprisonment, the plaintiff\nmust be restricted to some closed, bounded area for some\nappreciable amount of time.\nConfining a person to a room certainly counts, but so does confining\na person to a particular city or state. The area need not be strictly\ndelineated. A subway mugger who orders a plaintiff not to run away\non threat of being shot effects an actionable confinement regardless\nof whether the mugging takes place in an enclosed subway car, on a\nplatform, or in the ticketing area. The plaintiff in such circumstances\nis confined to the space in which she or he is standing, and thus the\nconfinement is actionable.\nEven though the area of confinement can be large or small, it must\nbe complete. Freedom of movement must be bounded in all\ndirections. A mere roadblock will not count. Suppose a plaintiff, out\nfor a walk in the city, meets a gang of thugs who, through threats,\n\n176\n\n\x0cprevent the plaintiff from walking on the public sidewalk on Elm\nStreet between 10th Street and 11th Street. If the plaintiff can freely\nback up and walk somewhere else, then there is no false\nimprisonment.\nAlong these lines, a plaintiff cannot use false imprisonment to sue for\nbeing wrongly kept out of some particular place. That is to say, the\nconfinement of false imprisonment does not work in reverse. If a\nplaintiff is not allowed into a certain restaurant or club, there is no\nfalse imprisonment. It will not do to say that the area of confinement\nis \xe2\x80\x9cthe rest of the world.\xe2\x80\x9d\nIn cases where the confinement is achieved by means of physical\nbarriers, courts often say that there must be no reasonable means\nof escape. Suppose the defendant locks the door to the room the\nplaintiff is in. We must ask if there some other reasonable way out. If\nthe sliding-glass door to the patio is open, and if the patio opens onto\na golf course, then that\xe2\x80\x99s a reasonable means of escape, and no false\nimprisonment claim will lie. But if the only means of escape is to\njump from a second-story balcony or to crawl through HVAC ducts,\nthen the means of escape is not reasonable, and the plaintiff has a\ngood claim for false imprisonment.\nThere is no minimum amount of time for a valid confinement.\nTypically, courts will say that the confinement need only be for an\n\xe2\x80\x9cappreciable time.\xe2\x80\x9d A confinement of one minute, for example,\nwould be much more than enough.\nThe duration of the confinement may become a live issue in the\ncontext of an affirmative defense of consent. For instance,\namusement park patrons have consented to a confinement when the\nboard a dark ride and pull down the lap bar. But a confinement for\nhow long? If the ride stops, must the park release the lap bars\nimmediately and let everyone go? Or can they take some time to restart the ride before they must release patrons? That question is turns\non the scope of the consent, and it could be a close issue that\nrequires a jury to resolve.\n\n177\n\n\x0cFalse Imprisonment: Method of Confinement\nIn a false imprisonment case, the confinement can be accomplished\nby a number of means. The most straightforward is by physical\nbarriers, such as with walls or fences. But false imprisonment can\nalso be accomplished by force or imminent threat of force.\nThreatening a plaintiff at gunpoint is an obvious example; however,\nthe threat need not be against the plaintiff. The threat could be\ndirected at a third person. Some authorities say the third person must\nbe a family member or someone who is immediately present, but one\nimagines, if pressed, courts would permit a false imprisonment cause\nof action for threats to strangers, so long as they were serious and\ncredible.\nOne aspect of the doctrine that is crystal clear is that the threat must\nbe imminent. Telling a person to stay put \xe2\x80\x93 or else suffer injury the\nnext day \xe2\x80\x93 would not be considered confinement within the meaning\nof the tort. The fact that the false imprisonment tort does not allow\nrecovery in such a situation seems to imply that, in the view of the\nlaw, a would-be plaintiff should go and seek police involvement\nbefore the threat matures.\nThe barriers, force, or threat need not be directed at persons, but can\nalso be aimed at the plaintiff\xe2\x80\x99s property. A plaintiff who is \xe2\x80\x9cfree\xe2\x80\x9d to\nwalk away only by surrendering chattels is not free at all under the\neyes of false-imprisonment law. Suppose a drunk and belligerent\nparty host refuses to return the plaintiff\xe2\x80\x99s coat when the plaintiff is\nready to leave the party. That deprivation of property will count as\nconfinement for false imprisonment.\nAnother recognized method of confinement is improper assertion\nof legal authority. Flashing a fake police badge and informing a\nplaintiff that she or he is under arrest is an obvious example. But\nimproper assertion of legal authority could be made by a real peace\nofficer with a real badge. In the real world, suits against individual\npolice officers for false imprisonment are rare. But the reason has\nnothing to do with the doctrine of false imprisonment itself.\nIndividuals are frequently judgment proof, plaintiffs are often not\ncredible witnesses, and state statutes may shield law enforcement\n\n178\n\n\x0cofficers from suit. But as far as common-law tort doctrine goes, a\npolice officer making an invalid arrest is liable for false\nimprisonment.\nA common context for false imprisonment accomplished by\nimproper legal assertions is with security officers in retail stores, who\nmay falsely tell suspected shoplifters that they are under a legal\nobligation to stay on the premises and answer questions, or that they\nmust wait for the police to arrive. Often, store security has no legal\nbasis upon which to make such a claim (although in any given\njurisdiction, store security officers might have an authentic legal right\nto detain people through a statute or a common law \xe2\x80\x9cshopkeeper\xe2\x80\x99s\nprivilege\xe2\x80\x9d).\nThe confinement does not need to be accomplished by an overt act.\nAn omission might do the trick under certain circumstances. If the\ndefendant is under an existing obligation to act, then the omission to\nrelease the plaintiff can be false imprisonment. For example, lawfully\nconfined inmates must be released when their sentences are up, and a\njailer who omits to unlock the cell when required to do so becomes\nliable for false imprisonment. Similarly, an amusement park patron\npulling down a locking lapbar on a roller coaster has consented to a\nconfinement. But if the ride operator refuses to release the lapbar\nwhen the ride is over, there is liability for false imprisonment.\n\nFalse Imprisonment: Awareness\nIn addition to intent and confinement, the balance of authority adds\nthe requirement that the plaintiff must be aware of the confinement.\nBecause of the awareness requirement, an unconscious person locked\nin a room cannot, upon waking up to an open door, make out a case\nfor false imprisonment. Many have noted that the awareness\nrequirement in the false imprisonment tort is consonant with tort\xe2\x80\x99s\nemphasis on an individual\xe2\x80\x99s sense of autonomy.\nAccording to convention, however, there is an exception to the\nawareness requirement. Authorities commonly state, without\nelaboration, that if the prisoner is harmed by the confinement, then\nawareness is not required. This exception creates something of a\n\n179\n\n\x0cpuzzle: It\xe2\x80\x99s not so easy to imagine a situation in which a plaintiff is\nharmed by a confinement of which she or he is unaware and where\nthe confinement itself is the essence of the harm, as opposed to a\nbattery. Suffice it to say, it must not come up very often.\n\nFalse Imprisonment: Scope of Privilege or Consent\nPrivilege or consent is an affirmative defense to false imprisonment.\nAnd in many cases, the scope of that privilege or consent is likely to\nbe crucial. Consider some examples: Jailers who confine their inmates\nhave a legal privilege to do so. And riders on common carrier\ntransport have consented to a confinement. But at what point does\nprivilege or consent run out?\nCase: Sousanis v. Northwest Airlines\nThis case presents false imprisonment in a thoroughly modern\ncontext: an airplane on the tarmac that\xe2\x80\x99s going nowhere.\n\nSousanis v. Northwest Airlines\nUnited States District Court for the Northern District of California\nMarch 3, 2000\n2000 WL 34015861. Marti SOUSANIS, Plaintiff, v.\nNORTHWEST AIRLINES, INC. et al. Defendants. No. C-992994 MHP. Not Reported in F.Supp.2d.\n\nChief Judge MARILYN HALL PATEL:\nOn May 11, 1999, plaintiff Marti Sousanis filed suit in California\nstate court against Northwest Airlines and twenty \xe2\x80\x9cDoe\xe2\x80\x9d\ndefendants alleging various tort and contract claims pertaining\nto a detained flight. On June 17, 1999, defendant Northwest\nremoved the action to this court on diversity grounds.~\nPlaintiff\xe2\x80\x99s first amended complaint (\xe2\x80\x9ccomplaint\xe2\x80\x9d) states the\nfollowing claims against defendants: (1) breach of contract; (2)\nbreach of the covenant of good faith and fair dealing; (3)\nintentional infliction of emotional distress; (4) false\nimprisonment; (5) negligence; (6) disability discrimination in\nviolation of California Civil Code section 54.1 et seq.; (7) civil\nrights discrimination in violation of the Unruh Act, California\nCivil Code section 51 et seq.; (8) violation of California\xe2\x80\x99s Unfair\n\n180\n\n\x0cCompetition statute, Business and Professions Code sections\n17200 and 17201; and (9) declaratory and injunctive relief.~\nBACKGROUND\nPlaintiff, a San Francisco resident, spent her 1998 winter holiday\nin Detroit. In November 1998, she purchased a $540 round-trip\nairline ticket from Northwest. Plaintiff departed San Francisco\non December 23, 1998 and was scheduled to return on Saturday\nJanuary 2, 1999.\nDetroit experienced a blizzard during the New Year\xe2\x80\x99s weekend,\nand Detroit Metro Airport was blanketed with snow and ice.\nPlaintiff boarded her homebound flight as scheduled. However,\nthe flight was detained and ultimately canceled due to the\ninclement weather. The next day, plaintiff obtained a boarding\npass for Northwest Flight Number 992. This flight was\nscheduled to depart in the early afternoon, but worsening\nweather caused further delays. Plaintiff claims that Northwest\nmade a series of disingenuous announcements about when it\nexpected the flight to leave.\nAt 6:00 p.m. on January 3, Northwest instructed the passengers\nof Flight 992 to board the aircraft. Once the passengers were\nseated, the doors were secured but the plane never took off. For\napproximately six hours, Flight 992 remained parked at the gate\nor on the runway due to weather-related and mechanical\nproblems.\nDuring the protracted wait, Northwest flight attendants\nrepeatedly instructed the passengers to remain seated with their\nseat belts fastened. Plaintiff alleges that she suffers a chronic\nback condition that worsens if she is forced to sit for too long.\nShe contends that her physical therapist advises that she stand\nand stretch at least every thirty minutes. In addition, plaintiff\npurports to have panic and anxiety attacks when she anticipates\nan impending back spasm. Plaintiff claims that she began to feel\nher back tighten after some period of remaining in her seat on\nFlight 992. So, plaintiff stood up in her row to stretch her back.\nAccording to plaintiff, a flight attendant ordered her to sit down\nbecause the seat belt sign was illuminated. Plaintiff alleges that\n\n181\n\n\x0cshe attempted to explain her condition to the flight attendant,\nbut that she would not listen. Instead, she summoned other\nflight attendants, including the supervising flight attendant.\nThe supervising flight attendant advised plaintiff that her refusal\nto comply with flight crew instructions constituted a violation of\nfederal law. Plaintiff alleges that she again tried to explain to the\nsupervising flight attendant her medical need for special\naccommodation. The supervising flight attendant handed\nplaintiff a notice advising her that passengers who interfere with\nthe operation of the aircraft are subject to arrest. After her\naltercation with the supervising flight attendant, plaintiff did not\nattempt to stand up again. Plaintiff recalls being in tears and in\npain for the remainder of the approximately six hour wait.\nPlaintiff asserts that during the wait, several passengers\noccasionally stood up and/or walked to the restroom. She also\nnotes that Northwest crew members were able to move freely\nabout the plane. At around midnight, Northwest canceled Flight\n992 and the passengers deplaned. On Monday, January 4, 1999,\nplaintiff returned to San Francisco on Northwest Flight Number\n929.\nLEGAL STANDARD\nA motion to dismiss for failure to state a claim will be denied\nunless it appears that the plaintiff can prove no set of facts\nwhich would entitle him or her to relief.~\nDISCUSSION~\nThe tort of false imprisonment is defined in California as \xe2\x80\x9cthe\nnonconsensual, intentional confinement of a person, without\nlawful privilege, for an appreciable length of time, however\nshort.\xe2\x80\x9d Molko v. Holy Spirit Assn., 46 Cal.3d 1092, 1123 (1988).\nPlaintiff alleges that she was detained against her will in her seat\nfor a period of approximately six hours, while other passengers\nwere occasionally permitted to stand, stretch and use the\nlavatories as the aircraft sat on the tarmac. She argues that while\nshe did consent to boarding the aircraft initially, she did not\nconsent to being confined to her seat during the long delay.\nDefendant asserts that plaintiff consented to remaining in her\n\n182\n\n\x0cseat while the seat belt sign was illuminated as a condition of\nboarding the aircraft, and could not, as a matter of law,\nwithdraw it.\nBoth plaintiff and defendant rely on Abourezk v. New York\nAirline, Inc., 705 F.Supp. 656 (D.D.C. 1989) to support their\npositions. While not exactly on point, it presents the closest\nfactual scenario to the case at bar in an area of sparse precedent.\nThere, the court held that the passenger plaintiff was not falsely\nimprisoned when he was not allowed off an airplane which was\ndelayed on the ground for three hours because of inclement\nweather at the destination airport. The delay had caused the\nplaintiff to miss his appointment, thus rendering his trip moot,\nso he asked to deplane while the aircraft was waiting in the\ntakeoff line. The pilot refused, and the plane eventually flew on\nto New York.\nPlaintiff does not allege that she asked to deplane, only that she\nbe allowed to stand, stretch and move about. The pilot in this\ncase had full and lawful authority to control the actions of the\npassengers for their own safety. See 14 C.F.R. \xc2\xa7 121.533.\nPlaintiff states in her complaint that the captain kept the seat\nbelt sign illuminated for virtually the entire delay. Therefore,\ndefendant was acting pursuant to federal law in confining\nplaintiff to her seat, and plaintiff could not withdraw her\nconsent. The Abourezk court explained that the plaintiff\xe2\x80\x99s\nagreement with the airline did not provide that he \xe2\x80\x9ccould\nunilaterally determine that he should be deplaned in\ncircumstances such as those presented herein.\xe2\x80\x9d Similar to\nAbourezk, here plaintiff\xe2\x80\x99s agreement with defendant did not\nallow for her to withdraw her consent to obeying federally\nmandated safety rules. Defendant was acting lawfully by\nconfining plaintiff to her seat within the aircraft while the seat\nbelt sign was illuminated. The court finds that plaintiffs has\nfailed to plead the elements required to state a false\nimprisonment claim, and thus dismisses that claim with\nprejudice.\n\n183\n\n\x0cCONCLUSION\nFor the foregoing reasons, the court GRANTS defendant\xe2\x80\x99s\nmotion to dismiss. Plaintiff\xe2\x80\x99s first, second, third, and fourth\nclaims are DISMISSED WITH PREJUDICE. Her fifth through\nninth claims are DISMISSED WITH PREJUDICE insofar as\nthey are not cognizable under California law.\nIT IS SO ORDERED\n\nQuestions to Ponder About Sousanis v. Northwest Airlines\nA. The court found that the plaintiff \xe2\x80\x9cfailed to plead the elements\nrequired to state a false imprisonment claim.\xe2\x80\x9d Which element of the\nprima facie case do you think the court believed was missing?\nB. The recitation of the elements of false imprisonment given by the\ncourt includes that the confinement be \xe2\x80\x9cnonconsensual.\xe2\x80\x9d What\ndifference would it have made, if any, if the court had followed the\ntraditional formulation of the law that sees consent as an affirmative\ndefense, rather than holding that lack of consent is part of a prima\nfacie case?\nC. The court\xe2\x80\x99s decision appears to be based in large part on the\nobservation that \xe2\x80\x9c[t]he pilot in this case had full and lawful authority\nto control the actions of the passengers for their own safety.\xe2\x80\x9d In\nsupport of this, the court cites 14 C.F.R. \xc2\xa7121.533. Here is the\ncomplete text of that regulation:\n\xc2\xa7121.533\nResponsibility for operational\ncontrol: Domestic operations.\n(a) Each certificate holder conducting domestic\noperations is responsible for operational\ncontrol.\n(b) The pilot in command and the aircraft\ndispatcher are jointly responsible for the\npreflight planning, delay, and dispatch release of\na flight in compliance with this chapter and\noperations specifications.\n(c) The aircraft dispatcher is responsible for\xe2\x80\x94\n(1) Monitoring the progress of each flight;\n\n184\n\n\x0c(2) Issuing necessary information for the safety\nof the flight; and\n(3) Cancelling or redispatching a flight if, in his\nopinion or the opinion of the pilot in command,\nthe flight cannot operate or continue to operate\nsafely as planned or released.\n(d) Each pilot in command of an aircraft is,\nduring flight time, in command of the aircraft\nand crew and is responsible for the safety of the\npassengers, crewmembers, cargo, and airplane.\n(e) Each pilot in command has full control and\nauthority in the operation of the aircraft,\nwithout limitation, over other crewmembers and\ntheir duties during flight time, whether or not he\nholds valid certificates authorizing him to\nperform the duties of those crewmembers.\n\nDoes the cited authority support the court\xe2\x80\x99s statement?\nCase: Montejo v. Martin Memorial\nThis case presents a different modern context \xe2\x80\x93 hospitals privately\ndeporting undocumented immigrant patients who cannot pay their\nmedical bills. An article by Professor Kit Johnson, an immigration\nscholar, provides some helpful context:\nFederal law requires hospitals to treat patients in\nneed of emergency medical care regardless of\nwhether they are lawfully present in the United\nStates. And hospitals are prohibited from\ndischarging those patients unless and until there\nis an assurance that their continuing medical\nneeds will be met by another facility. Yet federal\nlaw does not dictate what can and should be\ndone with undocumented migrants after their\nneed for emergency care has passed but their\nneed for ongoing medical care lingers. Nor is\nthere federal funding for long-term care of\nundocumented migrants, unlike the Medicaid\nsystem\xe2\x80\x99s reimbursements for citizens.\nSeveral hospitals have decided to repatriate\nundocumented patients needing long-term\n\n185\n\n\x0cmedical care at the hospitals\xe2\x80\x99 expense. That is,\nthe hospitals hire transport to return these\nindividuals to the care and custody of their\nnative countries.\n\nKit Johnson, Patients Without Borders: Extralegal Deportation by Hospitals,\n78 UNIVERSITY OF CINCINNATI LAW REVIEW 657 (2009).\n\nMontejo v. Martin Memorial\nDistrict Court of Appeal of Florida, Fourth District\nAugust 23, 2006\n935 So.2d 1266. Montejo Gaspar MONTEJO, as Guardian of\nthe person of Luis Alberto Jimenez, Appellant, v. MARTIN\nMEMORIAL MEDICAL CENTER, INC., Appellee. No.\n4D05-652.\nChief Judge W. MATTHEW STEVENSON:\nMontejo Gaspar Montejo, the guardian of Luis Alberto Jimenez,\nappeals an order dismissing with prejudice his false\nimprisonment claim against Martin Memorial Medical Center,\nInc. Because Martin Memorial was not cloaked with absolute\nimmunity from civil liability when acting pursuant to a void\ncourt order, we reverse the judgment of the trial court and\nremand for further proceedings.\nIn February 2000, Luis Alberto Jimenez, an undocumented\nnative of Guatemala who was living and working in Florida,\nsustained brain damage and severe physical injuries as a\nconsequence of a car crash. Jimenez was transported to Martin\nMemorial Medical Center and remained there until June 2000,\nwhen he was transferred to a skilled nursing facility. The injuries\nsuffered by Jimenez rendered him incompetent and a circuit\ncourt judge appointed Montejo guardian of Jimenez\xe2\x80\x99s person\nand property.\nOn January 26, 2001, Jimenez was readmitted to Martin\nMemorial on an emergency basis and, as of November 2001,\nwas still incapacitated and still receiving medical care at Martin\nMemorial. Around this time, Montejo filed a guardianship plan,\nindicating Jimenez would require twenty-four hour care at a\n\n186\n\n\x0chospital or skilled care facility for the next twelve months. As\nthe costs of Jimenez\xe2\x80\x99s medical care were mounting, Jimenez was\nindigent, and Medicaid had refused to pay because he was an\nillegal alien, Martin Memorial intervened in the guardianship\nproceedings. In its petition, Martin Memorial claimed the\nguardian had failed to ensure Jimenez was in the best facility to\nmeet his medical needs and the hospital was not the appropriate\nfacility to provide the long-term rehabilitative care required.\nMartin Memorial sought permission to discharge Jimenez and\nhave him transported to Guatemala for further care. Pursuant to\nfederal law, in order to discharge Jimenez, Martin Memorial was\nrequired to demonstrate appropriate medical care was available.\nOn June 27, 2003, following a hearing, the circuit court granted\nMartin Memorial\xe2\x80\x99s petition, directing the guardian to refrain\nfrom frustrating the hospital\xe2\x80\x99s plan to relocate Jimenez to\nGuatemala and authorizing the hospital to provide, at its own\nexpense, \xe2\x80\x9ca suitable escort with the necessary medical support\nfor the Ward\xe2\x80\x99s trip back to Guatemala.\xe2\x80\x9d\nSpecifically, the court found the guardian had failed to act in\nJimenez\xe2\x80\x99s best interests \xe2\x80\x9cby allowing the Ward to remain in the\ninappropriate residential setting of an acute care hospital\xe2\x80\x9d and\nthus ordered that the guardian \xe2\x80\x9cshall consent to, fully cooperate\nin and refrain from frustrating the Hospital\xe2\x80\x99s discharge plan to\nrelocate the Ward back to Guatemala\xe2\x80\x9d and that the hospital\n\xe2\x80\x9cshall, at its own expense, provide a suitable escort with the\nnecessary medical support for the Ward\xe2\x80\x99s trip back to\nGuatemala.\xe2\x80\x9d\nOn July 9, 2003, the same day that his motion for rehearing was\ndenied, Montejo filed a notice of appeal directed to the circuit\ncourt\xe2\x80\x99s order. At the same time that he filed the notice of appeal,\nMontejo filed a motion to stay the court\xe2\x80\x99s June 27, 2003 order.\nAccording to Montejo, although the circuit court ordered Martin\nMemorial to file a response to the motion to stay by 10:00 a.m.\nthe following day, sometime before 7:00 a.m., the hospital took\nJimenez to the airport via ambulance and transported him by\nprivate plane to Guatemala.\n\n187\n\n\x0cIn an opinion issued on May 5, 2004, this court reversed the\norder that had \xe2\x80\x9cauthorized\xe2\x80\x9d Martin Memorial to transport\nJimenez to Guatemala. See Montejo v. Martin Mem\xe2\x80\x99l Med. Ctr., Inc.,\n874 So.2d 654 (Fla. 4th DCA 2004). In the opinion\xe2\x80\x99s final\nparagraph, the panel wrote that it was reversing not only\nbecause there was insufficient evidence that Jimenez could\nreceive adequate care in Guatemala, but also because \xe2\x80\x9cthe trial\ncourt lacked subject matter jurisdiction to authorize the\ntransportation (deportation) of Jimenez to Guatemala.\xe2\x80\x9d\nIn September 2004, Montejo filed a lawsuit, alleging Martin\nMemorial\xe2\x80\x99s confining Jimenez in the ambulance and on the\nairplane amounted to false imprisonment and seeking damages\nfor the same. Martin Memorial filed a motion to dismiss or for\njudgment on the pleadings, arguing (1) that Montejo lacked\nstanding and (2) that Montejo had not and could not state a\ncause of action because he had not and could not demonstrate\nthe detention was unreasonable and unwarranted-a necessary\nelement of a claim for false imprisonment. With regard to the\nlatter argument, Martin Memorial insisted the detention could\nnot be unreasonable and unwarranted because its transporting\nJimenez to Guatemala was done pursuant to a then-valid court\norder and, as such, its actions were afforded immunity.\nFollowing a hearing, the trial court granted Martin Memorial\xe2\x80\x99s\nmotion and dismissed Montejo\xe2\x80\x99s false imprisonment suit with\nprejudice. This appeal arises from that order of dismissal.\nMontejo insists the dismissal of his false imprisonment claim\ncannot be sustained upon either the theory that he lacked\nstanding or that he had not and could not state a cause of action\nbecause Martin Memorial\xe2\x80\x99s actions were somehow cloaked with\nimmunity. To begin, we find Montejo had standing to bring the\nfalse imprisonment claim and reject without further comment\nMartin Memorial\xe2\x80\x99s arguments to the contrary.\nThis, then, brings us to the matter of whether Martin\nMemorial\xe2\x80\x99s transporting Jimenez to Guatemala could provide\nthe foundation for a false imprisonment claim despite the fact\nthat such actions were taken in reliance upon the circuit court\xe2\x80\x99s\nJune 27, 2003 order. The question we must decide is whether a\n\n188\n\n\x0clitigant is entitled to \xe2\x80\x9cimmunity\xe2\x80\x9d from a false imprisonment\nclaim for actions taken in reliance upon an order that is later\ndetermined to have been entered in the absence of subject\nmatter jurisdiction. We conclude that, under existing Florida\nlaw, the answer is no and that the cause of action in the instant\ncase may proceed.\nThe elements of a cause of action for false imprisonment have\nbeen stated in various ways by Florida courts, but, essentially, all\nhave agreed that the elements include: 1) the unlawful detention\nand deprivation of liberty of a person 2) against that person\xe2\x80\x99s\nwill 3) without legal authority or \xe2\x80\x9ccolor of authority\xe2\x80\x9d and 4)\nwhich is unreasonable and unwarranted under the\ncircumstances. See Johnson v. Weiner, 155 Fla. 169 (1944); Jackson\nv. Navarro, 665 So.2d 340, 341 (Fla. 4th DCA 1995); Everett v.\nFla. Inst. of Tech., 503 So.2d 1382, 1383 (Fla. 5th DCA 1987);\nKanner v. First Nat\xe2\x80\x99l Bank of S. Miami, 287 So.2d 715, 717 (Fla. 3d\nDCA 1974). In Johnson, the Florida Supreme Court stated that\nthe element of legal authority may be demonstrated by irregular\nor voidable process, but \xe2\x80\x9c\xe2\x80\x98[v]oid process will not constitute legal\nauthority within this rule.\xe2\x80\x99\xe2\x80\x9d It is equally clear that Florida law\nholds that an order entered in the absence of subject matter\njurisdiction is void. In the prior opinion in this case, this court\nheld that the circuit court judge lacked subject matter\njurisdiction to authorize the hospital to transport Jimenez to\nGuatemala.\nInitially, Martin Memorial contends that Montejo cannot state a\ncause of action for false imprisonment because the alleged\nconfinement in the ambulance and plane was performed in\nfurtherance of a court order and \xe2\x80\x9cis protected by the absolute\nimmunity related to judicial proceedings.\xe2\x80\x9d In support of this\nargument, Martin Memorial cites Levin, Middlebrooks, Mabie,\nThomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co.,\n639 So.2d 606 (Fla.1994), and American National Title & Escrow of\nFlorida, Inc. v. Guarantee Title & Trust Co., 748 So.2d 1054 (Fla.\n4th DCA 1999). In Levin, the insurer represented to the court\nthat one of the firm\xe2\x80\x99s attorneys would be called as a witness in\nthe bad faith litigation; as a result, the firm was disqualified from\nthe representation. When the insurer failed to follow through,\n\n189\n\n\x0cthe firm filed a claim for tortious interference with a business\nrelationship. The insurer insisted the claim was barred by the\nlitigation privilege. The Florida Supreme Court agreed, writing\nthat \xe2\x80\x9cabsolute immunity must be afforded to any act occurring\nduring the course of a judicial proceeding ... so long as the act\nhas some relation to the proceeding.\xe2\x80\x9d 639 So.2d at 608.\nIn American National Title & Escrow, a law firm representing two\ntitle insurers obtained a temporary injunction and an order\nappointing a receiver and was sued for abuse of process related\nto the court-appointed receiver\xe2\x80\x99s entry into the business offices\nand the president\xe2\x80\x99s home to obtain records. This court affirmed\nthe trial court\xe2\x80\x99s entry of summary judgment in favor of the law\nfirm because the misconduct alleged was done \xe2\x80\x9cpursuant to the\nreceivership\xe2\x80\x9d and was therefore protected by the absolute\nimmunity afforded conduct related to judicial proceedings. 748\nSo.2d at 1056. This court stated:\nAppellants\xe2\x80\x99 argument that Levin should be\nlimited to publications or communications\nduring litigation has no merit. Prior to Levin, the\ncourt had already decided that statements\namounting to perjury, libel, slander, and\ndefamation were not actionable. The essence of\nLevin was its extension of absolute immunity to\nacts taken during the proceeding, not just\nstatements made therein. The acts taken here\nwere all done pursuant to the receivership and\nthe order of authority to the receiver.\nIn the instant case, we cannot agree that Martin Memorial\xe2\x80\x99s\nalleged misconduct occurred \xe2\x80\x9cduring the course of the judicial\nproceedings\xe2\x80\x9d such that the litigation privilege discussed in Levin\nand American National Title & Escrow would apply. In\ndiscussing the rationale for the litigation privilege, the court in\nLevin explained:\nIn balancing policy considerations, we find that\nabsolute immunity must be afforded to any act\noccurring during the course of a judicial\nproceeding, regardless of whether the act\ninvolves a defamatory statement or other\n\n190\n\n\x0ctortious behavior such as the alleged\nmisconduct at issue, so long as the act has some\nrelation to the proceeding. The rationale behind\nthe immunity afforded to defamatory\nstatements is equally applicable to other\nmisconduct occurring during the course of a\njudicial proceeding. Just as participants in\nlitigation must be free to engage in unhindered\ncommunication, so too must those participants\nbe free to use their best judgment in prosecuting\nor defending a lawsuit without fear of having to\ndefend their actions in a subsequent civil action\nfor misconduct.\nHere, Martin Memorial\xe2\x80\x99s actions were taken neither during the\ncourse of the judicial proceedings nor in an effort to prosecute\nor defend its lawsuit. Unlike American National Title & Escrow,\nwhere the court appointed a receiver to take control of the\nbusiness for the purposes of obtaining records and conserving\nassets which were the subject of the litigation, the court in the\ninstant case merely allowed Martin Memorial to proceed on its\nown chosen course of action, which was to be taken after the\njudicial proceedings were concluded. In our view, to afford\nMartin Memorial absolute immunity from potential tort liability\nunder the circumstances of this case would be an unwarranted\nand improper extension of the litigation privilege. Further, we\ndo not believe that the litigation privilege discussed in Levin\nwould apply to the instant case where the court entering the\norder lacked subject matter jurisdiction and the order acted\nupon was void.\nMartin Memorial further suggests that because it acted in\nreliance on the court order, it should be cloaked with qualified\nor quasi-judicial immunity to the same extent as that afforded to\nstate agents executing the order of a trial court. We disagree.\nThose authorities which suggest that the immunity to be\nafforded those who execute the judge\xe2\x80\x99s order should be coextensive with the immunity afforded the judge~ reason that\nthose who execute court orders are \xe2\x80\x9c\xe2\x80\x98integral parts of the\njudicial process\xe2\x80\x99\xe2\x80\x9d and that \xe2\x80\x9c[t]he fearless and unhesitating\nexecution of court orders is essential if the court\xe2\x80\x99s authority and\n\n191\n\n\x0cability to function are to remain uncompromised,\xe2\x80\x9d see Coverdell\nv. Dep\xe2\x80\x99t of Social & Health Servs., Wash., 834 F.2d 758, 765 (9th\nCir.1987) (finding child protective services worker who took\ncustody of child pursuant to court order, but without requisite\nnotice to parent or her attorney, was immune from suit)\n(quoting Briscoe v. LaHue, 460 U.S. 325, 335 (1983)), and thus\nhold that \xe2\x80\x9c \xe2\x80\x98official[s] charged with the duty of executing a\nfacially valid court order enjoy [ ] absolute immunity from\nliability for damages in a suit challenging conduct prescribed by\nthat order,\xe2\x80\x99 \xe2\x80\x9c see Turney v. O\xe2\x80\x99Toole, 898 F.2d 1470, 1472 (10th\nCir.1990) (quoting Valdez v. City & County of Denver, 878 F.2d\n1285, 1286 (10th Cir.1989)). See also Zamora v. City of Belen, 383\nF.Supp.2d 1315, 1326 (D.N.M.2005) (\xe2\x80\x9c[I]t is irrelevant to the\nexecuting officer\xe2\x80\x99s absolute immunity from suit under \xc2\xa7 1983 if\nthe court order violates a statute, or is erroneous or even\nunconstitutional, as long as it is \xe2\x80\x98facially valid.\xe2\x80\x99 \xe2\x80\x9c) (quoting\nTurney, 898 F.2d at 1473). Florida law is consistent with the\nfederal authorities on this issue. See Willingham v. City of Orlando,\n929 So.2d 43, 49 (Fla. 5th DCA 2006) (citing a number of\nfederal cases, including Valdez, and recognizing that \xe2\x80\x9cso long as\na warrant is valid on its face, [a state agent] is entitled to an\nabsolute grant of immunity springing from the judicial immunity\nof the judicial officer who issued the warrant\xe2\x80\x9d). In the instant\ncase, Martin Memorial was not an agent of the government\nexecuting an order of the court.\nIn the present case, by procuring and obtaining the order\nallowing the deportation of Jimenez, Martin Memorial was\nseeking the vindication or enforcement of a purely private right.\nCases in other jurisdictions have held that in instances where the\nobject of the detention (i.e., false imprisonment) of an individual\nis for the protection or enforcement of a private right, the\nperson procuring the detention has no immunity from a claim\nfor money damages where the court issuing the order has\nexceeded its jurisdiction. The rationale for this rule was\nexplained in Hamilton v. Pacific Drug Co., 78 Wash. 689 (1914), a\ncase in which the court allowed a false imprisonment suit to\nproceed where the defendant procured a warrant for the\n\n192\n\n\x0cplaintiff\xe2\x80\x99s arrest as an \xe2\x80\x9cabsconding debtor\xe2\x80\x9d and the lower court\nhad no jurisdiction to authorize the arrest:\nIt is argued that, since the arrest was upon a\nwarrant authorized by order of the superior\ncourt, the appellant is exonerated from liability,\neven though the law at the present time does\nnot authorize the arrest. In support of this\nposition a number of cases are cited, all but one\nof which appear to have been where the arrest\nwas made in a criminal proceeding. There, the\nparty complaining and setting the machinery of\nthe law in motion, which results in the arrest of\na person, is acting, not on his own account or\nfor his own private benefit, but for the public,\nenforcing the public\xe2\x80\x99s right to have the public\nlaw obeyed. A rule of law which would\nexonerate from liability a person causing an\narrest in a criminal proceeding when acting\nwithout malice, and with probable cause, even\nthough there be no law justifying the arrest, is\nnot applicable where the arrest is caused for the\npurpose of enforcing a claim of private right.\nWhile there is some confusion in the authorities,\nand this distinction has not always been\nrecognized, it would seem, nevertheless, that it\nis supported by reason. Where, in a civil case, a\nparty causes his adversary to be arrested\nunlawfully, a stricter rule of liability should\nobtain than where a citizen inspiring the arrest\nhas been actuated by public interest solely. A\nperson who causes the arrest of another in a\ncivil proceeding must answer in damages, even\nthough the arrest was in pursuance of an order\nof court, when the court issuing the order has\nexceeded its jurisdiction, or had no authority to\ndo so.\nSee also Yahola v. Whipple, 189 Okla. 583 (1941) (allowing a\ncause of action for false imprisonment to proceed where the\nplaintiff\xe2\x80\x99s detention was at the instance of a void court order\nprocured by the defendant); Pomeranz v. Class, 82 Colo. 173\n\n193\n\n\x0c(1927) (finding a receiver and his attorney liable for false\nimprisonment damages as a consequence of procuring a void\norder adjudging the plaintiff guilty of contempt notwithstanding\nthe immunity of the judge and the officer serving the warrant of\narrest). The results in the foregoing cases are consistent with\nFlorida law, since a void judgment does not suffice as \xe2\x80\x9clegal\nauthority\xe2\x80\x9d or \xe2\x80\x9ccolor of authority\xe2\x80\x9d within the elements of a cause\nof action for false imprisonment. See Johnson, 19 So.2d at 700;\nJackson, 665 So.2d at 341; see also Jibory v. City of Jacksonville, 920\nSo.2d 666 (Fla. 1st DCA 2005) (holding that a false\nimprisonment claim would lie against the city where the warrant\nupon which the plaintiff was arrested was void), review\ndismissed, 926 So.2d 1269 (Fla.2006).\nIn conclusion, we note that in order for a plaintiff to recover on\na false imprisonment claim, all of the elements must be proven.\nHere, while the issue of whether Martin Memorial acted with\nlegal authority may be resolved as a matter of law, the trier of\nfact must determine as a matter of fact whether Martin\nMemorial\xe2\x80\x99s actions were unwarranted and unreasonable under\nthe circumstances. See Rivers v. Dillards Dep\xe2\x80\x99t Store, Inc., 698 So.2d\n1328 (Fla. 1st DCA 1997) (holding that even where some\nauthority to restrain liberty exists, the reasonableness of the\nprocedures followed may present a question of fact).\nAccordingly, we reverse the order dismissing Montejo\xe2\x80\x99s false\nimprisonment suit and remand for further proceedings.\nReversed and Remanded.\nGUNTHER and TAYLOR, JJ., concur.\n\nQuestions to Ponder About Montejo v. Martin Memorial\nA. Under Florida, confinement is not actionable if a jury determines\nit to be reasonable or warranted under the circumstances. This is at\nodds with the traditional formulation, which allows no such escape\nfrom liability. Dan B. Dobbs has written that false imprisonment\n\xe2\x80\x9cregresses a dignitary or intangible interest, a species of emotional\ndistress or insult that one feels at the loss of freedom and the\nsubjugation to the will of another.\xe2\x80\x9d Is Florida\xe2\x80\x99s formulation better,\nproviding needed flexibility in the tort? Or does the tort of false\n\n194\n\n\x0cimprisonment lose its moral grounding in autonomy and liberty\ninterests when one person can confine another when reasonable\nunder the circumstances?\nB. If it is tortious for hospitals to deport indigent patients, and if no\nother facilities will take them, what should hospitals do about their\nindigent patients? If you were the hospital\xe2\x80\x99s attorney, what would you\nadvise?\n\n195\n\n\x0c19. Intentional Infliction of\nEmotional Distress\n\xe2\x80\x9cIf only these treasures were not so fragile as they are precious\nand beautiful.\xe2\x80\x9d\n\xe2\x80\x93 Johann Wolfgang von Goethe, The Sorrows of Young Werther,\n1774\n\nIntroduction\nThe tort of intentional infliction of emotional distress is the most\nrecent of the intentional torts. First arriving on the scene in the late\n1800s, the tort won general acceptance the last half of the 1900s. It\noften goes by the abbreviation \xe2\x80\x9cIIED\xe2\x80\x9d and many other names as\nwell, the most concise of which is \xe2\x80\x9coutrage.\xe2\x80\x9d Other, longer names are\n\xe2\x80\x9cintentional infliction of emotional harm,\xe2\x80\x9d \xe2\x80\x9cintentional infliction of\nmental distress,\xe2\x80\x9d and \xe2\x80\x9cintentional infliction of mental shock.\xe2\x80\x9d\nHappily, in our society, people are largely civil to one another. But\neven when they are not, their insulting behavior rarely rises to the\nlevel required for liability under IIED. As we will see, IIED claims\nrequire unusual facts and extreme behavior.\nOne place where IIED does seem to pop up with some frequency is\nin the employment context. Sadly, there seems to be all too many\npeople wanting to inflict misery on their co-workers. But IIED\ncomes up in other contexts as well \xe2\x80\x93 not the least of which are high\nschool hallways and social media sites.\n\nThe Elements of IIED\nHere is a blackletter formulation for intentional infliction of\nemotional distress:\nA plaintiff can establish a prima facie case for\nintentional infliction of emotional distress\nby showing that the defendant (1) intentionally\nor recklessly, (2) by extreme and outrageous\n\n196\n\n\x0cconduct (3) inflicted severe emotional distress\non the plaintiff.\n\nIIED: Intent\nLike many other torts terms, intentional infliction of emotional\ndistress is a misnomer. The intent element of the prima facie case is\nsatisfied when the defendant either intended the plaintiff\xe2\x80\x99s severe\nemotional distress, or acted in deliberate disregard of a high\nprobability of causing the plaintiff to suffer severe emotional distress\n(i.e., recklessness). Thus, despite its traditional classification as an\nintentional personal tort, and despite the \xe2\x80\x9cintentional\xe2\x80\x9d in its name,\nIIED does not require that the defendant act intentionally.\nRecklessness will suffice.\nWhen it comes to transferred intent, IIED is a lone wolf: Intent\ngenerally does not transfer to the outrage tort. So the intent to cause\na battery, by itself, is insufficient intent for IIED. And the intent to\ncause person X to suffer severe emotional distress will not suffice as\nintent for a suit brought by Y for emotional distress.\nThe nonapplicability of transferred intent for IIED notwithstanding,\nit should be noted that some courts have held that a plaintiff can\nsuccessfully sue a defendant for IIED where the defendant inflicts\nintentional bodily harm on the plaintiff\xe2\x80\x99s immediate family member\nin the plaintiff\xe2\x80\x99s presence \xe2\x80\x93 even if the defendant did not intend any\nemotional distress by doing so. This sort of fact scenario is probably\nbest thought of not as transferred intent, however, but as an instance\nof recklessness fulfilling the intent requirement. That is, in such a\nsituation, the defendant is construed to have acted in deliberate\ndisregard of the likelihood that the plaintiff would be made to suffer\nsevere emotional distress.\n\nIIED: Extremeness and Outrageousness\nWhile the intent element may be comparatively easy to meet in an\nIIED claim, the requirement of extreme and outrageous conduct is a\nhigh bar. Being rude or insulting \xe2\x80\x93 even startlingly rude and grossly\ninsulting \xe2\x80\x93 is not nearly enough to qualify as extreme and outrageous\nconduct.\n\n197\n\n\x0cA typical statement is that the conduct \xe2\x80\x9cmust transcend all bounds of\ndecency and be regarded as atrocious and utterly intolerable in a\ncivilized community.\xe2\x80\x9d Graham v. Guilderland Central School District, 256\nA.D.2d 863, 863\xe2\x80\x9364 (N.Y. App. Div. 1998).\nOne vivid example of outrageousness comes from Nickerson v. Hodges,\n84 So. 37 (La. 1920). The plaintiff, Miss Nickerson, earnestly believed\nthat a pot of gold was buried on her property. Her belief was based\non family rumor and bolstered by a fortune teller. The neighbors \xe2\x80\x93\naware that Nickerson had a history of mental illness \xe2\x80\x93 filled a pot\nwith rocks and dirt, put a lid on it, and buried it where she could find\nit. Included with the pot were instructions to encourage Nickerson to\nopen the pot for the first time in front of a gathering of people. She\ndid. The court reports that \xe2\x80\x9cthe results were quite serious indeed, and\nthe mental suffering and humiliation must have been quite\nunbearable, to say nothing of the disappointment and conviction,\nwhich she carried to her grave some two years later, that she had\nbeen robbed.\xe2\x80\x9d Despite the death of the plaintiff before trial, her\nestate succeeded in winning a claim for intentional infliction of\nemotional distress.\nOther examples of IIED include killing a pet animal in the pet\nowner\xe2\x80\x99s presence (LaPorte v. Associated Independents, Inc. 163 So.2d 267\n(Fla. 1964)) and burning a cross in the yard of an African-American\nperson (Johnson v. Smith, 878 F.Supp. 1150 (N.D. Ill. 1995)).\nNotwithstanding these examples, IIED claims do not necessarily\nhave to involve grim spectacle. The can involve quiet, isolated\nsuffering as well. In Kroger Co. v. Willgruber, 920 S.W.2d 61 (Ky. 1996),\nthe court recognized an outrage claim where the complaint alleged\nthat an employee, fired for a refusal to violate ethical rules, was then\nsent to chase an nonexistent job in another state.\nWhile mere insults and incivility are generally not outrageous enough\nfor IIED, there are two situations in which invective alone can be\nenough to sustain a claim.\nFirst is where there is a continued pattern of insults or demeaning\nbehavior. Given enough time, simple boorishness can eventually\naccumulate to tortious proportions. Most people won\xe2\x80\x99t stand around\n\n198\n\n\x0cand be continuously insulted if they can help it, so actionable patterns\nof repeated verbal abuse often happen in a context where the plaintiff\nis economically compelled to stay and endure the mistreatment.\nWorkplaces and schools are frequent examples.\nSecond, courts have traditionally allowed even single instances of\ngross insult to be actionable where the defendant is an innkeeper or\ncommon carrier. Allowance of such claims harkens to an ancient\nethic that demands travellers \xe2\x80\x93 far from home and dependent on the\nassistance of strangers \xe2\x80\x93 are to be treated especially well.\nTo generalize about the extreme-and-outrageous requirement, one\ncan often see a theme of inequality between the plaintiff and\ndefendant. Along these lines, Professor Dan B. Dobbs identifies four\nmarkers that tend to support a finding of outrageousness: (1) abusing\none\xe2\x80\x99s position over or power with respect to the plaintiff, (2) taking\nadvantage of a plaintiff whom the defendant knows to be particularly\nvulnerable, (3) repeating offensive conduct in a situation where the\nplaintiff is not, as a practical matter, free to leave, and (4) perpetrating\nor threatening violence against a person or property in which the\nplaintiff is known to have a particular interest. See DAN B. DOBBS,\nTHE LAW OF TORTS, p. 827 (2000).\nNote that because the threshold for what counts as outrageous\ndepends on societal mores. What is outrageous in one era many not\nbe in the next. So, as our culture changes, IIED will change right\nalong with it.\n\nIIED: Severe Emotional Distress\nAnother high threshold for outrage claims is the requirement that the\nplaintiff must have suffered severe emotional distress. Suffice it to say\nthat merely being upset or even reduced to tears is not enough. The\nword \xe2\x80\x9csevere\xe2\x80\x9d is key.\nIn an earlier era of IIED, plaintiffs had to prove some physical\nsymptom of the distress \xe2\x80\x93 heart problems, stomach ulcers, teeth\nworn from grinding, or some other corporeal manifestation of\ntorment. In fact, some jurisdictions still require a physical symptom.\nBut the majority of courts today leave it up to the jury to determine\n\n199\n\n\x0cwhether or not the distress is truly severe. Medical testimony is\noptional. Of course, where physical ailments can be proved, the\nplaintiff\xe2\x80\x99s case benefits.\nThe extremeness and outrageousness of the conduct tends to go\nhand-in-hand with the severity of the emotional distress. A strong\nshowing of outrageousness aids the showing of severity.\nIt\xe2\x80\x99s helpful to take a moment to contrast IIED\xe2\x80\x99s requirement of\nsevere emotional distress with assault\xe2\x80\x99s requirement of an\napprehension of harmful or offensive contact. A particularly stalwart\nplaintiff, unfazed by an apparently impending finger poke, can bring\nan assault claim \xe2\x80\x93 unflappability notwithstanding. But an emotionally\ntough plaintiff, one who lets the defendant\xe2\x80\x99s taunts and slings roll of\nher or his back, is barred from claiming IIED. No severe distress, no\nclaim.\nCase: Wilson v. Monarch Paper\nThe following case looks at IIED in the employer/employee context,\ncombined with an allegation of age discrimination. Among other\nthings, the case highlights the level of dependence people have on\ntheir jobs \xe2\x80\x93 both for money and for a sense of well-being.\n\nWilson v. Monarch Paper\nUnited States Court of Appeals for the Fifth Circuit\nAugust 16, 1991\n939 F.2d 1138. Richard E. WILSON, Plaintiff-Appellee, v.\nMONARCH PAPER COMPANY, the Unisource Corporation,\nand Alco Standard Corporation, Defendants-Appellants. No.\n89-2293. Before REYNALDO G. GARZA, JOLLY and\nJONES, Circuit Judges.\nCircuit Judge E. GRADY JOLLY:\nI~\nBecause Monarch is challenging the sufficiency of the evidence,\nthe facts are recited in the light most favorable to the jury\xe2\x80\x99s\nverdict. In 1970, at age 48, Richard E. Wilson was hired by\nMonarch Paper Company. Monarch is an incorporated division\n\n200\n\n\x0cof Unisource Corporation, and Unisource is an incorporated\ngroup of Alco Standard Corporation. Wilson served as manager\nof the Corpus Christi division until November 1, 1977, when he\nwas moved to the corporate staff in Houston to serve as\n\xe2\x80\x9cCorporate Director of Physical Distribution.\xe2\x80\x9d During that\ntime, he routinely received merit raises and performance\nbonuses. In 1980, Wilson received the additional title of \xe2\x80\x9cVice\nPresident.\xe2\x80\x9d In 1981, Wilson was given the additional title of\n\xe2\x80\x9cAssistant to John Blankenship,\xe2\x80\x9d Monarch\xe2\x80\x99s President at the\ntime.\nWhile he was Director of Physical Distribution, Wilson received\nmost of his assignments from Blankenship. Blankenship always\nseemed pleased with Wilson\xe2\x80\x99s performance and Wilson was\nnever reprimanded or counseled about his performance.\nBlankenship provided Wilson with objective performance\ncriteria at the beginning of each year, and Wilson\xe2\x80\x99s bonuses at\nthe end of the year were based on his good performance under\nthat objective criteria. In 1981, Wilson was placed in charge of\nthe completion of an office warehouse building in Dallas, the\nlargest construction project Monarch had ever undertaken.\nWilson successfully completed that project within budget.\nIn 1981, Wilson saw a portion of Monarch\xe2\x80\x99s long-range plans\nthat indicated that Monarch was presently advancing younger\npersons in all levels of Monarch management. Tom Davis, who\nwas hired as Employee Relations Manager of Monarch in 1979,\ntestified that from the time he started to work at Monarch, he\nheard repeated references by the division managers (including\nLarry Clark, who later became the Executive Vice President of\nMonarch) to the age of employees on the corporate staff,\nincluding Wilson.\nIn October 1981, Blankenship became Chairman of Monarch\nand Unisource brought in a new, 42-year-old president from\noutside the company, Hamilton Bisbee. An announcement was\nmade that Larry Clark would be assuming expanded\nresponsibilities in physical distribution.~ When Bisbee arrived at\nMonarch in November 1981, Wilson was still deeply involved in\nthe Dallas construction project. Richard Gozon, who was 43\n\n201\n\n\x0cyears old and the President of Unisource, outlined Blankenship\xe2\x80\x99s\nnew responsibilities as Chairman of the company and requested\nthat Blankenship, Bisbee, Wilson, and John Hartley of\nUnisource \xe2\x80\x9ccontinue to work very closely together on the\ncompletion of the Dallas project.\xe2\x80\x9d Bisbee, however, refused to\nspeak to Wilson or to \xe2\x80\x9cinterface\xe2\x80\x9d with him. This \xe2\x80\x9csilent\ntreatment\xe2\x80\x9d was apparently tactical; Bisbee later told another\nMonarch employee, Bill Shehan, \xe2\x80\x9cif I ever stop talking to you,\nyou\xe2\x80\x99re dead.\xe2\x80\x9d Shehan also testified that at a meeting in\nPhiladelphia at about the time Bisbee became President of\nMonarch, Gozon told Bisbee, \xe2\x80\x9cI\xe2\x80\x99m not telling you that you have\nto fire Dick Wilson. I\xe2\x80\x99m telling you that he cannot make any\nmore money.\xe2\x80\x9d\nAs soon as the Dallas building project was completed, Bisbee\nand Gozon intensified an effort designed to get rid of Wilson.~\nDuring the same time frame, Bisbee was preparing a long-range\nplan for Monarch, in which he made numerous references to\nage and expressed his desire to bring in \xe2\x80\x9cnew blood\xe2\x80\x9d and to\ndevelop a \xe2\x80\x9cyoung team.\xe2\x80\x9d This long-range plan was transmitted\nto Gozon, who expressed no dissatisfaction with the goals\nBisbee had set out in the plan. In the meantime, Bisbee and\nClark began dismantling Wilson\xe2\x80\x99s job by removing his\nresponsibilities and assigning them to other employees. Clark\nwas also seen entering Wilson\xe2\x80\x99s office after hours and removing\nfiles.\nBlankenship was diagnosed with cancer in February 1982. In\nMarch 1982, Wilson was hospitalized for orthopedic surgery.\nImmediately after Blankenship\xe2\x80\x99s death in June 1982, Bisbee and\nSnelgrove gave Wilson three options: (1) he could take a sales\njob in Corpus Christi at half his pay; (2) he could be terminated\nwith three months\xe2\x80\x99 severance pay; or (3) he could accept a job as\nwarehouse supervisor in the Houston warehouse at the same\nsalary but with a reduction in benefits. The benefits included\nparticipation in the management bonus plan, and the loss of the\nuse of a company car, a company club membership, and a\ncompany expense account.\n\n202\n\n\x0cWilson accepted the warehouse position. Wilson believed that\nhe was being offered the position of Warehouse Manager, the\nonly vacant position in the Houston warehouse at the time.\nWhen Wilson reported for duty at the warehouse on August 16,\n1982, however, he was placed instead in the position of an entry\nlevel supervisor, a position that required no more than one\nyear\xe2\x80\x99s experience in the paper business. Wilson, with his thirty\nyears of experience in the paper business and a college degree,\nwas vastly overqualified and overpaid for that position.\nSoon after he went to the warehouse, Wilson was subjected to\nharassment and verbal abuse by his supervisor, Operations\nManager and Acting Warehouse Manager Paul Bradley (who had\npreviously been subordinate to Wilson). Bradley referred to\nWilson as \xe2\x80\x9cold man\xe2\x80\x9d and admitted posting a sign in the\nwarehouse that said \xe2\x80\x9cWilson is old.\xe2\x80\x9d In Bradley\xe2\x80\x99s absence,\nWilson was placed under the supervision of a man in his\ntwenties. Finally, Wilson was further demeaned when he was\nplaced in charge of housekeeping but was not given any\nemployees to assist him in the housekeeping duties. Wilson, the\nformer vice-president and assistant to the president, was thus\nreduced finally to sweeping the floors and cleaning up the\nemployees\xe2\x80\x99 cafeteria, duties which occupied 75 percent of his\nworking time.\nIn the late fall of 1982, Wilson began suffering from respiratory\nproblems caused by the dusty conditions in the warehouse and\nstress from the unrelenting harassment by his employer. On\nJanuary 6, 1983, Wilson left work to see a doctor about his\nrespiratory problems. He was advised to stay out of a dusty\nenvironment and was later advised that he had a clinically\nsignificant allergy to dust. Shortly after January 6, 1983, Wilson\nconsulted a psychiatrist who diagnosed him as suffering from\nreactive depression, possibly suicidal, because of on-the-job\nstress. The psychiatrist also advised that Wilson should stay\naway from work indefinitely.\nWilson filed an age discrimination charge with the EEOC in\nJanuary 1983. Although he continued being treated by a\npsychiatrist, his condition deteriorated to the point that in\n\n203\n\n\x0cMarch 1983, he was involuntarily hospitalized with a psychotic\nmanic episode. Prior to the difficulties with his employer,\nWilson had no history of emotional illness.\nWilson\xe2\x80\x99s emotional illness was severe and long-lasting. He was\ndiagnosed with manic-depressive illness or bipolar disorder.\nAfter his first hospitalization for a manic episode, in which he\nwas locked in a padded cell and heavily sedated, he fell into a\ndeep depression. The depression was unremitting for over two\nyears and necessitated an additional hospital stay in which he\nwas given electroconvulsive therapy (shock treatments). It was\nnot until 1987 that Wilson\xe2\x80\x99s illness began remission, thus\nallowing him to carry on a semblance of a normal life.\nII\nOn February 27, 1984, Wilson filed suit against the defendants,\nalleging age discrimination and various state law tort and\ncontract claims. The defendants filed a counterclaim, seeking\ndamages in excess of $10,000 for libel and slander, but later\ndismissed it.~ On November 30 and December 28, 1988, the\ncase was tried before a jury on Wilson\xe2\x80\x99s remaining claims that\nthe defendants (1) reassigned him because of his age; (2)\nintentionally inflicted emotional distress; and (3) terminated his\nlong-term disability benefits in retaliation for filing charges of\nage discrimination under the Age Discrimination in\nEmployment Act (ADEA).\nThe district court denied the defendants\xe2\x80\x99 motions for directed\nverdict. The jury returned a special verdict in favor of Wilson on\nhis age discrimination claim, awarding him $156,000 in damages,\nplus an equal amount in liquidated damages. The jury also found\nin favor of Wilson on his claim for intentional infliction of\nemotional distress, awarding him past damages of $622,359.15,\nfuture damages of $225,000, and punitive damages of\n$2,250,000. The jury found in favor of the defendants on\nWilson\xe2\x80\x99s retaliation claim. The district court entered judgment\nfor $3,409,359.15 plus prejudgment interest. The district court\ndenied the defendants\xe2\x80\x99 motions for judgment NOV, new trial,\nor, alternatively, a remittitur. The defendants appeal.\n\n204\n\n\x0cIII~\n~To\n\nprevail on a claim for intentional infliction of emotional\ndistress, Texas law requires that the following four elements be\nestablished:\n(1) that the defendant acted intentionally or\nrecklessly;\n(2) that the conduct was \xe2\x80\x98extreme and\noutrageous\xe2\x80\x99;\n(3) that the actions of the defendant caused the\nplaintiff emotional distress; and\n(4) that the emotional distress suffered by the\nplaintiff was severe.\nThe sole issue before us is whether Monarch\xe2\x80\x99s conduct was\n\xe2\x80\x9cextreme and outrageous.\xe2\x80\x9d\n\xe2\x80\x9cExtreme and outrageous conduct\xe2\x80\x9d is an amorphous phrase that\nescapes precise definition. In Dean v. Ford Motor Credit Co., supra,\nhowever, we stated that\n[l]iability [for outrageous conduct] has been\nfound only where the conduct has been so\noutrageous in character, and so extreme in\ndegree, as to go beyond all possible bounds of\ndecency, and to be regarded as atrocious, and\nutterly intolerable in a civilized community....\nGenerally, the case is one in which a recitation\nof the facts to an average member of the\ncommunity would lead him to exclaim,\n\xe2\x80\x9cOutrageous.\xe2\x80\x9d\n885 F.2d at 306 (citing Restatement (Second) of Torts \xc2\xa7 46,\nComment d (1965)). The Restatement also provides for some\nlimits on jury verdicts by stating that liability \xe2\x80\x9cdoes not extend\nto mere insults, indignities, threats, annoyances, petty\noppressions, or other trivialities.... There is no occasion for the\nlaw to intervene in every case where someone\xe2\x80\x99s feelings are\nhurt.\xe2\x80\x9d Rest. (Second) of Torts \xc2\xa7 46.\nThe facts of a given claim of outrageous conduct must be\nanalyzed in context, and ours is the employment setting. We are\n\n205\n\n\x0ccognizant that \xe2\x80\x9cthe work culture in some situations may\ncontemplate a degree of teasing and taunting that in other\ncircumstances might be considered cruel and outrageous.\xe2\x80\x9d\nKeeton, et al., Prosser & Keeton on Torts (5th ed. 1984 & 1988\nSupp.). We further recognize that properly to manage its\nbusiness, every employer must on occasion review, criticize,\ndemote, transfer, and discipline employees. We also\nacknowledge that it is not unusual for an employer, instead of\ndirectly discharging an employee, to create unpleasant and\nonerous work conditions designed to force an employee to quit,\ni.e., \xe2\x80\x9cconstructively\xe2\x80\x9d to discharge the employee. In short,\nalthough this sort of conduct often rises to the level of illegality,\nexcept in the most unusual cases it is not the sort of conduct, as\ndeplorable as it may sometimes be, that constitutes \xe2\x80\x9cextreme\nand outrageous\xe2\x80\x9d conduct.~\nWilson contends that Monarch\xe2\x80\x99s conduct was equally\noutrageous as the ~incidents~ in Dean. Generally, Wilson argues\nthat an average member of the community would exclaim\n\xe2\x80\x9cOutrageous!\xe2\x80\x9d upon hearing that a 60-year-old man, with 30\nyears of experience in his industry, was subjected to a year-long\ncampaign of harassment and abuse because his company wanted\nto force him out of his job as part of its expressed written goal\nof getting rid of older employees and moving younger people\ninto management.~\nMost of Monarch\xe2\x80\x99s conduct is similar in degree to conduct in\nDean that failed to reach the level of outrageousness. We hold\nthat all of this conduct, except as explicated below, is within the\n\xe2\x80\x9crealm of an ordinary employment dispute,\xe2\x80\x9d and, in the context\nof the employment milieu, is not so extreme and outrageous as\nto be properly addressed outside of Wilson\xe2\x80\x99s ADEA claim.\nWilson argues, however, that what takes this case out of the\nrealm of an ordinary employment dispute is the degrading and\nhumiliating way that he was stripped of his duties and demoted\nfrom an executive manager to an entry level warehouse\nsupervisor with menial and demeaning duties. We agree.\nMonarch argues that assigning an executive with a college\neducation and thirty years experience to janitorial duties is not\n\n206\n\n\x0cextreme and outrageous conduct. The jury did not agree and\nneither do we. We find it difficult to conceive a workplace\nscenario more painful and embarrassing than an executive,\nindeed a vice-president and the assistant to the president, being\nsubjected before his fellow employees to the most menial\njanitorial services and duties of cleaning up after entry level\nemployees: the steep downhill push to total humiliation was\ncomplete. The evidence, considered as a whole, will fully\nsupport the view, which the jury apparently held, that Monarch,\nunwilling to fire Wilson outright, intentionally and systematically set\nout to humiliate him in the hopes that he would quit. A\nreasonable jury could have found that this employer conduct\nwas intentional and mean spirited, so severe that it resulted in\ninstitutional confinement and treatment for someone with no\nhistory of mental problems. Finally, the evidence supports the\nconclusion that this conduct was, indeed, so outrageous that\ncivilized society should not tolerate it. Accordingly, the\njudgment of the district court in denying Monarch\xe2\x80\x99s motions for\ndirected verdict, JNOV and a new trial on this claim is\naffirmed.~\nIn conclusion, we express real concern about the consequences\nof applying the cause of action of intentional infliction of\nemotional distress to the workplace. This concern is, however,\nprimarily a concern for the State of Texas, its courts and its\nlegislature. Although the award in this case is astonishingly high,\nneither the quantum of damages, nor the applicability of\npunitive damages has been appealed.~\nAFFIRMED.\n\nQuestions to Ponder About Wilson v. Monarch Paper\nA. Is this the kind of thing that a would-be plaintiff should just \xe2\x80\x9cput\nup with\xe2\x80\x9d? Or is it a good thing that people in Wilson\xe2\x80\x99s position can\nsue?\nB. The court expressed \xe2\x80\x9creal concern about the consequences of\napplying [IIED] to the workplace.\xe2\x80\x9d Are there special dangers to\nrecognizing a cause of action for IIED in the employment context?\n\n207\n\n\x0cWould it be a good idea for a state legislature to bar such claims by\nstatute?\nC. The court says that \xe2\x80\x9cextreme and outrageous\xe2\x80\x9d is amorphous and\neludes attempts at precise definition. With favor, the court notes the\ntrope that extreme and outrageous conduct is the kind of conduct\nthat would cause a person to exclaim, \xe2\x80\x9cOutrageous.\xe2\x80\x9d Is this approach\nto defining the tort circular? And if so, is it therefore, unhelpful? Or\ndoes this explanation help to communicate something of the gestalt\nof IIED?\nCase: Dzamko v. Dossantos\nThe following case looks at IIED in the modern social-media\ncontext.\n\nDzamko v. Dossantos\nSuperior Court of Connecticut\nOctober 23, 2013\n57 Conn. L. Rptr. 30. Joseph Dzamko et al. v. Joseph C.\nDossantos. CV136027575\n\nJON C. BLUE, JUDGE.\nThe Motion To Strike now before the court involves allegations\nof well-established torts committed in the age of the internet.\nAlthough the facts are novel, the applicable law is not. As\nHolmes, J. once wrote, \xe2\x80\x9cI am frightened weekly but always\nwhen you walk up to the lion and lay hold the hide comes off\nand the same old donkey of a question of law is underneath.\xe2\x80\x9d\nThe alleged facts (assumed, for present purposes, to be true)\narise out of a mistaken identity scenario, worthy of a modern\nShakespeare, involving the intersection of Facebook pilferage\nand an internet sting operation. In 2012, the defendant, Joseph\nC. Dossantos, initiated sexually explicit conversations in an\ninternet chat room, optimistically labeled \xe2\x80\x9cConnecticut\nRomance.\xe2\x80\x9d Dossantos mistakenly believed that he was\ncommunicating with two fourteen-year-old girls. In fact, as\ncourtwatchers will already surmise, the \xe2\x80\x9cfourteen-year-old girls\xe2\x80\x9d\nwere, in fact, police detectives. Dossantos, who was forty years\n\n208\n\n\x0cold, wanted his correspondents to believe that he was younger\nthan he was. To bolster his claim, he sent three digital images of\n\xe2\x80\x9chimself\xe2\x80\x9d to one of the \xe2\x80\x9cgirls.\xe2\x80\x9d Unhappily, the images were not\nimages of Dossantos. They were, rather, images of the plaintiff,\nJoseph Dzamko (\xe2\x80\x9cJoseph\xe2\x80\x9d), appropriated by Dossantos from\nJoseph\xe2\x80\x99s Facebook page. The images of Joseph were not\nthemselves compromising. They were perfectly normal\nphotographs. But the context in which Dossantos used them\nplainly made it appear that the person thus depicted was\nengaged in sexually predatory behavior.\nThe detective receiving the transmissions recognized the person\nso depicted. It was Joseph. By malign fate, Joseph was a police\nofficer in another town and had been a Police Academy\nclassmate of the detective. The detective forwarded the images\nof Joseph to Internal Affairs. Internal Affairs investigated, and\nJoseph had to tell his wife, Sarah Dzamko (\xe2\x80\x9cSarah\xe2\x80\x9d) what had\nhappened. The investigating officers eventually traced Joseph\xe2\x80\x99s\nFacebook images to Dossantos. Dossantos, confronted with the\nevidence, admitted that he had not only sent Joseph\xe2\x80\x99s images to\nthe detective as images of himself but that he had done the same\nthing with at least twenty other females (or persons who he\npresumed to be females) on the internet. Forensic review of\nDossantos\xe2\x80\x99 computer revealed that these transmissions had\noccurred in the context of sexually explicit conversations. All of\nthis caused Joseph and Sarah great distress.\nOn April 9, 2013, Joseph and Sarah commenced this action\nagainst Dossantos by service of process. Their Revised\nComplaint consists of ten counts, but four of these counts (the\nSecond, Sixth, Seventh, and Tenth Counts) have been\nwithdrawn. Three additional counts (the First, Third, and Eighth\nCounts) are not the subject of the motion now before the court\nand can be ignored for present purposes. That leaves three\ncounts in contention: the Fourth Count (alleging publicity\nplacing Joseph in a false light), the Fifth Count (alleging\nintentional infliction of emotional distress as to Joseph), and the\nNinth Count (alleging intentional infliction of emotional distress\nas to Sarah).\n\n209\n\n\x0cOn July 19, 2013, Dossantos filed the Motion To Strike now\nbefore the Court. The Motion seeks to strike the Fourth, Fifth,\nand Ninth Counts (as well as some counts that have been\nwithdrawn and need not be further discussed). The Motion\ncontends that these counts fail to state claims upon which relief\ncan be granted. The Motion was argued on October 21, 2013.\nThe counts in question will be considered in order.~\nFifth Count\xe2\x80\x94Intentional Infliction of Emotional Distress (Joseph).\nThe Fifth Count alleges intentional infliction of emotional\ndistress as to Joseph. The elements of this cause of action are\n\xe2\x80\x9c(1) that the actor intended to inflict emotional distress or that\nhe knew or should have known that emotional distress was the\nlikely result of his conduct; (2) that the conduct was extreme\nand outrageous; (3) that the defendant\xe2\x80\x99s conduct was the cause\nof the plaintiff\xe2\x80\x99s distress; and (4) that the emotional distress\nsustained by the plaintiff was severe.\xe2\x80\x9d Perez\xe2\x80\x93Dickson v. City of\nBridgeport, 304 Conn. 483, 526\xe2\x80\x9327 (2012). (Internal quotation\nmarks and citation omitted.) The Fifth Count adequately pleads\nthese elements.\nWith respect to the first element, the Revised Complaint\nsufficiently alleges facts from which it could reasonably be\ninferred that, at a minimum, Dossantos should have known that\nemotional distress would be the likely result of his conduct. It is\nvery well known that images transmitted on the internet are not\nlikely to remain private for very long. All too often, they are\nretransmitted to the world. Think of the much-publicized issue\nof \xe2\x80\x9csexting\xe2\x80\x9d images sent by clueless teenagers. These images,\nonce sent to a single, supposedly private source, end up being\nresent to hundreds, and soon thousands, of other people. Any\nreasonable person could foretell that eventually someone was\ngoing to recognize the person in the images transmitted by\nDossantos and draw conclusions that would, in turn, cause that\nperson to suffer emotional distress.\nDossantos denies that his conduct was extreme and outrageous,\nbut he cannot do that with a straight face. The test is whether\n\xe2\x80\x9cthe recitation of the facts to an average member of the\ncommunity would arouse his resentment against the actor and\n\n210\n\n\x0clead him to exclaim, Outrageous!\xe2\x80\x9d Perez\xe2\x80\x93Dickson, 304 Conn. at\n527. This is such a case.\nDossantos does not dispute the remaining elements of the\nalleged tort. Special damages are not an element of intentional\ninfliction of emotional distress and have never been thought to\nbe so. See Restatement (Second) of Torts \xc2\xa7 46 cmt. k (1965).\n(\xe2\x80\x9c[I]f the enormity of the outrage carries conviction that there\nhas in fact been severe emotional distress, bodily harm is not\nrequired.\xe2\x80\x9d) The emotional distress sustained by the plaintiff\nmust, of course, be severe, but that is sufficiently alleged here.\nNinth Count\xe2\x80\x94Intentional Infliction of Emotional Distress\xe2\x80\x94Sarah.\nThe Ninth Count alleges intentional infliction of emotional\ndistress as to Sarah. That count alleges that Dossantos\xe2\x80\x99s conduct\n\xe2\x80\x9cwas carried out with the knowledge that it probably would\ncause \xe2\x80\xa6 Sarah \xe2\x80\xa6 to suffer emotional distress.\xe2\x80\x9d This is not, as\nDossantos argues, an allegation of bystander emotional distress,\nsuch as that of a witness to an automobile accident. Dossantos\xe2\x80\x99s\nconduct implied that Joseph was a sexual predator. This would\nnaturally reflect on Joseph\xe2\x80\x99s spouse and cause her great personal\nembarrassment and natural concern for her own personal health\nquite apart from the distress she may have experienced from\nobserving Joseph\xe2\x80\x99s own travail. Under these circumstances, the\ntort of intentional infliction of emotional distress with respect to\nSarah has been adequately pleaded.\nThe Motion To Strike is denied~.\n\nQuestions to Ponder About Dzamko v. Dossantos\nA. As with the Wilson court, the Dzamko court also references the\nexclamation-of-the-average-member-of-the-community idea for\nexplaining extremeness and outrageousness. There are a couple of\ndifferences, however. For one, the Dzamko court uses an exclamation\npoint (\xe2\x80\x9cOutrageous!\xe2\x80\x9d). The other difference is that the Dzamko court\ncalls it a \xe2\x80\x9ctest.\xe2\x80\x9d Is it a good test? And what do you think of the\nDzamko court\xe2\x80\x99s application of the test to the facts of this case? Would\nthe average person exclaim \xe2\x80\x9cOutrageous!\xe2\x80\x9d upon learning of\nDossantos\xe2\x80\x99s conduct? Did you?\n\n211\n\n\x0cB. The Dzamko court allows an IIED claim not only for Joseph\nDzamko, but also for his wife, Sarah, brushing aside concerns that\nthis is \xe2\x80\x9cbystander emotional distress.\xe2\x80\x9d Do you agree that Sarah\nshould have a claim? Supposing the Dzamkos had children, should\nthey be able to bring claims as well? If Joseph\xe2\x80\x99s mother and father\nhad been aware of this, should they also have claims?\n\nThe First Amendment Defense to IIED\nAs a final note, it\xe2\x80\x99s worth considering that an IIED cause of action\ncan be trumped by the First Amendment \xe2\x80\x93 at least where the cause\nof the emotional distress is speech about a matter of public concern.\nIn Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the U.S.\nSupreme Court unanimously held that a magazine had a protectable\nfree-speech interest in lampooning a politically active televangelist,\nJerry Falwell, by publishing an account of a fictional sexual encounter\nbetween Falwell and his mother. More recently, in Snyder v. Phelps, 131\nS.Ct. 1207 (2011), the father of a Marine killed in the Iraq War sought\nto uphold an IIED verdict against a group that protested his son\xe2\x80\x99s\nfuneral. The protestors used the funeral as a platform to voice antigay and anti-Catholic views. Standing on public sidewalks, they held\nplacards with slogans including \xe2\x80\x9cYou are going to hell\xe2\x80\x9d and \xe2\x80\x9cThank\nGod for dead soldiers.\xe2\x80\x9d The Supreme Court held 8-1 that the father\xe2\x80\x99s\nIIED cause of action was barred by the First Amendment.\n\n212\n\n\x0c20. Trespass to Land\n\xe2\x80\x9cAs I went walking I saw a sign there\nAnd on the sign it said \xe2\x80\x98No Trespassing.\xe2\x80\x99\nBut on the other side it didn\xe2\x80\x99t say nothing,\nThat side was made for you and me.\xe2\x80\x9d\n\xe2\x80\x93 Woody Guthrie, \xe2\x80\x9cThis Land is Your Land,\xe2\x80\x9d 1944\n\nIntroduction\nTrespass to land is one of the most ancient torts \xe2\x80\x93 and one of the\nmost basic. It\xe2\x80\x99s also fundamental. It sits at the root of our capitalist\neconomy. While we might be able to imagine a world without the\ntorts of assault or intentional infliction of emotional distress, it is\nhard to imagine American society without a private right to take\nothers to court for coming and going as they please on your land.\nJust because trespass to land is old, and just because respect for\nprivate property is thoroughly ingrained in our culture, do not make\nthe mistake of thinking trespass to land has little relevance to modern\npractice. Unauthorized incursions on land happen all the time. And\ntrespass to land is a powerful tort, working against seemingly\nblameless defendants in ways that would make negligence doctrine\nblanch.\nConsent is, of course, a defense. Many if not most trespass-to-land\ncases involve a consent defense and a question of whether the\nconsent was exceeded.\n\nThe Elements of Trespass to Land\nThe pleading requirements for the tort of trespass to land can be\nsummed up as follows:\nA plaintiff can establish a prima facie case for\ntrespass to land by showing: the defendant (1)\nintentionally (2) caused an intrusion, either by\nentry onto or failure to leave or remove from,\n(3) plaintiff\xe2\x80\x99s real property.\n\n213\n\n\x0cTrespass to Land: Plaintiff\xe2\x80\x99s Real Property\nInstead of taking the elements in order, as we\xe2\x80\x99ve done with other\ntorts, it is necessary to talk first about the last element \xe2\x80\x93 what\nconstitutes the plaintiff\xe2\x80\x99s real property. Understanding this is a prerequisite to understanding anything else about the tort.\nTo begin with, it is important to understand that the plaintiff does\nnot need to be the owner of the land in question. The plaintiff needs\nonly be the possessor of the land. A couple renting a house can sue\nfor trespass to land, even though they only have a lease and no title.\nIn fact, the landlord of leased property might not have standing to\nsue for trespass \xe2\x80\x93 at least where there is no damage to the landlord\xe2\x80\x99s\ninterest.\nMoreover, you need to think of the word \xe2\x80\x9cland\xe2\x80\x9d broadly. What we\nare talking about here is not soil, but realty, or real property. Real\nproperty is the land and everything affixed to it, including\nimprovements, buildings, and all fixtures. Because real property can\nbe divided vertically as well as horizontally, an individual apartment\non an upper story can be \xe2\x80\x9cland\xe2\x80\x9d for the purposes of trespass to land.\nAs an example, imagine a multi-story warehouse converted into fullfloor loft apartments. Suppose Jackie is the tenant-lessee of the thirdfloor loft, and Dominga is the tenant of the fourth-floor loft. If\nJackie ventures up to the fourth-floor loft without Dominga\xe2\x80\x99s\npermission, Jackie has committed a trespass, even though her GPS\ncoordinates have never taken her outside the latitudes and longitudes\nof her own apartment.\nAssuming it\xe2\x80\x99s not divided up vertically (as with a multi-story\nbuilding), the property interest in a plot of land extends down into\nthe subsurface of the Earth and upward into the sky. Thus, an\nundivided square lot defines a 3-D real property interest having the\nshape of an inverted four-sided pyramid, with the point at the center\nof the Earth, and the outward sloping sides extending into the\nheavens. If some good-hearted kids are playing a game of catch with\na baseball, and if they throw the ball over a corner of the lot of a\nneighbor, they are liable to that neighbor for trespass to land \xe2\x80\x93 that is\nassuming there was no implied license for the to use the neighbor\xe2\x80\x99s\n\n214\n\n\x0cairspace in this way. (And further assuming the neighbor is cranky\nenough to sue.)\n\nTrespass to Land: Intent\nYou may find that the intent requirement for trespass to land is\nunintuitive. So you\xe2\x80\x99ll have to pay careful attention to the doctrine\nhere.\nAs with the other intentional torts the intent required is the intent to\nact with the purpose or with the substantial certainty of bringing\nabout some consequence. But that consequence is quite different\nfrom other intentional torts. The intent for trespass to land needs\nonly to be to cause the movement that intrudes on the plaintiff\xe2\x80\x99s\nland. Put another way, there does not need to be an intent to trespass,\njust an intent to effect the action that constitutes the trespass.\nLet\xe2\x80\x99s consider an example: Suppose the defendant intends to place a\nsmall wire-and-plastic marking flag in the defendant\xe2\x80\x99s own ground.\nBut, because of the defendant\xe2\x80\x99s innocent misunderstanding of\nproperty boundaries, the piece of ground into which the defendant\nplants the flag happens to be on the plaintiff\xe2\x80\x99s property. That\xe2\x80\x99s a\ntrespass to land. The intent requirement is satisfied. It does not\nmatter that the defendant was mistaken. Further, it does not matter if\nthe defendant is non-negligent in entering the plaintiff\xe2\x80\x99s land. In fact,\nthe defendant could have consulted all the documents in the county\nhall of records and used state-of-the-art GPS to map out a route. All\nthat is required for intent is that the defendant intended to place the\nobject where it was actually placed. If that happens to be a corner of\nland belonging to the plaintiff, then the defendant has committed\ntrespass to land.\nIt is helpful to contrast this with the intent required for battery.\nUnless some doctrine of transferred intent applied, the intent\nrequired for battery is the intent to effect a battery. If the defendant\nintends to kick a box \xe2\x80\x93 but does not know a small child is inside,\nthere is no battery. But if the defendant intends to kick a fencepost \xe2\x80\x93\nnot knowing that the fence post is on someone else\xe2\x80\x99s land \xe2\x80\x93 then the\ndefendant is liable for trespass to land. The defendant does not have\n\n215\n\n\x0cto intend to trespass, just intend the action that constitutes the\ntrespass.\nThe intent required for trespass to land is a low bar. But it\xe2\x80\x99s not nonexistent. Even under the doctrine\xe2\x80\x99s expansive view of intent, not\nevery entry will actionable. Suppose the defendant is pushed by\nsomeone else on to the plaintiff\xe2\x80\x99s land. There\xe2\x80\x99s no intent for a\ntrespass action. Similarly, suppose the defendant stumbles and falls\nonto the plaintiff\xe2\x80\x99s land. There is no trespass to land here either, since\nthe defendant did not intent the action that constitute the trespass.\nOr let\xe2\x80\x99s try a tweaked version of our hypothetical of kids playing\ncatch with a baseball. Suppose the kids are trying to come as close as\npossible without invading the defendant\xe2\x80\x99s airspace. Unless their aim\nwas bad enough that they were substantially certain they would miss\nand pierce the invisible plane of the property boundary, then there is\nno intent sufficient for a trespass-to-land action.\nFinally, we need to note the applicability of the transferred intent\ndoctrine. Under the older, more traditional view of transferred intent,\ntrespass to land is eligible for the application of transferred intent\ndoctrine among the torts of battery, assault, false imprisonment, and\ntrespass to chattels.\n\nTrespass to Land: Entry\nAn actionable entry on land may be made by the defendant\npersonally. Alternatively, the defendant can be liable by inducing a\nthird person to enter or by causing an object to enter.\nAccording to some authorities, entry can be accomplished even by\nminute particles. In Martin v. Reynolds Metals Co., 342 P.2d 790 (Or.\n1959), a farmer sued over an aluminum plant whose fluoride\nparticulate emissions caused his land to be unfit for raising cattle. The\ncourt upheld the cause of action, writing:\nIf, then, we must look to the character of the\ninstrumentality which is used in making an\nintrusion upon another\xe2\x80\x99s land we prefer to\nemphasize the object\xe2\x80\x99s energy or force rather\nthan its size. Viewed in this way we may define\ntrespass as any intrusion which invades the\n\n216\n\n\x0cpossessor\xe2\x80\x99s protected interest in exclusive\npossession, whether that intrusion is by visible\nor invisible pieces of matter or by energy which\ncan be measured only by the mathematical\nlanguage of the physicist.\n\nAn \xe2\x80\x9centry\xe2\x80\x9d does not need to be a transit of the border of the\nplaintiff\xe2\x80\x99s property. Suppose the defendant is on the plaintiff\xe2\x80\x99s\nproperty with the plaintiff\xe2\x80\x99s permission. There is no trespass to land\nat this point. However, the defendant could accomplish a trespass by\ninteracting with the land or fixtures in a way that is beyond the scope\nof that permission. Sneaking into a party host\xe2\x80\x99s off-limits bathroom\nto rummage through the medicine cabinet is an example. Or even in\nthe great room, where the defendant is authorized to be, a trespass\ncould be accomplished by jumping on to a table and swinging from\nthe chandelier.\n\nTrespass to Land: Failure to Leave or Remove\nThe trespass need not be an affirmative act. It can be an omission as\nwell. A guest who refuses to leave when asked commits a trespass by\nremaining. And some friends who have parked a boat in your\ndriveway commit a trespass if, once their welcome is worn out, they\ndo not return to drive the boat trailer away.\n\nTrespass to Land: Damages and Scope of Recovery\nIf the trespasser does no damage, the plaintiff can still recover\nnominal damages. If the trespasser does cause damage \xe2\x80\x93 personal\ninjury, property damage, or even mental distress \xe2\x80\x93 the plaintiff can\nrecover compensatory damages on that basis.\nThe scope of recoverable damages in a trespass to land case can be\nbreathtaking. Any damages caused by the trespasser \xe2\x80\x93 even if highly\nunpredictable and even if the trespasser was exercising due care \xe2\x80\x93\ncan be recovered. This is quite extraordinary when compared to the\nnegligence cause of action. In negligence, the requirement of a\nbreach of the duty of care and the application of proximate\ncausation doctrine would foreclose many damages claims that are\nperfectly viable in a trespass-to-land case.\n\n217\n\n\x0cSuppose an innocent trespasser \xe2\x80\x93 with a reasonable belief she or he\nis not trespassing \xe2\x80\x93 consistently undertakes every reasonable\nprecaution while on the plaintiff\xe2\x80\x99s land, but nonetheless causes some\ndamage in an utterly unforeseeable manner. The trespass-to-land\ntort can be used to make the defendant liable for the full extent of\nthe damage. An example is Cleveland Park Club v. Perry, 165 A.2d 485\n(D.C. App. 1960), in which a nine-year-old, frolicking in the club\xe2\x80\x99s\npool, raised a metal drain cover and inserted a tennis ball. When the\nboy came back to get his ball, it had vanished. It turns out the ball\nwas sucked into the pool\xe2\x80\x99s drain, where it lodged in a critical place.\nThe pool had to be closed down for extensive repairs. Club\nmanagement was not amused, and it sued for the cost of the repairs.\nHanding a victory to the club, the court noted that under negligence,\nthe child\xe2\x80\x99s age would be a mitigating factor, since a minor\xe2\x80\x99s age\nadjusts the standard of care in the child\xe2\x80\x99s favor. But no such\namelioration was available with the trespass-to-land action: \xe2\x80\x9c[S]ince\nrecovery under [trespass to land] is based on force and resultant\ndamage regardless of the intent to injure, a child of the most tender\nyears is absolutely liable to the full extent of the injuries inflicted.\xe2\x80\x9d\n\nReading: Trespass by Airplane\nAs you have probably gathered by now, trespass to land is a doctrine\nthat is both powerful and inflexible. With roots going back many\ncenturies, it anticipated little about our modern world. The following\nlaw review article from long ago shows how legal doctrine can be put\nunder pressure by unanticipated new technologies \xe2\x80\x93 in this case, the\nairplane. Published in 1919, this article came out 16 years after the\nfirst Wright Brothers flight. It was also in the immediate aftermath of\nWorld War I, which spurred colossal advances in aviation technology.\n\nTrespass by Airplane\nHarvard Law Review\nMarch 1919\n32 HARV. L. REV. 569.\nNOTE:\n\n218\n\n\x0cThe rapid approach of the airplane as an instrumentality of\ncommerce presents the occasion for defining more precisely the\ndoctrine of the ownership of the air space, as embodied in\nCoke\xe2\x80\x99s maxim, cujus est solum, ejus usque ad coelum.\nExamining first the cases which involve interferences with the\ncolumn of air by encroachments from adjoining lands, we find\nthat not only is the subjacent landowner permitted to cut away\nas nuisances overhanging shrubbery and projecting cornices, but\nin some states he may resort to an action in ejectment. That the\nencroaching landowner is liable also for all foreseeable damage\nis settled; but whether there is a cause of action for the mere\nentry into the air space resulting in no real injury is not so clear.\nIn England there are, in addition to conflicting dicta on the\nexact case of a balloon, irreconcilable statements concerning the\nencroachment cases.\xef\x81\x81Fay v. Prentice, 1 C. B. 828 (1845) (damage\npresumed); Smith v. Giddy, [1904] 2 K. B. 448, 451 (if no damage,\nthe plaintiff\xe2\x80\x99s only right is to cut back trees). Cf. Ellis v. Loftus\nIron Co., 10 C. P. 10 (1874) (trespass for a horse thrusting his\nhead over a fence); Clifton v. Bury, 4 T. L. R. 8 (1887) (firing\nbullets over land not a technical trespass).\xef\x81\x80 In this country,\nhowever, actual damage from the encroachment does not seem\nto be requisite for a cause of action.\xef\x81\x81~Smith v. Smith, 110 Mass.\n302 (1872) (projecting eaves are \xe2\x80\x9ca wrongful occupation of the\nplaintiff\xe2\x80\x99s land for which he may maintain an action in\ntrespass\xe2\x80\x9d);~ Hannabalson v. Sessions, 116 Iowa, 457, 90 N. W. 93\n(1902) (leaning on a fence so that an arm extends over is a\ntrespass); Butler v. Frontier Telephone Co., 186 N. Y. 486, 491, 79\nN. E. 716 (1906) (\xe2\x80\x9cthe law regards the empty space as if it were\na solid inseparable from the soil and protects it from hostile\noccupation accordingly.\xe2\x80\x9d The owner has \xe2\x80\x9cthe right to the\nexclusive possession of that space which is not personal\nproperty but a part of the land\xe2\x80\x9d).~\xef\x81\x80 The air space, at least near\nthe ground, is almost as inviolable as the soil itself.\nOn the reasoning of these cases, the aviator would be held a\nwrongdoer and, therefore, would be liable for all foreseeable\ndamage to the land.\xef\x81\x81~Cf. Guille v. Swan, 19 Johns. (N. Y.) 381\n(1822) (descending balloonist liable for trespasses by a crowd\nthat gathered to aid him)~.\xef\x81\x80 This financial responsibility for all\n\n219\n\n\x0cthe natural consequences of the flight over the land, regardless\nof the care exercised, may prove so great a burden that it will\nretard considerably the flow of capital into the airplane service\nand hamper materially its development. Yet states adopting the\ndoctrine of absolute liability in the conduct of dangerous\nundertakings might impose that burden at any rate on the\naviator. Massachusetts, however, has already provided against\nsuch a difficulty by enacting that there be liability only for failure\nto take every reasonable precaution; and the statute is probably\nconstitutional. The consequences of the trespass, other than\nliability for actual damage, need concern the aviator but little. A\nlitigious owner will find it expensive seeking nominal damages,\nespecially where statutes make costs at law discretionary.\nFurther, he will be an ingenious landowner who can keep the\ntrespassing airplane off without seriously endangering the\naviator\xe2\x80\x99s life; whatever means he employs will be far from\nreasonable. Then, too, there will be practically no basis for an\ninjunction to prevent the repeated trespasses, since the sum total\nof the damage would be nominal and the danger of an\neasement\xe2\x80\x99s arising the slightest, when we consider the difficulty\nof establishing twenty years\xe2\x80\x99 adverse user of a particular lane at a\nfixed height as well as within a certain width.\nIf we rigorously apply Coke\xe2\x80\x99s maxim, the result is that the law\nwill frown upon the aviator, but unless he causes actual damage\nit will connive at the formal wrong. This branding of the\ninoffensive aviator as a tortfeasor, even if only in form, may be\nan embarrassing annoyance to one who acclaims the elasticity of\nthe common law. Fortunately there are no binding decisions\nwhich stamp the aviator a trespasser; and of the cases adopting\nCoke\xe2\x80\x99s maxim unqualifiedly it may be said that the particular\nsituation of a passage by an airplane was not considered. They\nhave, then, only an inferential bearing on our problem, so that\nthe courts may feel free to invoke general principles and\npractical considerations in balancing the interest of the aviator in\nthe unrestrained development of a beneficial enterprise and that\nof the landowner in the free use of his superincumbent air\nspace.\n\n220\n\n\x0cDuring the past decade foresighted lawyers have been discussing\nthe problem, and several have ventured a theory upon which the\nbalance should be struck. It has been suggested that although,\naccording to the maxim, the landowner does own the air space\nup to the heavens, there is also a right of public passage, as long\nas the enjoyment of the land-owner is not interrupted; a\nsituation similar to the right of passage over navigable rivers\nprivately owned. The similarity, however, is slightly incomplete,\nfor on rivers it is the navigator who is not to be interfered with\nby the bed-owner; here, the owner is to be left undisturbed.\nAnother theory construes Coke\xe2\x80\x99s maxim as securing to the\nlandowner only a right of user, and maintains that the aviator is\nwithin the circle of law-abiding citizens, until he causes actual\ndamage. This doctrine, however, imposes absolute liability for\nany interference with the landowner\xe2\x80\x99s use.\nA third doctrine asserts that \xe2\x80\x9cthe scope of possible trespass is\nlimited by that of effective possession,\xe2\x80\x9d just as possession is at\nthe basis of proprietary rights in land, so is it the basis of any\nproprietary right in the air space. The passage at a high altitude\nis, then, not a trespass. But there is liability for all interferences\nwith the air effectively possessed.\nAlthough the flight of an airplane will very likely not be held a\ntort, the common law seems to afford no basis for holding the\naviator liable only for negligence. If the burden of absolute\nliability for injuries to the land tends to check the growth of the\nairplane industry, we must look to the legislatures for relief. It is\nto be observed, however, that a duty of due care under the\ncircumstances surrounding travel by airplane is practically as\nburdensome as absolute liability.\n\nCase: Boring v. Google\nHaving gotten some historical context with the legal quandaries\npresented by the new-fangled aeroplane, we now go back to the\nfuture, where roaming dot-com camera cars come up against private\nproperty rights.\n\n221\n\n\x0cBoring v. Google Inc.\nUnited States Court of Appeals for the Third Circuit\nJanuary 25, 2010\nAARON C. BORING; CHRISTINE BORING, husband and\nwife respectively, Appellants, v. GOOGLE INC. No. 09-2350.\nBefore: RENDELL and JORDAN, Circuit Judges, and\nPADOVA, Senior District Judge. Marked as \xe2\x80\x9cNOT\nPRECEDENTIAL.\xe2\x80\x9d\nCircuit Judge KENT A. JORDAN:\nAaron C. Boring and Christine Boring appeal from an order of\nthe United States District Court for the Western District of\nPennsylvania dismissing their complaint under Rule 12(b)(6) of\nthe Federal Rules of Civil Procedure. For the reasons that\nfollow, we affirm in part and reverse in part.\nOn April 2, 2008, the Borings commenced an action in the\nCourt of Common Pleas of Allegheny County, Pennsylvania\nagainst Google, Inc., asserting claims for invasion of privacy,\ntrespass, injunctive relief, negligence, and conversion. The\nBorings sought compensatory, incidental, and consequential\ndamages in excess of $25,000 for each claim, plus punitive\ndamages and attorney\xe2\x80\x99s fees.\nThe Borings\xe2\x80\x99 claims arise from Google\xe2\x80\x99s \xe2\x80\x9cStreet View\xe2\x80\x9d program,\na feature on Google Maps that offers free access on the Internet\nto panoramic, navigable views of streets in and around major\ncities across the United States. To create the Street View\nprogram, representatives of Google attach panoramic digital\ncameras to passenger cars and drive around cities photographing\nthe areas along the street. According to Google, \xe2\x80\x9c[t]he scope of\nStreet View is public roads.\xe2\x80\x9d Google allows individuals to report\nand request the removal of inappropriate images that they find\non Street View.\nThe Borings, who live on a private road in Pittsburgh,\ndiscovered that Google had taken \xe2\x80\x9ccolored imagery of their\nresidence, including the swimming pool, from a vehicle in their\nresidence driveway months earlier without obtaining any privacy\n\n222\n\n\x0cwaiver or authorization.\xe2\x80\x9d They allege that their road is clearly\nmarked with a \xe2\x80\x9cPrivate Road, No Trespassing\xe2\x80\x9d sign, and they\ncontend that, in driving up their road to take photographs for\nStreet View and in making those photographs available to the\npublic, Google \xe2\x80\x9cdisregarded [their] privacy interest.\xe2\x80\x9d\nOn May 21, 2008, Google invoked diversity jurisdiction,\nremoved the action to the United States District Court for the\nWestern District of Pennsylvania, and filed a motion to\ndismiss.~\nOn February 17, 2009, the District Court granted Google\xe2\x80\x99s\nmotion to dismiss as to all of the Borings\xe2\x80\x99 claims.~ In dismissing\nthe trespass claim, the Court held that \xe2\x80\x9cthe Borings have not\nalleged facts sufficient to establish that they suffered any\ndamages caused by the alleged trespass.\xe2\x80\x9d~\nThe Borings filed a timely notice of appeal from both the\nDistrict Court\xe2\x80\x99s order granting the motion to dismiss and the\nsubsequent denial of their motion for reconsideration.~\nThe District Court dismissed the Borings\xe2\x80\x99 trespass claim,\nholding that trespass was not the proximate cause of any\ncompensatory damages sought in the complaint and that, while\nnominal damages are generally available in a trespass claim, the\nBorings did not seek nominal damages in their complaint. While\nthe District Court\xe2\x80\x99s evident skepticism about the claim may be\nunderstandable, its decision to dismiss it under Rule 12(b)(6)\nwas erroneous.\nTrespass is a strict liability tort, \xe2\x80\x9cboth exceptionally simple and\nexceptionally rigorous.\xe2\x80\x9d Prosser on Torts at 63 (West, 4th ed.\n1971). Under Pennsylvania law, it is defined as an \xe2\x80\x9cunprivileged,\nintentional intrusion upon land in possession of another.\xe2\x80\x9d\nGraham Oil Co. v. BP Oil Co., 885 F. Supp. 716, 725 (W.D. Pa.\n1994) (citing Kopka v. Bell Tel. Co., 91 A.2d 232, 235 (Pa. 1952)).\nThough claiming not to have done so, it appears that the\nDistrict Court effectively made damages an element of the\nclaim, and that is problematic, since \xe2\x80\x9c[o]ne who intentionally\nenters land in the possession of another is subject to liability to\nthe possessor for a trespass, although his presence on the land\n\n223\n\n\x0ccauses no harm to the land, its possessor, or to any thing or\nperson in whose security the possessor has a legally protected\ninterest.\xe2\x80\x9d RESTATEMENT (SECOND) TORTS \xc2\xa7 163.\nHere, the Borings have alleged that Google entered upon their\nproperty without permission. If proven, that is a trespass, pure\nand simple. There is no requirement in Pennsylvania law that\ndamages be pled, either nominal or consequential. It was thus\nimproper for the District Court to dismiss the trespass claim for\nfailure to state a claim. Of course, it may well be that, when it\ncomes to proving damages from the alleged trespass, the\nBorings are left to collect one dollar and whatever sense of\nvindication that may bring, but that is for another day. For now,\nit is enough to note that they \xe2\x80\x9cbear the burden of proving that\nthe trespass was the legal cause, i.e., a substantial factor in\nbringing about actual harm or damage\xe2\x80\x9d C&K Coal Co. v. United\nMine Workers of Am., 537 F. Supp. 480, 511 (W.D. Pa. 1982), if\nthey want more than a dollar.~\nWe reverse~ with respect to the trespass claim, and remand with\ninstructions that the District Court permit that claim to go\nforward.\n\nHistorical Note About Boring v. Google\nOn remand, Google accepted a consent judgment whereby they\nagreed to pay $1. As part of the deal, Google admitted that it\ntrespassed. While that might sound like a loss for Google, the\ncompany claimed victory. In a statement, Google said, \xe2\x80\x9cWe are\npleased that this lawsuit has finally ended with plaintiffs\xe2\x80\x99\nacknowledgment that they are entitled to only $1.\xe2\x80\x9d\nThe Borings issued their own statement, saying, \xe2\x80\x9cThis is one sweet\ndollar of vindication. Google could have just sent us an apology letter\nin the very beginning, but chose to try to prove they had a legal right\nto be on our land. We are glad they finally gave up.\xe2\x80\x9d\nQuestions to Ponder About Boring v. Google\nA. Who won? Can either side really call this a win? Can both?\n\n224\n\n\x0cB. Did the strictness of trespass to land and the availability of\nnominal damages serve their purpose in this case?\nC. Do you think Google is likely to change any of their practices\nbecause of this litigation and its outcome?\nD. New technologies are often fraught with potential legal liabilities.\nAt one time, it was an open question as to whether a search engine\nlike Google would violate copyright by caching copies of websites\nand linking to them with a snippet of representative text. Instead of\nseeking permission from relevant parties or lobbying for a change in\nthe law, many technology companies follow an unwritten motto of,\n\xe2\x80\x9cInnovate first, beg for forgiveness later.\xe2\x80\x9d Did that work here? What\ndo you think would have happened if, prior to launching its Street\nView service, Google had lobbied Congress for a statute specifically\nproviding for the service\xe2\x80\x99s lawfulness? What if Google had sent\nletters out to municipalities and residents letting them know that the\nStreet View imaging vehicle was coming, and asking them to flag\npotential issues for them?\nE. Do you think the last name of the plaintiffs in this action matters\nat all? When this case surfaced in the media, poking fun at the name\nBoring was one of the first things that pundits and bloggers did.\nCould it have an effect on the margins of how one frames the case\nmentally before getting into the facts \xe2\x80\x93 at least among the newsbrowsing public, if not the courts?\nF. Cases usually become known by the names of the first listed\nplaintiff and the first listed defendant. Suppose Aaron and Christine\nBoring had different last names \xe2\x80\x93 say one was Davis and the other\nwas Boring. If you were their attorney, whose name would you list\nfirst in the caption? Consider the other side of the caption as well:\nSuppose you were suing Google Inc. and a subsidiary named Map\nData Services LLC. Which defendant would you want to list first?\n\nProblem: Champagne Whooshes\nSuppose you are an attorney for the Wang family, which owns a\nspacious ranch in the high desert of the Southwest. Lately, hot-air\nballooning has become a major tourist attraction in the area, with\n\n225\n\n\x0cromantic champagne breakfasts being a particular favorite. But they\nare becoming a major pain for the Wangs.\nHot-air balloons cannot be directly steered in any direction. The only\ncontrol the pilot has is whether to ascend or descend by firing the\npropane burner or pulling a cord that lets hot air out the top. The\nunsteerability of the balloons is a particular problem for the Wangs.\nThe prevailing winds and the happenstance of some hilly topography\nconspires to lead balloons right over the Wang\xe2\x80\x99s ranch house several\ndays a week.\nOn a typical morning, when the Wangs are still fast asleep, and as the\nfirst rays of dawn are gently kissing the high desert sagebrush, a\nballoon will glide in absolute silence until it comes within 20 or 30\nfeet\nof\nthe\nWangs\xe2\x80\x99\nbedroom\npatio,\nand\nRFRFRFRFRFRPPPPHHHHT!! The sudden roar of the propane\nburner has the Wangs bolting straight up in bed \xe2\x80\x93 disoriented with\nracing hearts. Sometimes the Wangs are lucky and the balloons pass\nover at a higher altitude \xe2\x80\x93 maybe 100 feet. But even at that distance,\nthe whoosh of the burning gas still can wake up the baby and\nterrorize the two-year-old. On the other hand, some balloons have\nbeen even lower \xe2\x80\x93 close enough to the ground that a standing person\ncould touch the basket. On one occasion, a balloon touched the\nground lightly before bouncing back into the air.\n1. What do you recommend the Wangs do about their problem? Do\nthey have a viable lawsuit against anyone?\n2. Suppose Air Adventures, Buoyant Breakfasts, and Champagne\nCelebrations are the three companies that operate balloon charters\nthat frequently end up over the Wangs\xe2\x80\x99 house. Imagine that Buoyant\nBreakfasts offers to stop flying Mondays through Wednesday and to\npay the Wangs a token license fee for all other days. What should the\nWangs do with the offer?\n\n226\n\n\x0c21. Trespass to Chattels and\nConversion\n\xe2\x80\x9cOkay, here\xe2\x80\x99s the situation:\nMy parents went away on a week\xe2\x80\x99s vacation and\nThey left the keys to the brand new Porsche\nWould they mind? Umm, well, of course not\nI'll just take it for a little spin\nAnd maybe show it off to a couple of friends \xe2\x80\xa6 \xe2\x80\x9d\n\xe2\x80\x93 The Fresh Prince (Will Smith), in Parents Just Don\xe2\x80\x99t Understand,\nwritten by Smith, Peter Harris, and Jeffrey Allen Townes, 1988\n\nIntroduction\nThe torts of trespass to chattels and conversion provide ways to sue\npeople who \xe2\x80\x9cmess with your stuff.\xe2\x80\x9d\nBoth torts concern chattels. The universe of tangible property is\ndivided into two categories: chattels and realty (or real property). The\ndifference between a chattel and realty is whether its moveable or\nwhether its fixed to the Earth.\nIn some other languages, there\xe2\x80\x99s no need to memorize the definitions\n\xe2\x80\x93 they are clear on their face. In French, the words for chattels and\nrealty are, respectively, mobiliers and immobilier. Mobile things and\nimmobile things. The German language is similarly transparent:\nChattels are Mobilien, and real property is Grundst\xc3\xbcck \xe2\x80\x93 a word which,\non its face, looks like \xe2\x80\x9cstuck to the ground.\xe2\x80\x9d (Although in terms of\nword roots, it\xe2\x80\x99s closer to \xe2\x80\x9cpiece of land.\xe2\x80\x9d)\nWhether or not something can be carted off drives a big legal\ndistinction. While merely touching someone\xe2\x80\x99s real property is\nactionable as trespass to land, merely touching someone\xe2\x80\x99s movable\nproperty is not actionable. Instead, there\xe2\x80\x99s a higher bar.\nHow high is that bar? It\xe2\x80\x99s different between the two torts of trespass\nto chattels and conversion. Trespass to chattels requires something\n\n227\n\n\x0cthat rises to an interference. That could be \xe2\x80\x9cborrowing\xe2\x80\x9d something for a\nshort time or doing some minor damage to it. The more potent tort\nof conversion requires something more, for instance absconding with\na chattel for a lengthy period of time or doing so much damage that\nit\xe2\x80\x99s \xe2\x80\x9ctotaled.\xe2\x80\x9d\nCorresponding to its higher-threshold requirement of interference,\nthe tort of conversion has a special remedy unavailable for trespass to\nchattels \xe2\x80\x93 the forced sale. A victorious conversion plaintiff can force\nthe defendant to pay the full market value of the chattel before it was\ntaken or destroyed.\nWe\xe2\x80\x99ll have the same warning here as we did with other intentional\ntorts: Don\xe2\x80\x99t be fooled by the ancientness of these doctrines. Trespass\nto chattels and conversion may have grown up in an era of horse\nthieves and cattle rustlers, but both causes of action are highly\nrelevant to the contemporary world. As we\xe2\x80\x99ll see in this chapter, these\ntorts can play a starring role in thoroughly modern lawsuits \xe2\x80\x93\nincluding fights over biomedical research and internet\ncommunications.\n\nThe Elements of Trespass to Chattels\nHere is the blackletter formulation of trespass to chattels:\nA plaintiff can establish a prima facie case for\ntrespass to chattels by showing: the defendant\n(1) intentionally (2) interfered with the (3)\nplaintiff\xe2\x80\x99s right of possession in a chattel.\n\nAs was the case with trespass to land, it makes sense to take these\nelements slightly out of order, starting with the last.\n\nTrespass to Chattels: Plaintiff\xe2\x80\x99s Right of Possession in\nChattel\nThere is no requirement that the plaintiff be the owner of the chattel\n\xe2\x80\x93 merely that the plaintiff have a current right of possession. This\nmirrors the requirement of trespass to land. Thus, a defendant who\ntakes a baseball bat to the plaintiff\xe2\x80\x99s leased car is not protected from\nliability by the fact that the plaintiff does not hold the car\xe2\x80\x99s title.\n\n228\n\n\x0cTrespass to Chattels: Intent\nThe intent requirement for trespass to chattels is somewhat\nanalogous to that for trespass to land. Assuming the defendant does\nnot have permission to touch or use the chattel, the defendant need\nonly intend to act upon the chattel. There is no requirement that the\ndefendant intend to invade any legal right of the plaintiff or intend to\nharm the chattel. Nor is the defendant excused by way of honest\nmistake. For instance, if the defendants, innocently believing they are\nusing their own mule, mistakenly use the plaintiff\xe2\x80\x99s mule to plow\ntheir field, then the defendants are liable for trespass to chattels for\nthe value of the plowing. If the mule is injured despite defendants\xe2\x80\x99\nbest efforts to treat it properly, the defendants are on the hook for\nthat damage as well.\nIt is important here to distinguish situations where the defendant is\nusing the chattel with permission. Suppose Paul gives Dara\npermission to drive his car to the neighborhood store. While going to\nthe store, Dara accidentally drives off the road and hits a tree. Paul\nhas no cause of action against Dara for trespass to chattels. If he is\ngoing to recover, it will have to be through a negligence action. There\nis no trespass, because Dara was using the chattel with permission.\nNow let\xe2\x80\x99s tweak the hypothetical: Dara has permission to drive Paul\xe2\x80\x99s\ncar to the neighborhood store, but on a lark, she decides to drive the\ncar out of town to see her mother. Leaving the city limits, she\naccidentally drives off the road into a tree. Dara has committed\ntrespass to chattels, since her taking the car out of town exceeded the\nscope of her consent. In this situation, Paul will not need to prove\nnegligence to recover \xe2\x80\x93 he can use a trespass-to-chattels action to get\ndamages for the cost of repairs to the car, regardless of whether Dara\nwas careless in her driving.\nNote that under the traditional doctrine of transferred intent, trespass\nto chattels is eligible for the application of transferred intent doctrine\nwith the torts of battery, assault, false imprisonment, and trespass to\nland.\n\n229\n\n\x0cTrespass to Chattels: Interference\nIt is in the interference element that trespass to chattels differs most\nstarkly from trespass to land.\nMerely touching a chattel does not create liability. For liability to\narise, the defendant must \xe2\x80\x9cinterfere\xe2\x80\x9d with the plaintiff\xe2\x80\x99s possession.\nInterference can be established by any of the following:\n(1) actual damage to the chattel,\n(2) actual dispossession of the chattel,\n(3) loss of use of the chattel for some\nappreciable amount of time, or\n(4) harm to the plaintiff, or to something or\nsomeone in whom the plaintiff had a legal\ninterest, on account of the defendant\xe2\x80\x99s action.\n\nAn observation we can make here is that, in contrast to battery,\nassault, false imprisonment, and trespass to land, it is not possible to\nget nominal damages for a trespass-to-chattels action that is truly\ntrivial in nature. Suppose a busybody is upset that a motorcycle\nenthusiast has parked a bike over a crosswalk. Too annoyed to walk\naway, the busybody moves the motorcycle a few feet away so that it\nis out of the crosswalk. Actionable? No. There is no trespass to\nchattels because there is no interference. Look back over the list, and\nyou\xe2\x80\x99ll see that nothing fits: The moving of the motorcycle effected no\ndamage, no dispossession, no loss for an appreciable time, nor harm\nto anything or anyone connected with the plaintiff. Thus, there is no\ninterference.\nLet\xe2\x80\x99s try a different motorcycle hypothetical to illustrate a case where\nthere is an interference: Suppose the defendant takes a motorcycle,\nparked in front of a diner, and drives it a couple of miles away to visit\na nail salon, returning it a couple of hours later. This counts as a\ndispossession, so it creates liability for trespass to chattels.\nCase: Intel Corp. v. Hamidi\nThe following case explores trespass to chattels in a 21st Century\ncontext.\n\n230\n\n\x0cIntel Corp. v. Hamidi\nSupreme Court of California\nJune 30, 2003\n30 Cal.4th 1342. INTEL CORPORATION, Plaintiff and\nRespondent, v. Kourosh Kenneth HAMIDI, Defendant and\nAppellant. No. S103781. Opinion by WERDEGAR, in which\nKENNARD, MORENO and PERREN, JJ. concur. Concurring\nopinion by KENNARD, J, omitted. Dissenting opinion of\nBROWN, J. Dissenting opinion by MOSK, J., in which\nGEORGE, C.J. concurred.\nAssociate Justice KATHRYN WERDEGAR:\nIntel Corporation (Intel) maintains an electronic mail system,\nconnected to the Internet, through which messages between\nemployees and those outside the company can be sent and\nreceived, and permits its employees to make reasonable\nnonbusiness use of this system. On six occasions over almost\ntwo years, Kourosh Kenneth Hamidi, a former Intel employee,\nsent e-mails criticizing Intel\xe2\x80\x99s employment practices to\nnumerous current employees on Intel\xe2\x80\x99s electronic mail system.\nHamidi breached no computer security barriers in order to\ncommunicate with Intel employees. He offered to, and did,\nremove from his mailing list any recipient who so wished.\nHamidi\xe2\x80\x99s communications to individual Intel employees caused\nneither physical damage nor functional disruption to the\ncompany\xe2\x80\x99s computers, nor did they at any time deprive Intel of\nthe use of its computers. The contents of the messages,\nhowever, caused discussion among employees and managers.\nOn these facts, Intel brought suit, claiming that by\ncommunicating with its employees over the company\xe2\x80\x99s e-mail\nsystem Hamidi committed the tort of trespass to chattels. The\ntrial court granted Intel\xe2\x80\x99s motion for summary judgment and\nenjoined Hamidi from any further mailings. A divided Court of\nAppeal affirmed.\nAfter reviewing the decisions analyzing unauthorized electronic\ncontact with computer systems as potential trespasses to\nchattels, we conclude that under California law the tort does not\n\n231\n\n\x0cencompass, and should not be extended to encompass, an\nelectronic communication that neither damages the recipient\ncomputer system nor impairs its functioning. Such an electronic\ncommunication does not constitute an actionable trespass to\npersonal property, i.e., the computer system, because it does not\ninterfere with the possessor\xe2\x80\x99s use or possession of, or any other\nlegally protected interest in, the personal property itself. The\nconsequential economic damage Intel claims to have suffered,\ni.e., loss of productivity caused by employees reading and\nreacting to Hamidi\xe2\x80\x99s messages and company efforts to block the\nmessages, is not an injury to the company\xe2\x80\x99s interest in its\ncomputers \xe2\x80\x93 which worked as intended and were unharmed by\nthe communications \xe2\x80\x93 any more than the personal distress\ncaused by reading an unpleasant letter would be an injury to the\nrecipient\xe2\x80\x99s mailbox, or the loss of privacy caused by an intrusive\ntelephone call would be an injury to the recipient\xe2\x80\x99s telephone\nequipment.\nOur conclusion does not rest on any special immunity for\ncommunications by electronic mail; we do not hold that\nmessages transmitted through the Internet are exempt from the\nordinary rules of tort liability~, but because the trespass to\nchattels tort \xe2\x80\x93 unlike the causes of action just mentioned \xe2\x80\x93 may\nnot, in California, be proved without evidence of an injury to\nthe plaintiffs personal property or legal interest therein.\nNor does our holding affect the legal remedies of Internet\nservice providers (ISP\xe2\x80\x99s) against senders of unsolicited\ncommercial bulk e-mail (UCE), also known as \xe2\x80\x9cspam.\xe2\x80\x9d A series\nof federal district court decisions~ has approved the use of\ntrespass to chattels as a theory of spammers\xe2\x80\x99 liability to ISP\xe2\x80\x99s,\nbased upon evidence that the vast quantities of mail sent by\nspammers both overburdened the ISP\xe2\x80\x99s own computers and\nmade the entire computer system harder to use for recipients,\nthe ISP\xe2\x80\x99s customers. In those cases,~ the underlying complaint\nwas that the extraordinary quantity of UCE impaired the\ncomputer system\xe2\x80\x99s functioning. In the present case, the claimed\ninjury is located in the disruption or distraction caused to\nrecipients by the contents of the e-mail messages, an injury\n\n232\n\n\x0centirely separate from, and not directly affecting, the possession\nor value of personal property.\nFACTUAL AND PROCEDURAL BACKGROUND\nWe review a grant of summary judgment de novo; we must\ndecide independently whether the facts not subject to triable\ndispute warrant judgment for the moving party as a matter of\nlaw. (Galanty v. Paul Revere Life Ins. Co. (2000) 23 Cal.4th 368,\n374, 97 Cal.Rptr.2d 67, 1 P.3d 658; Norgart v. Upjohn Co. (1999)\n21 Cal.4th 383, 404, 87 Cal.Rptr.2d 453, 981 P.2d 79; Code Civ.\nProc, \xc2\xa7 437c, subd. (c).) The pertinent undisputed facts are as\nfollows.\nHamidi, a former Intel engineer, together with others, formed\nan organization named Former and Current Employees of Intel\n(FACE-Intel) to disseminate information and views critical of\nIntel\xe2\x80\x99s employment and personnel policies and practices. FACEIntel maintained a Web site (which identified Hamidi as\nWebmaster and as the organization\xe2\x80\x99s spokesperson) containing\nsuch material. In addition, over a 21-month period Hamidi, on\nbehalf of FACE-Intel, sent six mass e-mails to employee\naddresses on Intel\xe2\x80\x99s electronic mail system. The messages\ncriticized Intel\xe2\x80\x99s employment practices, warned employees of the\ndangers those practices posed to their careers, suggested\nemployees consider moving to other companies, solicited\nemployees\xe2\x80\x99 participation in FACE-Intel, and urged employees to\ninform themselves further by visiting FACE-Intel\xe2\x80\x99s Web site.\nThe messages stated that recipients could, by notifying the\nsender of their wishes, be removed from FACE-Intel\xe2\x80\x99s mailing\nlist; Hamidi did not subsequently send messages to anyone who\nrequested removal.\nEach message was sent to thousands of addresses (as many as\n35,000 according to FACE-Intel\xe2\x80\x99s Web site), though some\nmessages were blocked by Intel before reaching employees.\nIntel\xe2\x80\x99s attempt to block internal transmission of the messages\nsucceeded only in part; Hamidi later admitted he evaded\nblocking efforts by using different sending computers. When\nIntel, in March 1998, demanded in writing that Hamidi and\nFACE-Intel stop sending e-mails to Intel\xe2\x80\x99s computer system,\n\n233\n\n\x0cHamidi asserted the organization had a right to communicate\nwith willing Intel employees; he sent a new mass mailing in\nSeptember 1998.\nThe summary judgment record contains no evidence Hamidi\nbreached Intel\xe2\x80\x99s computer security in order to obtain the\nrecipient addresses for his messages; indeed, internal Intel\nmemoranda show the company\xe2\x80\x99s management concluded no\nsecurity breach had occurred.[1] Hamidi stated he created the\nrecipient address list using an Intel directory on a floppy disk\nanonymously sent to him. Nor is there any evidence that the\nreceipt or internal distribution of Hamidi\xe2\x80\x99s electronic messages\ndamaged Intel\xe2\x80\x99s computer system or slowed or impaired its\nfunctioning. Intel did present uncontradicted evidence, however,\nthat many employee recipients asked a company official to stop\nthe messages and that staff time was consumed in attempts to\nblock further messages from FACE-Intel. According to the\nFAC-Intel Web site, moreover, the messages had prompted\ndiscussions between \xe2\x80\x9c[e]xcited and nervous managers\xe2\x80\x9d and the\ncompany\xe2\x80\x99s human resources department.\nIntel sued Hamidi and FACE-Intel, pleading causes of action\nfor trespass to chattels and nuisance, and seeking both actual\ndamages and an injunction against further e-mail messages. Intel\nlater voluntarily dismissed its nuisance claim and waived its\ndemand for damages. The trial court entered default against\nFACE-Intel upon that organization\xe2\x80\x99s failure to answer. The\ncourt then granted Intel\xe2\x80\x99s motion for summary judgment,\npermanently enjoining Hamidi, FACE-Intel, and their agents\n\xe2\x80\x9cfrom sending unsolicited e-mail to addresses on Intel\xe2\x80\x99s\ncomputer systems.\xe2\x80\x9d Hamidi appealed; FACE-Intel did not.(2]\nThe Court of Appeal, with one justice dissenting, affirmed the\ngrant of injunctive relief. The majority took the view that the use\nof or intermeddling with another\xe2\x80\x99s personal property is\nactionable as a trespass to chattels without proof of any actual\ninjury to the personal property; even if Intel could not show any\ndamages resulting from Hamidi\xe2\x80\x99s sending of messages, \xe2\x80\x9cit\nshowed he was disrupting its business by using its property and\ntherefore is entitled to injunctive relief based on a theory of\n\n234\n\n\x0ctrespass to chattels.\xe2\x80\x9d The dissenting justice warned that the\nmajority\xe2\x80\x99s application of the trespass to chattels tort to\n\xe2\x80\x9cunsolicited electronic mail that causes no harm to the private\ncomputer system that receives it\xe2\x80\x9d would \xe2\x80\x9cexpand the tort of\ntrespass to chattel in untold ways and to unanticipated\ncircumstances.\xe2\x80\x9d\nWe granted Hamidi\xe2\x80\x99s petition for review.\nDiscussion\nI. Current California Tort Law\nDubbed by Prosser the \xe2\x80\x9clittle brother of conversion,\xe2\x80\x9d the tort of\ntrespass to chattels allows recovery for interferences with\npossession of personal property \xe2\x80\x9cnot sufficiently important to\nbe classed as conversion, and so to compel the defendant to pay\nthe full value of the thing with which he has interfered.\xe2\x80\x9d\n(Prosser & Keeton, Torts (5th ed.1984) \xc2\xa7 14, pp. 85-86.)\nThough not amounting to conversion, the defendant\xe2\x80\x99s\ninterference must, to be actionable, have caused some injury to\nthe chattel or to the plaintiffs rights in it. Under California law,\ntrespass to chattels \xe2\x80\x9clies where an intentional interference with\nthe possession of personal property has proximately caused injury.\xe2\x80\x9d\n(Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal. App.4th 1559, 1566, 54\nCal.Rptr.2d 468, italics added.) In cases of interference with\npossession of personal property not amounting to conversion,\n\xe2\x80\x9cthe owner has a cause of action for trespass or case, and may\nrecover only the actual damages suffered by reason of the impairment of the\nproperty or the loss of its use.\xe2\x80\x9d (Zasloiv v. Kroenert, supra, 29 Cal.2d at\np. 551, 176 P.2d 1, italics added.) In modern American law\ngenerally, \xe2\x80\x9c[t]respass remains as an occasional remedy for minor\ninterferences, resulting in some damage, but not sufficiently serious\nor sufficiently important to amount to the greater tort\xe2\x80\x9d of\nconversion. (Prosser & Keeton, Torts, supra, \xc2\xa7 15, p. 90, italics\nadded.)\nThe Restatement, too, makes clear that some actual injury must\nhave occurred in order for a trespass to chattels to be actionable.\nUnder section 218 of the Restatement Second of Torts,\ndispossession alone, without further damages, is actionable (see\n\n235\n\n\x0cid., par. (a) & com. d, pp. 420-421), but other forms of\ninterference require some additional harm to the personal\nproperty or the possessor\xe2\x80\x99s interests in it. (Id., pars, (b)-(d).)\n\xe2\x80\x9cThe interest of a possessor of a chattel in its inviolability,\nunlike the similar interest of a possessor of land, is not given\nlegal protection by an action for nominal damages for harmless\nintermeddlings with the chattel. In order that an actor who\ninterferes with another\xe2\x80\x99s chattel may be liable, his conduct must\naffect some other and more important interest of the possessor.\nTherefore, one who intentionally intermeddles with another\xe2\x80\x99s chattel is\nsubject to liability only if his intermeddling is harmful to the possessor\xe2\x80\x99s\nmaterially valuable interest in the physical condition, quality, or value of the\nchattel, or if the possessor is deprived of the use of the chattel for a\nsubstantial time, or some other legally protected interest of the possessor is\naffected as stated in Clause (c). Sufficient legal protection of the\npossessor\xe2\x80\x99s interest in the mere inviolability of his chattel is\nafforded by his privilege to use reasonable force to protect his\npossession against even harmless interference.\xe2\x80\x9d (Id., com. e, pp.\n421-422, italics added.)\nThe Court of Appeal referred to \xe2\x80\x9ca number of very early cases\n[showing that] any unlawful interference, however slight, with\nthe enjoyment by another of his personal property, is a\ntrespass.\xe2\x80\x9d But while a harmless use or touching of personal\nproperty may be a technical trespass, an interference (not\namounting to dispossession) is not actionable, under modern\nCalifornia and broader American law, without a showing of\nharm. As already discussed, this is the rule embodied in the\nRestatement and adopted by California law.\nIn this respect, as Prosser explains, modern day trespass to\nchattels differs both from the original English writ and from the\naction for trespass to land: \xe2\x80\x9cAnother departure from the original\nrule of the old writ of trespass concerns the necessity of some\nactual damage to the chattel before the action can be\nmaintained. Where the defendant merely interferes without\ndoing any harm \xe2\x80\x93 as where, for example, he merely lays hands\nupon the plaintiffs horse, or sits in his car \xe2\x80\x93 there has been a\ndivision of opinion among the writers, and a surprising dearth of\nauthority. By analogy to trespass to land there might be a technical tort in\n\n236\n\n\x0csuch a case .... Such scanty authority as there is, however, has considered\nthat the dignitary interest in the inviolability of chattels, unlike that as to\nland, is not sufficiently important to require any greater defense than the\nprivilege of using reasonable force when necessary to protect them.\nAccordingly it has been held that nominal damages will not be awarded,\nand that in the absence of any actual damage the action will not lie.\xe2\x80\x9d\n(Prosser & Keeton, Torts, supra, \xc2\xa7 14, p. 87, italics added, fns.\nomitted.)\nIntel suggests that the requirement of actual harm does not\napply here because it sought only injunctive relief, as protection\nfrom future injuries. But as Justice Kolkey, dissenting below,\nobserved, \xe2\x80\x9c[t]he fact the relief sought is injunctive does not\nexcuse a showing of injury, whether actual or threatened.\xe2\x80\x9d\nIndeed, in order to obtain injunctive relief the plaintiff must\nordinarily show that the defendant\xe2\x80\x99s wrongful acts threaten to\ncause irreparable injuries, ones that cannot be adequately\ncompensated in damages. (5 Witkin, Cal. Procedure (4th ed.\n1997) Pleading, \xc2\xa7 782, p. 239.) Even in an action for trespass to\nreal property, in which damage to the property is not an element\nof the cause of action, \xe2\x80\x9cthe extraordinary remedy of injunction\xe2\x80\x9d\ncannot be invoked without showing the likelihood of irreparable\nharm. A fortiori, to issue an injunction without a showing of\nlikely irreparable injury in an action for trespass to chattels, in\nwhich injury to the personal property or the possessor\xe2\x80\x99s interest\nin it is an element of the action, would make little legal sense.\nThe dispositive issue in this case, therefore, is whether the\nundisputed facts demonstrate Hamidi\xe2\x80\x99s actions caused or\nthreatened to cause damage to Intel\xe2\x80\x99s computer system, or injury\nto its rights in that personal property, such as to entitle Intel to\njudgment as a matter of law. To review, the undisputed evidence\nrevealed no actual or threatened damage to Intel\xe2\x80\x99s computer\nhardware or software and no interference with its ordinary and\nintended operation. Intel was not dispossessed of its computers,\nnor did Hamidi\xe2\x80\x99s messages prevent Intel from using its\ncomputers for any measurable length of time. Intel presented no\nevidence its system was slowed or otherwise impaired by the\nburden of delivering Hamidi\xe2\x80\x99s electronic messages. Nor was\n\n237\n\n\x0cthere any evidence transmission of the messages imposed any\nmarginal cost on the operation of Intel\xe2\x80\x99s computers.~\nRelying on a line of decisions, most from federal district courts,\napplying the tort of trespass to chattels to various types of\nunwanted electronic contact between computers, Intel contends\nthat, while its computers were not damaged by receiving\nHamidi\xe2\x80\x99s messages, its interest in the \xe2\x80\x9cphysical condition, quality\nor value\xe2\x80\x9d of the computers was harmed. We disagree. The cited\nline of decisions does not persuade us that the mere sending of\nelectronic communications that assertedly cause injury only\nbecause of their contents constitutes an actionable trespass to a\ncomputer system through which the messages are transmitted.\nRather, the decisions finding electronic contact to be a trespass\nto computer systems have generally involved some actual or\nthreatened interference with the computers\xe2\x80\x99 functioning.\nIn Thrifty-Tel, the California Court of Appeal held that evidence\nof automated searching of a telephone carrier\xe2\x80\x99s system for\nauthorization codes supported a cause of action for trespass to\nchattels. The defendant\xe2\x80\x99s automated dialing program\n\xe2\x80\x9coverburdened the [plaintiffs] system, denying some subscribers\naccess to phone lines\xe2\x80\x9d, showing the requisite injury.\nFollowing Thrifty-Tel, a series of federal district court decisions\nheld that sending UCE through an ISP\xe2\x80\x99s equipment may\nconstitute trespass to the ISP\xe2\x80\x99s computer system~. In each of\nthese spamming cases, the plaintiff showed, or was prepared to\nshow, some interference with the efficient functioning of its\ncomputer system. In CompuServe, Inc. v. Cyber Promotions, Inc., 962\nF.Supp. 1015 (S.D. Ohio 1997), the plaintiff ISP\xe2\x80\x99s mail\nequipment monitor stated that mass UCE mailings, especially\nfrom nonexistent addresses such as those used by the defendant,\nplaced \xe2\x80\x9ca tremendous burden\xe2\x80\x9d on the ISP\xe2\x80\x99s equipment, using\n\xe2\x80\x9cdisk space and draining] the processing power,\xe2\x80\x9d making those\nresources unavailable to serve subscribers. Similarly, in Hotmail\nCorp. v. Van$ Money Pie, Inc., (N.D. Cal. 1998) 1998 WL 388389,\nthe court found the evidence supported a finding that the\ndefendant\xe2\x80\x99s mailings \xe2\x80\x9cfill[ed] up Hotmail\xe2\x80\x99s computer storage\n\n238\n\n\x0cspace and threatened] to damage Hotmail\xe2\x80\x99s ability to service its\nlegitimate customers.\xe2\x80\x9d~\nBuilding on the spamming cases, in particular CompuServe, three\neven more recent district court decisions addressed whether\nunauthorized robotic data collection from a company\xe2\x80\x99s publicly\naccessible Web site is a trespass on the company\xe2\x80\x99s computer\nsystem. (eBay, Inc. v. Bidder\xe2\x80\x99s Edge, Inc., (N.D. Cal. 2000) 100\nF.Supp.2d 1058 (eBay); Register.com, Inc. v. Verio, Inc. (S.D.N.Y.\n2000) 126 F.Supp.2d 238; Ticketmaster Corp. v. Tickets.com, Inc.,\n(C.D. Cal. 2000) 2000 WL 1887522.) The two district courts that\nfound such automated data collection to constitute a trespass\nrelied, in part, on the deleterious impact this activity could have,\nespecially if replicated by other searchers, on the functioning of\na Web site\xe2\x80\x99s computer equipment.\nIn the leading case, eBay, the defendant Bidder\xe2\x80\x99s Edge (BE),\noperating an auction aggregation site, accessed the eBay Web\nsite about 100,000 times per day, accounting for between 1 and\n2 percent of the information requests received by eBay and a\nslightly smaller percentage of the data transferred by eBay. The\ndistrict court rejected eBay\xe2\x80\x99s claim that it was entitled to\ninjunctive relief because of the defendant\xe2\x80\x99s unauthorized\npresence alone, or because of the incremental cost the\ndefendant had imposed on operation of the eBay site, but found\nsufficient proof of threatened harm in the potential for others to\nimitate the defendant\xe2\x80\x99s activity: \xe2\x80\x9cIf BE\xe2\x80\x99s activity is allowed to\ncontinue unchecked, it would encourage other auction\naggregators to engage in similar recursive searching of the eBay\nsystem such that eBay would suffer irreparable harm from\nreduced system performance, system unavailability, or data\nlosses.\xe2\x80\x9d Again, in addressing the likelihood of eBay\xe2\x80\x99s success on\nits trespass to chattels cause of action, the court held the\nevidence of injury to eBay\xe2\x80\x99s computer system sufficient to\nsupport a preliminary injunction: \xe2\x80\x9cIf the court were to hold\notherwise, it would likely encourage other auction aggregators to\ncrawl the eBay site, potentially to the point of denying effective\naccess to eBay\xe2\x80\x99s customers. If preliminary injunctive relief were\ndenied, and other aggregators began to crawl the eBay site, there\nappears to be little doubt that the load on eBay\xe2\x80\x99s computer\n\n239\n\n\x0csystem would qualify as a substantial impairment of condition or\nvalue.\xe2\x80\x9d\nAnother district court followed eBay on similar facts \xe2\x80\x93 a domain\nname registrar\xe2\x80\x99s claim against a Web hosting and development\nsite that robotically searched the registrar\xe2\x80\x99s database of newly\nregistered domain names in search of business leads \xe2\x80\x93 in\nRegister.com, Inc. v. Verio, Inc.. Although the plaintiff was unable to\nmeasure the burden the defendant\xe2\x80\x99s searching had placed on its\nsystem, the district court, quoting the declaration of one of the\nplaintiffs officers, found sufficient evidence of threatened harm\nto the system in the possibility the defendant\xe2\x80\x99s activities would\nbe copied by others: \xe2\x80\x9c\xe2\x80\x98I believe that if Verio\xe2\x80\x99s searching of\nRegister.com\xe2\x80\x99s WHOIS database were determined to be lawful,\nthen every purveyor of Internet-based services would engage in\nsimilar conduct.\xe2\x80\x99\xe2\x80\x9d Like eBay, the court observed, Register.com\nhad a legitimate fear \xe2\x80\x9cthat its servers will be flooded by search\nrobots.\xe2\x80\x9d\nIn the third decision discussing robotic data collection as a\ntrespass, Ticketmaster Corp. v. Tickets.com, Inc., the court,\ndistinguishing eBay, found insufficient evidence of harm to the\nchattel to constitute an actionable trespass: \xe2\x80\x9cA basic element of\ntrespass to chattels must be physical harm to the chattel (not\npresent here) or some obstruction of its basic function (in the\ncourt\xe2\x80\x99s opinion not sufficiently shown here) .... The comparative\nuse [by the defendant of the plaintiffs computer system] appears\nvery small and there is no showing that the use interferes to any\nextent with the regular business of [the plaintiff].... Nor here is the\nspecter of dozens or more parasites joining the fray, the cumulative total of\nwhich could affect the operation of [the plaintiffs] business.\xe2\x80\x9d\nIn the decisions so far reviewed, the defendant\xe2\x80\x99s use of the\nplaintiffs computer system was held sufficient to support an\naction for trespass when it actually did, or threatened to,\ninterfere with the intended functioning of the system, as by\nsignificantly reducing its available memory and processing\npower. In Ticketmaster, the one case where no such effect, actual\nor threatened, had been demonstrated, the court found\ninsufficient evidence of harm to support a trespass action. These\n\n240\n\n\x0cdecisions do not persuade us to Intel\xe2\x80\x99s position here, for Intel\nhas demonstrated neither any appreciable effect on the\noperation of its computer system from Hamidi\xe2\x80\x99s messages, nor\nany likelihood that Hamidi\xe2\x80\x99s actions will be replicated by others\nif found not to constitute a trespass.\nThat Intel does not claim the type of functional impact that\nspammers and robots have been alleged to cause is not\nsurprising in light of the differences between Hamidi\xe2\x80\x99s activities\nand those of a commercial enterprise that uses sheer quantity of\nmessages as its communications strategy. Though Hamidi sent\nthousands of copies of the same message on six occasions over\n21 months, that number is minuscule compared to the amounts\nof mail sent by commercial operations. The individual\nadvertisers sued in America Online, Inc. v. IMS and America Online,\nInc. v. LCGM, Inc. were alleged to have sent more than 60\nmillion messages over 10 months and more than 92 million\nmessages over seven months, respectively. Collectively, UCE\nhas reportedly come to constitute about 45 percent of all e-mail.\nThe functional burden on Intel\xe2\x80\x99s computers, or the cost in time\nto individual recipients, of receiving Hamidi\xe2\x80\x99s occasional\nadvocacy messages cannot be compared to the burdens and\ncosts caused ISP\xe2\x80\x99s and their customers by the ever-rising deluge\nof commercial e-mail.\nIntel relies on language in the eBay decision suggesting that\nunauthorized use of another\xe2\x80\x99s chattel is actionable even without\nany showing of injury: \xe2\x80\x9cEven if, as [defendant] BE argues, its\nsearches use only a small amount of eBay\xe2\x80\x99s computer system\ncapacity, BE has nonetheless deprived eBay of the ability to use\nthat portion of its personal property for its own purposes. The\nlaw recognizes no such right to use another\xe2\x80\x99s personal\nproperty.\xe2\x80\x9d But as the eBay court went on immediately to find\nthat the defendant\xe2\x80\x99s conduct, if widely replicated, would likely\nimpair the functioning of the plaintiffs system, we do not read\nthe quoted remarks as expressing the court\xe2\x80\x99s complete view of\nthe issue. In isolation, moreover, they would not be a correct\nstatement of California or general American law on this point.\nWhile one may have no right temporarily to use another\xe2\x80\x99s\npersonal property, such use is actionable as a trespass only if it\n\n241\n\n\x0c\xe2\x80\x9chas proximately caused injury.\xe2\x80\x9d (Thrifty-Tel, supra, 46\nCal.App.4th at p. 1566, 54 Cal.Rptr.2d 468.) \xe2\x80\x9c[I]n the absence of\nany actual damage the action will not lie.\xe2\x80\x9d (Prosser & Keeton,\nTorts, supra, \xc2\xa7 14, p. 87.) Short of dispossession, personal injury,\nor physical damage (not present here), intermeddling is\nactionable only if \xe2\x80\x9cthe chattel is impaired as to its condition,\nquality, or value, or [\xc2\xb6] ... the possessor is deprived of the use of\nthe chattel for a substantial time.\xe2\x80\x9d (Rest.2d Torts, \xc2\xa7 218, pars,\n(b), (c).) In particular, an actionable deprivation of use \xe2\x80\x9cmust be\nfor a time so substantial that it is possible to estimate the loss\ncaused thereby. A mere momentary or theoretical deprivation of\nuse is not sufficient unless there is a dispossession....\xe2\x80\x9d (Id., com.\ni, p. 423.) That Hamidi\xe2\x80\x99s messages temporarily used some\nportion of the Intel computers\xe2\x80\x99 processors or storage is,\ntherefore, not enough; Intel must, but does not, demonstrate\nsome measurable loss from the use of its computer system.~\nWhether the economic injuries identified in CompuServe were\nproperly considered injuries to the ISP\xe2\x80\x99s possessory interest in\nits personal property, the type of property interest the tort is\nprimarily intended to protect (see Rest.2d Torts, \xc2\xa7 218 & com. e,\npp. 421-22; Prosser & Keeton, Torts, supra, \xc2\xa7 14, p. 87), has\nbeen questioned.[6] \xe2\x80\x9c[T]he court broke the chain between the\ntrespass and the harm, allowing indirect harms to CompuServe\xe2\x80\x99s\nbusiness interests \xe2\x80\x93 reputation, customer goodwill, and\nemployee time \xe2\x80\x93 to count as harms to the chattel (the server).\xe2\x80\x9d\n(Quilter, The Continuing Expansion of Cyberspace Trespass to Chattels,\nsupra, 17 Berkeley Tech. L.J. at pp. 429-430.) \xe2\x80\x9c[T]his move cuts\ntrespass to chattels free from its moorings of dispossession or\nthe equivalent, allowing the court free reign [sic] to hunt for\n\xe2\x80\x98impairment.\xe2\x80\x99\xe2\x80\x9d (Burk, The Trouble with Trespass (2000) 4 J. Small &\nEmerging Bus.L. 27, 35.) But even if the loss of goodwill\nidentified in CompuServe were the type of injury that would give\nrise to a trespass to chattels claim under California law, Intel\xe2\x80\x99s\nposition would not follow, for Intel\xe2\x80\x99s claimed injury has even\nless connection to its personal property than did CompuServe\xe2\x80\x99s.\nCompuServe\xe2\x80\x99s customers were annoyed because the system was\ninundated with unsolicited commercial messages, making its use\nfor personal communication more difficult and costly. Their\n\n242\n\n\x0ccomplaint, which allegedly led some to cancel their CompuServe\nservice, was about the functioning of CompuServe\xe2\x80\x99s electronic mail\nservice. Intel\xe2\x80\x99s workers, in contrast, were allegedly distracted from\ntheir work not because of the frequency or quantity of Hamidi\xe2\x80\x99s\nmessages, but because of assertions and opinions the messages\nconveyed. Intel\xe2\x80\x99s complaint is thus about the contents of the messages\nrather than the functioning of the company\xe2\x80\x99s e-mail system.\nEven accepting CompuServe\xe2\x80\x99s economic injury rationale,\ntherefore, Intel\xe2\x80\x99s position represents a further extension of the\ntrespass to chattels tort, fictionally recharacterizing the allegedly\ninjurious effect of a communication\xe2\x80\x99s contents on recipients as an\nimpairment to the device which transmitted the message.~\nNor may Intel appropriately assert a property interest in its\nemployees\xe2\x80\x99 time.~ Whatever interest Intel may have in\npreventing its employees from receiving disruptive\ncommunications, it is not an interest in personal property, and\ntrespass to chattels is therefore not an action that will lie to\nprotect it. Nor, finally, can the fact Intel staff spent time\nattempting to block Hamidi\xe2\x80\x99s messages be bootstrapped into an\ninjury to Intel\xe2\x80\x99s possessory interest in its computers. To quote,\nagain, from the dissenting opinion in the Court of Appeal: \xe2\x80\x9c[I]t\nis circular to premise the damage element of a tort solely upon\nthe steps taken to prevent the damage. Injury can only be\nestablished by the completed tort\xe2\x80\x99s consequences, not by the\ncost of the steps taken to avoid the injury and prevent the tort;\notherwise, we can create injury for every supposed tort.\xe2\x80\x9d\nIntel connected its e-mail system to the Internet and permitted\nits employees to make use of this connection both for business\nand, to a reasonable extent, for their own purposes. In doing so,\nthe company necessarily contemplated the employees\xe2\x80\x99 receipt of\nunsolicited as well as solicited communications from other\ncompanies and individuals. That some communications would,\nbecause of their contents, be unwelcome to Intel management\nwas virtually inevitable. Hamidi did nothing but use the e-mail\nsystem for its intended purpose \xe2\x80\x93 to communicate with\nemployees. The system worked as designed, delivering the\nmessages without any physical or functional harm or disruption.\nThese occasional transmissions cannot reasonably be viewed as\n\n243\n\n\x0cimpairing the quality or value of Intel\xe2\x80\x99s computer system. We\nconclude, therefore, that Intel has not presented undisputed\nfacts demonstrating an injury to its personal property, or to its\nlegal interest in that property, that support, under California tort\nlaw, an action for trespass to chattels.\nII. Proposed Extension of California Tort Law\nWe next consider whether California common law should be\nextended to cover, as a trespass to chattels, an otherwise harmless\nelectronic communication whose contents are objectionable. We\ndecline to so expand California law. Intel, of course, was not the\nrecipient of Hamidi\xe2\x80\x99s messages, but rather the owner and\npossessor of computer servers used to relay the messages, and it\nbases this tort action on that ownership and possession. The\nproperty rule proposed is a rigid one, under which the sender of\nan electronic message would be strictly liable to the owner of\nequipment through which the communication passes \xe2\x80\x93 here,\nIntel \xe2\x80\x93 for any consequential injury flowing from the contents of\nthe communication. The arguments of amici curiae and\nacademic writers on this topic, discussed below, leave us highly\ndoubtful whether creation of such a rigid property rule would be\nwise.\nWriting on behalf of several industry groups appearing as amici\ncuriae, Professor Richard A. Epstein of the University of\nChicago urges us to excuse the required showing of injury to\npersonal property in cases of unauthorized electronic contact\nbetween computers, \xe2\x80\x9cextending the rules of trespass to real\nproperty to all interactive Web sites and servers.\xe2\x80\x9d The court is\nthus urged to recognize, for owners of a particular species of\npersonal property, computer servers, the same interest in\ninviolability as is generally accorded a possessor of land. In\neffect, Professor Epstein suggests that a company\xe2\x80\x99s server\nshould be its castle, upon which any unauthorized intrusion,\nhowever harmless, is a trespass.\nEpstein\xe2\x80\x99s argument derives, in part, from the familiar metaphor\nof the Internet as a physical space, reflected in much of the\nlanguage that has been used to describe it: \xe2\x80\x9ccyberspace,\xe2\x80\x9d \xe2\x80\x9cthe\ninformation superhighway,\xe2\x80\x9d e-mail \xe2\x80\x9caddresses,\xe2\x80\x9d and the like. Of\n\n244\n\n\x0ccourse, the Internet is also frequently called simply the \xe2\x80\x9cNet,\xe2\x80\x9d a\nterm, Hamidi points out, \xe2\x80\x9cevoking a fisherman\xe2\x80\x99s chattel.\xe2\x80\x9d A\nmajor component of the Internet is the World Wide \xe2\x80\x9cWeb,\xe2\x80\x9d a\ndescriptive term suggesting neither personal nor real property,\nand \xe2\x80\x9ccyberspace\xe2\x80\x9d itself has come to be known by the\noxymoronic phrase \xe2\x80\x9cvirtual reality,\xe2\x80\x9d which would suggest that\nany real property \xe2\x80\x9clocated\xe2\x80\x9d in \xe2\x80\x9ccyberspace\xe2\x80\x9d must be \xe2\x80\x9cvirtually\nreal\xe2\x80\x9d property. Metaphor is a two-edged sword.\nIndeed, the metaphorical application of real property rules\nwould not, by itself, transform a physically harmless electronic\nintrusion on a computer server into a trespass. That is because,\nunder California law, intangible intrusions on land, including\nelectromagnetic transmissions, are not actionable as trespasses\n(though they may be as nuisances) unless they cause physical\ndamage to the real property. (San Diego Gas & Electric Co. v.\nSuperior Court (1996) 13 Cal.4th 893, 936-937, 55 Cal.Rptr.2d\n724, 920 P.2d 669.) Since Intel does not claim Hamidi\xe2\x80\x99s\nelectronically transmitted messages physically damaged its\nservers, it could not prove a trespass to land even were we to\ntreat the computers as a type of real property. Some further\nextension of the conceit would be required, under which the\nelectronic signals Hamidi sent would be recast as tangible\nintruders, perhaps as tiny messengers rushing through the\n\xe2\x80\x9challways\xe2\x80\x9d of Intel\xe2\x80\x99s computers and bursting out of employees\xe2\x80\x99\ncomputers to read them Hamidi\xe2\x80\x99s missives. But such fictions\npromise more confusion than clarity in the law. (See eBay, supra,\n100 F.Supp.2d at pp. 1065-1066 (rejecting eBay\xe2\x80\x99s argument that\nthe defendant\xe2\x80\x99s automated data searches \xe2\x80\x9cshould be thought of\nas equivalent to sending in an army of 100,000 robots a day to\ncheck the prices in a competitor\xe2\x80\x99s store\xe2\x80\x9d].)\nThe plain fact is that computers, even those making up the\nInternet, are \xe2\x80\x93 like such older communications equipment as\ntelephones and fax machines \xe2\x80\x93 personal property, not realty.\nProfessor Epstein observes that \xe2\x80\x9c[a]though servers may be\nmoved in real space, they cannot be moved in cyberspace,\xe2\x80\x9d\nbecause an Internet server must, to be useful, be accessible at a\nknown address. But the same is true of the telephone: to be\nuseful for incoming communication, the telephone must remain\n\n245\n\n\x0cconstantly linked to the same number (or, when the number is\nchanged, the system must include some forwarding or\nnotification capability, a qualification that also applies to\ncomputer addresses). Does this suggest that an unwelcome\nmessage delivered through a telephone or fax machine should\nbe viewed as a trespass to a type of real property? We think not:\nAs already discussed, the contents of a telephone\ncommunication may cause a variety of injuries and may be the\nbasis for a variety of tort actions (e.g., defamation, intentional\ninfliction of emotional distress, invasion of privacy), but the\ninjuries are not to an interest in property, much less real\nproperty, and the appropriate tort is not trespass.[7]\nMore substantively, Professor Epstein argues that a rule of\ncomputer server inviolability will, through the formation or\nextension of a market in computer-to-computer access, create\n\xe2\x80\x9cthe right social result.\xe2\x80\x9d In most circumstances, he predicts,\ncompanies with computers on the Internet will continue to\nauthorize transmission of information through e-mail, Web site\nsearching, and page linking because they benefit by that open\naccess. When a Web site owner does deny access to a particular\nsending, searching, or linking computer, a system of \xe2\x80\x9csimple\none-on-one negotiations\xe2\x80\x9d will arise to provide the necessary\nindividual licenses.\nOther scholars are less optimistic about such a complete\npropertization of the Internet. Professor Mark Lemley of the\nUniversity of California, Berkeley, writing on behalf of an amici\ncuriae group of professors of intellectual property and computer\nlaw, observes that under a property rule of server inviolability,\n\xe2\x80\x9ceach of the hundreds of millions of [Internet] users must get\npermission in advance from anyone with whom they want to\ncommunicate and anyone who owns a server through which\ntheir message may travel.\xe2\x80\x9d The consequence for e-mail could be\na substantial reduction in the freedom of electronic\ncommunication, as the owner of each computer through which\nan electronic message passes could impose its own limitations\non message content or source. As Professor Dan Hunter of the\nUniversity of Pennsylvania asks rhetorically: \xe2\x80\x9cDoes this mean\nthat one must read the \xe2\x80\x98Terms of Acceptable Email Usage\xe2\x80\x99 of\n\n246\n\n\x0cevery email system that one emails in the course of an ordinary\nday? If the University of Pennsylvania had a policy that sending\na joke by email would be an unauthorized use of their system,\nthen under the logic of [the lower court decision in this case],\nyou commit \xe2\x80\x98trespass\xe2\x80\x99 if you emailed me a ... cartoon.\xe2\x80\x9d (Hunter,\nCyberspace as Place, and the Tragedy of the Digital Anticommons (2003)\n91 Cal. L.Rev. 439, 508-509.)\nWeb site linking, Professor Lemley further observes, \xe2\x80\x9cwould\nexist at the sufferance of the linked-to party, because a Web user\nwho followed a \xe2\x80\x98disapproved\xe2\x80\x99 link would be trespassing on the\nplaintiffs server, just as sending an e-mail is trespass under the\n[lower] court\xe2\x80\x99s theory.\xe2\x80\x9d Another writer warns that \xe2\x80\x9c[c]ybertrespass theory will curtail the free flow of price and product\ninformation on the Internet by allowing website owners to\ntightly control who and what may enter and make use of the\ninformation housed on its Internet site.\xe2\x80\x9d (Chang, Bidding on\nTrespass: eBay, Inc. v. Bidder\xe2\x80\x99s Edge, Inc. and the Abuse of Trespass\nTheory in Cyberspace Law (2001) 29 AIPLA Q.J. 445, 459.) A\nleading scholar of Internet law and policy, Professor Lawrence\nLessig of Stanford University, has criticized Professor Epstein\xe2\x80\x99s\ntheory of the computer server as quasi-real property, previously\nput forward in the eBay case (eBay, supra, 100 F.Supp.2d 1058),\non the ground that it ignores the costs to society in the loss of\nnetwork benefits: \xe2\x80\x9ceBay benefits greatly from a network that is\nopen and where access is free. It is this general feature of the\nNet that makes the Net so valuable to users and a source of\ngreat innovation. And to the extent that individual sites begin to\nimpose their own rules of exclusion, the value of the network as\na network declines. If machines must negotiate before entering\nany individual site, then the costs of using the network climb.\xe2\x80\x9d\n(Lessig, The Future of Ideas: The Fate of the Commons in a\nConnected World (2001) p. 171; see also Hunter, Cyberspace as\nPlace, and the Tragedy of the Digital Anticommons, supra, 91 Cal.\nL.Rev. at p. 512 (\xe2\x80\x9cIf we continue to mark out anticommons\nclaims in cyberspace, not only will we preclude better, more\ninnovative uses of cyberspace resources, but we will lose sight of\nwhat might be possible\xe2\x80\x9d].)\n\n247\n\n\x0cWe discuss this debate among the amici curiae and academic\nwriters only to note its existence and contours, not to attempt its\nresolution. Creating an absolute property right to exclude\nundesired communications from one\xe2\x80\x99s e-mail and Web servers\nmight help force spammers to internalize the costs they impose\non ISP\xe2\x80\x99s and their customers. But such a property rule might\nalso create substantial new costs, to e-mail and e-commerce\nusers and to society generally, in lost ease and openness of\ncommunication and in lost network benefits. In light of the\nunresolved controversy, we would be acting rashly to adopt a\nrule treating computer servers as real property for purposes of\ntrespass law.\n[W]e are not persuaded that these perceived problems call at\npresent for judicial creation of a rigid property rule of computer\nserver inviolability.~\nDISPOSITION\nThe judgment of the Court of Appeal is reversed.\nJustice JANICE ROGERS BROWN, dissenting:\nCandidate A finds the vehicles that candidate B has provided for\nhis campaign workers, and A spray paints the water soluble\nmessage, \xe2\x80\x9cFight corruption, vote for A\xe2\x80\x9d on the bumpers. The\nmajority\xe2\x80\x99s reasoning would find that notwithstanding the time it\ntakes the workers to remove the paint and the expense they\nincur in altering the bumpers to prevent further unwanted\nmessages, candidate B does not deserve an injunction unless the\npaint is so heavy that it reduces the cars\xe2\x80\x99 gas mileage or\notherwise depreciates the cars\xe2\x80\x99 market value. Furthermore,\ncandidate B has an obligation to permit the paint\xe2\x80\x99s display,\nbecause the cars are driven by workers and not B personally,\nbecause B allows his workers to use the cars to pick up their\nlunch or retrieve their children from school, or because the\nbumpers display B\xe2\x80\x99s own slogans. I disagree.\nIntel has invested millions of dollars to develop and maintain a\ncomputer system. It did this not to act as a public forum but to\nenhance the productivity of its employees. Kourosh Kenneth\nHamidi sent as many as 200,000 e-mail messages to Intel\n\n248\n\n\x0cemployees. The time required to review and delete Hamidi\xe2\x80\x99s\nmessages diverted employees from productive tasks and\nundermined the utility of the computer system. \xe2\x80\x9cThere may ...\nbe situations in which the value to the owner of a particular type\nof chattel may be impaired by dealing with it in a manner that\ndoes not affect its physical condition.\xe2\x80\x9d (Rest.2d Torts, \xc2\xa7 218,\ncom. h, p. 422.) This is such a case.\nThe majority repeatedly asserts that Intel objected to the\nhundreds of thousands of messages solely due to their content,\nand proposes that Intel seek relief by pleading content-based\nspeech torts. This proposal misses the point that Intel\xe2\x80\x99s\nobjection is directed not toward Hamidi\xe2\x80\x99s message but his use of\nIntel\xe2\x80\x99s property to display his message. Intel has not sought to\nprevent Hamidi from expressing his ideas on his Web site,\nthrough private mail (paper or electronic) to employees\xe2\x80\x99 homes,\nor through any other means like picketing or billboards. But as\ncounsel for Intel explained during oral argument, the company\nobjects to Hamidi\xe2\x80\x99s using Intel\xe2\x80\x99s property to advance his\nmessage.\nOf course, Intel deserves an injunction even if its objections are\nbased entirely on the e-mail\xe2\x80\x99s content. Intel is entitled, for\nexample, to allow employees use of the Internet to check stock\nmarket tables or weather forecasts without incurring any\nconcomitant obligation to allow access to pornographic Web\nsites. (Loving v. Boren (W.D.Okla.1997) 956 F.Supp. 953, 955.) A\nprivate property owner may choose to exclude unwanted mail\nfor any reason, including its content. (Rowan v. U.S. Post Office\nDept. (1970) 397 U.S. 728, 738, 90 S.Ct. 1484, 25 L.Ed.2d 736\n(Rowan); Tillman v. Distribution Systems of America Inc. (1996) 224\nA.D.2d 79, 648 N.Y.S.2d 630, 635 (Tillman).)\nThe majority refuses to protect Intel\xe2\x80\x99s interest in maintaining the\nintegrity of its own system, contending that (1) Hamidi\xe2\x80\x99s\nmailings did not physically injure the system; (2) Intel receives\nmany unwanted messages, of which Hamidi\xe2\x80\x99s are but a small\nfraction; (3) Intel must have contemplated that it would receive\nsome unwanted messages; and (4) Hamidi used the email system\nfor its intended purpose, to communicate with employees.\n\n249\n\n\x0cOther courts have found a protectible interest under very similar\ncircumstances. In Thrifty-Tel v. Bezenek (1996) 46 Cal. App.4th\n1559, 54 Cal.Rptr.2d 468 (Thrifty-Tel ), the Court of Appeal\nfound a trespass to chattels where the defendants used another\nparty\xe2\x80\x99s access code to search for an authorization code with\nwhich they could make free calls. The defendants\xe2\x80\x99 calls did not\ndamage the company\xe2\x80\x99s system in any way; they were a minuscule\nfraction of the overall communication conducted by the phone\nnetwork; and the company could have reasonably expected that\nsome individuals would attempt to obtain codes with which to\nmake free calls (just as stores expect shoplifters). Moreover, had\nthe defendants succeeded in making free calls, they would have\nbeen using the telephone system as intended. (Id, at p. 1563, 54\nCal.Rptr.2d 468.)\nBecause I do not share the majority\xe2\x80\x99s antipathy toward property\nrights and believe the proper balance between expressive activity\nand property protection can be achieved without distorting the\nlaw of trespass, I respectfully dissent.~\nThose who have contempt for grubby commerce and reverence\nfor the rarified heights of intellectual discourse may applaud\ntoday\xe2\x80\x99s decision, but even the flow of ideas will be curtailed if\nthe right to exclude is denied. As the Napster controversy\nrevealed, creative individuals will be less inclined to develop\nintellectual property if they cannot limit the terms of its\ntransmission. Similarly, if online newspapers cannot charge for\naccess, they will be unable to pay the journalists and editorialists\nwho generate ideas for public consumption.\nThis connection between the property right to objects and the\nproperty right to ideas and speech is not novel. James Madison\nobserved, \xe2\x80\x9ca man\xe2\x80\x99s land, or merchandize, or money is called his\nproperty.\xe2\x80\x9d (Madison, Property, Nat. Gazette (Mar. 27, 1792),\nquoted in McGinnis, The Once and Future Property-Based Vision of\nthe First Amendment (1996) 63 U.Chi. L.Rev. 49, 65.) Likewise, \xe2\x80\x9ca\nman has a property in his opinions and the free communication\nof them.\xe2\x80\x9d (Ibid.) Accordingly, \xe2\x80\x9cfreedom of speech and property\nrights were seen simply as different aspects of an indivisible\nconcept of liberty.\xe2\x80\x9d (Id. at p. 63.)\n\n250\n\n\x0cThe principles of both personal liberty and social utility should\ncounsel us to usher the common law of property into the digital\nage.\nJustice STANLEY MOSK, dissenting:\nThe majority hold that the California tort of trespass to chattels\ndoes not encompass the use of expressly unwanted electronic\nmail that causes no physical damage or impairment to the\nrecipient\xe2\x80\x99s computer system. They also conclude that because a\ncomputer system is not like real property, the rules of trespass to\nreal property are also inapplicable to the circumstances in this\ncase. Finally, they suggest that an injunction to preclude mass,\nnoncommercial, unwelcome e-mails may offend the interests of\nfree communication.\nI respectfully disagree and would affirm the trial court\xe2\x80\x99s\ndecision. In my view, the repeated transmission of bulk e-mails\nby appellant Kourosh Kenneth Hamidi (Hamidi) to the\nemployees of Intel Corporation (Intel) on its proprietary\nconfidential email lists, despite Intel\xe2\x80\x99s demand that he cease such\nactivities, constituted an actionable trespass to chattels. The\nmajority fail to distinguish open communication in the public\n\xe2\x80\x9ccommons\xe2\x80\x9d of the Internet from unauthorized intermeddling\non a private, proprietary intranet. Hamidi is not communicating\nin the equivalent of a town square or of an unsolicited \xe2\x80\x9cjunk\xe2\x80\x9d\nmailing through the United States Postal Service. His action, in\ncrossing from the public Internet into a private intranet, is more\nlike intruding into a private office mailroom, commandeering\nthe mail cart, and dropping off unwanted broadsides on 30,000\ndesks. Because Intel\xe2\x80\x99s security measures have been circumvented\nby Hamidi, the majority leave Intel, which has exercised all\nreasonable self-help efforts, with no recourse unless he causes a\nmalfunction or systems \xe2\x80\x9ccrash.\xe2\x80\x9d Hamidi\xe2\x80\x99s repeated intrusions\ndid more than merely \xe2\x80\x9cprompt[ ] discussions between \xe2\x80\x98[e]xcited\nand nervous managers\xe2\x80\x99 and the company\xe2\x80\x99s human resource\ndepartment\xe2\x80\x9d (maj. opn., ante, 1 Cal. Rptr.3d at p. 38, 71 P.3d at\np. 301); they also constituted a misappropriation of Intel\xe2\x80\x99s\nprivate computer system contrary to its intended use and against\nIntel\xe2\x80\x99s wishes.\n\n251\n\n\x0cThe law of trespass to chattels has not universally been limited\nto physical damage. I believe it is entirely consistent to apply\nthat legal theory to these circumstances \xe2\x80\x93 that is, when a\nproprietary computer system is being used contrary to its\nowner\xe2\x80\x99s purposes and expressed desires, and self-help has been\nineffective. Intel correctly expects protection from an intruder\nwho misuses its proprietary system, its nonpublic directories,\nand its supposedly controlled connection to the Internet to\nachieve his bulk mailing objectives \xe2\x80\x93 incidentally, without even\nhaving to pay postage.~\nThe trial court granted an injunction to prevent threatened\ninjury to Intel. That is the purpose of an injunction. Intel should\nnot be helpless in the face of repeated and threatened abuse and\ncontamination of its private computer system. The undisputed\nfacts, in my view, rendered Hamidi\xe2\x80\x99s conduct legally actionable.\nThus, the trial court\xe2\x80\x99s decision to grant a permanent injunction\nwas not \xe2\x80\x9ca clear abuse of discretion\xe2\x80\x9d that may be \xe2\x80\x9cdisturbed on\nappeal.\xe2\x80\x9d\nThe injunction issued by the trial court simply required Hamidi\nto refrain from further trespassory conduct, drawing no\ndistinction based on the content of his emails. Hamidi remains\nfree to communicate with Intel employees and others outside\nthe walls \xe2\x80\x93 both physical and electronic \xe2\x80\x93 of the company.\nFor these reasons, I respectfully dissent.\n\nQuestions to Ponder About Intel v. Hamidi\nA. What do you think of the decision in eBay v. Bidder\xe2\x80\x99s Edge,\ndiscussed by the court? Should trespass to chattels lie for\nautomated information-inquiries of a website by a another\ncompany, such as a competitor?\nB. What do you think of Professor Richard A. Epstein\xe2\x80\x99s idea,\ndiscussed in the case, of applying property rights to the internet\nsimilar to how they are applied to land? What effect would that\nhave? Would it be positive, negative, or neutral?\nC. Do you think Justice Brown\xe2\x80\x99s analogy to water-soluble spray\npaint is an apt one? Why or why not?\n\n252\n\n\x0cD. In the text prior to the case, a prima facie trespass to chattels\nwas said to require showing that the defendant (1) intentionally\n(2) interfered with the (3) plaintiff\xe2\x80\x99s right of possession in a\nchattel. Interference, we said, could include any of the following:\n(1) actual damage to the chattel, (2) actual\ndispossession of the chattel, (3) loss of use of\nthe chattel for some appreciable amount of\ntime, (4) harm to the plaintiff, or harm to\nsomething or someone in whom the plaintiff\nhad a legal interest, on account of the\ndefendant\xe2\x80\x99s action.\nDoes the majority in Intel reject this conception of the\nblackletter law? In other words, in the view of Intel, is that an\naccurate description of the law in California? What differences\nare there, if any?\n\nThe Elements of Conversion\nTrespass to chattels has a big sibling \xe2\x80\x93 the tort of conversion. Here\xe2\x80\x99s\na blackletter formulation of the conversion tort:\nA plaintiff can establish a prima facie case for\nconversion by showing: the defendant (1)\nintentionally (2) interfered with (3) the plaintiff\xe2\x80\x99s\nright of possession in a chattel (4) in so\nsubstantial a manner as to warrant the remedy\nof a forced sale.\n\nConversion: Intent\nThe intent requirement for conversion works like that for trespass to\nchattels. Conversion requires only that the defendant intend the\nactions that constitute conversion. There is no requirement of bad\nmotive, nor is there a requirement that the defendant intend to effect\na conversion.\nAn example that is used in the Restatement concerns an auctioneer\nwho takes a fine-art painting from a third party, honestly and\nreasonably believing that the third party is the true owner of the\npainting. If the auctioneer sells the painting, as instructed by the third\nparty (the intended act), the auctioneer is liable for conversion to the\npainting\xe2\x80\x99s actual owner.\n\n253\n\n\x0cAs loose as the intent element may be, it is still there. If a person\ndoes not intentionally exercise unpermitted dominion over the\nproperty, then there is no conversion. Suppose a museum is given\nartifacts on loan, and the museum negligently loses them. There may\nbe a good negligence case here, but there is no conversion, because\nthe intent element is unsatisfied.\n\nConversion: Interference and Substantiality to\nWarrant Remedy\nFor an interference with a chattel to qualify as a conversion, the\ndefendant must exercise dominion over the chattel in a way that is so\nsubstantial that it warrants the remedy of the forced sale. There is no\nway to precisely delineate the threshold \xe2\x80\x93 it\xe2\x80\x99s a matter of degree.\nLet\xe2\x80\x99s extend the example of the borrowed motorcycle that we used to\nillustrate trespass to chattels: The defendant borrows a motorcycle\nfor a couple of hours to go to a nail salon a couple of miles away and\nthen returns the bike to where it was originally parked. That is a\ntrespass to chattels, since it constitutes a dispossession. Yet it is not\nconversion. Why not? The defendant has not exercised dominion\nover the chattel so seriously as to force the defendant to purchase the\nmotorcycle. Now, if we change the hypothetical so that, instead of\ngoing to the nearby nail salon, the defendant drives the motorcycle\nfrom Milwaukee to South Dakota, then the dispossession\nunquestionably qualifies as a conversion.\n\nConversion: The Remedy of Forced Sale (or Forced\nPurchase)\nThe sine qua non of the conversion action is the availability of the\nforced-sale remedy, in which the defendant is ordered to pay full\nvalue for the converted chattel. So if someone takes a joyride in your\ncar and drives it into a lake, you can get the court to order the\njoyrider to pay the full fair market value of the car at the time it was\ntaken, with the joyrider then taking title to the waterlogged car.\nPursuing the tort of conversion is a choice. No plaintiff can be\nrequired to sue for conversion rather than trespass to chattels.\nBecause of this, conversion cannot be used to require an unwilling\n\n254\n\n\x0cplaintiff to sell her or his goods. For this reason, the terminology of\n\xe2\x80\x9cforced sale\xe2\x80\x9d is confusing. In this sense, it is more accurate to call the\nremedy a forced purchase. In fact, some commentators use this\nterm. The doctrine of conversion doesn\xe2\x80\x99t force anyone to sell\nanything. Instead, it can be used to force the defendant to buy\nsomething.\nAn example will help make this clear. Suppose you want your\nroommate\xe2\x80\x99s signed first edition of Harry Potter and the Sorcerer\xe2\x80\x99s Stone,\nbut your roommate won\xe2\x80\x99t sell it. It is not possible to game the\nconversion tort so that you wind up getting what you want. If you\ntake the book and your roommate wants it back, your roommate can\nchoose to sue for trespass to chattels. (Also, using something called a\nwrit of replevin, your roommate can get a court order, even before\ntrial, compelling you to return the book.) Alternatively, your\nroommate can chose to sue for conversion, yet elect the trespass-tochattels remedy of compensatory damages for the dispossession. The\nremedy of the forced sale (or forced purchase) is something plaintiffs\nseek when they no longer want the chattels at issue.\n\nConversion: Intangibles and Capturing Increased\nValue\nBeyond the forced-sale remedy, conversion has some other\nsuperpowers that the tort of trespass to chattels lacks. For one,\nconversion can be used with many intangible assets that are tied to\ntangible artifacts, such as stock certificates. And conversion can be\nused by the plaintiff to capture the benefit of increased market\nvalues.\nSuppose the defendant steals certificates for 100 shares of stock on\nMonday, when they are worth $100,000. On Tuesday, the price of the\nstock skyrockets, and the shares are worth $200,000. At that point,\nthe plaintiff can use conversion to get a judgment of $200,000. Now\nsuppose the plaintiff waits to sue, and on Wednesday morning, the\nvalue of the stock plummets to $50,000, at which point the defendant\nsells the shares for a loss. The plaintiff can still use conversion to get\na judgment of $200,000. In this way, conversion can be used like a\n\n255\n\n\x0cratchet to capture increases in value without a possibility of slippage\nto a lower value.\nCase: Moore v. U.C. Regents\nThis case explores the outer bounds of conversion doctrine. In the\nquarter century since it was handed down, the Moore case has become\na modern classic.\n\nMoore v. Regents of University of California\nSupreme Court of California\nJuly 9, 1990\n51 Cal.3d 120. JOHN MOORE, Plaintiff and Appellant, v.\nTHE REGENTS OF THE UNIVERSITY OF CALIFORNIA\net al., Defendants and Repondents No. S006987.\nJustice EDWARD A. PANELLI:\nI. Introduction\nWe granted review in this case to determine whether plaintiff\nhas stated a cause of action against his physician and other\ndefendants for using his cells in potentially lucrative medical\nresearch without his permission. Plaintiff alleges that his\nphysician failed to disclose preexisting research and economic\ninterests in the cells before obtaining consent to the medical\nprocedures by which they were extracted. The superior court\nsustained all defendants\xe2\x80\x99 demurrers to the third amended\ncomplaint, and the Court of Appeal reversed. We hold that the\ncomplaint states a cause of action for breach of the physician\xe2\x80\x99s\ndisclosure obligations, but not for conversion.\nII. Facts\n~The\n\nplaintiff is John Moore, who underwent treatment for\nhairy-cell leukemia at the Medical Center of the University of\nCalifornia at Los Angeles (UCLA Medical Center). The five\ndefendants are: (1) Dr. David W. Golde, a physician who\nattended Moore at UCLA Medical Center; (2) the Regents of the\nUniversity of California (Regents), who own and operate the\nuniversity; (3) Shirley G. Quan, a researcher employed by the\nRegents; (4) Genetics Institute, Inc.; and (5) Sandoz\n\n256\n\n\x0cPharmaceuticals Corporation and related entities (collectively\nSandoz).\nMoore first visited UCLA Medical Center on October 5, 1976,\nshortly after he learned that he had hairy-cell leukemia. After\nhospitalizing Moore and \xe2\x80\x9cwithdr[awing] extensive amounts of\nblood, bone marrow aspirate, and other bodily substances,\xe2\x80\x9d\nGolde~ confirmed that diagnosis. At this time all defendants,\nincluding Golde, were aware that \xe2\x80\x9ccertain blood products and\nblood components were of great value in a number of\ncommercial and scientific efforts\xe2\x80\x9d and that access to a patient\nwhose blood contained these substances would provide\n\xe2\x80\x9ccompetitive, commercial, and scientific advantages.\xe2\x80\x9d\nOn October 8, 1976, Golde recommended that Moore\xe2\x80\x99s spleen\nbe removed. Golde informed Moore \xe2\x80\x9cthat he had reason to fear\nfor his life, and that the proposed splenectomy operation ... was\nnecessary to slow down the progress of his disease.\xe2\x80\x9d Based upon\nGolde\xe2\x80\x99s representations, Moore signed a written consent form\nauthorizing the splenectomy.\nBefore the operation, Golde and Quan \xe2\x80\x9cformed the intent and\nmade arrangements to obtain portions of [Moore\xe2\x80\x99s] spleen\nfollowing its removal\xe2\x80\x9d and to take them to a separate research\nunit. Golde gave written instructions to this effect on October\n18 and 19, 1976. These research activities \xe2\x80\x9cwere not intended to\nhave ... any relation to [Moore\xe2\x80\x99s] medical ... care.\xe2\x80\x9d However,\nneither Golde nor Quan informed Moore of their plans to\nconduct this research or requested his permission. Surgeons at\nUCLA Medical Center, whom the complaint does not name as\ndefendants, removed Moore\xe2\x80\x99s spleen on October 20, 1976.\nMoore returned to the UCLA Medical Center several times\nbetween November 1976 and September 1983. He did so at\nGolde\xe2\x80\x99s direction and based upon representations \xe2\x80\x9cthat such\nvisits were necessary and required for his health and well-being,\nand based upon the trust inherent in and by virtue of the\nphysician-patient relationship ....\xe2\x80\x9d On each of these visits Golde\nwithdrew additional samples of \xe2\x80\x9cblood, blood serum, skin, bone\nmarrow aspirate, and sperm.\xe2\x80\x9d On each occasion Moore travelled\nto the UCLA Medical Center from his home in Seattle because\n\n257\n\n\x0che had been told that the procedures were to be performed only\nthere and only under Golde\xe2\x80\x99s direction.\n\xe2\x80\x9cIn fact, [however,]throughout the period of time that [Moore]\nwas under [Golde\xe2\x80\x99s] care and treatment, ... the defendants were\nactively involved in a number of activities which they concealed\nfrom [Moore] ....\xe2\x80\x9d Specifically, defendants were conducting\nresearch on Moore\xe2\x80\x99s cells and planned to \xe2\x80\x9cbenefit financially\nand competitively ... [by exploiting the cells] and [their] exclusive\naccess to [the cells] by virtue of [Golde\xe2\x80\x99s] ongoing physicianpatient relationship ....\xe2\x80\x9d\nSometime before August 1979, Golde established a cell line\nfrom Moore\xe2\x80\x99s T-lymphocytes.\nA T-lymphocyte is a type of white blood cell. T-lymphocytes\nproduce lymphokines, or proteins that regulate the immune\nsystem. Some lymphokines have potential therapeutic value. If\nthe genetic material responsible for producing a particular\nlymphokine can be identified, it can sometimes be used to\nmanufacture large quantities of the lymphokine through the\ntechniques of recombinant DNA. (See generally U.S. Congress,\nOffice of Technology Assessment, New Developments in\nBiotechnology: Ownership of Human Tissues and Cells (1987)\nat pp. 31-46)\nWhile the genetic code for lymphokines does not vary from\nindividual to individual, it can nevertheless be quite difficult to\nlocate the gene responsible for a particular lymphokine. Because\nT-lymphocytes produce many different lymphokines, the\nrelevant gene is often like a needle in a haystack. Moore\xe2\x80\x99s Tlymphocytes were interesting to the defendants because they\noverproduced certain lymphokines, thus making the\ncorresponding genetic material easier to identify.~\nCells taken directly from the body (primary cells) are not very\nuseful for these purposes. Primary cells typically reproduce a few\ntimes and then die. One can, however, sometimes continue to\nuse cells for an extended period of time by developing them into\na \xe2\x80\x9ccell line,\xe2\x80\x9d a culture capable of reproducing indefinitely. This is\nnot, however, always an easy task. \xe2\x80\x9cLongterm growth of human\n\n258\n\n\x0ccells and tissues is difficult, often an art,\xe2\x80\x9d and the probability of\nsucceeding with any given cell sample is low, except for a few\ntypes of cells not involved in this case.\nOn January 30, 1981, the Regents applied for a patent on the\ncell line, listing Golde and Quan as inventors. \xe2\x80\x9c[B]y virtue of an\nestablished policy ..., [the] Regents, Golde, and Quan would\nshare in any royalties or profits ... arising out of [the] patent.\xe2\x80\x9d\nThe patent issued on March 20, 1984, naming Golde and Quan\nas the inventors of the cell line and the Regents as the assignee\nof the patent. (U.S. Patent No. 4,438,032 (Mar. 20, 1984).)\nThe Regent\xe2\x80\x99s patent also covers various methods for using the\ncell line to produce lymphokines.~ Moore admits in his\ncomplaint that \xe2\x80\x9cthe true clinical potential of each of the\nlymphokines ... [is] difficult to predict, [but] ... competing\ncommercial firms in these relevant fields have published reports\nin biotechnology industry periodicals predicting a potential\nmarket of approximately $3.01 Billion Dollars by the year 1990\nfor a whole range of [such lymphokines] ....\xe2\x80\x9d\nWith the Regents\xe2\x80\x99 assistance, Golde negotiated agreements for\ncommercial development of the cell line and products to be\nderived from it. Under an agreement with Genetics Institute,\nGolde \xe2\x80\x9cbecame a paid consultant\xe2\x80\x9d and \xe2\x80\x9cacquired the rights to\n75,000 shares of common stock.\xe2\x80\x9d Genetics Institute also agreed\nto pay Golde and the Regents \xe2\x80\x9cat least $330,000 over three\nyears, including a pro-rata share of [Golde\xe2\x80\x99s] salary and fringe\nbenefits, in exchange for ... exclusive access to the materials and\nresearch performed\xe2\x80\x9d on the cell line and products derived from\nit. On June 4, 1982, Sandoz \xe2\x80\x9cwas added to the agreement,\xe2\x80\x9d and\ncompensation payable to Golde and the Regents was increased\nby $110,000. \xe2\x80\x9c[T]hroughout this period, ... Quan spent as much\nas 70 [percent] of her time working for [the] Regents on\nresearch\xe2\x80\x9d related to the cell line.\nBased upon these allegations, Moore attempted to state 13\ncauses of action: (1) \xe2\x80\x9cConversion\xe2\x80\x9d; (2) \xe2\x80\x9clack of informed\nconsent\xe2\x80\x9d; (3) \xe2\x80\x9cbreach of fiduciary duty\xe2\x80\x9d; (4) \xe2\x80\x9cfraud and deceit\xe2\x80\x9d;\n(5) \xe2\x80\x9cunjust enrichment\xe2\x80\x9d; (6) \xe2\x80\x9cquasi-contract\xe2\x80\x9d; (7) \xe2\x80\x9cbad faith\nbreach of the implied covenant of good faith and fair dealing\xe2\x80\x9d;\n\n259\n\n\x0c(8) \xe2\x80\x9cintentional infliction of emotional distress\xe2\x80\x9d; (9) \xe2\x80\x9cnegligent\nmisrepresentation\xe2\x80\x9d; (10) \xe2\x80\x9cintentional interference with\nprospective advantageous economic relationships\xe2\x80\x9d; (11) \xe2\x80\x9cslander\nof title\xe2\x80\x9d; (12) \xe2\x80\x9caccounting\xe2\x80\x9d; and (13) \xe2\x80\x9cdeclaratory relief.\xe2\x80\x9d\nEach defendant demurred to each purported cause of action.\nThe superior court, however, expressly considered the validity\nof only the first cause of action, conversion.~ Reasoning that the\nremaining causes of action incorporated the earlier, defective\nallegations, the superior court sustained a general demurrer to\nthe entire complaint~.\nWith one justice dissenting, the Court of Appeal reversed,\nholding that the complaint did state a cause of action for\nconversion. The Court of Appeal agreed with the superior court\nthat the allegations against Genetics Institute and Sandoz were\ninsufficient, but directed the superior court to give Moore leave\nto amend. The Court of Appeal also directed the superior court\nto decide \xe2\x80\x9cthe remaining causes of action, which [had] never\nbeen expressly ruled upon.\xe2\x80\x9d\nIII. Discussion\nA. Breach of Fiduciary Duty and Lack of Informed Consent\n{The court discussed Moore\xe2\x80\x99s claims for breach of fiduciary\nduty and lack of informed consent. The court remanded to the\nCourt of Appeal, ordering it to: direct the trial court to overrule\nthe physician\xe2\x80\x99s demurrers to these causes of action and sustain,\nwith leave to amend, the demurrers of the four other defendants\nto the purported causes of action for breach of fiduciary duty\nand lack of informed consent. The court held that a physician\nwho is seeking a patient\xe2\x80\x99s consent for a medical procedure must,\nin order to satisfy his fiduciary duty and to obtain the patient\xe2\x80\x99s\ninformed consent, disclose personal interests unrelated to the\npatient\xe2\x80\x99s health, whether research or economic, that may affect\nhis medical judgment. \xe2\x80\x93 Ed. (compiled from clerk\xe2\x80\x99s case summary)}\nB. Conversion\nMoore also attempts to characterize the invasion of his rights as\na conversion \xe2\x80\x93 a tort that protects against interference with\npossessory and ownership interests in personal property. He\n\n260\n\n\x0ctheorizes that he continued to own his cells following their\nremoval from his body, at least for the purpose of directing their\nuse, and that he never consented to their use in potentially\nlucrative medical research. Thus, to complete Moore\xe2\x80\x99s\nargument, defendants\xe2\x80\x99 unauthorized use of his cells constitutes a\nconversion. As a result of the alleged conversion, Moore claims\na proprietary interest in each of the products that any of the\ndefendants might ever create from his cells or the patented cell\nline.\nNo court, however, has ever in a reported decision imposed\nconversion liability for the use of human cells in medical\nresearch. While that fact does not end our inquiry, it raises a flag\nof caution. In effect, what Moore is asking us to do is to impose\na tort duty on scientists to investigate the consensual pedigree of\neach human cell sample used in research. To impose such a\nduty, which would affect medical research of importance to all\nof society, implicates policy concerns far removed from the\ntraditional, two-party ownership disputes in which the law of\nconversion arose.\nConversion arose out of the common law action of trover. \xe2\x80\x9cWe\nprobably do not have the earliest examples of its use, but they\nwere almost certainly cases in which the finder of lost goods did\nnot return them, but used them himself, or disposed of them to\nsomeone else. ... By then allegations of the complaint had\nbecome more or less standardized: that the plaintiff was\npossessed of certain goods, that he casually lost them, that the\ndefendant found them, and that the defendant did not return\nthem, but instead \xe2\x80\x98converted them to his own use.\xe2\x80\x99 From that\nphrase in the pleading came the name of the tort.\xe2\x80\x9d (Prosser &\nKeeton, Torts (5th ed. 1984) \xc2\xa7 15, p. 89.)\nInvoking a tort theory originally used to determine whether the\nloser or the finder of a horse had the better title, Moore claims\nownership of the results of socially important medical research,\nincluding the genetic code for chemicals that regulate the\nfunctions of every human being\xe2\x80\x99s immune system. Moore\nalleges, for example, that \xe2\x80\x9cgenetic sequences ... are his tangible\npersonal property ....\xe2\x80\x9d We are not, however, bound by that\n\n261\n\n\x0cconclusion of law. Moreover, as already mentioned, the genetic\ncode for lymphokines does not vary from individual to\nindividual.\nWe have recognized that, when the proposed application of a\nvery general theory of liability in a new context raises important\npolicy concerns, it is especially important to face those concerns\nand address them openly. Moreover, we should be hesitant to\n\xe2\x80\x9cimpose [new tort duties] when to do so would involve complex\npolicy decisions\xe2\x80\x9d, especially when such decisions are more\nappropriately the subject of legislative deliberation and\nresolution. This certainly is not to say that the applicability of\ncommon law torts is limited to the historical or factual contexts\nof existing cases. But on occasions when we have opened or\nsanctioned new areas of tort liability, we \xe2\x80\x9chave noted that the\n\xe2\x80\x98wrongs and injuries involved were both comprehensible and\nassessable within the existing judicial framework.\xe2\x80\x9d\nAccordingly, we first consider whether the tort of conversion\nclearly gives Moore a cause of action under existing law. We do\nnot believe it does. Because of the novelty of Moore\xe2\x80\x99s claim to\nown the biological materials at issue, to apply the theory of\nconversion in this context would frankly have to be recognized\nas an extension of the theory. Therefore, we consider next\nwhether it is advisable to extend the tort to this context.\n1. Moore\xe2\x80\x99s Claim Under Existing Law\n\xe2\x80\x9cTo establish a conversion, plaintiff must establish an actual\ninterference with his ownership or right of possession. ... Where\nplaintiff neither has title to the property alleged to have been\nconverted, nor possession thereof, he cannot maintain an action\nfor conversion.\xe2\x80\x9d Since Moore clearly did not expect to retain\npossession of his cells following their removal, to sue for their\nconversion he must have retained an ownership interest in them.\nBut there are several reasons to doubt that he did retain any\nsuch interest. First, no reported judicial decision supports\nMoore\xe2\x80\x99s claim, either directly or by close analogy. Second,\nCalifornia statutory law drastically limits any continuing interest\nof a patient in excised cells. Third, the subject matters of the\n\n262\n\n\x0cRegents\xe2\x80\x99 patent \xe2\x80\x93 the patented cell line and the products derived\nfrom it \xe2\x80\x93 cannot be Moore\xe2\x80\x99s property.\nNeither the Court of Appeal\xe2\x80\x99s opinion, the parties\xe2\x80\x99 briefs, nor\nour research discloses a case holding that a person retains a\nsufficient interest in excised cells to support a cause of action\nfor conversion. We do not find this surprising, since the laws\ngoverning such things as human tissues, transplantable organs,\nblood, fetuses, pituitary glands, corneal tissue, and dead bodies\ndeal with human biological materials as objects sui generis,\nregulating their disposition to achieve policy goals rather than\nabandoning them to the general law of personal property.\n[The court provided footnotes for the foregoing list as follows:]\nhuman tissues \xe2\x80\x93 [No footnote.]\ntransplantable organs \xe2\x80\x93 \xef\x81\x81See the Uniform\nAnatomical Gift Act, Health and Safety Code\nsection 7150 et seq. The act permits a\ncompetent adult to \xe2\x80\x9cgive all or part of [his]\nbody\xe2\x80\x9d for certain designated purposes, including\n\xe2\x80\x9ctransplantation, therapy, medical or dental\neducation, research, or advancement of medical\nor dental science.\xe2\x80\x9d (Health & Saf. Code, \xc2\xa7\xc2\xa7 7151\n, 7153.) The act does not, however, permit the\ndonor to receive \xe2\x80\x9cvaluable consideration\xe2\x80\x9d for\nthe transfer. (Health & Saf. Code, \xc2\xa7 7155.)\xef\x81\x80\nblood \xe2\x80\x93 \xef\x81\x81See Health and Safety Code section\n1601 et seq., which regulates the procurement,\nprocessing, and distribution of human blood.\nHealth and Safety Code section 1606 declares\nthat\n\xe2\x80\x9c[t]he\nprocurement,\nprocessing,\ndistribution, or use of whole blood, plasma,\nblood products, and blood derivatives for the\npurpose of injecting or transfusing the same ...\nis declared to be, for all purposes whatsoever,\nthe rendition of a service ... and shall not be\nconstrued to be, and is declared not to be, a sale\n... for any purpose or purposes whatsoever.\xe2\x80\x9d\xef\x81\x80\nfetuses \xe2\x80\x93 \xef\x81\x81See Health and Safety Code section\n7054.3 : \xe2\x80\x9cNotwithstanding any other provision\n\n263\n\n\x0cof law, a recognizable dead human fetus of less\nthan 20 weeks uterogestation not disposed of by\ninterment shall be disposed of by\nincineration.\xe2\x80\x9d\xef\x81\x80\npituitary glands \xe2\x80\x93 \xef\x81\x81See Government Code\nsection 27491.46 : \xe2\x80\x9cThe coroner [following an\nautopsy] shall have the right to retain pituitary\nglands solely for transmission to a university, for\nuse in research or the advancement of medical\nscience\xe2\x80\x9d (id., subd. (a)) or \xe2\x80\x9cfor use in\nmanufacturing a hormone necessary for the\nphysical growth of persons who are, or may\nbecome, hypopituitary dwarfs ...\xe2\x80\x9d (id. , subd.\n(b)).\xef\x81\x80\ncorneal tissue \xe2\x80\x93 \xef\x81\x81See Government Code section\n27491.47 : \xe2\x80\x9cThe coroner may, in the course of\nan autopsy [and subject to specified conditions],\nremove ... corneal eye tissue from a body ...\xe2\x80\x9d (id.\n, subd. (a)) for \xe2\x80\x9ctransplant, therapeutic, or\nscientific purposes\xe2\x80\x9d (id. , subd. (a)(5)).\xef\x81\x80\ndead bodies \xe2\x80\x93 \xef\x81\x81See Health and Safety Code\nsection 7000 et seq. While the code does not\npurport to grant property rights in dead bodies,\nit does give the surviving spouse, or other\nrelatives, \xe2\x80\x9c[t]he right to control the disposition\nof the remains of a deceased person, unless\nother directions have been given by the\ndecedent ....\xe2\x80\x9d (Health & Saf. Code, \xc2\xa7 7100.)\xef\x81\x80\nIt is these specialized statutes, not the law of conversion, to\nwhich courts ordinarily should and do look for guidance on the\ndisposition of human biological materials.\nLacking direct authority for importing the law of conversion\ninto this context, Moore relies, as did the Court of Appeal,\nprimarily on decisions addressing privacy rights.~ One line of\ncases involves unwanted publicity. (Lugosi v. Universal Pictures\n(1979) 25 Cal.3d 813; Motschenbacher v. R. J. Reynolds Tobacco\nCompany (9th Cir. 1974) 498 F.2d 821.) These opinions hold that\nevery person has a proprietary interest in his own likeness and\n\n264\n\n\x0cthat unauthorized, business use of a likeness is redressible as a\ntort. But in neither opinion did the authoring court expressly\nbase its holding on property law. Each court stated, following\nProsser, that it was \xe2\x80\x9cpointless\xe2\x80\x9d to debate the proper\ncharacterization of the proprietary interest in a likeness. For\npurposes of determining whether the tort of conversion lies,\nhowever, the characterization of the right in question is far from\npointless. Only property can be converted.\nNo party has cited a decision supporting Moore\xe2\x80\x99s argument that\nexcised cells are \xe2\x80\x9ca species of tangible personal property capable\nof being converted.\xe2\x80\x9d On this point the Court of Appeal cited\nonly Venner v. State (1976) 30 Md.App. 599, which dealt with the\nseizure of a criminal defendant\xe2\x80\x99s feces from a hospital bedpan\nby police officers searching for narcotics. The court held that\nthe defendant had abandoned his excrement for purposes of the\nFourth Amendment.\nIn dictum, the Venner court observed that \xe2\x80\x9c[i]t is not unknown\nfor a person to assert a continuing right of ownership,\ndominion, or control, for good reason or for no reason, over\nsuch things as excrement, fluid waste, secretions, hair,\nfingernails, toenails, blood, and organs or other parts of the\nbody ....\xe2\x80\x9d This slender reed, alone, supported the Court of\nAppeal\xe2\x80\x99s conclusion in the case before us that \xe2\x80\x9cit cannot be said\nthat a person has no property right in materials which were once\npart of his body.\xe2\x80\x9d However, because Venner involved a criminalprocedure dispute over the suppression of evidence, and not a\ncivil dispute over who was entitled to the economic benefit of\nproperty, the opinion is grounded in markedly different polices\nand has little relevance to the case before us.\nNot only are the wrongful-publicity cases irrelevant to the issue\nof conversion, but the analogy to them seriously misconceives\nthe nature of the genetic materials and research involved in this\ncase. Moore, adopting the analogy originally advanced by the\nCourt of Appeal, argues that \xe2\x80\x9c[i]f the courts have found a\nsufficient proprietary interest in one\xe2\x80\x99s persona, how could one\nnot have a right in one\xe2\x80\x99s own genetic material, something far\nmore profoundly the essence of one\xe2\x80\x99s human uniqueness than a\n\n265\n\n\x0cname or a face?\xe2\x80\x9d However, as the defendants\xe2\x80\x99 patent makes\nclear \xe2\x80\x93 and the complaint, too, if read with an understanding of\nthe scientific terms which it has borrowed from the patent \xe2\x80\x93 the\ngoal and result of defendants\xe2\x80\x99 efforts has been to manufacture\nlymphokines.\nInside the cell, a gene produces a lymphokine~ by attracting\nprotein molecules, which bond to form a strand of \xe2\x80\x9cmessenger\nRNA\xe2\x80\x9d (mRNA) in the mirror image of the gene. The mRNA\nstrand then detaches from the gene and attracts other protein\nmolecules, which bond to form the lymphokine that the original\ngene encoded. (OTA Rep., supra , at pp. 38-44.)\nIn the laboratory, scientists sometimes use genes to manufacture\nlymphokines by cutting a gene from the chromosome and\ngrafting it onto the chromosome of a bacterium. The resulting\nchromosome is an example of \xe2\x80\x9crecombinant DNA,\xe2\x80\x9d or DNA\ncomposed of genetic material from more than one individual or\nspecies. As the bacterium lives and reproduces, the engrafted\ngene continues to produce the lymphokine that the gene\nencodes.\nIt can be extremely difficult to identify the gene that carries the\ncode for a particular lymphokine. \xe2\x80\x9cSince the amount of DNA in\na human cell is enormous compared to the amount present in an\nindividual gene, the search for any single gene within a cell is like\nsearching for needle in a haystack.\xe2\x80\x9d As the Regents\xe2\x80\x99 patent\napplication explains, the significance of a cell that overproduces\nmRNA is to make the difficult search for a particular gene\nunnecessary. (U.S. Patent No. 4,438,032 (Mar. 20, 1984) at col.\n2.) If one has an adequate source of mRNA \xe2\x80\x93 the gene\xe2\x80\x99s mirror\nimage \xe2\x80\x93 it can be used to make a copy, or clone, of the original\ngene. The cloned gene can then be used in recombinant DNA,\nas already described, for large-scale production of lymphokines.\nLymphokines, unlike a name or a face, have the same molecular\nstructure in every human being and the same, important\nfunctions in every human being\xe2\x80\x99s immune system. Moreover,\nthe particular genetic material which is responsible for the\nnatural production of lymphokines, and which defendants use to\nmanufacture lymphokines in the laboratory, is also the same in\n\n266\n\n\x0cevery person; it is no more unique to Moore than the number of\nvertebrae in the spine or the chemical formula of hemoglobin.\nBy definition, a gene responsible for producing a protein found\nin more than one individual will be the same in each. It is\nprecisely because everyone needs the same basic proteins that\nproteins produced by one person\xe2\x80\x99s cells may have therapeutic\nvalue for another person.~ Thus, the proteins that defendants\nhope to manufacture \xe2\x80\x93 lymphokines such as interferon \xe2\x80\x93 are in\nno way a \xe2\x80\x9clikeness\xe2\x80\x9d of Moore.~\nThe next consideration that makes Moore\xe2\x80\x99s claim of ownership\nproblematic is California statutory law, which drastically limits a\npatient\xe2\x80\x99s control over excised cells. Pursuant to Health and\nSafety Code section 7054.4 , \xe2\x80\x9c[n]otwithstanding any other\nprovision of law, recognizable anatomical parts, human tissues,\nanatomical human remains, or infectious waste following\nconclusion of scientific use shall be disposed of by interment,\nincineration, or any other method determined by the state\ndepartment [of health services] to protect the public health and\nsafety.\xe2\x80\x9d Clearly the Legislature did not specifically intend this\nstatute to resolve the question of whether a patient is entitled to\ncompensation for the nonconsensual use of excised cells. A\nprimary object of the statute is to ensure the safe handling of\npotentially hazardous biological waste materials. Yet one cannot\nescape the conclusion that the statute\xe2\x80\x99s practical effect is to\nlimit, drastically, a patient\xe2\x80\x99s control over excised cells. By\nrestricting how excised cells may be used and requiring their\neventual destruction, the statute eliminates so many of the rights\nordinarily attached to property that one cannot simply assume\nthat what is left amounts to \xe2\x80\x9cproperty\xe2\x80\x9d or \xe2\x80\x9cownership\xe2\x80\x9d for\npurposes of conversion law.\nIt may be that some limited right to control the use of excised\ncells does survive the operation of this statute. There is, for\nexample, no need to read the statute to permit \xe2\x80\x9cscientific use\xe2\x80\x9d\ncontrary to the patient\xe2\x80\x99s expressed wish. A fully informed\npatient may always withhold consent to treatment by a physician\nwhose research plans the patient does not approve. That right,\n\n267\n\n\x0chowever, as already discussed, is protected by the fiduciary-duty\nand informed-consent theories.\nFinally, the subject matter of the Regents\xe2\x80\x99 patent \xe2\x80\x93 the patented\ncell line and the products derived from it \xe2\x80\x93 cannot be Moore\xe2\x80\x99s\nproperty. This is because the patented cell line is both factually\nand legally distinct from the cells taken from Moore\xe2\x80\x99s body.\nFederal law permits the patenting of organisms that represent\nthe product of \xe2\x80\x9chuman ingenuity,\xe2\x80\x9d but not naturally occurring\norganisms. Human cell lines are patentable because \xe2\x80\x9c[l]ong-term\nadaptation and growth of human tissues and cells in culture is\ndifficult \xe2\x80\x93 often considered an art ... ,\xe2\x80\x9d and the probability of\nsuccess is low. (OTA Rep., supra , at p. 33~.) It is this inventive\neffort that patent law rewards, not the discovery of naturally\noccurring raw materials. Thus, Moore\xe2\x80\x99s allegations that he owns\nthe cell line and the products derived from it are inconsistent\nwith the patent, which constitutes an authoritative determination\nthat the cell line is the product of invention.\nThe distinction between primary cells (cells taken directly from\nthe body) and patented cell lines is not purely a legal one. Cells\nchange while being developed into a cell line and continue to\nchange over time. \xe2\x80\x9c[I]t is clear that most established cell lines ...\nare not completely normal. Besides [an] enhanced growth\npotential relative to primary cells, they frequently have highly\nabnormal chromosome numbers ....\xe2\x80\x9d (2 Watson et al., Molecular\nBiology of the Gene (4th ed. 1987) p. 967.)\nThe cell line in this case, for example, after many replications\nbegan to generate defective and rearranged forms of the HTLVII virus. A published research paper to which defendants\ncontributed suggests that \xe2\x80\x9cthe defective forms of virus were\nprobably generated during the passage [or replication] of the\ncells rather than being present in the original tumour cells of the\npatient.\xe2\x80\x9d Possibly because of these changes in the virus, the cell\nline has developed new abilities to grow in different media.\n(Chen, McLaughlin, Gasson, Clark & Golde, Molecular\nCharacterization of Genome of a Novel Human T-cell Leukaemia Virus ,\nNature (Oct. 6, 1983) vol. 305, p. 505.)\n\n268\n\n\x0cWe find it interesting that Justice Mosk, in his dissent, would\nobject to our \xe2\x80\x9csummar[y] of the salient conclusions\xe2\x80\x9d (People v.\nGuerra (1984) 37 Cal.3d 385, 412 [opn. by Mosk, J.]) of relevant\nscientific literature in setting forth the technological background\nof this case. (Dis. opn. of Mosk, J., post , at p. 182.) This court\nhas previously cited scientific literature to show, for example,\nthat reports of hypnotic recall \xe2\x80\x9cform[ed] a scientifically\ninadequate basis for drawing conclusions about the memory\nprocesses of the large majority of the population\xe2\x80\x9d (People v.\nShirley (1982) 31 Cal.3d 18, 59 [opn. by Mosk, J.]), and that\neyewitness testimony can be unreliable (People v. McDonald (1984)\n37 Cal.3d 351, 365-367 [opn. by Mosk, J.]).\n2. Should Conversion Liability Be Extended?\nAs we have discussed, Moore\xe2\x80\x99s novel claim to own the\nbiological materials at issue in this case is problematic, at best.\nAccordingly, his attempt to apply the theory of conversion\nwithin this context must frankly be recognized as a request to\nextend that theory. While we do not purport to hold that\nexcised cells can never be property for any purpose whatsoever,\nthe novelty of Moore\xe2\x80\x99s claim demands express consideration of\nthe policies to be served by extending liability rather than blind\ndeference to a complaint alleging as a legal conclusion the\nexistence of a cause of action.\nThere are three reasons why it is inappropriate to impose\nliability for conversion based upon the allegations of Moore\xe2\x80\x99s\ncomplaint. First, a fair balancing of the relevant policy\nconsiderations counsels against extending the tort. Second,\nproblems in this area are better suited to legislative resolution.\nThird, the tort of conversion is not necessary to protect patients\xe2\x80\x99\nrights. For these reasons, we conclude that the use of excised\nhuman cells in medical research does not amount to a\nconversion.\nOf the relevant policy considerations, two are of overriding\nimportance. The first is protection of a competent patient\xe2\x80\x99s right\nto make autonomous medical decisions. That right, as already\ndiscussed, is grounded in well-recognized and long-standing\nprinciples of fiduciary duty and informed consent. This policy\n\n269\n\n\x0cweighs in favor of providing a remedy to patients when\nphysicians act with undisclosed motives that may affect their\nprofessional judgment. The second important policy\nconsideration is that we not threaten with disabling civil liability\ninnocent parties who are engaged in socially useful activities,\nsuch as researchers who have no reason to believe that their use\nof a particular cell sample is, or may be, against a donor\xe2\x80\x99s\nwishes.\nTo reach an appropriate balance of these policy considerations\nis extremely important. In its report to Congress, the Office of\nTechnology Assessment emphasized that \xe2\x80\x9c[u]ncertainty about\nhow courts will resolve disputes between specimen sources and\nspecimen users could be detrimental to both academic\nresearchers and the infant biotechnology industry, particularly\nwhen the rights are asserted long after the specimen was\nobtained. The assertion of rights by sources would affect not\nonly. the researcher who obtained the original specimen, but\nperhaps other researchers as well.\n\xe2\x80\x9cBiological materials are routinely distributed to other\nresearchers for experimental purposes, and scientists who obtain\ncell lines or other specimen-derived products, such as gene\nclones, from the original researcher could also be sued under\ncertain legal theories [such as conversion]. Furthermore, the\nuncertainty could affect product developments as well as\nresearch. Since inventions containing human tissues and cells\nmay be patented and licensed for commercial use, companies\nare unlikely to invest heavily in developing, manufacturing, or\nmarketing a product when uncertainty about clear title exists.\xe2\x80\x9d\nIndeed, so significant is the potential obstacle to research\nstemming from uncertainty about legal title to biological\nmaterials that the Office of Technology Assessment reached this\nstriking conclusion: \xe2\x80\x9c[R]egardless of the merit of claims by the\ndifferent interested parties, resolving the current uncertainty\nmay be more important to the future of biotechnology than\nresolving it in any particular way.\xe2\x80\x9d (OTA Rep., supra , at p. 27 .)\nWe need not, however, make an arbitrary choice between\nliability and nonliability. Instead, an examination of the relevant\n\n270\n\n\x0cpolicy considerations suggests an appropriate balance: Liability\nbased upon existing disclosure obligations, rather than an\nunprecedented extension of the conversion theory, protects\npatients\xe2\x80\x99 rights of privacy and autonomy without unnecessarily\nhindering research.\nTo be sure, the threat of liability for conversion might help to\nenforce patients\xe2\x80\x99 rights indirectly. This is because physicians\nmight be able to avoid liability by obtaining patients\xe2\x80\x99 consent, in\nthe broadest possible terms, to any conceivable subsequent\nresearch use of excised cells. Unfortunately, to extend the\nconversion theory would utterly sacrifice the other goal of\nprotecting innocent parties. Since conversion is a strict liability\ntort, it would impose liability on all those into whose hands the\ncells come, whether or not the particular defendant participated\nin, or knew of, the inadequate disclosures that violated the\npatient\xe2\x80\x99s right to make an informed decision.\n\xe2\x80\x9c\xe2\x80\x98The foundation for the action for conversion rests neither in\nthe knowledge nor the intent of the defendant. ... [Instead,] \xe2\x80\x9cthe\ntort consists in the breach of what may be called an absolute\nduty; the act itself ... is unlawful and redressible as a tort.\xe2\x80\x9d\xe2\x80\x99\n\xe2\x80\x9cConversion is a species of strict liability in which questions of\ngood faith, lack of knowledge and motive are ordinarily\nimmaterial.\xe2\x80\x9d\nIn contrast to the conversion theory, the fiduciary-duty and\ninformed-consent theories protect the patient directly, without\npunishing innocent parties or creating disincentives to the\nconduct of socially beneficial research.~\nThe extension of conversion law into this area will hinder\nresearch by restricting access to the necessary raw materials.\nThousands of human cell lines already exist in tissue\nrepositories, such as the American Type Culture Collection and\nthose operated by the National Institutes of Health and the\nAmerican Cancer Society. These repositories respond to tens of\nthousands of requests for samples annually. Since the patent\noffice requires the holders of patents on cell lines to make\nsamples available to anyone, many patent holders place their cell\nlines in repositories to avoid the administrative burden of\n\n271\n\n\x0cresponding to requests. At present, human cell lines are\nroutinely copied and distributed to other researchers for\nexperimental purposes, usually free of charge. This exchange of\nscientific materials, which still is relatively free and efficient, will\nsurely be compromised if each cell sample becomes the\npotential subject matter of a lawsuit.~\nJustice ALLEN BROUSSARD, concurring and dissenting:\n~When\n\nit turns to the conversion cause of action,~ the majority\nopinion fails to maintain its focus on the specific allegations\nbefore us. Concerned that the imposition of liability for\nconversion will impede medical research by innocent scientists\nwho use the resources of existing cell repositories \xe2\x80\x93 a factual\nsetting not presented here \xe2\x80\x93 the majority opinion rests its\nholding, that a conversion action cannot be maintained, largely\non the proposition that a patient generally possesses no right in\na body part that has already been removed from his body. Here,\nhowever, plaintiff has alleged that defendants interfered with his\nlegal rights before his body part was removed. Although a\npatient may not retain any legal interest in a body part after its\nremoval when he has properly consented to its removal and use\nfor scientific purposes, it is clear under California law that\nbefore a body part is removed it is the patient, rather than his\ndoctor or hospital, who possesses the right to determine the use\nto which the body part will be put after removal. If, as alleged in\nthis case, plaintiff\xe2\x80\x99s doctor improperly interfered with plaintiff\xe2\x80\x99s\nright to control the use of a body part by wrongfully\nwithholding material information from him before its removal,\nunder traditional common law principles plaintiff may maintain\na conversion action to recover the economic value of the right\nto control the use of his body part. Accordingly, I dissent from\nthe majority opinion insofar as it rejects plaintiff\xe2\x80\x99s conversion\ncause of action.~\nJustice STANLEY MOSK, dissenting:\nI dissent.~\nThe majority~ cite several statutes regulating aspects of the\ncommerce in or disposition of certain parts of the human body,\n\n272\n\n\x0cand conclude in effect that in the present case we should also\n\xe2\x80\x9clook for guidance\xe2\x80\x9d to the Legislature rather than to the law of\nconversion.~ Surely this argument is out of place in an opinion\nof the highest court of this state. As the majority acknowledge,\nthe law of conversion is a creature of the common law. \xe2\x80\x9c\xe2\x80\x98The\ninherent capacity of the common law for growth and change is\nits most significant feature. Its development has been\ndetermined by the social needs of the community which it\nserves. It is constantly expanding and developing in keeping\nwith advancing civilization and the new conditions and progress\nof society, and adapting itself to the gradual change of trade,\ncommerce, arts, inventions, and the needs of the country.\xe2\x80\x99~ In\nshort, as the United States Supreme Court has aptly said, \xe2\x80\x98This\nflexibility and capacity for growth and adaptation is the peculiar\nboast and excellence of the common law.\xe2\x80\x99~ ... Although the\nLegislature may of course speak to the subject, in the common\nlaw system the primary instruments of this evolution are the\ncourts, adjudicating on a regular basis the rich variety of\nindividual cases brought before them.\xe2\x80\x9d (Rodriguez v. Bethlehem\nSteel Corp. (1974) 12 Cal.3d 382, 394.)\nEspecially is this true in the field of torts. I need not review the\nmany instances in which this court has broken fresh ground by\nannouncing new rules of tort law: time and again when a new\nrule was needed we did not stay our hand merely because the\nmatter was one of first impression. For example, in Sindell v.\nAbbott Laboratories (1980) 26 Cal.3d 588, we adopted a \xe2\x80\x9cmarket\nshare\xe2\x80\x9d theory of liability for injury resulting from administration\nof a prescription drug and suffered by a plaintiff who without\nfault cannot trace the particular manufacturer of the drug that\ncaused the harm. Like the opinion in the case at bar, the dissent\nin Sindell objected that market share liability was \xe2\x80\x9ca wholly new\ntheory\xe2\x80\x9d and an \xe2\x80\x9cunprecedented extension of liability\xe2\x80\x9d, and urged\nthat in view of the economic, social, and medical effects of this\nnew rule the decision to adopt it should rest with the\nLegislature. We nevertheless declared the new rule for sound\npolicy reasons~.\nEven if we assume that section 7054.4 limited the use and\ndisposition of his excised tissue in the manner claimed by the\n\n273\n\n\x0cmajority, Moore nevertheless retained valuable rights in that\ntissue. Above all, at the time of its excision he at least had the\nright to do with his own tissue whatever the defendants did with it: i.e., he\ncould have contracted with researchers and pharmaceutical\ncompanies to develop and exploit the vast commercial potential\nof his tissue and its products. Defendants certainly believe that\ntheir right to do the foregoing is not barred by section 7054.4\nand is a significant property right, as they have demonstrated by\ntheir deliberate concealment from Moore of the true value of his\ntissue, their efforts to obtain a patent on the Mo cell line, their\ncontractual agreements to exploit this material, their exclusion\nof Moore from any participation in the profits, and their\nvigorous defense of this lawsuit. The Court of Appeal summed\nup the point by observing that \xe2\x80\x9cDefendants\xe2\x80\x99 position that\nplaintiff cannot own his tissue, but that they can, is fraught with\nirony.\xe2\x80\x9d It is also legally untenable.~\nMy respect for this court as an institution compels me to make\none last point: I dissociate myself completely from the amateur\nbiology lecture that the majority impose on us throughout their\nopinion. For several reasons, the inclusion of most of that\nmaterial in an opinion of this court is improper.\nFirst, with the exception of defendants\xe2\x80\x99 patent none of the\nmaterial in question is part of the record on appeal as defined by\nthe California Rules of Court. Because this appeal is taken from\na judgment of dismissal entered after the sustaining of general\nand special demurrers, there is virtually no record other than the\npleadings. The case has never been tried, and hence there is no\nevidence whatever on the obscure medical topics on which the\nmajority presume to instruct us. Instead, all the documents that\nthe majority rely on for their medical explanations appear in an\nappendix to defendant Golde\xe2\x80\x99s opening brief on the merits.\nSuch an appendix, however, is no more a part of the record than\nthe brief itself, because the record comprises only. the materials\nbefore the trial court when it made its ruling. Nor could Golde\nhave moved to augment the record to include any of these\ndocuments, because none was \xe2\x80\x9cpart of the original superior\ncourt file,\xe2\x80\x9d a prerequisite to such augmentation. \xe2\x80\x9cAs a general\n\n274\n\n\x0crule, documents not before the trial court cannot be included as\na part of the record on appeal.\xe2\x80\x9d\nSecond, most of these documents bear solely or primarily on the\nmajority\xe2\x80\x99s discussion of whether Moore\xe2\x80\x99s \xe2\x80\x9cgenetic material\xe2\x80\x9d was\nor was not \xe2\x80\x9cunique\xe2\x80\x9d, but that entire discussion is legally\nirrelevant to the present appeal. As Justice Broussard correctly\nobserves in his separate opinion, \xe2\x80\x9cthe question of uniqueness\nhas no proper bearing on plaintiff\xe2\x80\x99s basic right to maintain a\nconversion action; ordinary property, as well as unique property,\nis, of course, protected against conversion.\xe2\x80\x9d\nThird, this nonissue is also a noncontention. The majority claim\nthat \xe2\x80\x9cMoore relies ... primarily\xe2\x80\x9d on an analogy to certain rightof-privacy decisions, but this is not accurate. Under our rules, as\nin appellate practice generally, the parties to an appeal are\nconfined to the contentions raised in their briefs (see Cal. Rules\nof Court, rule 29.3). In his brief on the merits in this court\nMoore does not even cite, less still \xe2\x80\x9crely primarily,\xe2\x80\x9d on the rightof-privacy decisions discussed by the majority, nor does he draw\nany analogy to the rule of those decisions. It is true that in the\ncourse of oral argument before this court, counsel for Moore\nbriefly paraphrased the analogy argument that the majority now\nattribute to him; but a party may not, of course, raise a new\ncontention for the first time in oral argument.~\nI would affirm the decision of the Court of Appeal to direct the\ntrial court to overrule the demurrers to the cause of action for\nconversion.\n\nQuestions to Ponder About UC Regents v. Moore\nA. The court disapproves of John Moore\xe2\x80\x99s \xe2\x80\x9cclaims ownership of the\nresults of socially important medical research,\xe2\x80\x9d yet the court looks\napprovingly on the patent that UCLA obtained on Moore\xe2\x80\x99s cell line.\nThe court appears to make this differentiation on the basis that\nculturing a cell line is \xe2\x80\x9coften considered an art\xe2\x80\x9d and is a \xe2\x80\x9cproduct of\n\xe2\x80\x98human ingenuity.\xe2\x80\x99\xe2\x80\x9d Are you persuaded by this distinction? Should\nMoore be incapable of owning his excised cells while UCLA can\ncommercially exploit them?\n\n275\n\n\x0cB. The court says there is no support for Moore\xe2\x80\x99s claim that excised\ncells can be considered a kind of tangible property for purposes of\nconversion. Does that mean that no one could convert the cells from\nUCLA? Suppose researchers from a rival lab at USC managed to\nsurreptitiously take the excised cells from UCLA\xe2\x80\x99s lab, and USC\nsubsequently patented them, selling them for billions of dollars.\nWould UCLA have a claim for conversion against USC?\nC. Do you find the court\xe2\x80\x99s listing of California statutes as persuasive\non the point that human biological materials are not to be\n\xe2\x80\x9cabandon[ed] to the general law of personal property\xe2\x80\x9d?\nD. The court wrote that \xe2\x80\x9ca fully informed patient may always\nwithhold consent to treatment by a physician whose research plans\nthe patient does not approve. That right, however,~ is protected by\nthe fiduciary-duty and informed-consent theories.\xe2\x80\x9d Do you agree\nwith the court that these non-conversion claims sufficiently protect\nsuch a right? Note that Dr. David W. Golde personally received\nmillions of dollars from providing Moore\xe2\x80\x99s cell line to Genetics\nInstitute, and UCLA may have received much more, with the overall\nworth being perhaps $3 billion. Suppose you were a lawyer for UCLA\nand Golde as they contemplated how to deal with Moore, and\nsuppose you could accurately predict how this case would come out.\nWould you advise your clients to fully inform Moore about the\nintended research? Or would you advise them to proceed exactly as\nthey did?\n\n276\n\n\x0c22. Defenses to Intentional\nTorts\n\xe2\x80\x9cThere\xe2\x80\x99s only one basic principle of self-defense: You must\napply the most effective weapon, as soon as possible, to the\nmost vulnerable target.\xe2\x80\x9d\n\xe2\x80\x93 Bruce Lee\n\nIntroduction\nThe elements of the causes of action for the intentional torts are only\nhalf the story. The intentional torts would be incomprehensible\nwithout their accompanying defenses \xe2\x80\x93 consent, self-defense, defense\nof others, and necessity. All of these are crucial to understanding the\nfull landscape of intentional tort liability.\n\nConsent\nConsent is the most important defense to intentional torts, and it is\nubiquitous. Without it, every shutting of elevator doors would be\nactionable false imprisonment, every kiss of newlyweds would be\nactionable battery, and every haunted house at Halloween would\ngenerate an avalanche of actionable assaults.\nWhat is seemingly strange about consent is that, at least in the\ntraditional common-law formulation, it is a defense. That means that\nit is the defendant\xe2\x80\x99s burden of proof to show consent. So, technically,\na person who sends out party invitations could sue everyone who\ncame to the party for trespass and make out a prima facie case against\neach one. In court, the burden would fall on the party guests to prove\nthat they were on the plaintiff\xe2\x80\x99s land with the plaintiff\xe2\x80\x99s consent. This\nmay seem absurd way to structure the doctrine. Yet asking the\nplaintiff to prove lack of consent as a prima facie element would\nmean asking the plaintiff to prove a negative. That is something most\ncourts are unwilling to do \xe2\x80\x93 at least in this context.\n\n277\n\n\x0cLet\xe2\x80\x99s take a slightly more realistic example than the vexatiously\nlitigious party host. Suppose that a contractor demolishes the\nattached garage of someone\xe2\x80\x99s house. Because consent is a defense, it\nis not the homeowner\xe2\x80\x99s burden to prove that the contractor did not\nhave permission. Instead, the contractor will need to offer proof that\nthere was consent. In this case, it seems intuitively fair to ask that the\ncontractor be able to produce a preponderance of evidence of\nconsent \xe2\x80\x93 such as a document signed by the homeowner.\nNotwithstanding the problems of proving a negative, the courts in\nmany states hold that lack of consent is a prima facie element for the\nintentional torts other than trespass to land. The plaintiff may\naccomplish this as an initial matter by testifying that there was no\nconsent. Then it is up to the defendant to impeach or rebut that\ntestimony. Yet putting the burden on the plaintiff for lack of consent\nis not without effect. In a close case, where the factfinder perceives\nthe evidence to be a toss- up, the tie will go in favor of the party\nwithout the burden of proof. So, in an jurisdiction where a battery\nclaim requires proof of a lack of consent, a tie on the consent issue\nmeans that the defendant wins. The fact that trespass to land is the\none tort for which courts seem unwilling to shift the burden on the\nconsent issue to the plaintiff shows once again the abiding\nimportance with which the law treats private ownership of land.\nTo delve further into the issue of consent, it is helpful to break it up\ninto chunks. Courts have categorized consent as coming in two\nforms \xe2\x80\x93 express and implied.\nExpress Consent\nExpress consent is consent that is expressed by the plaintiff. This\ndoesn\xe2\x80\x99t require anything formal. Express consent can be\ncommunicated orally, in writing, or even in gestures. Legally, any of\nthese is just as good as the other. In terms of trespass to land, waving\nsomeone into a room is just as valid a consent as delivering a signed\nwritten document that gives someone permission to enter.\nYou might wonder, if gestures or spoken words are legally valid to\nexpress consent, then why would anyone ever insist on a signed\ndocument indicating consent? The reason is that parties might later\n\n278\n\n\x0cdisagree about what happened. In that case, a signed writing will be\nvery credible evidence at trial.\nWe should acknowledge that what is credible to a jury may depend\non the circumstances. If a neighbor is sued for walking into a\nbackyard, a jury will probably readily believe testimony that there was\na \xe2\x80\x9ccome on over\xe2\x80\x9d gesture. But a jury would be rightfully skeptical of\na demolition firm claiming it was given consent through gestures to\nbulldoze a garage.\nWhat this all means is that the doctrine of express consent is\nperfectly at home in the real world. Neighbors can stay neighborly\nand informal. But demolition firms are well advised to get signed,\nwritten permission before they bite into the first bucketload of\nsheetrock.\nImplied Consent\nImplied consent is consent that, instead of being expressed, is\nimplied. Circumstances, custom, context, and culture can all create\nimplications of consent.\nThe validity of implied consent to intentional torts is crucial to how\nour society works. A restaurant patron takes a paper napkin out of a\ndispenser and uses it. This is a prima facie case of trespass to chattels.\nBut it\xe2\x80\x99s not a winning case, because there is implied consent for\nrestaurant patrons to take napkins. Of course if a restaurant patron\nempties all the dispensers, making off with hundreds of napkins, then\nthe scope of the implied consent has been exceeded, and the\nrestaurant has a good trespass-to-chattels case.\nImplied consent works on an objective standard. The question is\nwhether the objectively reasonable person, standing in the shoes of\nthe defendant, would have reasonably believed that the plaintiff\nconsented.\nImplied consent can arise out of the particular circumstances. Climb\ninto a boxing ring and hold up gloved hands, and you have impliedly\nconsented to getting punched by the boxer waiting in the ring.\nImplied consent can also arise by community custom. When\nneighborhood kids walk up to a house and ring the doorbell to sell\n\n279\n\n\x0ccookies for a fundraiser, consent to come on the land is implied by\ncommunity custom. If homeowners want to avoid the implication of\nconsent, then they can post no-soliciting signs.\nThe objective standard for implied consent leaves us with an\nimportant corollary: Consent can be valid even if the plaintiff never\nintended to consent. This is because the issue is not what the plaintiff\nwas secretly thinking, but rather what the objectively reasonable\ndefendant would comprehend.\nThe implied consent defense and its objective standard is often\ntaught through the classic case of O\xe2\x80\x99Brien v. Cunard Steam-Ship Co., 28\nN.E. 266 (Mass. 1891). Mary O\xe2\x80\x99Brien \xe2\x80\x93 a young Irish immigrant on\nher way to Boston \xe2\x80\x93 sued the operator of an ocean liner for battery\non account of having been given a vaccination for smallpox. The\nsteamship line was in the practice of giving vaccinations at the time\nbecause of American immigration procedures. The evidence,\naccording to the Massachusetts Supreme Judicial Court, showed that\nO\xe2\x80\x99Brien stood in a line of people about to receive vaccinations and\nthat, when her time came, she held up her arm and said nothing to\nthe physician about a wish to not be vaccinated. According to the\ncourt:\n[T]he surgeon\xe2\x80\x99s conduct must be considered in\nconnection with the surrounding circumstances.\nIf the plaintiff\xe2\x80\x99s behavior was such as to indicate\nconsent on her part, he was justified in his act,\nwhatever her unexpressed feelings may have\nbeen.\n\n28 N.E. at 266. The appellate opinion leaves it a mystery why\nO\xe2\x80\x99Brien sued over being vaccinated \xe2\x80\x93 making it seem as though she\nhad nothing of substance to complain about. Professor Ann C.\nShalleck, however, looked into lower-court records in the case to find\na richer version of the facts: The vaccine left O\xe2\x80\x99Brien covered with\nblisters and sores, and the court dismissed evidence of O\xe2\x80\x99Brien\xe2\x80\x99s\ndesire not to be vaccinated, including her statement that she had\nalready been vaccinated. Professor Shalleck observes that the court\nmade assumptions about the circumstances on the ship that allowed\nthem to \xe2\x80\x9cdisregard or obliterate Mary O\xe2\x80\x99Brien\xe2\x80\x99s own story.\xe2\x80\x9d See Ann\n\n280\n\n\x0cC. Shalleck, Feminist Legal Theory and the Reading of O\xe2\x80\x99Brien v. Cunard,\n57 MO. L. REV. 371 (1992).\nIndeed, it is the oft-cited aim of the cause of action of battery to give\npeople a way \xe2\x80\x93 by being heard in court \xe2\x80\x93 to vindicate and validate\ntheir interest in bodily integrity. (How else does one explain the law\xe2\x80\x99s\nprovision for symbolic awards of $1 in nominal damages?) One way\nof looking at the O\xe2\x80\x99Brien case, then, is that in washing away the\nplaintiff\xe2\x80\x99s story, the court undermined a central aim of the tort of\nbattery and a main tenet of the legal system: to give an aggrieved\nperson the right to be heard and to have her or his personal\nautonomy upheld.\nProfessor Shalleck points to the O\xe2\x80\x99Brien case as an example of the\nimportance of discovering women\xe2\x80\x99s stories. Doing so, she points out,\ncan allow us to see how the official version of a case\xe2\x80\x99s facts are\nshaped and misrepresented. And she explains that doing so can also\nallow us to critique a judge\xe2\x80\x99s understanding of a case. In explaining\nwhy a feminist perspective is important generally in learning the law,\nShalleck observes, \xe2\x80\x9cFeminist theory does not add ideology to the\ncurriculum. It reveals the ideology that is already there.\xe2\x80\x9d\n\nCase: Florida Publishing Co. v. Fletcher\nTo further explore the consent defense, here we have the first of\ntwo cases pitting the news media against the private property\nowners. Both cases share the same fundamental tension: The media\nwants to get the story, and the property owners want to be left\nalone.\nIn this first case, the issue is whether camera-wielding journalists\nhave implied consent to enter private property after a disaster in\norder to capture vivid images of fresh tragedy.\n\nFlorida Publishing Co. v. Fletcher\nSupreme Court of Florida\nOctober 7, 1976\n340 So. 2d 914. FLORIDA Publishing Company, a Florida\nCorporation, Petitioner (Defendant), v. Klenna Ann Fletcher,\n\n281\n\n\x0cEtc., Respondent (Plaintiffs). No. 48372. Opinion by\nROBERTS, J., with which OVERTON, C.J., and ADKINS,\nBOYD and HATCHETT, JJ., concur. SUNDBERG, J.,\ndissented with an opinion omitted here. ENGLAND, J., did not\nparticipate.\nJustice B.K. ROBERTS:\n~Respondent,\n\nMrs. Fletcher, left Jacksonville for New York on\nSeptember 15, 1972, to visit a friend. She left in Jacksonville her\nthree young daughters, including seventeen-year-old Cindy. A\n\xe2\x80\x9cbaby sitter\xe2\x80\x9d was to spend the nights with the children, but\nthere was no one with them in the home during the daytime\nexcept a young man who had a room in the house and whom\nMrs. Fletcher described as Cindy\xe2\x80\x99s \xe2\x80\x9cboy friend.\xe2\x80\x9d On the\nafternoon of September 15, 1972, while Cindy was alone in the\nhouse, a fire of undetermined origin did large damage to the\nhome, and Cindy died.\nThe fire and police departments were called by a neighbor who\ndiscovered the fire, but too late to save the child. A large group\nof firemen, news media representatives, and onlookers gathered\nat the scene and on Mrs. Fletcher\xe2\x80\x99s property.\nWhen the Fire Marshal and Police Sergeant Short entered the\nhouse to make their official investigation, they invited the news\nmedia to accompany them, as they deposed was their standard\npractice. The media representatives entered through the open\ndoor; there was no objection to their entry; they entered quietly\nand peaceably; they did no damage to the property; and their\nentry was for the purpose of their news coverage of this fire and\ndeath.\nThe Fire Marshal desired a clear picture of the \xe2\x80\x9csilhouette\xe2\x80\x9d left\non the floor after the removal of Cindy\xe2\x80\x99s body. He and Sergeant\nShort in their depositions explained that the picture was\nimportant for their respective investigations to show that the\nbody was already on the floor before the heat of the fire did any\ndamage in the room. The Fire Marshal took one polaroid\npicture of the silhouette, but it was not too clear, he had no\nfurther film, and he requested photographer Cranford to take\n\n282\n\n\x0cthe \xe2\x80\x9csilhouette\xe2\x80\x9d picture which was made a part of the official\ninvestigation file of both the Fire and Police.\nThis picture was not only a part of the investigation but News\nPhotographer Cranford turned it and his other pictures over to\nthe defendant newspaper. It and several other pictures appeared\nin the news story of The Florida Times-Union on September 16,\n1972.\nRespondent first learned of the facts surrounding the death of\nher daughter by reading the newspaper story and viewing the\npublished photographs.\nRespondent filed an amended complaint against petitioner\nalleging (1) trespass and invasion of privacy, (2) invasion of\nprivacy, (3) wrong intentional infliction of emotional distress \xe2\x80\x93\nseeking punitive damages.\nThe trial court dismissed Count II and granted final summary\njudgment for petitioner as to Counts I and III. Relative to the\ngranting of summary judgment for Petitioner as to Count I, the\ntrial judge cogently explicated:\n\xe2\x80\x9cAs to Count I, the question raised by the\nmotion for summary judgment is one of law as\nthere is no genuine issue of material fact. The\nquestion raised is whether the trespass alleged in\nCount I of the complaint was consented to by\nthe doctrine of common custom and usage.\n\xe2\x80\x9cThe law is well settled in Florida and elsewhere\nthat there is no unlawful trespass when\npeaceable entry is made, without objection,\nunder common custom and usage.~\n\xe2\x80\x9cIn Martin v. Struthers (1943) 319 U.S. 141, 149,\nthe Court struck down an unconstitutional and\n\xe2\x80\x98invalid in conflict with the freedom of speech\nand press\xe2\x80\x99 a city ordinance which made it\nunlawful trespass to knock on doors and ring\ndoorbells to distribute literature. In so doing, it\nmade the far reaching pronouncement followed\nby the Florida Supreme Court in Prior v. White\n(Fla. 1938) 132 Fla. 1:\n\n283\n\n\x0c\xe2\x80\x9c\xe2\x80\x98Traditionally the American law punishes\npersons who enter onto the property of another\nafter having been warned by the owner to keep\noff. * * We know of no state which, as does the\nStruthers ordinance in effect, makes a person a\ncriminal trespasser if he enters the property of\nanother for an innocent purpose without an\nexplicit command from the owners to stay\naway.\xe2\x80\x99\n\xe2\x80\x9cIn McKee v. Gratz (1922) 262 [260] U.S. 127, the\nSupreme Court recognized the rule that it was\nnot trespass when under the \xe2\x80\x98habits of the\ncountry\xe2\x80\x99 entry was commonly made.\n******\n\xe2\x80\x9cNot only did the Fire Marshal and Detective\nSergeant Short testify it was common custom\nand usage to permit the news media to enter\nunder the circumstances here, and of the great\nnumber of times they had permitted it in private\nhomes, but many affidavits were filed to the\nsame effect, including those of Duval County\nSheriff Carson and Florida Attorney General\nShevin.\n\xe2\x80\x9cSimilar affidavits have been filed from the\nChicago Tribune; the ABC-TV News, New\nYork; the Tallahassee Democrat; the Pensacola\nJournal; the Associated Press; the President of\nthe\nAmerican\nNewspaper\nPublishers\nAssociation; the President of the Radio\nTelevision News Directors Association; the\nMiami Herald; United Press International; The\nFlorida Times-Union and Jacksonville Journal;\nThe Washington Post; TV-12 at Jacksonville;\nTV-10 at Miami; TV-4 at Jacksonville; the New\nYork Daily News; the Milwaukee Journal; the\nBirmingham Post-Herald; the Memphis\nCommercial Appeal; the Macon Telegraph; and\nthe Tampa Tribune; all attesting that it is\ncommon usage, custom and practice for news\n\n284\n\n\x0cmedia to enter private premises and homes\nunder circumstances like those here.\n\xe2\x80\x9cPlaintiff filed no affidavits except her own; she\nmakes no attempt to qualify as an expert; and\nshe simply states her personal belief generally,\nwithout going into the situation involving\ncoverage of a news story of public interest. She\nshows no qualifications to make an affidavit on\nthe custom and usage in such matters.\n\xe2\x80\x9cIn Mrs. Fletcher\xe2\x80\x99s deposition, she stated she\nwas in New York at the time of the fire; there\nwas no one at the scene who objected to the\nentry; and she makes it clear she does not\ncontend there was any force used for entry, or\nany physical damage done to the premises.\n\xe2\x80\x9cPlaintiff likewise concedes that it was perfectly\nproper for the Fire and Police to enter without\npermission. The Fire and Police used the picture\nas part of their official investigation and actually\nrequested that such picture be taken and would\nhave made such request even had the Plaintiff\nbeen there and objected. There is no evidence\nthat any restriction was placed upon the\nDefendant\xe2\x80\x99s photographer in the use of the\nphotographs he took at the request of the Police\nand Fire Marshal.\n\xe2\x80\x9cNumerous affidavits, as above set forth, have\nbeen filed by the Defendant in support of its\nmotion for summary judgments. All these\naffidavits attest to the fact that it is common\nusage, custom and practice for news media to\nenter private premises and homes to report on\nmatters of public interest or a public event. The\ncourt therefore finds that there is no genuine\nissue of material fact and that as a matter of law\nan entry, that may otherwise be an actionable\ntrespass, becomes lawful and non-actionable\nwhen it is done under common usage, custom\nand practice. The court further finds that the\nentry complained of in Count I of the Plaintiff\xe2\x80\x99s\n\n285\n\n\x0ccomplaint was one permitted by common usage,\ncustom and practice, and that the Defendant is\nentitled to a summary judgment as a matter of\nlaw as to matters alleged in Count I of the\nPlaintiff\xe2\x80\x99s complaint.\xe2\x80\x9d\nOn appeal, the District Court of Appeal reversed as to the\ngranting of summary judgment on Count I, stating:\n\xe2\x80\x9cWe do not here hold that a trespass or\n\xe2\x80\x98intrusion\xe2\x80\x99 did in fact occur sub judice: We\nsimply find that such is alleged in Count I of the\namended complaint and that the proofs before\nthe learned trial judge are insufficient to resolve\nthe point by summary judgment.\xe2\x80\x9d\nAlthough recognizing that consent is an absolute defense to an\naction for trespass and that the defense of custom and usage is\nbut another way of expressing consent by implication \xe2\x80\x93 that is\nconsent may be implied from custom, usage or conduct \xe2\x80\x93 the\nDistrict Court commented that the emergency of the fire was\nover and that there was no contention that petitioner\xe2\x80\x99s\nemployees entered the premises to render assistance, explained\nthat respondent did not either impliedly or expressly invite\npetitioner\xe2\x80\x99s employees into her home, and concluded that the\nproofs before the court were not sufficient to show that there\nwas no genuine issue of material fact as to whether implied\nconsent by custom and usage authorized entry into the premises\nwithout invitation by appellant.~\nThe District Court erred in reversing summary judgment for\npetitioners as to Count I. The trial court properly determined\nfrom the record before it that there was no genuine issue of\nmaterial fact insofar as the entry into respondent\xe2\x80\x99s home by\npetitioner\xe2\x80\x99s employees became lawful and non-actionable\npursuant to the doctrine of common custom, usage, and practice\nand since it had been shown that it was common usage, custom\nand practice for news media to enter private premises and\nhomes under the circumstances present here.\nJudge McCord in his dissenting opinion could not agree with the\nmajority that the news photographer who entered the burned\n\n286\n\n\x0cout home was a trespasser or that the photograph published by\npetitioner and the news story resulting from the entry were an\nactionable invasion of privacy. We agree with and approve the\nfollowing well-reasoned explication by Judge McCord in his\ndissenting opinion:\n\xe2\x80\x9cThe only photographs taken and published\nwere of fire damage \xe2\x80\x93 none were of deceased or\ninjured persons. There, is no contention that the\nparticular photograph complained of (the\nsilhouette picture) and the news story were in\nany way false or inaccurate. There could,\ntherefore, be no recovery under the \xe2\x80\x98false-light\xe2\x80\x99\ndoctrine of invasion of privacy. See Cantrell v.\nForest City Publishing Company, 419 U.S. 245\n(1974). Thus, there could be no recovery from\nthe publication if the same photograph had\ncome from a source other than from the news\nphotographer\xe2\x80\x99s entry upon the premises. Any\nrecovery in this case must necessarily be based\nupon trespass, and, therefore, the only question\nis whether or not there was a trespass by the\nnews photographer. The majority opinion\ndiscusses the implied consent doctrine under\nwhich a person, who does not have express\nconsent from the owner or possessor of\npremises, may legally enter under circumstances\nwhich infer or imply consent (common usage,\ncustom and practice). It is my view that the\nentry in this case was by implied consent.\n\xe2\x80\x9cIt is not questioned that this tragic fire and\ndeath were being investigated by the fire\ndepartment and the sheriff\xe2\x80\x99s office and that\narson was suspected. The fire was a disaster of\ngreat public interest and it is clear that the\nphotographer and other members of the news\nmedia entered the burned home at the invitation\nof the investigating officers. (Numerous\nmembers of the general public also went\nthrough the burned house.) Many affidavits of\nnews editors throughout Florida and the nation\nand affidavits of Florida law enforcement\n\n287\n\n\x0cofficials were filed in support of appellee\xe2\x80\x99s\nmotion for summary judgment. These affidavits\nwere to the general effect that it has been a\nlong-standing custom and practice throughout\nthe country for representatives of the news\nmedia to enter upon private property where\ndisaster of great public interest has occurred \xe2\x80\x93\nentering in a peaceful manner, without causing\nany physical damage, and at the invitation of the\nofficers who are investigating the calamity. The\naffidavits of law enforcement officers indicate\nthat the presence of the news media at such\ninvestigations is often helpful to the\ninvestigations in developing leads, etc.\n\xe2\x80\x9cThe affidavits as to custom and practice do not\ndelineate between various kinds of property\nwhere a tragedy occurs. They apply to any such\nplace. If an entry is or is not a trespass, its\ncharacter would not change depending upon\nwhether or not the place of the tragedy is a\nburned out home (as here), an office or other\nbuilding or place. An analysis of the cases on\nimplied consent by custom and usage, indicates\nthat they do not rest upon the previous\nnonobjection to entry by the particular owner of\nthe property in question but rest upon custom\nand practice generally. Implied consent would,\nof course, vanish if one were informed not to\nenter at that time by the owner or possessor or\nby their direction. But here there was not only\nno objection to the entry, but there was an\ninvitation to enter by the officers investigating\nthe fire. The question of implied consent to\nnews media personnel to enter premises in a\ncircumstance such as this appears to be one of\nfirst impression not only in this jurisdiction but\nelsewhere. This, in itself, tends to indicate that\nthe practice has been accepted by the general\npublic since it is a widespread practice of longstanding. Due to such widespread and longstanding custom, reason and logic support the\napplication of implied consent to enter the\n\n288\n\n\x0cpremises in the case before us. It, therefore, was\nnot a trespass, and I would affirm the trial\ncourt.\xe2\x80\x9d (emphasis supplied)\nAccordingly, that portion of the decision of the District Court\nof Appeal, First District, reversing summary judgment for\npetitioner as to Count I is quashed~.\nIt is so ordered.\n\nNote on the Intermediate Appeals Court in Florida\n\nPublishing\nThe intermediate appeals court, which the Florida Supreme Court in\nthe above opinion overturned, took a starkly different view. Judge\nTyrie A. Boyer wrote:\n[N]o case has been cited to us by counsel, nor\nhas independent research revealed any, in which\nconsent by custom and usage was held to have\nauthorized entry into the private dwelling of\nanother.\nThe law is so well established as to render\ncitations superfluous that \xe2\x80\x9cevery man\xe2\x80\x99s home is\nhis castle\xe2\x80\x9d.~ Sub judice, it is clear that appellant\ndid not either impliedly or expressly invite\nappellee's employees into her home; nor is there\nanything in the record to indicate that appellant\n(nor others like situated) had theretofore\nacquiesced in other persons coming into her\nhome: Therefore there was no basis for the\nestablishing of an implied consent by custom\nand usage. Though it is conceded by appellant\nthat the fire marshal and police rightfully\nentered the premises for the purpose of\ndischarging their official duties, there is nothing\nto indicate that those officials had, in the\nabsence of an emergency, authority to invite\nothers to do so. The fire had been extinguished\nprior to the entry complained of. The\nemergency was over. There is no contention\nthat appellee\xe2\x80\x99s employee went into the premises\nfor the purpose of rendering assistance to the\n\n289\n\n\x0coccupants nor to the officials.~ Under the\nauthorities above cited, in the light of the\naffidavits filed by appellee in support of its\nmotion for summary judgment, custom and\nusage implied consent to go onto the yard of\nappellant's home and up to the front door:\nHowever, the proofs before the trial court were\nnot sufficient to show that there was no genuine\nissue as to the very material fact as to whether\nimplied consent by custom and usage\nauthorized entry into the premises, without\ninvitation by appellant or someone authorized\nby her.\n\nFletcher v. Florida Publishing Co., 319 So. 2d 100, 108-09 (Fla. App.\n1975).\nQuestions to Ponder About Florida Publishing\nA. Whose reasoning do you find more persuasive? That of the\nFlorida Court of Appeals or that of the Florida Supreme Court?\nB. Where permission to enter land is implied by custom, there is\ngenerally a way to opt out. While custom may imply consent for sales\npeople to walk up a driveway to ring a door bell, a no-soliciting sign\nwill dispel the implication. A no-trespassing sign on a gate will dispel\nthe implied custom for anyone \xe2\x80\x93 sales person, neighbor, or anyone\nelse \xe2\x80\x93 to be able to walk up to the door. Was there a valid opt-out in\nFlorida Publishing? That is, is there a way for the possessor of land to\ndispel the implied permission for the media to enter after a disaster?\nAs a practical matter, how could a resident dispel the implied consent\nfor the media to enter after a fire, hurricane, or tornado?\nNote on Media Trespass and Implied Consent\nImplied consent for media entry on land has had not had broad\nacceptance in other courts.\nIn Anderson v. WROC-TV, 109 Misc.2d 904 (N.Y. App. 1981.), an\nanimal welfare official used a search warrant to enter a house where\nthere was suspected animal mistreatment. The official called up\nmultiple television stations, inviting them to come along on the\nsearch. The owner, who was at the house, objected to the entry of the\n\n290\n\n\x0cnews crews, but they entered with the official regardless, filming the\nhouse\xe2\x80\x99s interior. The footage was then used on air.\nNot persuaded by Florida Publishing\xe2\x80\x99s implied consent theory, Justice\nDavid O. Boehm\xe2\x80\x99s opinion in Anderson v. WROC-TV held:\nThe gathering of news and the means by which\nit is obtained does not authorize, whether under\nthe First Amendment or otherwise, the right to\nenter into a private home by an implied\ninvitation arising out of a self-created custom\nand practice.\n\nId. at 907. In view of the media defendant\xe2\x80\x99s urgings that the First\nAmendment should protect them, the judge noted an irony, citing\nPeople v. Segal, 78 Misc.2d 944 (N.Y. City Crim. Ct. 1974), where the\nCBS television network used legal process to oust unwelcome\nprotestors:\nIn a case where the factual circumstances were\nironically reversed, it appears the First\nAmendment suffered a strange sea-change. The\ndefendants there, without permission, entered\ninto a studio of the Columbia Broadcasting\nSystem in an attempt to exercise their right of\nfree speech by publicizing what they claimed\nwas unfair and unequal treatment of\nhomosexuals in television news broadcasts. CBS\nwas not deterred by the First Amendment from\nbringing charges against them of criminal\ntrespass and they were duly convicted.\n\nId. at 908.\nAnother case, Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997), also\nparted ways with Florida Publishing. In Berger, federal agents from the\nU.S. Fish and Wildlife Service entered into a written contract with\nCNN and Turner Broadcasting for cooperation in the production of\ntelevision shows Earth Matters and Network Earth. According to the\ncourt, the network crews wanted footage of the Berger ranch, and\nfederal officials wanted publicity for their enforcement efforts.\n\n291\n\n\x0cRancher Paul Berger was under suspicion for poisoning eagles that\nwere a threat to his livestock. Agents obtained a search warrant and\nentered the property. The agents made no disclosure to Berger or his\nwife that the lead agent was wearing a microphone, nor did they\ndisclose that the cameras brought on to the property were owned by\nthe media.\nThe raid was successful \xe2\x80\x93 at least from a television-production\nperspective. Crews was able to shoot eight hours of footage, and\nboth the footage and the audio recordings were used on television.\nFrom a law enforcement standpoint, however, the bust was a bust.\nThe search yielded only a misdemeanor conviction against Berger for\nviolation of 7 U.S.C. \xc2\xa7 136j(a)(2)(G) \xe2\x80\x93 using a pesticide in a manner\ninconsistent with its labeling.\nIn the subsequent civil suit brought by the Bergers, the Ninth Circuit\nheld that the Bergers had stated a claim of trespass against the\nbroadcasters. And interestingly, the court found the media so\nentwined with the federal government that the court upheld a\nconstitutional tort claim against the media defendants as well as the\nagents.\nConsent Implied By Law\nIn addition to being implied in fact \xe2\x80\x93 that is, by circumstances or\ncustom \xe2\x80\x93 consent can also be implied by law. When unconscious\npatients arrive in the emergency room, they have not consented to\nmedical treatment. (How could they, being unconscious?) Consent in\nsuch a situation is implied by law for public policy reasons.\nIn some jurisdictions, during hunting season, consent for hunters to\nenter private property is implied by law. To defeat the implication,\nthe onus is on property owners to post no trespassing signs.\nThe distinction between consent implied by law and consent implied\nin fact can get a little blurry. One might say that the fire-ravaged\nhome of Florida Publishing is analogous to the unconscious ER patient,\nwith neither situation providing any basis for factual consent. At least\non a theoretical level, the difference between implied-in-fact and\nimplied-by-law consent is that implied-in-fact consent is manifested,\n\n292\n\n\x0cif not by the plaintiff, at least by people within the plaintiff\xe2\x80\x99s\ncommunity. The court, through implied-in-fact consent doctrine,\nmerely recognizes that existing implication. By contrast, implied-bylaw consent doesn\xe2\x80\x99t exist \xe2\x80\x9cout there\xe2\x80\x9d in the real world. Instead, the\ncourt construes it \xe2\x80\x93 that is, acts as if it exists \xe2\x80\x93 because the court has\ndecided that doing so is for the best.\nConsent Obtained By Invalid Means\nIf consent is obtained by fraud, duress, or a mistake induced by the\ndefendant, then the consent will not be valid.\n\nCase: Food Lion v. Capital Cities / ABC\nThis case explores consent obtained by deception. Like Florida\nPublishing v. Fletcher, it concerns the news media\xe2\x80\x99s desire to enter\nprivate property for journalistic purposes.\n\nFood Lion v. Capital Cities /ABC\nUnited States Court of Appeals for the Fourth Circuit\nOctober 20, 1999\n194 F. 3d 505. FOOD LION, INCORPORATED, PlaintiffAppellee, v. CAPITAL CITIES/ABC, INC.; Lynne Litt, a/k/a\nLynne Neufes; ABC Holding Company; American Broadcasting\nCompanies, Incorporated; Richard N. Kaplan; Ira Rosen; Susan\nBarnett, Defendants-Appellants, Nos. 97-2492, 97-2564. Before\nNIEMEYER, MICHAEL, and MOTZ, Circuit Judges.\nCircuit Judge M. BLANE MICHAEL:\nTwo ABC television reporters, after using false resumes to get\njobs at Food Lion, Inc. supermarkets, secretly videotaped what\nappeared to be unwholesome food handling practices. Some of\nthe video footage was used by ABC in a PrimeTime Live\nbroadcast that was sharply critical of Food Lion. The grocery\nchain sued Capital Cities/ABC, Inc., American Broadcasting\nCompanies, Inc., Richard Kaplan and Ira Rosen, producers of\nPrimeTime Live, and Lynne Dale and Susan Barnett, two\nreporters for the program (collectively, \xe2\x80\x9cABC\xe2\x80\x9d or the \xe2\x80\x9cABC\ndefendants\xe2\x80\x9d). Food Lion did not sue for defamation, but\n\n293\n\n\x0cfocused on how ABC gathered its information through claims\nfor fraud, breach of duty of loyalty, trespass, and unfair trade\npractices. Food Lion won at trial, and judgment for\ncompensatory damages of $1,402 was entered on the various\nclaims. Following a substantial (over $5 million) remittitur, the\njudgment provided for $315,000 in punitive damages. The ABC\ndefendants appeal the district court\xe2\x80\x99s denial of their motion for\njudgment as a matter of law, and Food Lion appeals the court\xe2\x80\x99s\nruling that prevented it from proving publication damages.\nHaving considered the case, we (1) reverse the judgment that the\nABC defendants committed fraud and unfair trade practices, (2)\naffirm the judgment that Dale and Barnett breached their duty\nof loyalty and committed a trespass, and (3) affirm, on First\nAmendment grounds, the district court\xe2\x80\x99s refusal to allow Food\nLion to prove publication damages.\nI.\nIn early 1992 producers of ABC\xe2\x80\x99s PrimeTime Live program\nreceived a report alleging that Food Lion stores were engaging\nin unsanitary meat-handling practices. The allegations were that\nFood Lion employees ground out-of-date beef together with\nnew beef, bleached rank meat to remove its odor, and re-dated\n(and offered for sale) products not sold before their printed\nexpiration date. The producers recognized that these allegations\npresented the potential for a powerful news story, and they\ndecided to conduct an undercover investigation of Food Lion.\nABC reporters Lynne Dale (Lynne Litt at the time) and Susan\nBarnett concluded that they would have a better chance of\ninvestigating the allegations if they could become Food Lion\nemployees. With the approval of their superiors, they proceeded\nto apply for jobs with the grocery chain, submitting applications\nwith false identities and references and fictitious local addresses.\nNotably, the applications failed to mention the reporters\xe2\x80\x99\nconcurrent employment with ABC and otherwise\nmisrepresented their educational and employment experiences.\nBased on these applications, a South Carolina Food Lion store\nhired Barnett as a deli clerk in April 1992, and a North Carolina\nFood Lion store hired Dale as a meat wrapper trainee in May\n1992.\n\n294\n\n\x0cBarnett worked for Food Lion for two weeks, and Dale for only\none week. As they went about their assigned tasks for Food\nLion, Dale and Barnett used tiny cameras (\xe2\x80\x9clipstick\xe2\x80\x9d cameras,\nfor example) and microphones concealed on their bodies to\nsecretly record Food Lion employees treating, wrapping and\nlabeling meat, cleaning machinery, and discussing the practices\nof the meat department. They gathered footage from the meat\ncutting room, the deli counter, the employee break room, and a\nmanager\xe2\x80\x99s office. All told, in their three collective weeks as Food\nLion employees, Dale and Barnett recorded approximately 45\nhours of concealed camera footage.\nSome of the videotape was eventually used in a November 5,\n1992, broadcast of PrimeTime Live. ABC contends the footage\nconfirmed many of the allegations initially leveled against Food\nLion. The broadcast included, for example, videotape that\nappeared to show Food Lion employees repackaging and\nredating fish that had passed the expiration date, grinding\nexpired beef with fresh beef, and applying barbeque sauce to\nchicken past its expiration date in order to mask the smell and\nsell it as fresh in the gourmet food section. The program\nincluded statements by former Food Lion employees alleging\neven more serious mishandling of meat at Food Lion stores\nacross several states. The truth of the PrimeTime Live broadcast\nwas not an issue in the litigation we now describe.\nFood Lion sued ABC and the PrimeTime Live producers and\nreporters. Food Lion\xe2\x80\x99s suit focused not on the broadcast, as a\ndefamation suit would, but on the methods ABC used to obtain\nthe video footage. The grocery chain asserted claims of fraud,\nbreach of the duty of loyalty, trespass, and unfair trade practices,\nseeking millions in compensatory damages. Specifically, Food\nLion sought to recover (1) administrative costs and wages paid\nin connection with the employment of Dale and Barnett and (2)\nbroadcast (publication) damages for matters such as loss of\ngood will, lost sales and profits, and diminished stock value.\nPunitive damages were also requested by Food Lion.~\nII.\nA.~\n\n295\n\n\x0cABC argues that it was error to allow the jury to hold Dale and\nBarnett liable for trespass on either of the independent grounds\n(1) that Food Lion\xe2\x80\x99s consent to their presence as employees was\nvoid because it was based on misrepresentations or (2) that\nFood Lion\xe2\x80\x99s consent was vitiated when Dale and Barnett\nbreached the duty of loyalty. The jury found Dale and Barnett\nliable on both of these grounds and awarded Food Lion $1.00 in\nnominal damages, which is all that was sought in the\ncircumstances.\nIn North and South Carolina, as elsewhere, it is a trespass to\nenter upon another\xe2\x80\x99s land without consent. Accordingly,\nconsent is a defense to a claim of trespass. Even consent gained\nby misrepresentation is sometimes sufficient. See Desnick v.\nAmerican Broad. Cos., 44 F.3d 1345, 1351-52 (7th Cir.1995)\n(Posner, C.J.). The consent to enter is canceled out, however, \xe2\x80\x9cif\na wrongful act is done in excess of and in abuse of authorized\nentry.\xe2\x80\x9d~\nWe turn first to whether Dale and Barnett\xe2\x80\x99s consent to be in\nnon-public areas of Food Lion property was void from the\noutset because of the resume misrepresentations. \xe2\x80\x9c[C]onsent to\nan entry is often given legal effect\xe2\x80\x9d even though it was obtained\nby misrepresentation or concealed intentions. Desnick, 44 F.3d at\n1351. Without this result,\na restaurant critic could not conceal his identity\nwhen he ordered a meal, or a browser pretend\nto be interested in merchandise that he could\nnot afford to buy. Dinner guests would be\ntrespassers if they were false friends who never\nwould have been invited had the host known\ntheir true character, and a consumer who in an\neffort to bargain down an automobile dealer\nfalsely claimed to be able to buy the same car\nelsewhere at a lower price would be a trespasser\nin a dealer\xe2\x80\x99s showroom.\nId.~\nWe like Desnick\xe2\x80\x99s thoughtful analysis about when a consent to\nenter that is based on misrepresentation may be given effect. In\n\n296\n\n\x0cDesnick ABC sent persons posing as patients needing eye care to\nthe plaintiffs\xe2\x80\x99 eye clinics, and the test patients secretly recorded\ntheir examinations. Some of the recordings were used in a\nPrimeTime Live segment that alleged intentional misdiagnosis and\nunnecessary cataract surgery. Desnick held that although the test\npatients misrepresented their purpose, their consent to enter was\nstill valid because they did not invade \xe2\x80\x9cany of the specific\ninterests [relating to peaceable possession of land] the tort of\ntrespass seeks to protect:\xe2\x80\x9d the test patients entered offices \xe2\x80\x9copen\nto anyone expressing a desire for ophthalmic services\xe2\x80\x9d and\nvideotaped doctors engaged in professional discussions with\nstrangers, the testers; the testers did not disrupt the offices or\ninvade anyone\xe2\x80\x99s private space; and the testers did not reveal the\n\xe2\x80\x9cintimate details of anybody\xe2\x80\x99s life.\xe2\x80\x9d 44 F.3d at 1352-53. Desnick\nsupported its conclusion with the following comparison:\n\xe2\x80\x9cTesters\xe2\x80\x9d who pose as prospective home buyers\nin order to gather evidence of housing\ndiscrimination are not trespassers even if they\nare private persons not acting under color of\nlaw. The situation of [ABC\xe2\x80\x99s] \xe2\x80\x9ctesters\xe2\x80\x9d is\nanalogous. Like testers seeking evidence of\nviolation of anti-discrimination laws, [ABC\xe2\x80\x99s]\ntest patients gained entry into the plaintiffs\xe2\x80\x99\npremises by misrepresenting their purposes\n(more precisely by a misleading omission to\ndisclose those purposes). But the entry was not\ninvasive in the sense of infringing the kind of\ninterest of the plaintiffs that the law of trespass\nprotects; it was not an interference with the\nownership or possession of land.\nId. at 1353 (citation omitted).~\nThe jury~ found that the reporters committed trespass by\nbreaching their duty of loyalty to Food Lion \xe2\x80\x9cas a result of\npursuing [their] investigation for ABC.\xe2\x80\x9d We affirm the finding\nof trespass on this ground because the breach of duty of loyalty\n\xe2\x80\x93 triggered by the filming in non-public areas, which was\nadverse to Food Lion \xe2\x80\x93 was a wrongful act in excess of Dale\n\n297\n\n\x0cand Barnett\xe2\x80\x99s authority to enter Food Lion\xe2\x80\x99s premises as\nemployees.~\nThe Court of Appeals of North Carolina has indicated that\nsecretly installing a video camera in someone\xe2\x80\x99s private home can\nbe a wrongful act in excess of consent given to enter.~\nIt is consistent with that principle to hold that consent to enter\nis vitiated by a wrongful act that exceeds and abuses the\nprivilege of entry.~\nB.\nABC argues that even if state tort law covers some of Dale and\nBarnett\xe2\x80\x99s conduct, the district court erred in refusing to subject\nFood Lion\xe2\x80\x99s claims to any level of First Amendment scrutiny.\nABC makes this argument because Dale and Barnett were\nengaged in newsgathering for PrimeTime Live. It is true that there\nare \xe2\x80\x9cFirst Amendment interests in newsgathering.\xe2\x80\x9d In re Shain,\n978 F.2d 850, 855 (4th Cir.1992) (Wilkinson J., concurring). See\nalso Branzburg v. Hayes, 408 U.S. 665, 681 (1972) (\xe2\x80\x9cwithout some\nprotection for seeking out the news, freedom of the press could\nbe eviscerated.\xe2\x80\x9d). However, the Supreme Court has said in no\nuncertain terms that \xe2\x80\x9cgenerally applicable laws do not offend the\nFirst Amendment simply because their enforcement against the\npress has incidental effects on its ability to gather and report the\nnews.\xe2\x80\x9d Cohen v. Cowles Media Co., 501 U.S. 663, 669 (1991); see\nalso Desnick, 44 F.3d at 1355 (\xe2\x80\x9cthe media have no general\nimmunity from tort or contract liability\xe2\x80\x9d).~\nWe are convinced that the media can do its important job\neffectively without resort to the commission of run-of-the-mill\ntorts.~\nC.\nFor the foregoing reasons, we affirm the judgment that Dale\nand Barnett~ committed trespass. We likewise affirm the\ndamages award against them for these torts in the amount of\n$2.00.\n\n298\n\n\x0cNotes on Food Lion\nAlthough the grocery store won its case against ABC, it was a pyrrhic\nvictory. The court struck down the multi-million punitive damages\nverdict because it was based entirely on the fraud claim, which the\ncourt found lacking. The court also struck down the compensatory\ndamages claim based on the reputational harm that occurred from\nABC\xe2\x80\x99s broadcast of the PrimeTime Live program about Food Lion.\nThose damages were unavailable, the court held, because \xe2\x80\x9cit was\n[Food Lion\xe2\x80\x99s] food handling practices themselves \xe2\x80\x93 not the method\nby which they were recorded or published \xe2\x80\x93 which caused the loss of\nconsumer confidence.\xe2\x80\x9d (internal quotes omitted).\nThus, in the end, Food Lion won only $2. It was a technical win for\nthe strict application of trespass law, but it was widely hailed as a\nvictory for the news media.\nExceeding the Scope of Consent\nOften there is no question that there is consent. Instead, the issue is\nthe scope of that consent. Playing a game of tag means consenting to\nbeing touched. But does it mean consent to a powerful shove? How\nabout consent to being hit with a ball \xe2\x80\x93 or a rock? If the scope of the\nconsent is exceeded, then it will not work as a defense. As you might\nimagine, scope-of-consent issues force courts into difficult linedrawing problems.\nCase: Koffman v. Garnett\nThis case looks the scope-of-consent issue in the context of contact\nsports.\n\nKoffman v. Garnett\nSupreme Court of Virginia\nJanuary 10, 2003\n265 Va. 12. Andrew W. KOFFMAN, an Infant by his Father\nand Next Friend, Richard Koffman, et al., v. James GARNETT.\nRecord No. 020439.\nJustice ELIZABETH B. LACY:\n\n299\n\n\x0cIn this case we consider whether the trial court properly\ndismissed the plaintiffs\xe2\x80\x99 second amended motion for judgment\nfor failure to state causes of action for gross negligence, assault,\nand battery.\nBecause this case was decided on demurrer, we take as true all\nmaterial facts properly pleaded in the motion for judgment and\nall inferences properly drawn from those facts. Burns v. Board of\nSupvrs., 218 Va. 625, 627 (1977).\nIn the fall of 2000, Andrew W. Koffman, a 13-year old middle\nschool student at a public school in Botetourt County, began\nparticipating on the school\xe2\x80\x99s football team. It was Andy\xe2\x80\x99s first\nseason playing organized football, and he was positioned as a\nthird-string defensive player. James Garnett was employed by\nthe Botetourt County School Board as an assistant coach for the\nfootball team and was responsible for the supervision, training,\nand instruction of the team\xe2\x80\x99s defensive players.\nThe team lost its first game of the season. Garnett was upset by\nthe defensive players\xe2\x80\x99 inadequate tackling in that game and\nbecame further displeased by what he perceived as inadequate\ntackling during the first practice following the loss.\nGarnett ordered Andy to hold a football and \xe2\x80\x9cstand upright and\nmotionless\xe2\x80\x9d so that Garnett could explain the proper tackling\ntechnique to the defensive players. Then Garnett, without\nfurther warning, thrust his arms around Andy\xe2\x80\x99s body, lifted him\n\xe2\x80\x9coff his feet by two feet or more,\xe2\x80\x9d and \xe2\x80\x9cslamm[ed]\xe2\x80\x9d him to the\nground. Andy weighed 144 pounds, while Garnett weighed\napproximately 260 pounds. The force of the tackle broke the\nhumerus bone in Andy\xe2\x80\x99s left arm. During prior practices, no\ncoach had used physical force to instruct players on rules or\ntechniques of playing football.\nIn his second amended motion for judgment, Andy, by his\nfather and next friend, Richard Koffman, and Andy\xe2\x80\x99s parents,\nRichard and Rebecca Koffman, individually, (collectively \xe2\x80\x9cthe\nKoffmans\xe2\x80\x9d) alleged that Andy was injured as a result of\nGarnett\xe2\x80\x99s simple and gross negligence and intentional acts of\nassault and battery. Garnett filed a demurrer~, asserting that the\n\n300\n\n\x0csecond amended motion for judgment did not allege sufficient\nfacts to support a lack of consent to the tackling demonstration\nand, therefore, did not plead causes of action for either gross\nnegligence, assault, or battery. The trial court dismissed the\naction, finding that~ the facts alleged were insufficient to state\ncauses of action for gross negligence, assault, or battery because\nthe instruction and playing of football are \xe2\x80\x9cinherently dangerous\nand always potentially violent.\xe2\x80\x9d\nIn this appeal, the Koffmans~ assert that they pled sufficient\nfacts in their second amended motion for judgment to sustain\ntheir claims of~ assault~ and battery.~\nThe second amended motion for judgment is sufficient~ to\nestablish a cause of action for the tort of battery. The Koffmans\npled that Andy consented to physical contact with players \xe2\x80\x9cof\nlike age and experience\xe2\x80\x9d and that neither Andy nor his parents\nexpected or consented to his \xe2\x80\x9cparticipation in aggressive contact\ntackling by the adult coaches.\xe2\x80\x9d Further, the Koffmans pled that,\nin the past, coaches had not tackled players as a method of\ninstruction. Garnett asserts that, by consenting to play football,\nAndy consented to be tackled, by either other football players or\nby the coaches.\nWhether Andy consented to be tackled by Garnett in the\nmanner alleged was a matter of fact. Based on the allegations in\nthe Koffmans\xe2\x80\x99 second amended motion for judgment,\nreasonable persons could disagree on whether Andy gave such\nconsent. Thus, we find that the trial court erred in holding that\nthe Koffmans\xe2\x80\x99 second amended motion for judgment was\ninsufficient as a matter of law to establish a claim for battery.~\nReversed and remanded.\nJustice CYNTHIA DINAH KINSER, concurring in part\nand dissenting in part:\n~In\n\nmy view, the second amended motion for judgment filed by\nthe plaintiffs, Andrew W. Koffman, by his father and next\nfriend, and Richard Koffman and Rebecca Koffman,\nindividually, was insufficient as a matter of law to state a claim\nfor battery.\n\n301\n\n\x0cAbsent fraud, consent is generally a defense to an alleged\nbattery. In the context of this case, \xe2\x80\x9c[t]aking part in a game\nmanifests a willingness to submit to such bodily contacts or\nrestrictions of liberty as are permitted by its rules or usages.\xe2\x80\x9d\nHowever, participating in a particular sport \xe2\x80\x9cdoes not manifest\nconsent to contacts which are prohibited by rules or usages of\nthe game if such rules or usages are designed to protect the\nparticipants and not merely to secure the better playing of the\ngame as a test of skill.\xe2\x80\x9d\nThe thrust of the plaintiffs\xe2\x80\x99 allegations is that they did not\nconsent to \xe2\x80\x9cAndy\xe2\x80\x99s participation in aggressive contact tackling\nby the adult coaches\xe2\x80\x9d but that they consented only to Andy\xe2\x80\x99s\nengaging \xe2\x80\x9cin a contact sport with other children of like age and\nexperience.\xe2\x80\x9d They further alleged that the coaches had not\npreviously tackled the players when instructing them about the\nrules and techniques of football.\nIt is notable, in my opinion, that the plaintiffs admitted in their\npleading that Andy\xe2\x80\x99s coach was \xe2\x80\x9cresponsible ... for the\nsupervision, training and instruction of the defensive players.\xe2\x80\x9d It\ncannot be disputed that one responsibility of a football coach is\nto minimize the possibility that players will sustain \xe2\x80\x9csomething\nmore than slight injury\xe2\x80\x9d while playing the sport. A football\ncoach cannot be expected \xe2\x80\x9cto extract from the game the body\nclashes that cause bruises, jolts and hard falls.\xe2\x80\x9d Instead, a coach\nshould ensure that players are able to \xe2\x80\x9cwithstand the shocks,\nblows and other rough treatment with which they would meet in\nactual play\xe2\x80\x9d by making certain that players are in \xe2\x80\x9csound\nphysical condition,\xe2\x80\x9d are issued proper protective equipment, and\nare \xe2\x80\x9ctaught and shown how to handle [themselves] while in\nplay.\xe2\x80\x9d The instruction on how to handle themselves during a\ngame should include demonstrations of proper tackling\ntechniques. By voluntarily participating in football, Andy and his\nparents necessarily consented to instruction by the coach on\nsuch techniques. The alleged battery occurred during that\ninstruction.\nThe plaintiffs alleged that they were not aware that Andy\xe2\x80\x99s\ncoach would use physical force to instruct on the rules and\n\n302\n\n\x0ctechniques of football since neither he nor the other coaches\nhad done so in the past. Surely, the plaintiffs are not claiming\nthat the scope of their consent changed from day to day\ndepending on the coaches\xe2\x80\x99 instruction methods during prior\npractices. Moreover, they did not allege that they were told that\nthe coaches would not use physical demonstrations to instruct\nthe players.\nAdditionally, the plaintiffs did not allege that the tackle itself\nviolated any rule or usage of the sport of football. Nor did they\nplead that Andy could not have been tackled by a larger,\nphysically stronger, and more experienced player either during a\ngame or practice. Tackling and instruction on proper tackling\ntechniques are aspects of the sport of football to which a player\nconsents when making a decision to participate in the sport.\nIn sum, I conclude that the plaintiffs did not sufficiently plead a\nclaim for battery. We must remember that acts that might give\nrise to a battery on a city street will not do so in the context of\nthe sport of football. We must also not blur the lines between\ngross negligence and battery because the latter is an intentional\ntort. I agree fully that the plaintiffs alleged sufficient facts to\nproceed with their claim for gross negligence.\nFor these reasons, I respectfully concur, in part, and dissent, in\npart, and would affirm the judgment of the circuit court\nsustaining the demurrer with regard to the claim for battery.\n\nQuestions to Ponder About Koffman v. Garnett\nA. Based on what you know of the facts, along with your common\nexperience, where do you think the outer boundary of consent was in\nthis case? Was Coach Garnett\xe2\x80\x99s tackle within it? Would it have been\nwithin the scope of consent for Garnett to have done the same thing\nin slow motion, such that Koffman was not hurt? What if the tackle\nwere exactly the same as in the case, but it was carried out by another\nstudent, instead of by Coach Garnett?\nB. Where do you think the line is drawn with student touches in a\ngame context? Are only legal tackles within the scope of consent?\nHow about a late hit (a tackle after the whistle is blown and the play\n\n303\n\n\x0cis over)? A late hit is outside the rules, but is it outside the scope of\nlegal consent and therefore actionable as a battery? How about\ntackling a player full force after that player has signaled for a fair\ncatch? (A fair catch is when, during a kickoff or punt, the receiving\nplayer waives the ability to advance the ball in exchange for not being\ntackled. It is typically used when the receiving player must be looking\ninto the sky to catch the ball and will not see an oncoming opposing\nplayer.) What about illegal spearing (an illegal tackle that has\nfrequently caused catastrophic injury)? What about an illegal spearing\nlate hit after a fair catch?\n\nSelf-Defense, Defense of Others, Defense of Property\nTort law guarantees citizens a civil way of settling disputes and\ngetting justice. As such, tort law expects that people will not resort to\nthe use of force against one another, infringements on their rights\nnotwithstanding.\nYet the law does recognize that there are some circumstances under\nwhich people cannot be expected to wait to try to vindicate their\nrights in court. Under these limited circumstances, people can\ncommit prima facie intentional torts and then later escape liability, if\nsued, by asserting defenses of self-defense, defense of others, or\ndefense of property.\nSelf-defense entitles a person to use reasonable force, as apparently\nnecessary, to prevent an imminent and unconsented-to touching that\nis harmful or offensive, or a confinement. In other words, you can\ndefend yourself with reasonable force where there is an immediate\nthreat of battery or false imprisonment.\nThe law puts stringent limits on self-defense. Notice that the threat\nmust be imminent. In other words, self-defense privilege arises where\nthe defendant has an immediate choice of self-defense or suffering\nthe battery or false imprisonment. If there is time to call the police,\nor if the threat has not fully materialized, then imminence is lacking,\nand self-defense will not shield the defendant from tort liability.\nAnother key limitation is that only reasonable force is permissible. That\nis, the degree of force must not be more than the force that appears\n\n304\n\n\x0cnecessary to thwart the threat. Deadly force may only be used where\nthe defendant is faced with an extremely serious threat \xe2\x80\x93 such as\ndeath, rape, sodomy, loss of limb, loss of sight, etc. \xe2\x80\x93 and where\nnothing short of deadly force will stop the imminent attack.\nJurisdictions differ on whether the defendant has a duty to retreat.\nMany jurisdictions will not allow self-defense to negate tort liability\nwhere the defendant could have safely retreated to avoid the threat.\nSome jurisdictions, by contrast, allow a defendant to stand her or his\nground and use force. In general, jurisdictions apply the same rule in\ntorts as they do for criminal cases.\nDefense of others \xe2\x80\x93 that is, defense of a third party \xe2\x80\x93 works nearly\nidentically to self-defense, with one important exception. The\nexception comes up where the defendant makes a reasonable mistake\nabout whether there really is a threat to the third party. In most\njurisdictions, if the defendant mistakenly believes that the third party\nis threatened, when that person is not actually threatened, then the\ndefendant cannot use defense of others to avoid tort liability.\nLet\xe2\x80\x99s take an example: Suppose three friends are filming a video on a\npublic street, shooting a scene of a mugging. In the scene, a man\npushes down and savagely \xe2\x80\x9cbeats\xe2\x80\x9d an actress appearing to be elderly\nwoman. Unaware that it\xe2\x80\x99s staged scene, a passer-by stops his car,\njumps out, and grabs the actor playing the thug, and pushes him away\nfrom the woman. In most jurisdictions, the passer-by \xe2\x80\x93 no matter\nhow reasonable his subjective belief that a battery was occurring \xe2\x80\x93\nwould be liable to the actor he pushed for battery.\nFunny enough, this example is not a hypothetical. These are the exact\nfacts of what happened when actor Andy Samberg \xe2\x80\x93 before being\nhired on Saturday Night Live \xe2\x80\x93 was filming a mugging scene with his\nfriends on Olympic Boulevard in Los Angeles. The passer-by who\nstopped to intervene was none other than actor Kiefer Sutherland.\nFamous for his role as tough-guy-who-doesn\xe2\x80\x99t-play-by-the-rules\ncounterterrorism agent Jack Bauer on 24, Sutherland leapt to the\nwoman\xe2\x80\x99s defense. Luckily, Samberg and his friends were able to\nquickly explain to Sutherland that they were making a movie.\n\n305\n\n\x0cIn most jurisdictions, Sutherland would be liable for battery. In a\nminority of jurisdictions, Sutherland\xe2\x80\x99s reasonable mistake would not\nhave prevented his ability to use defense of others as a complete\ndefense to a suit for battery. Of course, in all jurisdictions, struggling\ncomedic actors are well advised to milk such a situation for publicity\nvalue rather than filing a lawsuit.\nDefense of property allows the reasonable use of force to defend\nboth land and chattels against trespass. Generally, property owners\nmust make a verbal demand on the trespasser to stop. After that,\nhowever, property owners may use as much force as is necessary to\nprevent the trespass, short of deadly force.\nWhether deadly force may be used for the protection of property is a\ncontroversial issue. Most jurisdictions do not allow deadly force to be\nused against a trespasser merely on account of defending a property\ninterest. (Although if there is additionally a threat to a person, then\ndeadly force may be permissible as self-defense or defense of others.)\nIf the property is a dwelling, and the trespasser is engaging in a\nbreaking-and-entering felony, then many or most courts would allow\ndeadly force if necessary \xe2\x80\x93 that is, if the intruder could not be evicted\nmore safely.\nCase: Katko v. Brinney\nThis next case is the classic exploration of the use of deadly force to\ndefend property.\n\nKatko v. Briney\nSupreme Court of Iowa\nFebruary 9, 1971\n183 N.W.2d 657. Marvin KATKO, Appellee, v. Edward\nBRINEY and Bertha L. Briney, Appellants. No. 54169.\nChief Justice C. EDWIN MOORE:\nThe primary issue presented here is whether an owner may\nprotect personal property in an unoccupied boarded-up farm\nhouse against trespassers and thieves by a spring gun capable of\ninflicting death or serious injury.\n\n306\n\n\x0cWe are not here concerned with a man\xe2\x80\x99s right to protect his\nhome and members of his family. Defendants\xe2\x80\x99 home was several\nmiles from the scene of the incident to which we refer infra.\nPlaintiff\xe2\x80\x99s action is for damages resulting from serious injury\ncaused by a shot from a 20-gauge spring shotgun set by\ndefendants in a bedroom of an old farm house which had been\nuninhabited for several years. Plaintiff and his companion,\nMarvin McDonough, had broken and entered the house to find\nand steal old bottles and dated fruit jars which they considered\nantiques.\nAt defendants\xe2\x80\x99 request plaintiff\xe2\x80\x99s action was tried to a jury\nconsisting of residents of the community where defendants\xe2\x80\x99\nproperty was located. The jury returned a verdict for plaintiff\nand against defendants for $20,000 actual and $10,000 punitive\ndamages.~\nMost of the facts are not disputed. In 1957 defendant Bertha L.\nBriney inherited her parents\xe2\x80\x99 farm land in Mahaska and Monroe\nCounties. Included was an 80-acre tract in southwest Mahaska\nCounty where her grandparents and parents had lived. No one\noccupied the house thereafter. Her husband, Edward, attempted\nto care for the land. He kept no farm machinery thereon. The\noutbuildings became dilapidated.\nFor about 10 years, 1957 to 1967, there occurred a series of\ntrespassing and housebreaking events with loss of some\nhousehold items, the breaking of windows and \xe2\x80\x98messing up of\nthe property in general\xe2\x80\x99. The latest occurred June 8, 1967, prior\nto the event on July 16, 1967 herein involved.\nDefendants through the years boarded up the windows and\ndoors in an attempt to stop the intrusions. They had posted \xe2\x80\x98no\ntrespass\xe2\x80\x99 signs on the land several years before 1967. The nearest\none was 35 feet from the house. On June 11, 1967 defendants\nset \xe2\x80\x98a shotgun trap\xe2\x80\x99 in the north bedroom. After Mr. Briney\ncleaned and oiled his 20-gauge shotgun, the power of which he\nwas well aware, defendants took it to the old house where they\nsecured it to an iron bed with the barrel pointed at the bedroom\ndoor. It was rigged with wire from the doorknob to the gun\xe2\x80\x99s\n\n307\n\n\x0ctrigger so it would fire when the door was opened. Briney first\npointed the gun so an intruder would be hit in the stomach but\nat Mrs Briney\xe2\x80\x99s suggestion it was lowered to hit the legs. He\nadmitted he did so \xe2\x80\x98because I was mad and tired of being\ntormented\xe2\x80\x99 but \xe2\x80\x98he did not intend to injure anyone\xe2\x80\x99. He gave to\nexplanation of why he used a loaded shell and set it to hit a\nperson already in the house. Tin was nailed over the bedroom\nwindow. The spring gun could not be seen from the outside. No\nwarning of its presence was posted.\nPlaintiff lived with his wife and worked regularly as a gasoline\nstation attendant in Eddyville, seven miles from the old house.\nHe had observed it for several years while hunting in the area\nand considered it as being abandoned. He knew it had long been\nuninhabited. In 1967 the area around the house was covered\nwith high weeds. Prior to July 16, 1967 plaintiff and\nMcDonough had been to the premises and found several old\nbottles and fruit jars which they took and added to their\ncollection of antiques. On the latter date about 9:30 p.m. they\nmade a second trip to the Briney property. They entered the old\nhouse by removing a board from a porch window which was\nwithout glass. While McDonough was looking around the\nkitchen area plaintiff went to another part of the house. As he\nstarted to open the north bedroom door the shotgun went off\nstriking him in the right leg above the ankle bone. Much of his\nleg, including part of the tibia, was blown away. Only by\nMcDonough\xe2\x80\x99s assistance was plaintiff able to get out of the\nhouse and after crawling some distance was put in his vehicle\nand rushed to a doctor and then to a hospital. He remained in\nthe hospital 40 days.\nPlaintiff\xe2\x80\x99s doctor testified he seriously considered amputation\nbut eventually the healing process was successful. Some weeks\nafter his release from the hospital plaintiff returned to work on\ncrutches. He was required to keep the injured leg in a cast for\napproximately a year and wear a special brace for another year.\nHe continued to suffer pain during this period.\n\n308\n\n\x0cThere was undenied medical testimony plaintiff had a\npermanent deformity, a loss of tissue, and a shortening of the\nleg.\nThe record discloses plaintiff to trial time had incurred $710\nmedical expense, $2056.85 for hospital service, $61.80 for\northopedic service and $750 as loss of earnings. In addition\nthereto the trial court submitted to the jury the question of\ndamages for pain and suffering and for future disability.\nPlaintiff testified he knew he had no right to break and enter the\nhouse with intent to steal bottles and fruit jars therefrom. He\nfurther testified he had entered a plea of guilty to larceny in the\nnighttime of property of less than $20 value from a private\nbuilding. He stated he had been fined $50 and costs and paroled\nduring good behavior from a 60-day jail sentence. Other than\nminor traffic charges this was plaintiff\xe2\x80\x99s first brush with the law.\nOn this civil case appeal it is not our prerogative to review the\ndisposition made of the criminal charge against him.\nThe main thrust of defendants\xe2\x80\x99 defense in the trial court and on\nthis appeal is that \xe2\x80\x98the law permits use of a spring gun in a\ndwelling or warehouse for the purpose of preventing the\nunlawful entry of a burglar or thief\xe2\x80\x99.~\nIn the statement of issues the trial court stated plaintiff and his\ncompanion committed a felony when they broke and entered\ndefendants\xe2\x80\x99 house. In instruction 2 the court referred to the\nearly case history of the use of spring guns and stated under the\nlaw their use was prohibited except to prevent the commission\nof felonies of violence and where human life is in danger. The\ninstruction included a statement breaking and entering is not a\nfelony of violence.\nInstruction 5 stated: \xe2\x80\x98You are hereby instructed that one may use\nreasonable force in the protection of his property, but such right\nis subject to the qualification that one may not use such means\nof force as will take human life or inflict great bodily injury.\nSuch is the rule even though the injured party is a trespasser and\nis in violation of the law himself.\xe2\x80\x99\n\n309\n\n\x0cInstruction 6 stated: \xe2\x80\x98An owner of premises is prohibited from\nwillfully or intentionally injuring a trespasser by means of force\nthat either takes life or inflicts great bodily injury; and therefore\na person owning a premise is prohibited from setting out \xe2\x80\x98spring\nguns\xe2\x80\x99 and like dangerous devices which will likely take life or\ninflict great bodily injury, for the purpose of harming\ntrespassers. The fact that the trespasser may be acting in\nviolation of the law does not change the rule. The only time\nwhen such conduct of setting a \xe2\x80\x98spring gun\xe2\x80\x99 or a like dangerous\ndevice is justified would be when the trespasser was committing\na felony of violence or a felony punishable by death, or where\nthe trespasser was endangering human life by his act.\xe2\x80\x99\nInstruction 7, to which defendants made no objection or\nexception, stated: \xe2\x80\x98To entitle the plaintiff to recover for\ncompensatory damages, the burden of proof is upon him to\nestablish by a preponderance of the evidence each and all of the\nfollowing propositions:\n1. That defendants erected a shotgun trap in a\nvacant house on land owned by defendant,\nBertha L. Briney, on or about June 11, 1967,\nwhich fact was known only by them, to protect\nhousehold goods from trespassers and thieves.\n2. That the force used by defendants was in\nexcess of that force reasonably necessary and\nwhich persons are entitled to use in the\nprotection of their property.\n3. That plaintiff was injured and damaged and\nthe amount thereof.\n4. That plaintiff\xe2\x80\x99s injuries and damages\nresulted directly from the discharge of the\nshotgun trap which was set and used by\ndefendants.\xe2\x80\x99\nThe overwhelming weight of authority, both textbook and case\nlaw, supports the trial court\xe2\x80\x99s statement of the applicable\nprinciples of law.\nProsser on Torts, Third Edition, pages 116-118, states:\n\n310\n\n\x0c... the law has always placed a higher value upon\nhuman safety than upon mere rights in\nproperty, it is the accepted rule that there is no\nprivilege to use any force calculated to cause\ndeath or serious bodily injury to repel the threat\nto land or chattels, unless there is also such a\nthreat to the defendant\xe2\x80\x99s personal safety as to\njustify a self-defense. \xe2\x80\xa6 spring guns and other\nmankilling devices are not justifiable against a\nmere trespasser, or even a petty thief. They are\nprivileged only against those upon whom the\nlandowner, if he were present in person would\nbe free to inflict injury of the same kind.\n~In\n\nHooker v. Miller, 37 Iowa 613, we held defendant vineyard\nowner liable for damages resulting from a spring gun shot\nalthough plaintiff was a trespasser and there to steal grapes. At\npages 614, 615, this statement is made: \xe2\x80\x9cThis court has held that\na mere trespass against property other than a dwelling is not a\nsufficient justification to authorize the use of a deadly weapon\nby the owner in its defense; and that if death results in such a\ncase it will be murder, though the killing be actually necessary to\nprevent the trespass.\xe2\x80\x9d At page 617 this court said: \xe2\x80\x9c[T]respassers\nand other inconsiderable violators of the law are not to be\nvisited by barbarous punishments or prevented by inhuman\ninflictions of bodily injuries.\xe2\x80\x9d\nThe facts in Allison v. Fiscus, 156 Ohio 120, decided in 1951, are\nvery similar to the case at bar. There plaintiff\xe2\x80\x99s right to damages\nwas recognized for injuries received when he feloniously broke a\ndoor latch and started to enter defendant\xe2\x80\x99s warehouse with\nintent to steal. As he entered a trap of two sticks of dynamite\nburied under the doorway by defendant owner was set off and\nplaintiff seriously injured. The court held the question whether a\nparticular trap was justified as a use of reasonable and necessary\nforce against a trespasser engaged in the commission of a felony\nshould have been submitted to the jury. The Ohio Supreme\nCourt recognized plaintiff\xe2\x80\x99s right to recover punitive or\nexemplary damages in addition to compensatory damages.~\n\n311\n\n\x0cThe legal principles stated by the trial court in instructions 2, 5\nand 6 are well established and supported by the authorities~.\nThere is no merit in defendants\xe2\x80\x99 objections and exceptions\nthereto. Defendants\xe2\x80\x99 various motions based on the same reasons\nstated in exceptions to instructions were properly overruled.\nPlaintiff\xe2\x80\x99s claim and the jury\xe2\x80\x99s allowance of punitive damages,\nunder the trial court\xe2\x80\x99s instructions relating thereto, were not at\nany time or in any manner challenged by defendants in the trial\ncourt as not allowable. We therefore are not presented with the\nproblem of whether the $10,000 award should be allowed to\nstand.\nWe express no opinion as to whether punitive damages are\nallowable in this type of case. If defendants\xe2\x80\x99 attorneys wanted\nthat issue decided it was their duty to raise it in the trial court.~\nStudy and careful consideration of defendants\xe2\x80\x99 contentions on\nappeal reveal no reversible error.\nAffirmed.\n\nQuestions to Ponder on Katko v. Briney\nA. Are you surprised by the verdict? Do you think such a verdict is\nmore or less likely in Iowa farm country than it would be in\nManhattan?\nB. The court notes, \xe2\x80\x9cWe are not here concerned with a man\xe2\x80\x99s right to\nprotect his home and members of his family. Defendants\xe2\x80\x99 home was\nseveral miles from the scene of the incident \xe2\x80\xa6 .\xe2\x80\x9d Do you think the\nresult would have been different if the spring gun was set up in the\nhouse the Brineys\xe2\x80\x99 were living in? Would it make a difference if the\ngun set to fire on intruders only when the Brineys were inside, as\nopposed to when they were gone on errands or on vacation?\nC. What if Mr. Briney had surrounded his property with warning\nsigns that said \xe2\x80\x9cNO TRESPASSING \xe2\x80\x93 DEATH OR SERIOUS\nINJURY MAY RESULT \xe2\x80\x93 AUTOMATIC SHOTGUN IN USE.\xe2\x80\x9d\nWould that make a difference to the outcome of the case? Why or\nwhy not?\n\n312\n\n\x0cNecessity\nThe defense of necessity allows a defendant, in emergency\ncircumstances, to escape tort liability for committing an intentional\ntort against an innocent person. The defense of necessity is similar to\nself-defense or defense of others, except that it does not require the\nplaintiff to have been an aggressor.\nAs a practical matter, necessity is a defense that applies only to torts\nagainst property \xe2\x80\x93 that is, trespass to land, trespass to chattels, and\nconversion. Theoretically, necessity could apply to the personal torts.\nA battery effected by shoving an uncooperative person out of the\nway in order to trip a fire alarm, one imagines, would be justified on\naccount of a necessity defense. But such cases, to the extent they\ncome up at all, are no doubt rare.\nThere are two brands of necessity \xe2\x80\x93 public necessity and private\nnecessity.\nPublic necessity is when the tort is committed in order to protect\nthe public as a whole from some danger. The defense of public\nnecessity is a total defense, voiding all liability.\nPrivate necessity is when the tort is committed to help one or a few\npeople. Private necessity works the same as public necessity, except\nthat private necessity is only a partial defense: The defendant who\nsuccessfully interposes a defense of private necessity is still liable for\ncompensatory damage for any actual harm suffered. So if a person\ncommits a trespass to chattels by absconding with someone\xe2\x80\x99s cell\nphone to call for emergency help, then the phone snatcher is liable to\nthe phone\xe2\x80\x99s owner for damage to the phone. If the phone owner has\nnot suffered any actual loss, however, there is no claim.\nSo, what good is the defense of private necessity if the trespasser is\nstill liable for the cost of any damage done? For one thing, it means\nthat the trespasser cannot be held liable for punitive damages. But it\nalso means that the property-owner does not have the right to selfhelp measures that would defeat the trespasser.\n\n313\n\n\x0cCases: Vincent v. Lake Erie and Ploof v. Putnam\nHere we have not one but two classic cases on private necessity. The\nfirst is Vincent v. Lake Erie. The second is the case-within-a-case, Ploof\nv. Putnam.\n\nVincent v. Lake Erie Transportation Co.\nSupreme Court of Minnesota\nJanuary 14, 1910\n109 Minn. 456. VINCENT et al. v. LAKE ERIE TRANSP.\nCO.\nJustice THOMAS D. O'BRIEN:\nThe steamship Reynolds, owned by the defendant, was for the\npurpose of discharging her cargo on November 27, 1905,\nmoored to plaintiff's dock in Duluth. While the unloading of the\nboat was taking place a storm from the northeast developed,\nwhich at about 10 o'clock p. m., when the unloading was\ncompleted, had so grown in violence that the wind was then\nmoving at 50 miles per hour and continued to increase during\nthe night. There is some evidence that one, and perhaps two,\nboats were able to enter the harbor that night, but it is plain that\nnavigation was practically suspended from the hour mentioned\nuntil the morning of the 29th, when the storm abated, and\nduring that time no master would have been justified in\nattempting to navigate his vessel, if he could avoid doing so.\nAfter the discharge of the cargo the Reynolds signaled for a tug\nto tow her from the dock, but none could be obtained because\nof the severity of the storm. If the lines holding the ship to the\ndock had been cast off, she would doubtless have drifted away;\nbut, instead, the lines were kept fast, and as soon as one parted\nor chafed it was replaced, sometimes with a larger one. The\nvessel lay upon the outside of the dock, her bow to the east, the\nwind and waves striking her starboard quarter with such force\nthat she was constantly being lifted and thrown against the dock,\nresulting in its damage, as found by the jury, to the amount of\n$500.\n\n314\n\n\x0cWe are satisfied that the character of the storm was such that it\nwould have been highly imprudent for the master of the\nReynolds to have attempted to leave the dock or to have\npermitted his vessel to drift a way from it. One witness testified\nupon the trial that the vessel could have been warped into a slip,\nand that, if the attempt to bring the ship into the slip had failed,\nthe worst that could have happened would be that the vessel\nwould have been blown ashore upon a soft and muddy bank.\nThe witness was not present in Duluth at the time of the storm,\nand, while he may have been right in his conclusions, those in\ncharge of the dock and the vessel at the time of the storm were\nnot required to use the highest human intelligence, nor were\nthey required to resort to every possible experiment which could\nbe suggested for the preservation of their property. Nothing\nmore was demanded of them than ordinary prudence and care,\nand the record in this case fully sustains the contention of the\nappellant that, in holding the vessel fast to the dock, those in\ncharge of her exercised good judgment and prudent seamanship.\nIt is claimed by the respondent that it was negligence to moor\nthe boat at an exposed part of the wharf, and to continue in that\nposition after it became apparent that the storm was to be more\nthan usually severe. We do not agree with this position. The part\nof the wharf where the vessel was moored appears to have been\ncommonly used for that purpose. It was situated within the\nharbor at Duluth, and must, we think, be considered a proper\nand safe place, and would undoubtedly have been such during\nwhat would be considered a very severe storm. The storm which\nmade it unsafe was one which surpassed in violence any which\nmight have reasonably been anticipated.\nThe appellant contends by ample assignments of error that,\nbecause its conduct during the storm was rendered necessary by\nprudence and good seamanship under conditions over which it\nhad no control, it cannot be held liable for any injury resulting\nto the property of others, and claims that the jury should have\nbeen so instructed. An analysis of the charge given by the trial\ncourt is not necessary, as in our opinion the only question for\nthe jury was the amount of damages which the plaintiffs were\nentitled to recover, and no complaint is made upon that score.\n\n315\n\n\x0cThe situation was one in which the ordinary rules regulating\nproperly rights were suspended by forces beyond human\ncontrol, and if, without the direct intervention of some act by\nthe one sought to be held liable, the property of another was\ninjured, such injury must be attributed to the act of God, and\nnot to the wrongful act of the person sought to be charged. If\nduring the storm the Reynolds had entered the harbor, and\nwhile there had become disabled and been thrown against the\nplaintiffs' dock, the plaintiffs could not have recovered. Again, if\nwhich attempting to hold fast to the dock the lines had parted,\nwithout any negligence, and the vessel carried against some\nother boat or dock in the harbor, there would be no liability\nupon her owner. But here those in charge of the vessel\ndeliberately and by their direct efforts held her in such a position\nthat the damage to the dock resulted, and, having thus preserved\nthe ship at the expense of the dock, it seems to us that her\nowners are responsible to the dock owners to the extent of the\ninjury inflicted.\nIn Depue v. Flatau, 100 Minn. 299, this court held that where the\nplaintiff, while lawfully in the defendants' house, became so ill\nthat he was incapable of traveling with safety, the defendants\nwere responsible to him in damages for compelling him to leave\nthe premises. If, however, the owner of the premises had\nfurnished the traveler with proper accommodations and medical\nattendance, would he have been able to defeat an action brought\nagainst him for their reasonable worth?\nIn Ploof v. Putnam, 71 Atl. 188, the Supreme Court of Vermont\nheld that where, under stress of weather, a vessel was without\npermission moored to a private dock at an island in Lake\nChamplain owned by the defendant, the plaintiff was not guilty\nof trespass, and that the defendant was responsible in damages\nbecause his representative upon the island unmoored the vessel,\npermitting it to drift upon the shore, with resultant injuries to it.\nIf, in that case, the vessel had been permitted to remain, and the\ndock had suffered an injury, we believe the shipowner would\nhave been held liable for the injury done.\n\n316\n\n\x0cTheologians hold that a starving man may, without moral guilt,\ntake what is necessary to sustain life; but it could hardly be said\nthat the obligation would not be upon such person to pay the\nvalue of the property so taken when he became able to do so.\nAnd so public necessity, in times of war or peace, may require\nthe taking of private property for public purposes; but under our\nsystem of jurisprudence compensation must be made.\nLet us imagine in this case that for the better mooring of the\nvessel those in charge of her had appropriated a valuable cable\nlying upon the dock. No matter how justifiable such\nappropriation might have been, it would not be claimed that,\nbecause of the overwhelming necessity of the situation, the\nowner of the cable could not recover its value.\nThis is not a case where life or property was menaced by any\nobject or thing belonging to the plaintiff, the destruction of\nwhich became necessary to prevent the threatened disaster. Nor\nis it a case where, because of the act of God, or unavoidable\naccident, the infliction of the injury was beyond the control of\nthe defendant, but is one where the defendant prudently and\nadvisedly availed itself of the plaintiffs' property for the purpose\nof preserving its own more valuable property, and the plaintiffs\nare entitled to compensation for the injury done.\nOrder affirmed.\nJustice CHARLES L. LEWIS, dissenting:\nI dissent. It was assumed on the trial before the lower court that\nappellant's liability depended on whether the master of the ship\nmight, in the exercise of reasonable care, have sought a place of\nsafety before the storm made it impossible to leave the dock.\nThe majority opinion assumes that the evidence is conclusive\nthat appellant moored its boat at respondent's dock pursuant to\ncontract, and that the vessel was lawfully in position at the time\nthe additional cables were fastened to the dock, and the\nreasoning of the opinion is that, because appellant made use of\nthe stronger cables to hold the boat in position, it became liable\nunder the rule that it had voluntarily made use of the property\nof another for the purpose of saving its own.\n\n317\n\n\x0cIn my judgment, if the boat was lawfully in position at the time\nthe storm broke, and the master could not, in the exercise of\ndue care, have left that position without subjecting his vessel to\nthe hazards of the storm, then the damage to the dock, caused\nby the pounding of the boat, was the result of an inevitable\naccident. If the master was in the exercise of due care, he was\nnot at fault. The reasoning of the opinion admits that if the\nropes, or cables, first attached to the dock had not parted, or if,\nin the first instance, the master had used the stronger cables,\nthere would be no liability. If the master could not, in the\nexercise of reasonable care, have anticipated the severity of the\nstorm and sought a place of safety before it became impossible,\nwhy should he be required to anticipate the severity of the\nstorm, and, in the first instance, use the stronger cables?\nI am of the opinion that one who constructs a dock to the\nnavigable line of waters, and enters into contractual relations\nwith the owner of a vessel to moor at the same, takes the risk of\ndamage to his dock by a boat caught there by a storm, which\nevent could not have been avoided in the exercise of due care,\nand further, that the legal status of the parties in such a case is\nnot changed by renewal of cables to keep the boat from being\ncast adrift at the mercy of the tempest.\nJAGGARD, J., concurs herein.\n\nQuestions to Ponder on Vincent, Ploof, and Economic\nAnalysis\nA. The cases of Vincent and Ploof are favorites of law-and-economics\nscholars. They ask whether it makes a difference what the rule is.\nSuppose that a dock owner and boat owner have a chance to\nnegotiate before the boat is tied up. A storm is raging, and the boat\nhas no place else to go. The boat owner and dock owner begin\nnegotiating over permission to moor \xe2\x80\x93 shouting to each other over\nthe howling wind and spray. What will be the outcome of their\nnegotiations? Will the outcome change depending on the legal rule\nregarding private necessity? Is one version of the rule more\neconomically efficient than another?\n\n318\n\n\x0cB. Economists use the label \xe2\x80\x9ctransaction costs\xe2\x80\x9d to refer to the time,\neffort, expense, and overall inconvenience that must be endured to\nconclude a transaction. How does the concept of transaction costs\napply to the analysis of whether one rule is more economically\nefficient than another?\nC. Economic efficiency isn\xe2\x80\x99t the only way to think about whether a\nlegal rule is a good one. One might also think along the lines of\nintuitive notions of justice and fairness. Do those notions lead to a\ndifferent conclusion than the economic analysis in the cases of\nVincent and Ploof?\nCase: Surocco. v. Geary\nThe following is the classic case on public necessity. The facts\noccurred in during San Francisco\xe2\x80\x99s Great Fire in 1849, at the height\nof the Gold Rush.\n\nSurocco v. Geary\nSupreme Court of California\nJanuary 1853\n3 Cal. 69. PASCAL SUROCCO et al. v. JOHN W. GEARY.\nSupreme Court of California. MURRAY, Chief Justice, delivered\nthe opinion of the Court. HEYDENFELDT, Justice,\nconcurred.\nFACTS:\nThis was an action brought in the Superior Court of the City of\nSan Francisco, by the plaintiffs, against the defendant, for the\nrecovery of damages for the blowing up with gunpowder, and\ndestroying their house and store, with the goods therein, on the\n24th December, 1849. Damages laid at $65,000.\nThe defendant answered, that the said building was, at the time\nof the entry upon the same and of the destruction thereof,\ncertain to be consumed by a public conflagration then raging in\nthe city of San Francisco, and to communicate the said\nconflagration to other adjacent buildings in the said city. That\ndefendant was at the time First Alcalde of the said city, and did,\nby the advice and command of divers members of the then\n\n319\n\n\x0cAyuntamiento, enter into and destroy the said building, as for\nthe cause stated he lawfully might do, the same being then and\nthere a public nuisance, and denies the damage, and asks to be\ndismissed, with costs, &c.\nThere was a good deal of testimony given as to the value of the\nbuildings and goods contained in it, and as to the necessity for\nits destruction at the time. The proof was, however, that the fire\nin a very few minutes reached the site of the building, and\nextended beyond it, and that its destruction would have been\ncertain if it had not been blown up.\nOn the 25th October, 1850, the court in banc, sitting as a jury,\non a reargument of the case, found for the plaintiffs in the sum\nof $7500, and ordered judgment accordingly.\nChief Justice HUGH MURRAY:\nThis was an action, commenced in the court below, to recover\ndamages for blowing up and destroying the plaintiffs' house and\nproperty, during the fire of the 24th of December, 1849.\nGeary, at that time Alcalde of San Francisco, justified, on the\nground that he had the authority, by virtue of his office, to\ndestroy said building, and also that it had been blown up by him\nto stop the progress of the conflagration then raging.\nIt was in proof, that the fire passed over and burned beyond the\nbuilding of the plaintiffs', and that at the time said building was\ndestroyed, they were engaged in removing their property, and\ncould, had they not been prevented, have succeeded in\nremoving more, if not all of their goods.\nThe cause was tried by the court sitting as a jury, and a verdict\nrendered for the plaintiffs, from which the defendant prosecutes\nthis appeal under the Practice Act of 1850.\nThe only question for our consideration is, whether the person\nwho tears down or destroys the house of another, in good faith,\nand under apparent necessity, during the time of a conflagration,\nfor the purpose of saving the buildings adjacent, and stopping\nits progress, can be held personally liable in an action by the\nowner of the property destroyed.\n\n320\n\n\x0cThis point has been so well settled in the courts of New York\nand New Jersey, that a reference to those authorities is all that is\nnecessary to determine the present case.\nThe right to destroy property, to prevent the spread of a\nconflagration, has been traced to the highest law of necessity,\nand the natural rights of man, independent of society or civil\ngovernment. \xe2\x80\x9cIt is referred by moralists and jurists to the same\ngreat principle which justifies the exclusive appropriation of a\nplank in a shipwreck, though the life of another be sacrificed;\nwith the throwing overboard goods in a tempest, for the safety\nof a vessel; with the trespassing upon the lands of another, to\nescape death by an enemy. It rests upon the maxim, Necessitas\ninducit privilegium quod jura privata.\xe2\x80\x9d\nThe common law adopts the principles of the natural law, and\nplaces the justification of an act otherwise tortious precisely on\nthe same ground of necessity. (See American Print Works v.\nLawrence, 1 Zab. 258, 264, and the cases there cited.)\nThis principle has been familiarly recognized by the books from\nthe time of the saltpetre case, and the instances of tearing down\nhouses to prevent a conflagration, or to raise bulwarks for the\ndefence of a city, are made use of as illustrations, rather than as\nabstract cases, in which its exercise is permitted. At such times,\nthe individual rights of property give way to the higher laws of\nimpending necessity.\nA house on fire, or those in its immediate vicinity, which serve\nto communicate the flames, becomes a nuisance, which it is\nlawful to abate, and the private rights of the individual yield to\nthe considerations of general convenience, and the interests of\nsociety. Were it otherwise, one stubborn person might involve a\nwhole city in ruin, by refusing to allow the destruction of a\nbuilding which would cut off the flames and check the progress\nof the fire, and that, too, when it was perfectly evident that his\nbuilding must be consumed.\nThe respondent has invoked the aid of the constitutional\nprovision which prohibits the taking of private property for\npublic use, without just compensation being made therefor. This\n\n321\n\n\x0cis not \xe2\x80\x9ca taking of private property for public use,\xe2\x80\x9d within the\nmeaning of the Constitution.\nThe right of taking individual property for public purposes\nbelongs to the State, by virtue of her right of eminent domain,\nand is said to be justified on the ground of state necessity; but\nthis is not a taking or a destruction for a public purpose, but a\ndestruction for the benefit of the individual or the city, but not\nproperly of the State.\nThe counsel for the respondent has asked, who is to judge of\nthe necessity of the destruction of property?\nThis must, in some instances, be a difficult matter to determine.\nThe necessity of blowing up a house may not exist, or be as\napparent to the owner, whose judgment is clouded by interest,\nand the hope of saving his property, as to others. In all such\ncases the conduct of the individual must be regulated by his own\njudgment as to the exigencies of the case. If a building should be\ntorn down without apparent or actual necessity, the parties\nconcerned would undoubtedly be liable in an action of trespass.\nBut in every case the necessity must be clearly shown. It is true,\nmany cases of hardship may grow out of this rule, and property\nmay often in such cases be destroyed, without necessity, by\nirresponsible persons, but this difficulty would not be obviated\nby making the parties responsible in every case, whether the\nnecessity existed or not.\nThe legislature of the State possess the power to regulate this\nsubject by providing the manner in which buildings may be\ndestroyed, and the mode in which compensation shall be made;\nand it is to be hoped that something will be done to obviate the\ndifficulty, and prevent the happening of such events as those\nsupposed by the respondent's counsel.\nIn the absence of any legislation on the subject, we are\ncompelled to fall back upon the rules of the common law.\nThe evidence in this case clearly establishes the fact, that the\nblowing up of the house was necessary, as it would have been\nconsumed had it been left standing. The plaintiffs cannot\nrecover for the value of the goods which they might have saved;\n\n322\n\n\x0cthey were as much subject to the necessities of the occasion as\nthe house in which they were situate; and if in such cases a party\nwas held liable, it would too frequently happen, that the delay\ncaused by the removal of the goods would render the\ndestruction of the house useless.\nThe court below clearly erred as to the law applicable to the\nfacts of this case. The testimony will not warrant a verdict\nagainst the defendant.\nJudgment reversed.\n\nHistorical Note on Surocco v. Geary\nThe Great Fire started around 6 a.m. on Christmas Eve in\nDennison\xe2\x80\x99s Exchange \xe2\x80\x93 a gambling parlor located on Kearny Street\nacross from Portsmouth Square. (The site is about a block west of\nthe present-day Transamerica Pyramid skyscraper.) The fire rapidly\ngrew into an inferno, feeding on homes made of wooden frames\ncovered with painted- or papered-over cotton cloth. John W. Geary,\nthe head municipal official \xe2\x80\x93 who, in the Spanish tradition, was called\nthe \xe2\x80\x9calcalde\xe2\x80\x9d \xe2\x80\x93 created a firebreak by demolishing buildings in the\nway of the fire.\nThe city responded to the disaster the next month by organizing a\nvolunteer fire department, the forerunner of today\xe2\x80\x99s S.F.F.D. But\nbuilding standards remained the same. And because of the economic\npressure of the Gold Rush, new buildings were hastily erected on\nburned-out lots within days. These poorly constructed new buildings\nwere no less flammable than those they replaced. Another fire soon\nfollowed, marking the first of multiple burn-build-burn cycles that\ncontinued through 1851.\nAlcalde Geary went on to become San Francisco\xe2\x80\x99s first mayor,\nterritorial governor of Kansas, a colonel in the Union Army during\nthe Civil War, and eventually a two-term governor of Pennsylvania.\nToday, Geary Boulevard, a major east-west thoroughfare in San\nFrancisco, is named after him.\n\n323\n\n\x0cQuestions to Ponder on Surocco and Economic Analysis\nA. How would you analyze the case of Surocco v. Geary in economic\nterms? Is it economically efficient for Surocco to shoulder the entire\nloss? Why not have the public treasury reimburse Surocco?\nB. Suppose in this situation Surocco tried to enter into a negotiation\nwith Geary over the subject of blowing up Surocco\xe2\x80\x99s building. What\nwould be the outcome? Would the outcome change if the legal rule\nwere different? What legal rule would be more economically efficient,\nor does the legal rule make any difference?\nC. Where do your intuitive notions of justice and fairness lie in a case\nlike this? Do those notions lead to a different conclusion than the\neconomic analysis? Does your intuitive sense of justice lead you\nperceive that a different rule should be applicable in cases like Surocco\nas opposed to Vincent and Ploof?\n\n324\n\n\x0cPart VI: Remedies\n\n325\n\n\x0c23. General Issues in Remedies\n\xe2\x80\x9cFor every evil under the sun,\nThere is a remedy, or there is none.\nIf there be one, try and find it;\nIf there be none, never mind it.\xe2\x80\x9d\n\xe2\x80\x95 Mother Goose Nursery Rhyme, recorded in 1765\n\nIntroduction\nIt has sometimes been said that a law without a remedy is a\nsuggestion.\nOne can spend so much time thinking about the elements of and\ndefenses to tort liability, that remedies might be forgotten. Yet\nremedies are the point on the horizon towards which all of the\nplaintiff\xe2\x80\x99s ships are steered and around which all the defendant\xe2\x80\x99s\nbattlements are arrayed. Without remedies, everything else is\nirrelevant.\nThis chapter discusses some basic remedies concepts in broad\noutline. In the following chapters, we will explore two aspects of\nremedies in more detail: compensatory damages and punitive\ndamages.\n\nLegal and Equitable Remedies\nSince the American court system descended from that of England, it\nmaintains remnants of a distinction that pervaded the English courts\n\xe2\x80\x93 that between \xe2\x80\x9claw\xe2\x80\x9d and \xe2\x80\x9cequity.\xe2\x80\x9d English courts of law impaneled\njuries and practiced the common-law method, with the actions of a\ncourt in any given case being bound by precedent of courts that had\nconsidered similar cases in the past. The English courts of equity\ndescended from the use of royal power to grant remedies based on\nnotions of fairness, and they were unconstrained by precedent.\nThe English courts of law and equity also offered different remedies.\nCourts of law were limited in the remedies they could provide. For\nthe most part, courts of law awarded damages, but they could also\n\n326\n\n\x0caward some non-damages remedies, such as replevin, which allows for\nthe pre-trial seizure of a wrongfully taken chattel, and ejectment, which\ncan be used to force a defendant off the plaintiff\xe2\x80\x99s land. Courts of\nequity, sitting without juries, had broad power to fashion remedies on\nthe basis of what seemed appropriate. Notably, equitable courts could\nissue an injunction, in which a party was ordered to specifically\nperform some action or refrain from performing some action.\nIn the United States, the distinction between courts of law and courts\nof equity has mostly vanished. One jurisdiction where the distinction\nremains alive and well is Delaware. In the First State, the Court of\nChancery, which handles a heavy caseload owing to the great number\nof corporations registered in Delaware, is an equitable court in the\nclassical tradition. The Delaware Court of Chancery measures its\njurisdiction in equity in terms of the jurisdiction that was exercised by\nthe High Court of Chancery of Great Britain at the time the\nAmerican colonies formally separated themselves from British\nauthority.\nFor the most part, the remaining distinction between legal and\nequitable relief in American law concerns whether or not the party\nseeking the remedy will be entitled to a jury. A suit for damages \xe2\x80\x93\nowing to its legal nature \xe2\x80\x93 can be accompanied by a demand for a\njury trial. This is important for plaintiffs\xe2\x80\x99 attorneys who often\nanticipate receiving a more favorable result from a jury than they\nwould get from a judge sitting alone. In contrast, the decision as to\nwhether or not to grant an injunction is generally left to a judge\nsitting alone. By seeking an equitable remedy, a plaintiff often loses\nthe right to a jury.\n\nDamages\nAn award of damages is a legal remedy ordering the defendant to pay\nmoney to the plaintiff.\nAt common law, there are three types of damages: compensatory\ndamages, punitive damages, and nominal damages. The most basic\nkind of damages award is for compensatory damages. These are\ndamages to compensate the plaintiff for harm endured, and they are\nmeasured by the amount needed to make the plaintiff whole again.\n\n327\n\n\x0cCompensatory damages, the subject of the next chapter, are focused\non the plaintiff and are concerned with the plaintiff\xe2\x80\x99s experience. By\ncontrast, punitive damages, the subject of Chapter 25, are aimed at\npunishing the defendant. The focus is not on the plaintiff, but on the\ndefendant \xe2\x80\x93 whether the defendant acted with intent, malice,\nrecklessness, etc. Then there are nominal damages \xe2\x80\x93 damages in\nname only. As discussed in connection with intentional torts, nominal\ndamages are a symbolic amount, such as $1, which indicates that the\nplaintiff has proved the invasion of a legally protected right, even if\nno other damages are proved.\nOther sorts of damages are created by statute. The variety of\nstatutory causes of action on the books corresponds to a variety of\ndamages schemes. For instance, in copyright law, successful plaintiffs\ncan get a measure of compensatory damages determined by the\ndefendant\xe2\x80\x99s profits derived from the infringement, or the plaintiff\xe2\x80\x99s\nlost sales, whichever is larger. Sometimes this amount, however, is\ntrifling or nonexistent. In such cases, copyright holders who\nregistered their copyright claim early enough will have the option of\nelecting what are called statutory damages. In copyright, statutory\ndamages are a minimum of $750 per infringement, even if the\ndefendant acted innocently and without any commercial effect. 17\nU.S.C. \xc2\xa7 504. For willful infringers, per-infringement statutory\ndamages can swell to $150,000. Id. Statutory damages can be found in\nstate statutes as well. In California, a statute providing a cause of\naction for unauthorized use of a person\xe2\x80\x99s name, image, or likeness \xe2\x80\x93\ncalled right-of-publicity infringement \xe2\x80\x93 provides for statutory\ndamages of a minimum of $750. Cal. Civil Code \xc2\xa7 3344.\nAnother species of damages created by statute is treble damages,\nwhere the plaintiff receives a total award of three times the computed\ncompensatory damages. Treble damages are allowed in cases\nanalogous to those supporting an award of punitive damages in\ncommon-law torts. Examples of statutes authorizing treble damages\nare civil racketeering suits, civil antitrust violations, patent\ninfringement, and trademark infringement.\n\n328\n\n\x0cAdditur and Remittitur\nWhen a jury reaches a verdict that assesses a certain amount of\ndamages, the parties can argue to the court that the amount needs to\nbe increased or decreased. An increase or decrease of a jury\xe2\x80\x99s\ncomputation of damages can be accomplished through the twin\ndoctrines of additur and remittitur. (\xe2\x80\x9cAdditur\xe2\x80\x9d rhymes loosely with\n\xe2\x80\x9cmad at her,\xe2\x80\x9d and \xe2\x80\x9cremittitur\xe2\x80\x9d sounds something like \xe2\x80\x9cree-mitt-iturr.\xe2\x80\x9d)\nAdditur and remittitur involve some slight of hand. A judge may not\ndirectly increase or decrease a jury verdict. Instead, at the urging of\none party, the court can threaten to order a new trial unless the other\nparty agrees to accept a less favorable assessment of damages.\nWith additur, a plaintiff moves for a new trial if she or he believes the\ndefendant has been undeservedly blessed with a lowball jury verdict.\nAssuming the court agrees that the measure of damages is too low,\nthe court offers the defendant the chance to submit to an increased\naward \xe2\x80\x93 augmented to the point the court thinks is appropriate \xe2\x80\x93\ninstead of having the court grant the plaintiff\xe2\x80\x99s motion for a new\ntrial.\nIn truth, additur is not much of a choice. If the defendant insists on a\nnew trial, the award could be even bigger. If the new trial produces\nthe same verdict or one even more favorable to the defendant, then\nthe defendant faces to prospect of yet another additur.\nRemittitur is the opposite. The defendant moves for a new trial on\nthe ground that the plaintiff\xe2\x80\x99s award of damages is unreasonably\nlarge. The court agrees that the measure of damages is too much.\nBefore ordering a new trial, the court offers the plaintiff the chance\nto take a reduced damage award \xe2\x80\x93 winnowed down to what the court\nthinks is appropriate. Again, it\xe2\x80\x99s not much of a choice, because if the\nplaintiff does go through a new trial, there is nothing to stop the\nplaintiff from facing remittitur again.\nAlthough it seems counterintuitive, remittitur, while lowering the\namount of damages, can be seen as doing the plaintiff a favor, since\ngoing through a new trial likely would only make things worse.\n\n329\n\n\x0cAttorneys\xe2\x80\x99 Fees\nAt the end of the day, the lawyers need to be paid. You might think it\nwould be fair for the losing side of a lawsuit to pay the attorneys\xe2\x80\x99 fees\nof the winning side. Indeed, that is how it is done in most of the\nworld. In the United States, however, each party is expected to bear\nits own costs, including paying their own lawyers, unless there is a\ncontract or statute that requires an award of such fees to the\nprevailing side. This doctrine that everyone pays their own lawyers is\ncalled the American Rule.\nThe default rule in nearly every other country is called the English\nRule. Under the English Rule, the losing side pays the winning side\xe2\x80\x99s\nfees. This rule is founded on the idea that since legal representation is\na practical necessity in a lawsuit, forcing the side that was right all\nalong to absorb the cost of that representation is a wrong that should\nbe avoided.\nThe English Rule arguably aids the administration of justice by\nkeeping marginal claims out of court. Yet it can also have a\ndisproportionate effect of discouraging poorer parties from suing\nwealthier ones. Just as wealthier people tend to spend more on their\nhouses and cars, so too they tend to spend more on their lawyers.\nThe same is true for large versus small businesses. As a result, under\nthe English Rule, when a David takes on a Goliath, the parties face\nasymmetrical risks. If David unsuccessfully sues Goliath, Goliath\xe2\x80\x99s\nvictory, coming with an award of fees, could wipe out David\xe2\x80\x99s\nbusiness entirely. In contrast, if Goliath wants to sue David, it faces\nminimal risk. Even if Goliath loses, David\xe2\x80\x99s fees can be readily\nabsorbed into the bottom line.\nNot only are the risks disproportionate under the English Rule, so\nare the benefits. After all, the more a defendant spends on attorneys\xe2\x80\x99\nfees \xe2\x80\x93 crafting better arguments, filing more motions, digging deeper\nwith research and discovery, etc. \xe2\x80\x93 the more likely it is that the\ndefendant will win and not have to pay any of those costs. By the\nsame token, comparatively richer plaintiffs face proportionally\nsmaller disincentives to filing marginal lawsuits. Not only can they\nbetter absorb a loss, and not only can they can increase their odds of\n\n330\n\n\x0cwinning through extravagant spending on lawyers, but they also stand\na better chance of getting a favorable settlement, since the defendant\nis likely looking to get out early and cut its losses.\nThere seems to be little question that the English Rule would be fair\nif attorneys\xe2\x80\x99 fees were always kept low and affordable, and if courts\nnever reached an unjust result. The American Rule, however, takes a\nmore realist attitude in this regard. The emphasis is on access to the\ncourts and not repelling plaintiffs because of their inability to bear the\nrisk of paying the other side\xe2\x80\x99s fees.\nDespite the broad rejection of the loser-pays system in the United\nStates, there is a well-recognized bad-faith exception to the\nAmerican Rule. As a court in the District of Columbia explained,\nA court may award attorneys\xe2\x80\x99 fees against a\nparty who has acted in bad faith, vexatiously,\nwantonly, or for oppressive reasons in\nconnection with the litigation. This bad faith\nexception is intended to punish those who have\nabused the judicial process and to deter those\nwho would do so in the future. Courts also may\naward attorneys\xe2\x80\x99 fees against a party who\nexhibits a willful disobedience of a court order.\nIn awarding attorneys\xe2\x80\x99 fees, however, a party is\nnot to be penalized for maintaining an\naggressive litigation posture, nor are good faith\nassertions of colorable claims or defenses to be\ndiscouraged. In attempting to deter bad faith\nlitigation through attorney fee awards, the court\nmust scrupulously avoid penalizing a party for a\nlegitimate exercise of the right of access to the\ncourts. For this reason, the standards of bad\nfaith are necessarily stringent. Under these\nstringent standards, the awarding of attorneys\xe2\x80\x99\nfees for bad faith litigation is proper only under\nextraordinary\ncircumstances\nor\nwhen\ndominating reasons of fairness so demand.\n\nIn re Est. of Delaney, 819 A.2d 968, 997-98 (D.C. App. 2003) (cites and\ninternal quotes omitted).\n\n331\n\n\x0cThe bad-faith exception is not generally motivated by a desire to help\nworthy parties. Instead, the idea is \xe2\x80\x9cto punish those who have abused\nthe judicial process and to deter those who would do so in the\nfuture.\xe2\x80\x9d Synanon Found., Inc. v. Bernstein, 517 A.2d 28, 37 (D.C. App.\n1986).\nIn addition to the bad-faith exception to the American Rule, many\nstatutory causes of action come with fee-shifting provisions.\nSometimes statutes give courts discretion to award fees to the\nprevailing party where doing so would serve the interests of justice.\nSuch flexibility allows courts to follow a bear-your-own-fees model in\nclose cases where both sides could have reasonably thought they\nwere likely to prevail. Yet the court can order fees from a plaintiff\nwho pursued a non-meritorious case or from a bratty, foot-shuffling\ndefendant who insisted on being taken to court rather than paying\nwhat was owed.\nOther statutes are more aligned with the straight-up loser-pays\nEnglish Rule. An example of this kind of provision is found in\nCalifornia\xe2\x80\x99s right of publicity statute, Cal. Civil Code \xc2\xa7 3344, which\nprovides, \xe2\x80\x9cThe prevailing party in any action under this section shall\nalso be entitled to attorney's fees and costs.\xe2\x80\x9d\nThe case of Kirby v. Sega of America, Inc., 144 Cal.App.4th 47 (Cal.\nApp. 2006) shows how such a provision can work. The plaintiff,\nKierin Kirby, is a singer best known as the singer for the group DeeLite, which produced the 1990 one-hit-wonder \xe2\x80\x9cGroove is in the\nHeart.\xe2\x80\x9d Kirby sued videogame-maker Sega for right-of-publicity\ninfringement based on Sega\xe2\x80\x99s in-game depiction of a character named\nUlala in \xe2\x80\x9cSpace Channel 5,\xe2\x80\x9d a video game first released in North\nAmerica in 2000. Kirby alleged that Ulala\xe2\x80\x99s look was a ripoff of\nKirby\xe2\x80\x99s style. Ulala sported a cheerleader-type midriff-exposing outfit\nwith a prominent \xe2\x80\x9c5,\xe2\x80\x9d worn with platform boots, pigtails, and a blue\njet-pack. Kirby produced evidence of having worn cheerleader-type\nskirts, cropped tops with numerals on the chest, a blue backpack, hair\nin pigtails, and similar footwear. Kirby sued both under the commonlaw right of publicity and under Cal. Civil Code \xc2\xa7 3344. Both claims\nare similar, although \xc2\xa7 3344 offers some potential upside with\n\n332\n\n\x0cstatutory damages in exchange for showing that the defendant\n\xe2\x80\x9cknowingly\xe2\x80\x9d appropriated the claimant\xe2\x80\x99s identity.\nThe case was close on many fronts, but Kirby lost on appeal. When\nshe did, because she had alleged \xc2\xa7 3344, she was ordered to pay\nattorneys\xe2\x80\x99 fees of more than $608,000. The appeals court wrote:\nKirby concedes section 3344\xe2\x80\x99s directive that\nfees \xe2\x80\x9cshall\xe2\x80\x9d be awarded to the prevailing party\nin a statutory appropriation action is clearly\nmandatory. Nevertheless, she argues the statute\nshould be applied permissively and only in cases\nin which the suit is deemed frivolous or brought\nin bad faith or without substantial justification.\nOtherwise, she insists, the statute \xe2\x80\x9cpresents a\nclear disincentive for plaintiffs to enforce \xe2\x80\xa6 .\xe2\x80\x9d\nHer argument is misdirected. The mandatory\nfee provision of \xc2\xa7 3344(a) leaves no room for\nambiguity. Whether the course is sound is not\nfor us to say. This is the course the Legislature\nhas chosen and, until that body changes course,\nwe must enforce the rule. The fee award was\nproper.\n\nKirby, 144 Cal.App.4th at 62.\nOn top of the $608,000 in fees from trial court proceedings, Kirby\nwas ordered to pay the additional fees incurred by Sega in the appeal.\nIf Kirby had alleged only the common-law tort of right of publicity,\nshe would not have been exposed to the downside of paying Sega\xe2\x80\x99s\nlegal bills. It\xe2\x80\x99s an important lesson to remember in practice: Always\nthink about liability for attorneys\xe2\x80\x99 fees when suing on a contract or\nstatutory cause of action.\nAnother important difference between the United States and other\ncountries on the question of attorneys\xe2\x80\x99 fees is whether contingency\nfees are allowed. Instead of paying an hourly rate for a lawyer,\nplaintiffs in the U.S. can hire a willing lawyer on a contingent basis,\nsuch that the lawyer only gets paid if the client obtains a recovery.\nThe permissiveness toward contingency fees in the United States is\nlargely unique in the world. American plaintiffs\xe2\x80\x99 attorneys paid on a\n\n333\n\n\x0ccontingency fee basis typically take 33% to 40% of a recovery. As a\npoint of comparison, England allows \xe2\x80\x9cconditional fees,\xe2\x80\x9d but at a\nlower rate \xe2\x80\x93 no more than double what the lawyer would have\ncharged by the hour. Most other countries ban contingent fee\narrangements outright.\nThe American contingent fee system allows plaintiffs to avoid some\nof the risks posed by lawsuits. Specifically, it allows plaintiffs to avoid\nthe risk of uncompensated attorneys\xe2\x80\x99 fees, should they lose their suit.\nThis risk is instead shifted to the plaintiff\xe2\x80\x99s attorney. The attorney is\nable to absorb that risk by taking on a basket of representations,\nwhere winners will offset losers.\nThose who laud the contingency fee system say offers a means for\ndeserving plaintiffs to get representation regardless of their financial\nwherewithal. Those who condemn contingency fees say they\nencourage wasteful litigation.\nContingency fees do not cover litigation costs apart from attorney\nfees. That is, they do not cover filing fees and expert-witness fees.\nPlaintiffs remain responsible for these, although in many places\nlawyers may make an arrangement by which they advance those costs\nto a plaintiff with the anticipation that they will write them off as a\nloss in the event the plaintiff does not prevail.\n\nTaxation of Damages\nTaxation of damages can be complicated. In general, however, the\ntax treatment of compensatory damages is based on \xe2\x80\x9cthe origin of\nthe claim\xe2\x80\x9d \xe2\x80\x93 that is, what the damages are replacing. Damages for the\ncost of property repairs may not be taxed at all, or in some cases, they\nmight be treated as capital gains. Damages for lost wages or lost\nbusiness earnings are typically taxed as income.\nAn important exception to the origin-of-the-claim doctrine is \xc2\xa7\n104(a)(2) of the Internal Revenue Code, which excludes from taxable\nincome compensatory damages \xe2\x80\x9creceived (whether by suit or\nagreement and whether as lump sums or as periodic payments) on\naccount of personal physical injuries or physical sickness.\xe2\x80\x9d Any\ndamages springing from physical injury are tax-free under this\n\n334\n\n\x0cprovision. That includes medical expenses, pain and suffering, and\neven lost wages \xe2\x80\x93 so long as the primary injury sued on is physical.\nPunitive damages and interest are taxable. This is so even if they stem\nfrom a physical injury.\nSettlements are taxed the same as if they were judgments. And\nbecause tax treatment is different depending on what the damages are\nmeant to address, when lawyers are negotiating a settlement, they\nshould keep the tax consequences in mind. If the plaintiff and\ndefendant agree to characterize settlement amounts in certain ways,\nthat could have an effect on the plaintiff\xe2\x80\x99s tax burden. It is often a\ngood idea to consult a tax attorney when thinking about how to\nstructure a settlement.\n\nTaxes and Fees: The Bottom Line\nAttorneys\xe2\x80\x99 fees can interact with taxes to produce some surprisingly\nlow recoveries for plaintiffs. Suppose the plaintiff, having hired an\nattorney on a contingency-fee basis, receives a $1 million judgment. If\nthe plaintiff owes taxes on this amount, the plaintiff owes the taxes\non the entire amount \xe2\x80\x93 without first deducting the fees. The tax bill\nwill probably around $350,000. Then the plaintiff must pay the\nattorney\xe2\x80\x99s contingency fee. Suppose that fee is 38% or $380,000.\nSubtracted from the $650,000 remaining after taxes, that leaves the\nplaintiff with $270,000. So far, the government and the lawyer have\ngotten far more than the plaintiff. But the plaintiff still does not get\nto keep all of what remains. The Plaintiff must pay the various\nlitigation costs \xe2\x80\x93 charges for court filings, deposition stenographers,\nvideographers, and, of course, expert witnesses. Expert fees in\nparticular can be enormous. A plaintiff\xe2\x80\x99s experts might include\nscientists, accountants, and medical doctors. One study found that\nthe average fee for a medical expert witness is $555 per hour, with\nmany experts requiring a minimum number of hours for testifying at\ntrials and depositions. Experts\xe2\x80\x99 travel costs must be reimbursed, and\nsome require first-class travel as a condition of signing a retainer\nagreement. The more complex the case, the higher the expert fees are\nlikely to be. In its patent infringement suit against Samsung, Apple\n\n335\n\n\x0cComputers paid an accounting expert a $1.75 million in fees to come\nup with a multi-billion damages figure to propose to the jury.\nIt all adds up. It is not uncommon that after paying taxes, attorneys\xe2\x80\x99\nfees, and litigation costs, a successful but unlucky plaintiff may net\nvirtually nothing.\n\nInjunctions\nAside from an award of money, plaintiffs can ask the court for an\norder compelling the defendant to undertake some action or refrain\nfrom undertaking some action. The generic form of this remedy is\ncalled an injunction, and it is equitable in character, meaning it is for\nthe judge to grant, and not within the province of a jury.\nInjunctions are not as common as damages awards in the tort\ncontext. But they are often the go-to remedy in property-based torts,\nwhere a plaintiff may want the court to enjoin future trespasses or\nnuisances. And, although rare, injunctions can be issued as a\nprophylactic measure in an incipient negligence context, where the\nplaintiff convinces the court that the defendant is unreasonably\nrisking injury to the plaintiff.\nIn general, to obtain an injunction, the applicant must convince the\ncourt of three things: (1) the lack of an adequate remedy at law, (2)\nfeasibility of enforcement, and (3) that the balance of hardships tilts\nin the plaintiff\xe2\x80\x99s favor. Let\xe2\x80\x99s look at each of these in more detail.\nFirst, for an injunction to be appropriate there must be no adequate\nremedy at law. That is to say, in order to be entitled to an equitable\nremedy, the plaintiff must show that no legal remedy would\nsufficiently protect the plaintiff\xe2\x80\x99s interests. Usually this means\nshowing that an award of damages would be inadequate to make up\nfor the harm. Often, an injunction applicant will allege \xe2\x80\x9cirreparable\nharm,\xe2\x80\x9d that is, harm that cannot be repaired later on with money.\nLoss of life, for instance, is irreparable harm. The destruction of\nproperty having sentimental value could also be considered\nirreparable harm.\nSecond, an injunction will only be ordered if it is feasible to enforce.\nThat is, a court will not issue pointless injunctions. The court may\n\n336\n\n\x0cdecline an injunction as infeasible where it lacks the jurisdiction\nnecessary to enforce the injunction through contempt proceedings.\nHere is another point of contrast with the legal remedy of damages\nawards: When it comes to damages, courts will award them on a\nnominal basis, even though an award of $1 might seem economically\npointless.\nThird is the sine-qua-non requirement for injunctions \xe2\x80\x93 the\ndetermination that the balance of hardships tilts in favor of the\nparty seeking the injunction. In keeping with their character as\nequitable remedies, injunctions require a balancing of the equities,\ntaking into account the relative burdens placed on the parties by the\nissuance of an injunction of the lack of one. Where a plaintiff is\nmerely inconvenienced, while the defendant is heavily hamstrung in\nconducting normal business, then a court will deny an injunction as a\nremedy \xe2\x80\x93 even if the plaintiff\xe2\x80\x99s underlying claim is a winning one.\nThe federal courts and some state courts also explicitly require a\nshowing that the injunction is in the public interest, or at least not\ncontrary to it. See, e.g., eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,\n391 (2006).\nWhile a regular injunction is a remedy ordered after a full trial, there\nis also the possibility of getting a preliminary injunction before\ntrial. A preliminary injunction can be obtained right at the beginning\nof a case \xe2\x80\x93 long before the factual record is fully developed through\nthe discovery process. The outcome of a preliminary injunction\nhearing can be dramatic, as a preliminary injunction normally will\nendure until the conclusion of trial. That means it might last years. To\nget a preliminary injunction, a plaintiff must establish a likelihood of\nsuffering irreparable harm unless preliminary relief is ordered as well\nas a likelihood of eventually succeeding on the merits of the after the\nprocess of discovery and trial has been run to its conclusion. In\naddition, the balance of equities must tip in the plaintiff\xe2\x80\x99s favor and,\nwhere the courts require it, there must be a showing that the public\ninterest is served by the injunction.\nA preliminary injunction always requires prior notice be delivered to\nthe defendant and a chance for the defendant to appear in court to\n\n337\n\n\x0coppose the injunction. Usually court rules require delivery of notice\nat least several days before a hearing is held on the matter.\nFor plaintiffs who can\xe2\x80\x99t wait that long, there is the possibility of a\ntemporary restraining order. A \xe2\x80\x9cTRO,\xe2\x80\x9d as it\xe2\x80\x99s called, can be issued,\nif necessary, on an ex parte basis \xe2\x80\x93 that is, without the other party\nbeing present or even notified. Because of the due process concerns,\na TRO lasts only a very short time, in the range of 10 to 14 days \xe2\x80\x93\nabout the amount of time necessary to set up a proper preliminary\ninjunction hearing. The requirements for a TRO are generally the\nsame as for the preliminary injunction, with the exception of the\nrelaxed notice requirement.\nProblem: Injunction on Ivan\nPatricia is irritated that Ivan, while on his way to school every day,\ntrespasses over a portion of her land consisting of a three-foot-wide\ndirt strip. In addition to seeking nominal damages for past trespasses,\nPatricia wants an injunction to prevent future trespasses. Ivan\ncomplains that if he cannot walk over the dirt strip, he will have to\nwalk an additional hour out of his way to and from school each day.\nHow should a court rule on a request for a temporary restraining\norder, preliminary injunction, and permanent injunction?\n\nOther Legal and Equitable Remedies\nIn addition to damages, injunctions, and awards of fees, there are\nother types of remedies as well. Without going into detail, the\nfollowing will give you an idea of the range of what is out there.\nSome remedies are restitutionary. Instead of seeking to make a\nplaintiff whole after a loss, a restitutionary remedy seeks to take away\nfrom the defendant a wrongful gain. One form of such a remedy is\nquasi-contract, a legal remedy where a court orders the defendant to\npay to the plaintiff the amount the plaintiff likely would have been\nable to get if the parties had negotiated a contract ahead of time. If a\ndefendant were somehow to save $10,000 on transportation costs by\ntrespassing over the plaintiff\xe2\x80\x99s land, the quasi-contract remedy would\nallow the plaintiff to get an award of $10,000 \xe2\x80\x93despite having\nsuffered no damage.\n\n338\n\n\x0cThe legal remedy of replevin allows a plaintiff to use an abbreviated\nfast-track court process to get back a wrongfully seized chattel\nwithout having to go through a full trial. The corresponding legal\nremedy of ejectment allows the plaintiff a fast-track procedure to\nthrow a trespassing defendant off of the plaintiff\xe2\x80\x99s land.\nThe equitable restitutionary remedy of an equitable lien enables a\ncourt to use its equity power to impose a lien on property of the\ndefendant that is traceable to money or property misappropriated\nfrom the plaintiff. An equitable lien can be very advantageous for the\nplaintiff if the defendant is near insolvent, because lien holders have a\npreferred position in bankruptcy, putting them ahead of other\ncreditors in the queue seeking to get debts satisfied.\nA similar equitable remedy is the constructive trust, where the\ndefendant is treated as holding the plaintiff\xe2\x80\x99s wrongfully taken\nproperty \xe2\x80\x9cin trust\xe2\x80\x9d for the plaintiff. This remedy allows a plaintiff to\ncapture any increases in value of the property during the time the\ndefendant is in possession of it, and, like an equitable lien, it also puts\nthe plaintiff in a preferred position if the defendant declares\nbankruptcy.\n\n339\n\n\x0c24. Compensatory Damages\nIf you see me walking down the street\nStaring at the sky and draggin\xe2\x80\x99 my two feet\nYou just passed me by; it still makes me cry\nBut you can make me whole again\n\xe2\x80\x93 Atomic Kitten, 2001\n\nThe Idea of Compensatory Damages\nThe central idea of compensatory damages is to compensate a\nplaintiff for an injury. This is sometimes described as \xe2\x80\x9cmaking the\nplaintiff whole.\xe2\x80\x9d In other words, compensatory damages are about\nmaking the plaintiff as well off as the plaintiff would have been had\nthe tortious conduct not occurred.\nDamages are meted out in dollars. Thus, the aim is to award the\nplaintiff an amount of money such that if the plaintiff were\nhypothetically sent back in time to the point before the compensable\ninjury happened, the plaintiff would be indifferent when faced with\nthe choice of (1) nothing happening or (2) suffering the injury and\ngetting the damages award.\nThis is a fiction, of course. Imagine having the choice of (1) nothing\nhappening or (2) having the roof of your home cave in and getting a\ncheck to cover the repairs and the expense of living in a hotel for a\nwhile. Who would be indifferent to that?\nMoreover, it is entirely impossible to conceive of being indifferent to\nthe loss of a loved one. The conceptual troubles begin to mount\nwhen you consider this kind of question: How much money would\nyou have to be offered before you would be indifferent to the loss of\na parent, spouse, or child? One might say that \xe2\x80\x9cno amount of\nmoney\xe2\x80\x9d could compensate for this loss. So, does that mean it would\ntake an infinite amount of money? Of course, there\xe2\x80\x99s no such thing as\nan infinity of money in the real world. But let\xe2\x80\x99s take that idea as far as\nwe can: Suppose your child is killed through the negligence of a large\n\n340\n\n\x0cmultinational oil company. Should you then get everything the\ncompany has to give \xe2\x80\x93 its entire market value of a half trillion dollars?\nThat\xe2\x80\x99s as close as the company can come to infinity. On the other\nhand, since \xe2\x80\x9cno amount of money\xe2\x80\x9d is adequate, perhaps it\xe2\x80\x99s just as\nwell for the court to award $0. Both of these extremes seem\nunacceptable. We are left with this question: How can you put a price\non something that is priceless? When it comes to tort damages, this is\nnot a rhetorical question.\nIn addition to serving to make it up to the plaintiff, compensatory\ndamages also serve a deterrence function. Professor Richard A.\nEpstein writes, \xe2\x80\x9cThe greatest triumph of the tort is the faceless\ninjuries it prevents, not the major ones it compensates.\xe2\x80\x9d TORTS, p.\n437 (1999). When defendants know that they will have to pay for the\nnegative consequences of their actions, they have the incentive to\nundertake the care that will prevent the harm in the first place.\nCompensatory damages come in two kinds: pecuniary damages and\nnonpecuniary damages.\nPecuniary or Special Damages\nSome compensatory damages are natively denominated in dollars.\nRepair costs, car rental, lost wages, medical bills, prosthetics, etc.\nThese are pecuniary damages.\nPecuniary damages go by various names. Sometimes they are called\n\xe2\x80\x9ceconomic damages,\xe2\x80\x9d a phrase which uses the word \xe2\x80\x9ceconomic\xe2\x80\x9d in a\nlimited, non-technical sense to mean \xe2\x80\x9chaving to do with money.\xe2\x80\x9d\nAnother label used for the same thing is \xe2\x80\x9cspecial damages,\xe2\x80\x9d a\ncommon phrasing in the context of defamation. The term \xe2\x80\x9cspecial\xe2\x80\x9d is\nconfusing here, because these damages are quite common. If,\nhowever, you think of \xe2\x80\x9cspecial\xe2\x80\x9d as meaning \xe2\x80\x9cspecific,\xe2\x80\x9d then the term\nmakes sense, since special damages are damages that can be assigned\na specific amount in dollars and cents as a matter of straightforward\nbookkeeping.\nIn a simple case, calculating pecuniary damages is often as easy as\nreferring to a written estimate for repairs. In a more complicated\ncase, you might need to do some accounting work to reduce medical\n\n341\n\n\x0cbills and various income losses to a single number. In a complex\nbusiness case, calculating pecuniary damages can become extremely\ncomplicated and might involve making a number of assumptions.\nCase: Texaco v. Pennzoil\nThis case exemplifies how the assumptions used in calculating\npecuniary damages can have an enormous effect on the size of the\nverdict.\n\nTexaco v. Pennzoil\nCourt of Appeals of Texas, First District\nFebruary 12, 1987\n729 S.W.2d 768. TEXACO, INC., Appellant, v. PENNZOIL,\nCO., Appellee. No. 01-86-0216-CV. Before WARREN, JACK\nSMITH and SAM BASS, JJ.\nJustice JAMES F. WARREN:\nThis is an appeal from a judgment awarding Pennzoil damages\nfor Texaco\xe2\x80\x99s tortious interference with a contract between\nPennzoil and the \xe2\x80\x9cGetty entities\xe2\x80\x9d (Getty Oil Company, the\nSarah C. Getty Trust, and the J. Paul Getty Museum).\nThe jury found, among other things, that:\n(1) At the end of a board meeting on January 3,\n1984, the Getty entities intended to bind\nthemselves to an agreement providing for the\npurchase of Getty Oil stock, whereby the Sarah\nC. Getty Trust would own 4/7 th of the stock\nand Pennzoil the remaining 3/7 th; and\nproviding for a division of Getty Oil\xe2\x80\x99s assets,\naccording to their respective ownership if the\nTrust and Pennzoil were unable to agree on a\nrestructuring of Getty Oil by December 31,\n1984;\n(2) Texaco knowingly interfered with the\nagreement between Pennzoil and the Getty\nentities;\n(3) As a result of Texaco\xe2\x80\x99s interference,\nPennzoil suffered damages of $7.53 billion;\n\n342\n\n\x0c(4) Texaco\xe2\x80\x99s actions were intentional, willful,\nand in wanton disregard of Pennzoil\xe2\x80\x99s rights;\nand,\n(5) Pennzoil was entitled to punitive damages of\n$3 billion.\n~Though\n\nmany facts are disputed, the parties\xe2\x80\x99 main conflicts are\nover the inferences to be drawn from, and the legal significance\nof, these facts. There is evidence that for several months in late\n1983, Pennzoil had followed with interest the well-publicized\ndissension between the board of directors of Getty Oil\nCompany and Gordon Getty, who was a director of Getty Oil\nand also the owner, as trustee, of approximately 40.2% of the\noutstanding shares of Getty Oil. On December 28, 1983,\nPennzoil announced an unsolicited, public tender offer for 16\nmillion shares of Getty Oil at $100 each.\nSoon afterwards, Pennzoil contacted both Gordon Getty and a\nrepresentative of the J. Paul Getty Museum, which held\napproximately 11.8% of the shares of Getty Oil, to discuss the\ntender offer and the possible purchase of Getty Oil. In the first\ntwo days of January 1984, a \xe2\x80\x9cMemorandum of Agreement\xe2\x80\x9d was\ndrafted to reflect the terms that had been reached in\nconversations between representatives of Pennzoil, Gordon\nGetty, and the Museum.\nUnder the plan set out in the Memorandum of Agreement,\nPennzoil and the Trust (with Gordon Getty as trustee) were to\nbecome partners on a 3/7 ths to 4/7 ths basis respectively, in\nowning and operating Getty Oil. Gordon Getty was to become\nchairman of the board, and Hugh Liedtke, the chief executive\nofficer of Pennzoil, was to become chief executive officer of the\nnew company.\nThe Memorandum of Agreement further provided that the\nMuseum was to receive $110 per share for its 11.8% ownership,\nand that all other outstanding public shares were to be cashed in\nby the company at $110 per share. Pennzoil was given an option\nto buy an additional 8 million shares to achieve the desired\nownership ratio. The plan also provided that Pennzoil and the\nTrust were to try in good faith to agree upon a plan to\n\n343\n\n\x0crestructure Getty Oil within a year, but if they could not reach\nan agreement, the assets of Getty Oil were to be divided\nbetween them, 3/7 ths to Pennzoil and 4/7 ths to the Trust.\nThe Memorandum of Agreement stated that it was subject to\napproval of the board of Getty Oil, and it was to expire by its\nown terms if not approved at the board meeting that was to\nbegin on January 2. Pennzoil\xe2\x80\x99s CEO, Liedtke, and Gordon\nGetty, for the Trust, signed the Memorandum of Agreement\nbefore the Getty Oil board meeting on January 2, and Harold\nWilliams, the president of the Museum, signed it shortly after\nthe board meeting began. Thus, before it was submitted to the\nGetty Oil board, the Memorandum of Agreement had been\nexecuted by parties who together controlled a majority of the\noutstanding shares of Getty Oil.\nThe Memorandum of Agreement was then presented to the\nGetty Oil board, which had previously held discussions on how\nthe company should respond to Pennzoil\xe2\x80\x99s public tender offer.\nA self-tender by the company to shareholders at $110 per share\nhad been proposed to defeat Pennzoil\xe2\x80\x99s tender offer at $100 per\nshare, but no consensus was reached.\nThe board voted to reject recommending Pennzoil\xe2\x80\x99s tender\noffer to Getty\xe2\x80\x99s shareholders, then later also rejected the\nMemorandum of Agreement price of $110 per share as too low.\nBefore recessing at 3 a.m., the board decided to make a counterproposal to Pennzoil of $110 per share plus a $10 debenture.\nPennzoil\xe2\x80\x99s investment banker reacted to this price negatively. In\nthe morning of January 3, Getty Oil\xe2\x80\x99s investment banker,\nGeoffrey Boisi, began calling other companies, seeking a higher\nbid than Pennzoil\xe2\x80\x99s for the Getty Oil shares.\nWhen the board reconvened at 3 p.m. on January 3, a revised\nPennzoil proposal was presented, offering $110 per share plus a\n$3 \xe2\x80\x9cstub\xe2\x80\x9d that was to be paid after the sale of a Getty Oil\nsubsidiary (\xe2\x80\x9cERC\xe2\x80\x9d), from the excess proceeds over $1 billion.\nEach shareholder was to receive a pro rata share of these excess\nproceeds, but in any case, a minimum of $3 per share at the end\nof five years. During the meeting, Boisi briefly informed the\nboard of the status of his inquiries of other companies that\n\n344\n\n\x0cmight be interested in bidding for the company. He reported\nsome preliminary indications of interest, but no definite bid yet.\nThe Museum\xe2\x80\x99s lawyer told the board that, based on his\ndiscussions with Pennzoil, he believed that if the board went\nback \xe2\x80\x9cfirm\xe2\x80\x9d with an offer of $110 plus a $5 stub, Pennzoil\nwould accept it. After a recess, the Museum\xe2\x80\x99s president (also a\ndirector of Getty Oil) moved that the Getty board should accept\nPennzoil\xe2\x80\x99s proposal provided that the stub be raised to $5, and\nthe board voted 15 to 1 to approve this counter-proposal to\nPennzoil. The board then voted themselves and Getty\xe2\x80\x99s officers\nand advisors indemnity for any liability arising from the events\nof the past few months. Additionally, the board authorized its\nexecutive compensation committee to give \xe2\x80\x9cgolden parachutes\xe2\x80\x9d\n(generous termination benefits) to the top executives whose\npositions \xe2\x80\x9cwere likely to be affected\xe2\x80\x9d by the change in\nmanagement. There was evidence that during another brief\nrecess of the board meeting, the counter-offer of $110 plus a $5\nstub was presented to and accepted by Pennzoil. After\nPennzoil\xe2\x80\x99s acceptance was conveyed to the Getty board, the\nmeeting was adjourned, and most board members left town for\ntheir respective homes.\nThat evening, the lawyers and public relations staff of Getty Oil\nand the Museum drafted a press release describing the\ntransaction between Pennzoil and the Getty entities. The press\nrelease, announcing an agreement in principle on the terms of\nthe Memorandum of Agreement but with a price of $110 plus a\n$5 stub, was issued on Getty Oil letterhead the next morning,\nJanuary 4, and later that day, Pennzoil issued an identical press\nrelease.\nOn January 4, Boisi continued to contact other companies,\nlooking for a higher price than Pennzoil had offered. After\ntalking briefly with Boisi, Texaco management called several\nmeetings with its in-house financial planning group, which over\nthe course of the day studied and reported to management on\nthe value of Getty Oil, the Pennzoil offer terms, and a feasible\nprice range at which Getty might be acquired. Later in the day,\nTexaco hired an investment banker, First Boston, to represent it\n\n345\n\n\x0cwith respect to a possible acquisition of Getty Oil. Meanwhile,\nalso on January 4, Pennzoil\xe2\x80\x99s lawyers were working on a draft of\na formal \xe2\x80\x9ctransaction agreement\xe2\x80\x9d that described the transaction\nin more detail than the outline of terms contained in the\nMemorandum of Agreement and press release.\nOn January 5, the Wall Street Journal reported on an agreement\nreached between Pennzoil and the Getty entities, describing\nessentially the terms contained in the Memorandum of\nAgreement. The Pennzoil board met to ratify the actions of its\nofficers in negotiating an agreement with the Getty entities, and\nPennzoil\xe2\x80\x99s attorneys periodically attempted to contact the other\nparties\xe2\x80\x99 advisors and attorneys to continue work on the\ntransaction agreement.\nThe board of Texaco also met on January 5, authorizing its\nofficers to make an offer for 100% of Getty Oil and to take any\nnecessary action in connection therewith. Texaco first contacted\nthe Museum\xe2\x80\x99s lawyer, Lipton, and arranged a meeting to discuss\nthe sale of the Museum\xe2\x80\x99s shares of Getty Oil to Texaco. Lipton\ninstructed his associate, on her way to the meeting in progress\nof the lawyers drafting merger documents for the\nPennzoil/Getty transaction, to not attend that meeting, because\nhe needed her at his meeting with Texaco. At the meeting with\nTexaco, the Museum outlined various issues it wanted resolved\nin any transaction with Texaco, and then agreed to sell its 11.8%\nownership in Getty Oil.\nThat evening, Texaco met with Gordon Getty to discuss the sale\nof the Trust\xe2\x80\x99s shares. He was informed that the Museum had\nagreed to sell its shares to Texaco. Gordon Getty\xe2\x80\x99s advisors had\npreviously warned him that the Trust shares might be \xe2\x80\x9clocked\nout\xe2\x80\x9d in a minority position if Texaco bought, in addition to the\nMuseum\xe2\x80\x99s shares, enough of the public shares to achieve over\n50% ownership of the company. Gordon Getty accepted\nTexaco\xe2\x80\x99s offer of $125 per share and signed a letter of his intent\nto sell his stock to Texaco, as soon as a California temporary\nrestraining order against his actions as trustee was lifted.\nAt noon on January 6, Getty Oil held a telephone board meeting\nto discuss the Texaco offer. The board voted to withdraw its\n\n346\n\n\x0cprevious counter-proposal to Pennzoil and unanimously voted\nto accept Texaco\xe2\x80\x99s offer. Texaco immediately issued a press\nrelease announcing that Getty Oil and Texaco would merge.\nSoon after the Texaco press release appeared, Pennzoil telexed\nthe Getty entities, demanding that they honor their agreement\nwith Pennzoil. Later that day, prompted by the telex, Getty Oil\nfiled a suit in Delaware for declaratory judgment that it was not\nbound to any contract with Pennzoil. The merger agreement\nbetween Texaco and Getty Oil was signed on January 6; the\nstock purchase agreement with the Museum was signed on\nJanuary 6; and the stock exchange agreement with the Trust was\nsigned on January 8, 1984.~\nDAMAGES\nIn its 57th through 69th points of error, Texaco claims that the\nevidence was legally and factually insufficient to support the\njury\xe2\x80\x99s~ damage awards.\nTexaco attacks Pennzoil\xe2\x80\x99s use of a replacement cost model to\nprove its compensatory damages. It urges that:~ the court\nshould have instructed the jury that the correct measure of\nPennzoil\xe2\x80\x99s compensatory damages was the difference between\nthe market price and contract price of Getty stock at the time of\nthe breach;~ compensatory damages are excessive;~ and\nprejudgment interest should not have been allowed.\nIn a cause involving a tortious interference with an existing\ncontract, New York courts allow a plaintiff to recover the full\npecuniary loss of the benefits it would have been entitled to\nunder the contract. The plaintiff is not limited to the damages\nrecoverable in a contract action, but instead is entitled to the\ndamages allowable under the more liberal rules recognized in\ntort actions.\nNew York courts have cited and relied extensively on the\nRestatement (Second) of Torts in deciding damages issues~.\nSection 774A of the Restatement (Second) of Torts (1977),\nreads in pertinent part:\n\n347\n\n\x0c(1) One who is liable to another for interference\nwith a contract ... is liable for damages for\n(a) the pecuniary loss of the benefits of the\ncontract ...; [and]\n(b) consequential losses for\ninterference is a legal cause....~\n\nwhich\n\nthe\n\nPennzoil relied on two witnesses to prove the amount of its\ndamages: Dr. Thomas Barrow and Dr. Ronald Lewis. Dr.\nBarrow holds a Ph.D. in petroleum engineering from Stanford\nUniversity, and a bachelor\xe2\x80\x99s and master\xe2\x80\x99s degree from the\nUniversity of Texas in geology and petroleum engineering. He\nhas been president of Humble Oil & Refining Company, a\nsenior vice-president of Exxon Corporation, chairman and chief\nexecutive officer of Kennecott Corporation, and president of\nStandard Oil of Ohio. He sits on the board of directors of many\nmajor corporations and charitable institutions.\nDr. Lewis is employed by Pennzoil as a vice-president in charge\nof offshore operations. He holds a bachelor of science degree\nand a master of science degree in petroleum engineering from\nColorado School of Mines, and a Ph.D. with emphasis on\npetroleum engineering from the University of Texas. He has\nheld responsible positions with the government, Mobil Oil\nCompany, and Pennzoil, and taught petroleum engineering for\nseven years.\nTexaco presented no witnesses to refute the testimony of Dr.\nBarrow or Dr. Lewis.\nDr. Barrow prepared three damages models, as follows:\n(1) a replacement cost model,\n(2) a discounted cash flow model, and\n(3) a cost acquisition model.\nBecause the jury based its award of damages on the replacement\ncost model, the other two models will not be discussed. By Dr.\nBarrow\xe2\x80\x99s testimony, Pennzoil showed that because of Texaco\xe2\x80\x99s\ninterference with its Getty contract, it was deprived of its right\nto acquire 3/7th\xe2\x80\x99s of Getty\xe2\x80\x99s proven reserves, amounting to\n\n348\n\n\x0c1.008 billion barrels of oil equivalent (B.O.E.), at a cost of $3.40\na barrel. Pennzoil\xe2\x80\x99s evidence further showed that its cost to find\nequivalent reserves (based on its last five years of exploration\ncosts) was $10.87 per barrel. Therefore, Pennzoil contended that\nit suffered damages equal to 1.008 billion B.O.E. times $7.47\n(the difference between $10.87, the cost of finding equivalent\nreserves, and $3.40, the cost of acquiring Getty\xe2\x80\x99s reserves) or\n$7.53 billion. The jury agreed.\nTexaco first alleges that the trial judge should have instructed\nthe jury that the measure of Pennzoil\xe2\x80\x99s damages was the\ndifference between the market value of Getty Oil stock and its\ncontract price at the time of the breach. We reject this\ncontention. The Getty/Pennzoil agreement contemplated\nsomething more than a simple buy-sell stock transaction.\nPennzoil\xe2\x80\x99s cause of action against Texaco was in tort, not in\ncontract, and Pennzoil\xe2\x80\x99s measure of damages was the pecuniary\nloss of the benefits it would have been entitled to under the\ncontract. There was ample evidence that the reason Pennzoil\n(and later, Texaco) wanted to buy Getty was to acquire control\nof Getty Oil\xe2\x80\x99s reserves, and not for any anticipated profit from\nthe later sale of Getty stock. There was evidence that such\nfluctuations in market price are primarily of interest to holders\nof small, minority share positions.\nThe court in Special Issue No. 3 correctly instructed the jury\nthat the measure of damages was the amount necessary to put\nPennzoil in as good a position as it would have been in if its\nagreement, if any, with the Getty entities had been performed. If\nthe measure of damages suggested by Texaco was correct, then\nthere would have been no necessity to submit an issue at all,\nbecause no issue of fact would have existed, there being no\ndispute about the market value of the stock or the contract price\nof the stock at the time of the breach.\nTexaco next contends that the replacement cost theory is based\non the speculative and remote contention that Pennzoil would\nhave gained direct access to Getty\xe2\x80\x99s assets. Texaco strongly\nurges that Pennzoil had a \xe2\x80\x9cgood faith\xe2\x80\x9d obligation under its\nalleged contract to attempt to reorganize and restructure Getty\n\n349\n\n\x0cOil rather than to divide its assets. We agree. Under New York\nlaw, a duty of fair dealing and good faith is implied in every\ncontract. But a duty of good faith and fair dealing does not\nrequire that Pennzoil completely subordinate its financial wellbeing to the proposition of reorganization or restructuring.\nThe directors of Pennzoil would have had a duty to the\ncompany\xe2\x80\x99s shareholders to obtain the greatest benefit from the\nmerger assets, by either restructuring, reorganizing, or taking the\nassets in kind. If taking the assets in kind would be the most\nadvantageous to Pennzoil, its directors would, in the absence of\na great detriment to Getty, have a duty to take in kind. So the\nacquisition of a pro rata share of Getty Oil\xe2\x80\x99s reserves would be\nmore than a mere possibility, unless the restructuring or\nreorganization of Getty would be just as profitable to Pennzoil\nas taking the assets in kind.\nNext, Texaco urges that the jury\xe2\x80\x99s use of the replacement cost\nmodel resulted in a gross overstatement of Pennzoil\xe2\x80\x99s loss\nbecause:\n(a) Pennzoil sought to replace Getty\xe2\x80\x99s low value\nreserves with reserves of a much higher value;\n(b) Pennzoil based its replacement cost on its\ncosts to find oil only during the period from\n1980 to 1984, rather than over a longer period;\n(c) Pennzoil improperly included future\ndevelopment costs in its exploration costs;\n(d) Pennzoil used pre-tax rather than post-tax\nfigures; and\n(e) Pennzoil failed to make a present value\nadjustment of its claim for future expenses.\nOur problem in reviewing the validity of these Texaco claims is\nthat Pennzoil necessarily used expert testimony to prove its\nlosses by using three damages models. In the highly specialized\nfield of oil and gas, expert testimony that is free of conjecture\nand speculation is proper and necessary to determine and\nestimate damages. Texaco presented no expert testimony to\nrefute the claims but relied on its cross-examination of\n\n350\n\n\x0cPennzoil\xe2\x80\x99s experts to attempt to show that the damages model\nused by the jury was flawed. Dr. Barrow testified that each of his\nthree models would constitute an accepted method of proving\nPennzoil\xe2\x80\x99s damages. It is inevitable that there will be some\ndegree of inexactness when an expert is attempting to make an\neducated estimate of the damages in a case such as this one.\nPrices and costs vary, depending on the locale, and the type of\ncrude found. The law recognizes that a plaintiff may not be able\nto prove its damages to a certainty. But this uncertainty is\ntolerated when the difficulty in calculating damages is\nattributable to the defendant\xe2\x80\x99s conduct.\nIn his replacement cost model, Dr. Barrow estimated the cost to\nreplace 1.008 billion barrels of oil equivalent that Pennzoil had\nlost. Dr. Barrow admitted that some of Getty\xe2\x80\x99s reserves\nconsisted of heavy crude, which was less valuable than lighter\ncrude, and that he had made no attempt to determine whether\nthere was an equivalency between the lost Getty barrels and the\nbarrels used to calculate Pennzoil\xe2\x80\x99s exploration costs. Dr.\nBarrow also testified that there was no way to determine what\ngrade of reserves Pennzoil would find in its future exploration;\nthey could be better or worse than the Getty reserves. Finally\nDr. Barrow testified that in spite of his not determining the\nvalue equivalency, the replacement cost model was an accepted\nmethod of figuring Pennzoil\xe2\x80\x99s loss. Dr. Lewis testified that with\nimproved refining technology, the difference in value between\nlight and heavy crude was becoming less significant.\nTexaco next urges that Pennzoil should have calculated\nreplacement cost by using a longer time period and industry\nwide figures rather than using only its own exploration costs,\nover a five year period. Dr. Lewis admitted that it might have\nbeen more accurate to use a longer period of time to estimate\nexploration costs, but he and Dr. Barrow both testified that\nexploration costs had been consistently rising each year and that\nthe development cost estimates were conservative. Dr. Barrow\ntestified that in his opinion, Pennzoil would, in the future, have\nto spend a great deal more than $10.87 a barrel to find crude.\nDr. Lewis testified that industry wide exploration costs were\n\n351\n\n\x0chigher than Pennzoil\xe2\x80\x99s, and those figures would result in a\nhigher cost estimate than the $10.87 per barrel used by Pennzoil.\nNext, Texaco claims that Pennzoil inflated its exploration costs\nby $1.86 per barrel by including \xe2\x80\x9cfuture development cost\xe2\x80\x9d in its\nhistorical exploration costs. Both Dr. Lewis\xe2\x80\x99 and Dr. Barrow\xe2\x80\x99s\ntestimony refuted that contention. Texaco neither offered\nevidence to refute their testimony, nor did its cross-examination\nreveal that this was an unwarranted cost.\nTexaco also claims that Pennzoil should have used post-tax\nrather than pre-tax figures in figuring its loss calculations. First,\nit contends that there are large tax incentives for exploration and\ndevelopment that are not applicable to acquisition of reserves.\nSecond, it contends that there was a $2 billion tax penalty\nattached to the Pennzoil/Getty agreement, and Pennzoil\xe2\x80\x99s $900\nmillion share of that penalty would have increased its $3.40 pretax acquisition cost by nearly a dollar.\nDr. Barrow testified that the fact that Pennzoil included $997\nmillion as recapture tax in its costs of acquiring the Getty\nreserves, made the pre-tax comparison between the $3.40 per\nbarrel to acquire Getty reserves and the $10.87 per barrel for\nPennzoil to find new oil, \xe2\x80\x9capples and apples\xe2\x80\x9d; in other words,\nthe $997 million tax adjustment compensated for the tax\nbenefits reaped when discovering, as compared with purchasing,\nreserves. Further, there was no conclusive proof that the\nInternal Revenue Service would have assessed a $2 billion\npenalty to Getty\xe2\x80\x99s purchase of the Museum\xe2\x80\x99s shares under the\nPennzoil/Getty agreement, as alleged by Texaco. Several\nwitnesses, familiar with tax law, testified that it was unlikely that\nsuch a tax would be imposed; therefore it was for the jury to\ndecide when assessing damages, whether Pennzoil\xe2\x80\x99s pro rata\nshare of the speculative tax penalty should reduce the amount of\nits damages.\nTexaco\xe2\x80\x99s contention that Pennzoil\xe2\x80\x99s cost replacement model\nshould be discounted to present value ignores the fact that\nPennzoil\xe2\x80\x99s suit is not for future damages but for those already\nsustained. Pennzoil would have had an interest in the Getty\nreserves immediately if the agreement had been consummated,\n\n352\n\n\x0cand it did not seek damages for reserves to be recovered in the\nfuture. The cases cited by Texaco are inapposite here because all\ninvolve damages that the plaintiff would incur in the future,\nsuch as lost wages or future yearly payments. Also, Texaco\nrequested no jury instruction on a discount or a discount rate;\ntherefore, any complaint of the court\xe2\x80\x99s failure to submit the\nissue or instruction is waived. See Tex.R.Civ.P. 279. Nor was\nTexaco entitled to an omitted finding by the court under rule\n279, because the omitted discount and discount rate were not\nissues \xe2\x80\x9cnecessarily referable\xe2\x80\x9d to the damages issue.\nTexaco\xe2\x80\x99s Points of Error 57 through 60 are overruled.\nIn its 69th point of error, Texaco claims that the court\nerroneously applied New York Law when it allowed\nprejudgment interest, because most of the damages are to\ncompensate for expenses to be incurred over the next 25 years.\nWe have previously considered and rejected Texaco\xe2\x80\x99s\ncontention that Pennzoil\xe2\x80\x99s recovery, or any part thereof, was for\nfuture damages.\nUnder New York law, a plaintiff in an action for inducing a\nbreach of contract is entitled as a matter of right to interest on\nthe amount of recovery, measured from the date of the accrual\nof the cause of action. De Long Corp. v. Morrison-Knudsen Co., 14\nN.Y.2d 346, 251 N.Y.S.2d 657, 200 N.E.2d 557 (1964).\nPoint of Error 69 is overruled.~\n\nQuestions to Ponder on Texaco v. Pennzoil\nA. Consider what $7.53 billion in compensatory damages means. Did\nyou think killing another human being was the worst thing a person\ncould do? Not according to tort law. A DOJ study in 2004 found the\nmedian award in for wrongful death cases to be $961,000. That\xe2\x80\x99s\nmore than 7,500 times smaller than Pennzoil\xe2\x80\x99s compensatory award\nfor a business deal gone bad. Is there something wrong with that?\nDoes it counsel some adjustment to our tort system? Or does it\nreflect an uncomfortable truth about the value of human life?\nB. Why didn\xe2\x80\x99t Texaco present its own witnesses on the issue of\ndamages, instead of \xe2\x80\x9c[relying] on its cross-examination of Pennzoil\xe2\x80\x99s\n\n353\n\n\x0cexperts to attempt to show that the damages model used by the jury\nwas flawed\xe2\x80\x9d? Was that a defensible, calculated risk? Or was that a\nhuge lawyering mistake?\nHistorical Note on Texaco v. Pennzoil\nTexaco, whose name is a contraction of \xe2\x80\x9cThe Texas Company,\xe2\x80\x9d was\nAmerica\xe2\x80\x99s first nationwide brand of gasoline. In the 1980s, Texaco\nwas the fifth largest corporation in the United States.\nThe $10.53 billion dollar judgment against Texaco was the biggest in\nU.S. history. It\xe2\x80\x99s a lot of money \xe2\x80\x93 even to an enormous oil company.\nTexaco wanted to appeal the judgment, and in the meantime stay the\nexecution of the judgment. By staying the execution of the judgment,\nTexaco would not have to fork over the money until the appeal was\nover. The problem for Texaco was that Texas court rules required a\nstay of execution of judgment to be supported with a bond. That\nway, if the appeal failed, the plaintiff would still be assured of getting\nits money. But bonding companies don\xe2\x80\x99t have $10.53 billion in cash\non hand any more than huge oil companies do. Texaco appealed to\nthe U.S. Supreme Court, challenging the bonding requirement as\nunconstitutional, but in a unanimous decision, the Supreme Court\nrebuffed the oil giant.\nIn a concurrence, Justice Stevens wrote,\n~Texaco\n\nmakes a sympathetic argument,\nparticularly when it describes the potential\nadverse impact of this litigation on its\nemployees, its suppliers, and the community at\nlarge. But the exceptional magnitude of those\nconsequences is the product of the vast size of\nTexaco itself \xe2\x80\x94 it is described as the fifth\nlargest corporation in the United States \xe2\x80\x94 and\nthe immensity of the transaction that gave rise\nto this unusual litigation. The character of harm\nthat may flow from this litigation is not different\nfrom that suffered by other defeated litigants,\ntheir families, their employees, and their\ncustomers. The price of evenhanded\nadministration of justice is especially high in\nsome cases, but our duty to deal equally with the\n\n354\n\n\x0crich and the poor does not admit of a special\nexemption for multibillion-dollar corporations\nor transactions.\n\nPennzoil Co. v. Texaco, Inc., 481 U.S. 1, 65 (1987).\nTexaco filed for bankruptcy within days of the announcement of the\nSupreme Court\xe2\x80\x99s decision, a move that blocked Pennzoil\xe2\x80\x99s collection\nefforts. (Federal bankruptcy\xe2\x80\x99s automatic stay halts all judgment\ncollections.) It was the largest corporate bankruptcy in U.S. history to\nthat point. After about a year, Texaco reached a $3 billion settlement\nwith Pennzoil that allowed it to emerge from Chapter 11 with deep\nwounds. Eventually, Texaco was purchased by and absorbed into\nChevron. Today, Texaco exists as an alternative brand used by\nChevron for its retail gasoline sales.\n\nNonpecuniary or General Damages\nWhere the question of damages becomes particularly difficult is with\nnonpecuniary damages \xe2\x80\x93 damages that are not natively measured in\ndollars. The leading example of nonpecuniary damages is what\xe2\x80\x99s\nknown as \xe2\x80\x9cpain and suffering.\xe2\x80\x9d In addition, courts may award\nnonpecuniary damages for loss of enjoyment of one\xe2\x80\x99s life, which\nmight include an inability to engage in a favored activity, such as\nplaying the piano or cross-country skiing. In a defamation case,\nnonpecuniary damages might be awarded for the loss of one\xe2\x80\x99s good\nreputation.\nNonpecuniary damages also go by the names \xe2\x80\x9cnon-economic\ndamages\xe2\x80\x9d and \xe2\x80\x9cgeneral damages.\xe2\x80\x9d The latter label is typical in\ndefamation cases, where it is contrasted with special damages. While\nspecial damages can be pinpointed with specificity, general damages\nare \xe2\x80\x9cgeneral\xe2\x80\x9d in the sense that they are vague and impossible to pin\ndown with precision.\nThe question of how to assign a specific dollar amount to someone\xe2\x80\x99s\npain and suffering or lost enjoyment of life is a thorny one. But\nplaintiffs\xe2\x80\x99 attorneys are entitled to argue the point to juries, and juries\nmust do the best they can to assign a fair dollar value.\n\n355\n\n\x0cCase: Spell v. McDaniel\nThe following case illustrates how nonpecuniary damages can exceed\npecuniary damages by orders of magnitude.\n\nSpell v. McDaniel\nUnited States Court of Appeals for the Fourth Circuit\nJuly 24, 1987\n824 F.2d 1380. Henry Z. SPELL, Appellee, v. Charles D.\nMcDANIEL, Individually and as Patrolman, City of Fayetteville\nPolice Department, and John P. Smith, City Manager, City of\nFayetteville, Defendants, and other cases consolidated with this\none. Nos. 85-1524, 85-1523, 85-1691, 85-1714 and 85-1757.\nBefore PHILLIPS, CHAPMAN and WILKINSON, Circuit\nJudges.\nCircuit Judge JAMES DICKSON PHILLIPS:\nThis is a 42 U.S.C. \xc2\xa7 1983 action in which after two trials Henry\nSpell was awarded substantial damages against the City of\nFayetteville, North Carolina (the City), and Charles McDaniel, a\nCity police officer, as a result of physical injury inflicted on Spell\nby McDaniel while Spell was in McDaniel\xe2\x80\x99s custody following\nSpell\xe2\x80\x99s arrest. McDaniel and the City have appealed~.\nWe find no reversible error in the trials and therefore affirm the\njudgment on the merits against McDaniel and the City.~\nI\nSpell, admittedly inebriated on alcohol and quaaludes, was\nstopped by Officer McDaniel while driving an automobile in the\nCity of Fayetteville. After talking with Spell and finding a\nquantity of quaaludes in his automobile, McDaniel arrested him\nalong with a passenger in Spell\xe2\x80\x99s automobile, handcuffed the\ntwo of them and took them in a patrol car to the police station.\nThere Spell was subjected to various sobriety tests, including a\nbreathalyzer test, and was formally charged with driving while\nimpaired and with the possession of quaaludes. \xef\x81\x81Spell later pled\nguilty to the possession charge which was contained in a multi-\n\n356\n\n\x0ccount indictment that also charged two counts of narcotics\ntrafficking for which he was convicted after trial. At the time of\ntrial of this \xc2\xa7 1983 action, he was serving a seven year sentence\ngrowing out of those convictions, a fact brought out to the jury\nin Spell\xe2\x80\x99s own testimony on direct examination.\xef\x81\x80Just after Spell\ncompleted the breathalyzer test and was returned, still\nhandcuffed and inebriated, to McDaniel\xe2\x80\x99s direct custody,\nMcDaniel, possibly angered by Spell\xe2\x80\x99s failure to respond to his\nquestioning, and in any event without any physical provocation,\nbrutally assaulted Spell. When Spell warded off a blow toward\nhis head by raising his arms, McDaniel seized his handcuffed\narms, pulled them down and violently kneed Spell in the groin.\nThe blow to Spell\xe2\x80\x99s groin ruptured one of his testicles,\nnecessitating its surgical removal. This resulted in irreversible\nsterility and of course in considerable associated pain and\nsuffering. \xef\x81\x81These are the essential facts necessarily accepted in\nsubstance by the jury in finding McDaniel liable. They were\ndisputed by McDaniel, who denied making any assault on Spell\nand speculated that the conceded injury resulted from a prearrest occurrence. Though acceptance of these facts required\noutright rejection of McDaniel\xe2\x80\x99s testimony and that of another\nofficer circumstantially corroborating McDaniel\xe2\x80\x99s, there was\nmore than ample evidence supporting the critical finding. The\ndistrict court, denying defendant\xe2\x80\x99s motion for judgment n.o.v.\nand alternatively for new trial, expressed flat incredulity at the\ntestimony offered to support McDaniel\xe2\x80\x99s denial that he ever\nphysically assaulted Spell.\xef\x81\x80\nSpell then brought this \xc2\xa7 1983 action naming as defendants\nMcDaniel, the City of Fayetteville, the City Manager, the City\nChief of Police, the Director of the police department\xe2\x80\x99s Internal\nAffairs Division and two police department command sergeants.\nHe structured the action as one against McDaniel in his\nindividual and official capacities; against the City Manager,\nSmith, the Police Chief, Dixon, the Internal Affairs Division\nDirector, Johnson, and the two command sergeants, Dalton and\nHolman, in their several official capacities; and against the City\nas a suable municipal corporation.~\n\n357\n\n\x0c[T]he City contends that the district court abused its discretion\nin declining to set aside the second jury\xe2\x80\x99s compensatory award\nof $900,000 as excessive. Here again, of course, the district\ncourt\xe2\x80\x99s ruling is a discretionary one, and indeed is one that we\nreview with even more than ordinary deference. See Grunenthal v.\nLong Island Rail Road Co., 393 U.S. 156, 160 (1968) (only to\ndetermine if \xe2\x80\x9cuntoward, inordinate, unreasonable or\noutrageous\xe2\x80\x9d); Simmons v. Avisco, Local 713, Textile Workers Union,\n350 F.2d 1012, 1020 (4th Cir.1965) (only to determine whether\n\xe2\x80\x9cnot merely excessive but \xe2\x80\x98monstrous\xe2\x80\x99\xe2\x80\x9d).\nUnder this standard we cannot find error in the district court\xe2\x80\x99s\nruling; indeed it seems to us eminently sound. Although Spell\xe2\x80\x99s\nmedical expenses were relatively low ($2,041), his hospital stay\nshort (four days), and his ability to function sexually not\npermanently impaired, the evidence showed that the assault\ncaused him intense pain, that his damaged testicle enlarged five\nto seven times its normal size as a result, that it was like \xe2\x80\x9ca\nsmashed piece of fruit\xe2\x80\x9d with the outer covering torn and the\ninternal contents passing through the tear, that surgical removal\nof the testicle led to permanent disfigurement and that, on\naccount of an earlier illness, the assault left Spell irreversibly\nsterile.~\nWe therefore affirm the judgment against McDaniel and the City\non the merits~.\n\nQuestions to Ponder About Spell v. McDaniel\nA. The district court is entrusted with discretion to rule on a\ndefendant\xe2\x80\x99s motion to set aside the jury\xe2\x80\x99s verdict as excessive, and an\nappeals court will not easily overturn the decision resulting from that\nexercise of discretion. As the circuit court says here, the district\ncourt\xe2\x80\x99s decision is to be treated with \xe2\x80\x9ceven more than ordinary\ndeference.\xe2\x80\x9d Why do you suppose that is? Does it make sense?\nB. Logically speaking, should it make any difference to the\ncalculation of compensatory damages whether the defendant or\nplaintiff was sympathetic? Regardless of whether it should, does it in\nfact make such a difference? Are you surprised that a jury awarded\n$900,000 to a drug trafficker? Was it in part because of a belief that\n\n358\n\n\x0cthe Officer McDaniel lied about kneeing Mr. Spell? Do you think the\nverdict would have been different if McDaniel had admitted to the\nkneeing?\n\nCaps on Nonpecuniary Damages\nFor many years, tort reform advocates have looked to change various\naspects of the civil tort system in order to reign in perceived abuses\nthat negatively impact businesses. One object of the tort-reform\nmovement has been to place upper limits on nonpecuniary damages.\nMost states now have some kind of cap on nonpecuniary damages,\neither for medical malpractice cases or for all tort cases.\nThe forerunner of this trend was California \xe2\x80\x93 perhaps surprising\nconsidering the state\xe2\x80\x99s liberal reputation. In 1975, California passed\nthe Medical Injury Compensation Reform Act. The law places a\n$250,000 limit on nonpecuniary damages in medical liability cases.\nCal. Civ. Code \xc2\xa7 333.2.\nThe enactment of the cap in California helped precipitate a\nmovement to enact similar caps across the country. Some examples:\nIn 1995, North Dakota capped noneconomic damages in medical\nliability cases to $500,000. N.D. Cent. Code. \xc2\xa7 32-42-02. In 2003,\nWest Virginia capped noneconomic damages in medical liability cases\nto a maximum of $500,000, with a stricter cap of $250,000 applying\nin some circumstances. W.V. Code \xc2\xa7 55-7B-8. In 2011, Tennessee\npassed a maximum cap of $1 million, with a lower limit of $750,000\nin most cases. The limitation is not applicable where the defendant\nacted intentionally, was intoxicated, or falsified records.\nCalifornia\xe2\x80\x99s cap remains among the nation\xe2\x80\x99s lowest, and it has not\nbeen adjusted for inflation since its enactment. Because of\ninflationary effects, the cap has shrunk in real terms by a factor of\nfour. (An award of $250,000 in 1975 dollars would have been\nequivalent to $1.1 million in 2014.) The Golden State\xe2\x80\x99s trendsetting\nand nation-leading nonpecuniary damages cap is an interesting\ncounterpoint to the role the state has so often played as a pioneer of\nplaintiff-friendly shifts in doctrine, including strict products liability\nand market-share liability. See Greenman v. Yuba Power Products, 59\nCal.2d 57. (Cal. 1963) (strict products liability; in Chapter 14) and\n\n359\n\n\x0cSindell v. Abbott Labs, 26 Cal. 3d 588 (Cal. 1980) (market-share\nliability; in Chapter 7).\n\nMitigation\nPlaintiffs have a duty to mitigate their losses. This means that, given\nthe injury they sustained at the hands of a defendant, plaintiffs must\ndo what they reasonably can to prevent their losses from growing\nlarger.\nA plaintiff who receives a cut to the leg, for instance, must promptly\nseek medical care and get stitches. If the plaintiff waits until the\nwound becomes infected and eventually gangrenous, so that\namputation is necessary, the plaintiff is not entitled to damages for a\nlost limb. Instead, the plaintiff would be entitled to damages\nmeasured by the medical expense of getting stitches and the\naccompanying pain and suffering that would have been associated\nwith the injury treated in that manner.\n\nThe Collateral Source Rule\nThe collateral source rule provides that a plaintiff is entitled to\nrecovery from the defendant for tortiously caused damages regardless\nof whether or not a third party has stepped in to help the plaintiff pay\nsome or all of those costs.\nBefore the modern era, the collateral source might have been a rich\nuncle or a religious charity. These days, the collateral source is likely\nto be an insurer. In fact, an automobile negligence case might involve\ninjuries that are almost entirely covered by insurance \xe2\x80\x93 physicians\xe2\x80\x99\nfees, hospital bills, medicine, physical therapy. None of this can be\nused to diminish the defendant\xe2\x80\x99s responsibility or the plaintiff\xe2\x80\x99s\nrecovery.\nThe fairness of the collateral source rule has been widely questioned.\nThe argument is as follows: If the goal of tort law is to make the\nplaintiff whole, and if a plaintiff is already made whole by someone\nother than the defendant, then the plaintiff has no more need for\nredress. Worse, it may be argued, a successful plaintiff who has also\nbeen the beneficiary of a collateral source has received a double\nrecovery.\n\n360\n\n\x0cThere are a few responses to this line of criticism. One is to question\nthe assumption that the only goal of compensatory damages in tort\nlaw is to return the plaintiff to a pre-injury state. Another goal\nadvanced for compensatory damages is to deter injury-producing\nbehavior by would-be defendants. If businesses are never compelled\nto pay the costs of the injuries they cause, they might lack the needed\nincentives to be careful.\nAnother response is that if someone is going to receive a windfall \xe2\x80\x93\neither the plaintiff by getting a double recovery, or the defendant by\ngetting off scot-free \xe2\x80\x93 then it seems preferable that the plaintiff\nshould receive the windfall, since the plaintiff is the blameless one.\nA full debate about the collateral-source rule must also take into\naccount the practical reality of how insurance works. Plaintiffs rarely\nreceive a double recovery because insurance policies generally carry a\nright of subrogation: Once an insurance company pays a claim, it\nhas the right to get reimbursed by the plaintiff if and when the\nplaintiff gets a tort recovery. Because of this, insurers benefiting from\nsubrogation rights \xe2\x80\x93 subrogees \xe2\x80\x93 are said to \xe2\x80\x9cstand in the shoes\xe2\x80\x9d of\ntheir subrogor (the plaintiff) in being able to obtain compensation\nfrom the tortfeasor who ultimately necessitated the insurance payout.\n\nIssues of Time: Past and Future Losses\nMeritorious plaintiffs are entitled to one lawsuit and one judgment.\nThis is sometimes called the single-recovery rule. The judgment\nmust include all of the plaintiff\xe2\x80\x99s damages \xe2\x80\x93 past, present, and future.\nPresent damages yield no particular difficulties. But past and future\ndamages necessitate some special handling.\nPre-judgment Interest\nFor damages sustained in the past, the plaintiff is entitled to prejudgment interest. Consider it this way: With past damages, the\nplaintiff was entitled to compensation at some specific moment in\nthe past, perhaps at the moment of injury. Yet the meritorious\nplaintiff will not get a check until the end of her or his lawsuit. It\xe2\x80\x99s as\nif the plaintiff lent the tortfeasor money during that intervening time.\n\n361\n\n\x0cPre-judgment interest means that the \xe2\x80\x9cloan\xe2\x80\x9d advanced to the\ndefendant is not interest-free.\nHow pre-judgment interest is applied differs among the jurisdictions.\nIn some states, interest runs from the date the complaint is filed. In\nothers, interest begins accumulating at the moment of injury. Interest\nrates vary as well. In Arkansas, the interest rate is set by the state\nconstitution at 6%, and it begins running at the time of loss. Ark.\nConst. art. 19, \xc2\xa7 13. In New Mexico, the rate for actions based on\n\xe2\x80\x9ctortious conduct\xe2\x80\x9d is 15%, beginning on the date the complaint is\nserved. N.M. Stat. \xc2\xa7 56-8-4. Other states peg interest rates to one of\nseveral rates published by the Federal Reserve or even leave it up to\nthe judge in the lawsuit to determine on a case-by-case basis. Other\nstates do not provide for pre-judgment interest in tort suits at all.\nThe differences among jurisdictions are important, because prejudgment interest can add up to real money. In a jurisdiction with an\ninterest rate on the higher end, and if interest begins running at the\ntime of loss, a judgment rendered six years later might be nearly\ndoubled by accumulated interest.\nFiguring Future Losses\nAlthough past losses present their difficulties, future losses create\nmuch thornier questions. An injured plaintiff whose long-term\nmedical prognosis will require more treatment and more surgeries\nwill not be able to bring another lawsuit at a later time. This means\nthat juries routinely face the difficult prospect of trying to determine\nwhat the plaintiff will need to expend in the future for continuing\ncare. For a plaintiff rendered unable to work, the jury will be called\nupon to determine the plaintiff\xe2\x80\x99s lost wages over the rest of her or his\nlife. This involves considering several questions: How long is the\nplaintiff likely to live? What were the plaintiff\xe2\x80\x99s career prospects?\nWhat will medical care and medical monitoring cost? The issue often\ncomes down to a battle of expert witnesses, each of whom compiles\nanalyses that are presented to the jury.\nRegardless of how the jury and court resolve these issues, once the\njudgment becomes final, it is legally irrelevant what actually happens\nto the plaintiff. An injured plaintiff whose condition turns out to be\n\n362\n\n\x0cmuch worse \xe2\x80\x93 and much more expensive \xe2\x80\x93 than anticipated at the\ntime of trial will be out of luck. A plaintiff given large amount of\nmoney in anticipation of expensive long-term care whose fortunes\nturn around when a new medical breakthrough completely reverses\nthe injury is doubly lucky \xe2\x80\x93 that plaintiff has the cure and gets to keep\nthe money.\nReducing Future Losses to Net Present Value and\nAccounting for Inflation\nOnce a court has decided on an appropriate figure for future losses,\nthere remains the problem of figuring how to account for the\nchanging value of money through time.\nA dollar today is worth more than a dollar tomorrow \xe2\x80\x93 because in the\nmeantime, money in the bank earns interest. If $10,000 of expenses\nwill be incurred 10 years from now, an award of $10,000 today would\nrequire the defendant to wildly overpay.\nFinancial analysts and economists use a concept called \xe2\x80\x9cnet present\nvalue\xe2\x80\x9d to compare money in the future to money in the present.\nCalculating net present value is the reverse of calculating the growth\nof money over time using compounded interest.\nTo calculate the net present value of a lump sum of money at some\npoint in the future, you need to assume an interest rate (commonly\ncalled the \xe2\x80\x9cdiscount rate\xe2\x80\x9d).\nFor an example, let\xe2\x80\x99s say we want to find the net present value of\n$10,000 three years in the future. Let\xe2\x80\x99s assume the effective yearover-year rate of interest is 10%. The net present value is $7,513.15.\nTo see how this is calculated, it is best to first see it done from the\nother direction, translating $7,513.15 into its value three years from\nnow:\n\xef\x82\xb7\n\nAfter one year, $7,513.15 will increase by 10%. We add\n$7,513.15 to $751.31 (which is 10% of $7,513.15), and get\n$8,264.46. We can do this in one step by multiplying\n$7,513.15 by 1.10 (which is to multiply the number by itself\nplus 10% of itself).\n\n363\n\n\x0c\xef\x82\xb7\n\nAfter year two, we multiply $8,264.46 by 1.10 to get\n$9,090.91.\n\n\xef\x82\xb7\n\nAfter year three, we multiply $9,090.91 by 1.10 to get $10,000.\n\nTo translate future value into present value, we do the reverse at each\nstep, dividing by 1.10 instead of multiplying:\n$10,000 \xc3\xb7 1.10 \xc3\xb7 1.10 \xc3\xb7 1.10 = $7,513.15\n\nLet\xe2\x80\x99s simplify this:\n$10,000 \xc3\xb7 (1.10 \xef\x83\x8d 1.10 \xef\x83\x8d 1.10) = $7,513.15\n\nAnd simplify again:\n$10,000 \xc3\xb7 1.103 = $7,513.15\n\nNow, replacing the numbers with symbols, we get a formula:\nVF \xc3\xb7 (1 + r)t = VP\n\nIn the formula, VF is the future value, r is the effective interest rate\n(or \xe2\x80\x9cdiscount rate\xe2\x80\x9d), t is time in units (such as years) that corresponds\nto the interest rate, and VP is present value.\nCompare the formula to the example above. If you look back and\nforth a few times, you should be able to see exactly how the formula\nworks.\nIf you want to reduce to present value (to \xe2\x80\x9cdiscount\xe2\x80\x9d in financial\njargon) a cash flow over time \xe2\x80\x93 that is, a continuous stream of\nmoney \xe2\x80\x93 as opposed to a single amount of money at a some\npredetermined point in the future \xe2\x80\x93 then the calculation is much\nmore complex, and it helps to use calculus. But we can leave that task\nto the accountants.\nHaving an idea of how discounting works, we are left with an\nimportant question: What discount rate is appropriate for reducing\nfuture losses to net present value? Unfortunately, there is no easy\nanswer. Interest rates change over time, and no one can predict with\ncertainty what will happen to rates in the future. Thus, in absence of\na controlling statute or rule, courts will permit expert testimony from\neconomists about reasonable assumptions for future interest rates\n\n364\n\n\x0cand what the net present value of a future loss is based on those\nassumptions.\nAlthough one might justifiably feel some sense of accomplishment\nafter having carefully discounted future losses to present value, that\nanalysis ignores another looming complication: Inflation.\nOver time, inflation causes a dollar to lose purchasing power.\nBecause of this, inflation works in the opposite direction of interest.\nThe number of dollars in a bank account grows over time thanks to\ninterest, but the value of each dollar declines thanks to inflation.\nThe opposing effects of inflation and interest have tempted some to\nargue that both inflation and interest can be assumed to net to zero,\nso that a lump sum for the future can be awarded without any\nadjustment. But that approach \xe2\x80\x93 while perhaps enticing for its\nsimplicity \xe2\x80\x93 seems to be unsound policy. Under usual economic\nconditions, interest steadily outpaces inflation so that money will\ngrow in real terms over time. The Ninth Circuit, for instance, has\nadmonished trial courts not to take the lazy way out:\nBy today\xe2\x80\x99s holding that the trier of facts in\nawarding damages may take into consideration\nestimated changes in the purchasing power of\nmoney, we do not mean to imply that the lower\ncourt may use our holding as an excuse not to\ndiscount an award to its net present value. In\nother words, the court may not assume that the\ndiscount rate and the inflation rate will net to\nzero. The lower court must first estimate future\nincome and expenses, taking into account\nestimated changes in the purchasing power of\nthe dollar, and then discount this future net\nincome stream to its present value. Nor do we\nintend to have our holding of today read as\nauthorizing the court to arbitrarily draw an\nestimate of inflation out of thin air. [\xc2\xb6] As with\nany other element of damages, we must require\nthe estimate of future inflation to be supported\nby competent evidence. The court is to be\nespecially wary of the pitfalls~ inherent in\nmaking predictions about the future of\n\n365\n\n\x0ceconomic conditions. By our holding we allow\nthe trier of fact in awarding damages to take\ninto account only such estimates of future\nchanges in the purchasing power of money as\nare based on sound and substantial economic\nevidence, and as can be postulated with some\nreliability\n\nU.S. v. English, 521 F.2d 63, 75-76 (9th Cir. 1975).\nCalculations can be made easier when the discount rate is set such\nthat it already takes into account the effects of anticipated inflation.\n(And stated discounted rates are often inclusive of inflationary\neffects.) But easing the arithmetic does not address the underlying\nuncertainty in the calculation. When you combine the difficulty of\nestimating future losses with the uncertainty of future interest rates\nand inflation, you end up with a monetary award that is sagging under\nthe weight of layers of assumptions. What is more, the award can be\npricey to deduce, given the expert testimony it requires. In the eyes of\nthe courts, however, this imperfect justice is preferable to the overt\ninjustice of awarding plaintiffs windfalls or of depriving them of\nrecovery altogether.\nProblem on Discounting Future Losses to Net Present\nValue\nAfter a bench trial, the judge determines that Amelia has received a\nlatent injury that is more likely than not going to require extensive\nsurgery in the future. The judge accepts as a model for damages that\nAmelia is likely to need $1 million in medical care at a point in time\n10 years in the future. The judge also accepts expert testimony\nestablishing an annual discount rate inclusive of inflation of 3.9%.\nWhat should be Amelia\xe2\x80\x99s award today, discounted to present value?\n\n366\n\n\x0c25. Punitive Damages\n\xe2\x80\x9cPunishment is justice for the unjust.\xe2\x80\x9d\n\xe2\x80\x93 Saint Augustine\n\nThe Basics of Punitive Damages\nPunitive damages \xe2\x80\x93 frequently called \xe2\x80\x9cexemplary damages\xe2\x80\x9d \xe2\x80\x93 are\ndamages awarded for the purpose of punishing the defendant. This is\nin contrast to compensatory damages, which are meant to\ncompensate the plaintiff.\nThe difference between compensatory damages and punitive\ndamages can be conceptualized by imagining which way the jury is\nlooking when awarding them. With compensatory damages, the jury\nis looking squarely at the plaintiff: How has the plaintiff been injured?\nWhat loss has the plaintiff suffered?\nBy contrast, with punitive damages, the jury\xe2\x80\x99s gaze is fixed firmly on\nthe defendant: What did the defendant do that was wrong? What was\nthe defendant thinking? What is the defendant\xe2\x80\x99s attitude? How much\nmoney does the defendant have? And, how much money would have\nto be awarded to really get the defendant\xe2\x80\x99s attention?\nIn seeking to punish the defendant, punitive damages serve at least\ntwo purposes: deterrence and retribution. These goals may be familiar\nto you if you have already taken a course in criminal law. The point\nof deterrence is to have the defendant and other potential defendants\nchoose not to undertake a similar action in the future, since doing so\nleads to judgments that make the conduct not worth engaging in. The\nidea of retribution is to serve the plaintiff\xe2\x80\x99s thirst for seeing a\nwrongdoer, after having made the plaintiff suffer, be caused to\nendure suffering of its own. In other words: tit for tat, or getting\nwhat you have coming. A more subtle account was made by\nProfessor Dan Markel: \xe2\x80\x9cTo not punish when we reasonably could is\nto signal that we do not care about the actions of the offender or the\nrights and interests underlying the rule the offender breached, or the\n\n367\n\n\x0cintegrity of our democratic decision-making structure.\xe2\x80\x9d Dan Markel,\nRetributive Damages: A Theory of Punitive Damages as Intermediate Sanction,\n94 CORNELL L. REV. 239, 242 (2009).\nTo be awarded punitive damages, a plaintiff must do much more\nthan prove the elements of the prima facie case and defeat any\naffirmative defenses. Simply prevailing on a cause of action is not\nenough to warrant punitive damages. For punitives to be warranted,\nthere must be some special culpability on the part of the defendant \xe2\x80\x93\nculpability that greatly exceeds simple negligence. Courts have\ndifferent words they use to express the threshold culpability for\npunitive damages, including phrases such as \xe2\x80\x9cflagrant misconduct,\xe2\x80\x9d\n\xe2\x80\x9cmalice,\xe2\x80\x9d \xe2\x80\x9cin conscious disregard,\xe2\x80\x9d \xe2\x80\x9cwillful, wanton, or reckless,\xe2\x80\x9d and\n\xe2\x80\x9cwantonly reckless or malicious.\xe2\x80\x9d The formulations vary. But there is\nan essence they all share of pointing beyond mere blame to\nreprehensibility.\n\nCase: Mathias v. Accor Economy Lodging\nThis case presents a contemporary example of a claim for punitive\ndamages in a consumer context.\n\nMathias v. Accor Economy Lodging\nUnited States Court of Appeals for the Seventh Circuit\nOctober 21, 2003\n347 F.3d 672. Burl MATHIAS and Desiree Matthias, PlaintiffsAppellees/Cross-Appellants,\nv.\nACCOR\nECONOMY\nLODGING, INC. and Motel 6 Operating L.P., DefendantsAppellants/Cross-Appellees. Nos. 03-1010, 03-1078. Before\nPOSNER, KANNE, and EVANS, Circuit Judges.\nCircuit Judge RICHARD A. POSNER:\nThe plaintiffs brought this diversity suit governed by Illinois law\nagainst affiliated entities (which the parties treat as a single\nentity, as shall we) that own and operate the \xe2\x80\x9cMotel 6\xe2\x80\x9d chain of\nhotels and motels. One of these hotels (now a \xe2\x80\x9cRed Roof Inn,\xe2\x80\x9d\nthough still owned by the defendant) is in downtown Chicago.\nThe plaintiffs, a brother and sister, were guests there and were\nbitten by bedbugs, which are making a comeback in the U.S. as a\n\n368\n\n\x0cconsequence of more conservative use of pesticides. The\nplaintiffs claim that in allowing guests to be attacked by bedbugs\nin a motel that charges upwards of $100 a day for a room and\nwould not like to be mistaken for a flophouse, the defendant\nwas guilty of \xe2\x80\x9cwillful and wanton conduct\xe2\x80\x9d and thus under\nIllinois law is liable for punitive as well as compensatory\ndamages. The jury agreed and awarded each plaintiff $186,000 in\npunitive damages though only $5,000 in compensatory damages.\nThe defendant appeals, complaining primarily about the\npunitive-damages award. It also complains about some of the\njudge\xe2\x80\x99s evidentiary rulings, but these complaints are frivolous\nand require no discussion. The plaintiffs cross-appeal,\ncomplaining about the dismissal of a count of the complaint in\nwhich they alleged a violation of an Illinois consumer protection\nlaw. But they do not seek any additional damages, and so,\nprovided we sustain the jury\xe2\x80\x99s verdict, we need not address the\ncross-appeal.\nThe defendant argues that at worst it is guilty of simple\nnegligence, and if this is right the plaintiffs were not entitled by\nIllinois law to any award of punitive damages. It also complains\nthat the award was excessive-indeed that any award in excess of\n$20,000 to each plaintiff would deprive the defendant of its\nproperty without due process of law. The first complaint has no\npossible merit, as the evidence of gross negligence, indeed of\nrecklessness in the strong sense of an unjustifiable failure to\navoid a known risk, was amply shown. In 1998, EcoLab, the\nextermination service that the motel used, discovered bedbugs\nin several rooms in the motel and recommended that it be hired\nto spray every room, for which it would charge the motel only\n$500; the motel refused. The next year, bedbugs were again\ndiscovered in a room but EcoLab was asked to spray just that\nroom. The motel tried to negotiate \xe2\x80\x9ca building sweep [by\nEcoLab] free of charge,\xe2\x80\x9d but, not surprisingly, the negotiation\nfailed. By the spring of 2000, the motel\xe2\x80\x99s manager \xe2\x80\x9cstarted\nnoticing that there were refunds being given by my desk clerks\nand reports coming back from the guests that there were ticks in\nthe rooms and bugs in the rooms that were biting.\xe2\x80\x9d She looked\nin some of the rooms and discovered bedbugs. The defendant\n\n369\n\n\x0casks us to disregard her testimony as that of a disgruntled exemployee, but of course her credibility was for the jury, not the\ndefendant, to determine.\nFurther incidents of guests being bitten by insects and\ndemanding and receiving refunds led the manager to\nrecommend to her superior in the company that the motel be\nclosed while every room was sprayed, but this was refused. This\nsuperior, a district manager, was a management-level employee\nof the defendant, and his knowledge of the risk and failure to\ntake effective steps either to eliminate it or to warn the motel\xe2\x80\x99s\nguests are imputed to his employer for purposes of determining\nwhether the employer should be liable for punitive damages.\nThe employer\xe2\x80\x99s liability for compensatory damages is of course\nautomatic on the basis of the principle of respondeat superior,\nsince the district manager was acting within the scope of his\nemployment.\nThe infestation continued and began to reach farcical\nproportions, as when a guest, after complaining of having been\nbitten repeatedly by insects while asleep in his room in the hotel,\nwas moved to another room only to discover insects there; and\nwithin 18 minutes of being moved to a third room he\ndiscovered insects in that room as well and had to be moved still\nagain. (Odd that at that point he didn\xe2\x80\x99t flee the motel.) By July,\nthe motel\xe2\x80\x99s management was acknowledging to EcoLab that\nthere was a \xe2\x80\x9cmajor problem with bed bugs\xe2\x80\x9d and that all that was\nbeing done about it was \xe2\x80\x9cchasing them from room to room.\xe2\x80\x9d\nDesk clerks were instructed to call the \xe2\x80\x9cbedbugs\xe2\x80\x9d \xe2\x80\x9cticks,\xe2\x80\x9d\napparently on the theory that customers would be less alarmed,\nthough in fact ticks are more dangerous than bedbugs because\nthey spread Lyme Disease and Rocky Mountain Spotted Fever.\nRooms that the motel had placed on \xe2\x80\x9cDo not rent, bugs in\nroom\xe2\x80\x9d status nevertheless were rented.\nIt was in November that the plaintiffs checked into the motel.\nThey were given Room 504, even though the motel had\nclassified the room as \xe2\x80\x9cDO NOT RENT UNTIL TREATED,\xe2\x80\x9d\nand it had not been treated. Indeed, that night 190 of the hotel\xe2\x80\x99s\n191 rooms were occupied, even though a number of them had\n\n370\n\n\x0cbeen placed on the same don\xe2\x80\x99t-rent status as Room 504. One of\nthe defendant\xe2\x80\x99s motions in limine that the judge denied was to\nexclude evidence concerning all other rooms-a good example of\nthe frivolous character of the motions and of the defendant\xe2\x80\x99s\npertinacious defense of them on appeal.\nAlthough bedbug bites are not as serious as the bites of some\nother insects, they are painful and unsightly. Motel 6 could not\nhave rented any rooms at the prices it charged had it informed\nguests that the risk of being bitten by bedbugs was appreciable.\nIts failure either to warn guests or to take effective measures to\neliminate the bedbugs amounted to fraud and probably to\nbattery as well, as in the famous case of Garratt v. Dailey, 46\nWash.2d 197, (1955), appeal after remand, 49 Wash.2d 499,\n(1956), which held that the defendant would be guilty of battery\nif he knew with substantial certainty that when he moved a chair\nthe plaintiff would try to sit down where the chair had been and\nwould land on the floor instead. There was, in short, sufficient\nevidence of \xe2\x80\x9cwillful and wanton conduct\xe2\x80\x9d within the meaning\nthat the Illinois courts assign to the term to permit an award of\npunitive damages in this case.\nBut in what amount? In arguing that $20,000 was the maximum\namount of punitive damages that a jury could constitutionally\nhave awarded each plaintiff, the defendant points to the U.S.\nSupreme Court\xe2\x80\x99s recent statement that \xe2\x80\x9cfew awards [of punitive\ndamages] exceeding a single-digit ratio between punitive and\ncompensatory damages, to a significant degree, will satisfy due\nprocess.\xe2\x80\x9d State Farm Mutual Automobile Ins. Co. v. Campbell, 538\nU.S. 408, (2003). The Court went on to suggest that \xe2\x80\x9cfour times\nthe amount of compensatory damages might be close to the line\nof constitutional impropriety.\xe2\x80\x9d Hence the defendant\xe2\x80\x99s proposed\nceiling in this case of $20,000, four times the compensatory\ndamages awarded to each plaintiff. The ratio of punitive to\ncompensatory damages determined by the jury was, in contrast,\n37.2 to 1.\nThe Supreme Court did not, however, lay down a 4-to-1 or\nsingle-digit-ratio rule \xe2\x80\x93 it said merely that \xe2\x80\x9cthere is a\npresumption against an award that has a 145-to-1 ratio,\xe2\x80\x9d \xe2\x80\x93 and it\n\n371\n\n\x0cwould be unreasonable to do so. We must consider why\npunitive damages are awarded and why the Court has decided\nthat due process requires that such awards be limited. The\nsecond question is easier to answer than the first. The term\n\xe2\x80\x9cpunitive damages\xe2\x80\x9d implies punishment, and a standard\nprinciple of penal theory is that \xe2\x80\x9cthe punishment should fit the\ncrime\xe2\x80\x9d in the sense of being proportional to the wrongfulness of\nthe defendant\xe2\x80\x99s action, though the principle is modified when\nthe probability of detection is very low (a familiar example is the\nheavy fines for littering) or the crime is potentially lucrative (as\nin the case of trafficking in illegal drugs). Hence, with these\nqualifications, which in fact will figure in our analysis of this\ncase, punitive damages should be proportional to the\nwrongfulness of the defendant\xe2\x80\x99s actions.\nAnother penal precept is that a defendant should have\nreasonable notice of the sanction for unlawful acts, so that he\ncan make a rational determination of how to act; and so there\nhave to be reasonably clear standards for determining the\namount of punitive damages for particular wrongs.\nAnd a third precept, the core of the Aristotelian notion of\ncorrective justice, and more broadly of the principle of the rule\nof law, is that sanctions should be based on the wrong done\nrather than on the status of the defendant; a person is punished\nfor what he does, not for who he is, even if the who is a huge\ncorporation.\nWhat follows from these principles, however, is that punitive\ndamages should be admeasured by standards or rules rather than\nin a completely ad hoc manner, and this does not tell us what\nthe maximum ratio of punitive to compensatory damages should\nbe in a particular case. To determine that, we have to consider\nwhy punitive damages are awarded in the first place.\nEngland\xe2\x80\x99s common law courts first confirmed their authority to\naward punitive damages in the eighteenth century, at a time\nwhen the institutional structure of criminal law enforcement was\nprimitive and it made sense to leave certain minor crimes to be\ndealt with by the civil law. And still today one function of\npunitive-damages awards is to relieve the pressures on an\n\n372\n\n\x0coverloaded system of criminal justice by providing a civil\nalternative to criminal prosecution of minor crimes. An example\nis deliberately spitting in a person\xe2\x80\x99s face, a criminal assault but\nbecause minor readily deterrable by the levying of what amounts\nto a civil fine through a suit for damages for the tort of battery.\nCompensatory damages would not do the trick in such a case,\nand this for three reasons: because they are difficult to\ndetermine in the case of acts that inflict largely dignitary harms;\nbecause in the spitting case they would be too slight to give the\nvictim an incentive to sue, and he might decide instead to\nrespond with violence-and an age-old purpose of the law of\ntorts is to provide a substitute for violent retaliation against\nwrongful injury-and because to limit the plaintiff to\ncompensatory damages would enable the defendant to commit\nthe offensive act with impunity provided that he was willing to\npay, and again there would be a danger that his act would incite\na breach of the peace by his victim.\nWhen punitive damages are sought for billion-dollar oil spills\nand other huge economic injuries, the considerations that we\nhave just canvassed fade. As the Court emphasized in Campbell,\nthe fact that the plaintiffs in that case had been awarded very\nsubstantial compensatory damages \xe2\x80\x93 $1 million for a dispute\nover insurance coverage-greatly reduced the need for giving\nthem a huge award of punitive damages ($145 million) as well in\norder to provide an effective remedy. Our case is closer to the\nspitting case. The defendant\xe2\x80\x99s behavior was outrageous but the\ncompensable harm done was slight and at the same time\ndifficult to quantify because a large element of it was emotional.\nAnd the defendant may well have profited from its misconduct\nbecause by concealing the infestation it was able to keep renting\nrooms. Refunds were frequent but may have cost less than the\ncost of closing the hotel for a thorough fumigation. The hotel\xe2\x80\x99s\nattempt to pass off the bedbugs as ticks, which some guests\nmight ignorantly have thought less unhealthful, may have\npostponed the instituting of litigation to rectify the hotel\xe2\x80\x99s\nmisconduct. The award of punitive damages in this case thus\nserves the additional purpose of limiting the defendant\xe2\x80\x99s ability\nto profit from its fraud by escaping detection and (private)\n\n373\n\n\x0cprosecution. If a tortfeasor is \xe2\x80\x9ccaught\xe2\x80\x9d only half the time he\ncommits torts, then when he is caught he should be punished\ntwice as heavily in order to make up for the times he gets away.\nFinally, if the total stakes in the case were capped at $50,000 (2 x\n[$5,000 + $20,000]), the plaintiffs might well have had difficulty\nfinancing this lawsuit. It is here that the defendant\xe2\x80\x99s aggregate\nnet worth of $1.6 billion becomes relevant. A defendant\xe2\x80\x99s wealth\nis not a sufficient basis for awarding punitive damages. That\nwould be discriminatory and would violate the rule of law, as we\nexplained earlier, by making punishment depend on status rather\nthan conduct. Where wealth in the sense of resources enters is\nin enabling the defendant to mount an extremely aggressive\ndefense against suits such as this and by doing so to make\nlitigating against it very costly, which in turn may make it\ndifficult for the plaintiffs to find a lawyer willing to handle their\ncase, involving as it does only modest stakes, for the usual 33-40\npercent contingent fee.\nIn other words, the defendant is investing in developing a\nreputation intended to deter plaintiffs. It is difficult otherwise to\nexplain the great stubborness with which it has defended this\ncase, making a host of frivolous evidentiary arguments despite\nthe very modest stakes even when the punitive damages\nawarded by the jury are included.\nAs a detail (the parties having made nothing of the point), we\nnote that \xe2\x80\x9cnet worth\xe2\x80\x9d is not the correct measure of a\ncorporation\xe2\x80\x99s resources. It is an accounting artifact that reflects\nthe allocation of ownership between equity and debt claimants.\nA firm financed largely by equity investors has a large \xe2\x80\x9cnet\nworth\xe2\x80\x9d (= the value of the equity claims), while the identical\nfirm financed largely by debt may have only a small net worth\nbecause accountants treat debt as a liability.\nAll things considered, we cannot say that the award of punitive\ndamages was excessive, albeit the precise number chosen by the\njury was arbitrary. It is probably not a coincidence that $5,000 +\n$186,000 = $191,000/191 = $1,000: i.e., $1,000 per room in the\nhotel. But as there are no punitive-damages guidelines,\ncorresponding to the federal and state sentencing guidelines, it is\n\n374\n\n\x0cinevitable that the specific amount of punitive damages awarded\nwhether by a judge or by a jury will be arbitrary. (Which is\nperhaps why the plaintiffs\xe2\x80\x99 lawyer did not suggest a number to\nthe jury.) The judicial function is to police a range, not a point.\nBut it would have been helpful had the parties presented\nevidence concerning the regulatory or criminal penalties to\nwhich the defendant exposed itself by deliberately exposing its\ncustomers to a substantial risk of being bitten by bedbugs. That\nis an inquiry recommended by the Supreme Court. But we do\nnot think its omission invalidates the award. We can take judicial\nnotice that deliberate exposure of hotel guests to the health risks\ncreated by insect infestations exposes the hotel\xe2\x80\x99s owner to\nsanctions under Illinois and Chicago law that in the aggregate\nare comparable in severity to the punitive damage award in this\ncase.\n\xe2\x80\x9cA person who causes bodily harm to or endangers the bodily\nsafety of an individual by any means, commits reckless conduct\nif he performs recklessly the acts which cause the harm or\nendanger safety, whether they otherwise are lawful or unlawful.\xe2\x80\x9d\n720 ILCS 5/12-5(a). This is a misdemeanor, punishable by up to\na year\xe2\x80\x99s imprisonment or a fine of $2,500, or both. 720 ILCS\n5/12-5(b); 730 ILCS 5/5-8-3(a)(1), 5/5-9-1(a)(2). Of course a\ncorporation cannot be sent to prison, and $2,500 is obviously\nmuch less than the $186,000 awarded to each plaintiff in this\ncase as punitive damages. But this is just the beginning. Other\nguests of the hotel were endangered besides these two plaintiffs.\nAnd, what is much more important, a Chicago hotel that\npermits unsanitary conditions to exist is subject to revocation of\nits license, without which it cannot operate. Chi. Munic. Code \xc2\xa7\xc2\xa7\n4-4-280, 4-208-020, 050, 060, 110. We are sure that the\ndefendant would prefer to pay the punitive damages assessed in\nthis case than to lose its license.\nAFFIRMED.\n\nArguing for Punitive Damages\nBecause the point of punitive damages is to punish, that necessarily\nmeans giving the defendant pecuniary pain. And the bigger the\n\n375\n\n\x0cdefendant is, the larger the punitive damage figure may need to be. In\nother words, a $100,000 punitive judgment might be a seismic source\nof financial hurt for you or me. But to a multinational oil company,\n$100,000 is less than a rounding error on the corporate balance sheet.\nBecause of this, plaintiffs can present evidence on corporate\nfinancials to the jury, and they can then use that as a basis for\nsuggesting how much the jury should assess in punitive damages. It is\nalso permissible for the attorney to argue about the significance of\nthe defendant\xe2\x80\x99s conduct on society as a whole.\nCase: Silkwood v. Kerr-McGee\nWe encountered part of the closing argument of Gerry Spence in\nSilkwood v. Kerr-McGee in the materials relating to strict liability. Here\nis more of that closing argument, in which Spence argues the issue of\npunitive damages to the jury.\n\nSilkwood v. Kerr-McGee\nUnited States District Court for the Western District of Oklahoma\n1979\nBill M. SILKWOOD, Administrator of the Estate of Karen G.\nSilkwood, deceased, Plaintiff, v. Kerr-McGee CORPORATION\net al., Defendants. Civ. A. No. 76-0888-Theis. In the United\nStates District Court for the Western District of Oklahoma.\nHon. Judge Frank G. Theis, U.S. District Judge, District of\nKansas, sitting by designation.\nThe FACTS:\nIn the early 1970s, Karen Silkwood worked at Kerr-McGee\nCorporation\xe2\x80\x99s Cimarron Fuel Fabrication Site, which made\nplutonium fuel pellets to be used in nuclear reactors. Silkwood\nwas active with her union, and she uncovered serious health and\nsafety violations at the plant, which she reported to government\nauthorities.\nSilkwood became contaminated with plutonium under\nsuspicious circumstances: She was found to have traces of\nplutonium on her hands, even though the gloves she was using\n\n376\n\n\x0cinside of a sealed \xe2\x80\x9cglove box\xe2\x80\x9d work area had no leaks. Later,\nmore plutonium was found on Silkwood, including from swipes\nof her nostrils, urine samples, and a fecal sample. No source for\nthe contamination was found until health physicists went with\nher to her apartment, where substantial plutonium\ncontamination was found in the kitchen and bathroom.\nSubsequently, Silkwood agreed to meet with a reporter from the\nNew York Times to provide documentation of plant safety\nviolations. On the way to the meeting, she was killed in a strange\none-car accident. Many believed Silkwood was murdered.\nGerry L. Spence of Jackson Hole, Wyoming represented the\nSilkwood estate. William G. Paul of Crowe, Dunlevy, Thweatt,\nSwinford, Johnson & Burdick of Oklahoma City represented\nKerr-McGee.\n(A more detailed recitation of the facts can be found with the portion of the\ncase appearing in the Strict Liability chapter, supra.)\nGERRY L. SPENCE, Esq., delivered the plaintiff\xe2\x80\x99s\nCLOSING ARGUMENT:\nThank you, Your Honor. Well, here we are. Every good closing\nargument has to start with \xe2\x80\x9cLadies and gentlemen of the jury,\xe2\x80\x9d\nso let me start that way with you.\nI actually thought we were going to grow old together. I thought\nwe would just kind of go down to Sun City, and get us a nice\ncomplex there and sort of live out our lives. It looked like that\nwas the way it was going to happen. I had an image in my mind\nwith the judge at the head block, and then the six jurors with\nnice little houses beside each \xe2\x80\x93 and I hadn\xe2\x80\x99t made up my mind\nwhether I was going to ask Mr. Paul to come down or not \xe2\x80\x93 but\nI didn\xe2\x80\x99t think this case was ever going to get over and I know\nyou didn\xe2\x80\x99t think so, either. And, as a matter of fact, as Mr. Paul\nkept calling witnesses and calling witnesses, I sort of got the\nimpression that he\xe2\x80\x99s fallen in love with us over here and just\ndidn\xe2\x80\x99t want to quit calling witnesses.\nLadies and gentlemen, it was winter in Jackson, Wyoming, when\nI came here, and there was four feet of snow at Jackson. We\xe2\x80\x99ve\nspent a season here together. I haven\xe2\x80\x99t been home to Jackson\n\n377\n\n\x0cfor two and a half months. And, although I\xe2\x80\x99m a full-fledged\nOklahoman now, and have been for over a month and a half,\nnevertheless I\xe2\x80\x99m homesick. And I\xe2\x80\x99m sure you\xe2\x80\x99re homesick, too.\nI\xe2\x80\x99m sure this has been a tough one on you. Well, I know lots of\nyou have had to do extra work, and I know you\xe2\x80\x99ve had to work\nat night, and I know you\xe2\x80\x99ve had to drive long distances. Every\nmorning \xe2\x80\x93 now, I\xe2\x80\x99m a jury watcher \xe2\x80\x93 you watch me watching\nyou every morning, and I\xe2\x80\x99d look at you to see if my jury was all\nright, and see if they were feeling okay. Sometimes they weren\xe2\x80\x99t\nfeeling too good, but mostly we made it through this matter\ntogether, and I\xe2\x80\x99m pretty proud of that.\nIt\xe2\x80\x99s the longest case in Oklahoma history, they tell me. And,\nbefore the case is over, you will know, as you probably already\nknow, that this is probably the most important case, as well.\nWell, ladies and gentlemen, I want you to know that I don\xe2\x80\x99t\nknow how \xe2\x80\x93 excepting because Bill Silkwood happened to want\nme \xe2\x80\x93 a country lawyer from Wyoming got out to Oklahoma. It\nsort of seems that if anything good comes out of this trial that it\nwas providence, and it\xe2\x80\x99s the most important case of my career.\nI\xe2\x80\x99m standing here talking to you now about the most important\nthings that I have ever said in my life. And, I have a sense that I\nhave spent a lifetime, 50 years, to be exact, preparing somehow\nfor this moment with you.\nAnd, so, I\xe2\x80\x99m proud to be here with you, and I\xe2\x80\x99m awed, and I\xe2\x80\x99m\na little frightened, and I know that\xe2\x80\x99s hard for you to believe\nbecause I don\xe2\x80\x99t look frightened. But, I\xe2\x80\x99ve been frightened from\ntime to time throughout this trial. I\xe2\x80\x99ve learned how to cover that\nup pretty well. And, what I am setting out to do today is\nfrightening to me. I hope I have the intelligence, the insight, and\nthe spirit, and the ability, and just the plain old guts to get to you\nwhat I have to get to you. What I need to do is to have you\nunderstand what needs to be understood. And, I think I\xe2\x80\x99ll get\nsome help from you. My greatest fear in my whole life has been\nthat when I would get to this important case \xe2\x80\x93 whatever it was \xe2\x80\x93\nI would stand here in front of the jury and be called upon to\nmake my final argument and suddenly you know, I\xe2\x80\x99d just open\nmy mouth and nothing would come out. I\xe2\x80\x99d just sort of stand\n\n378\n\n\x0cthere and maybe just wet my pants, or something. But I feel the\njuices \xe2\x80\x93 they\xe2\x80\x99re going, and I\xe2\x80\x99m going to be all right.~\nNow, what is this case about? What is the $70 million claim\nabout? I want to talk about it, because my purpose here is to do\nsome changes that has to do with stopping some things. I don\xe2\x80\x99t\nwant to see workers in America cheated out of their lives. I\xe2\x80\x99m\ngoing to talk to you about that a lot. It hurts me. It hurts me. I\ndon\xe2\x80\x99t want to see people deprived of the truth \xe2\x80\x93 the cover-ups.\nIt\xe2\x80\x99s ugly. I want to stop it, with your help, the exposing of the\npublic to the hidden dangers, and operating grossly, and\nnegligently, and willfully, and recklessly, and callously. Those are\nwords that you have heard from world experts that you respect\n\xe2\x80\x93 that you believe. I want to stop the misrepresentation to the\nworkers, and to the public, and to the government, and I want\nto stop it to the juries, and I want to stop it having been made to\nyou.\nWhat is the case not about? The case is not about being against\nthe nuclear industry. You will never hear me say that I stand\nhere against the nuclear industry \xe2\x80\x93 I do not. But it is about being\nresponsible, about responsible progress~. And without the truth,\nthe progress that we all need, and want, can\xe2\x80\x99t be had. It is that\nsimple. That is what the case is not about.\nBut it is about the power of truth, that you have to use in this\ncase somehow, because it has been revealed to you now \xe2\x80\x93 you\nknow it \xe2\x80\x93 and if there is only one thing that can come from this\ncase, I will go home and sleep for two solid weeks, and rest and\ncatch up, and I will feel that I have done my life\xe2\x80\x99s work in one\ncase, and I hope that you would, too \xe2\x80\x93 and that if this case\nmakes it so expensive to lie, and to cover up, and to cheat, and\nnot to tell the truth, and to play number games, that it makes it\nso expensive for industry \xe2\x80\x93 this industry \xe2\x80\x93 to do that, that the\nbiggest bargain in life, the biggest bargain for those companies is\nthe truth.\nYou know, I was amazed to hear that Kerr-McGee has 11,000\nemployees. That\xe2\x80\x99s more than most of the towns in the state that\nI live in \xe2\x80\x93 that it is in, 35 states. Well, I guarantee that\ncorporation does not speak \xe2\x80\x9cSouth.\xe2\x80\x9d It doesn\xe2\x80\x99t speak \xe2\x80\x9cOkie.\xe2\x80\x9d It\n\n379\n\n\x0cdoesn\xe2\x80\x99t speak \xe2\x80\x9cWestern.\xe2\x80\x9d It doesn\xe2\x80\x99t speak \xe2\x80\x9cNew York.\xe2\x80\x9d And it\nis in~ five countries. It doesn\xe2\x80\x99t speak any foreign language. It\nspeaks one language universally. It speaks the language of\nmoney.\nThat is the only language that it speaks \xe2\x80\x93 the only language that\nit understands \xe2\x80\x93 and that is why the case becomes what it is.\nThat\xe2\x80\x99s why we have to talk back to that corporation in money.\nI want to talk about the design of that plant very quickly. It was\ndesigned by Mr. Utnage. He never designed any kind of a plant.\nHe never designed any plant, plutonium or otherwise. And I\nconfronted him with scores of problems \xe2\x80\x93 you remember those\n574 reports of contaminations \xe2\x80\x93 they were that thick \xe2\x80\x93 in two\nvolumes \xe2\x80\x93 you remember them. They were paraded out in front\nof you a number of times. Page after page of them are based\nupon equipment failure, design failure, equipment failure, design\nfailure, equipment failure, equipment went wrong, design went\nwrong. Look at them yourself. I asked him about a leak\ndetection system. \xe2\x80\x9cWe do not need a leak detection system,\xe2\x80\x9d he\nsaid. \xe2\x80\x9cWhat do we need a leak detection system for? We can see\nit. We can see it.\xe2\x80\x9d\nHere is the man who told you that as long as you can\xe2\x80\x99t see it,\nyou\xe2\x80\x99re safe. And we know that the amount of plutonium, a half\na gram of plutonium, will contaminate the whole state of\nOklahoma, and you can\xe2\x80\x99t see it. They let it flop down into the\nrooms, and Jim Smith said one time it was in the room a foot\nthick on the floor. Do you remember the testimony? He said he\ndesigned a safe plant. And he believed the company lie that\nplutonium doesn\xe2\x80\x99t cause cancer. He sat there on that stand\nunder his oath and looked at every one of you under his oath,\nand he said plutonium has never been known to cause cancer.\nWell, now either he lied, or he bought the company lie and\ndidn\xe2\x80\x99t know. But he was the man who designed the plant.\nYou wouldn\xe2\x80\x99t have to design a very good plant if you didn\xe2\x80\x99t\nthink plutonium caused cancer, it wouldn\xe2\x80\x99t bother you. You\nwouldn\xe2\x80\x99t work very hard.~ [T]hat is why we are talking about\nexemplary and punitive damages, to stop those kind of lies, to\nstop that kind of action.\n\n380\n\n\x0cRight today, sitting out there at that plant are the trailers with\nthe waste in them. They are not covered by any kind of a vault.\nThey are full of radioactivity. All you have to have is a good\nstrong wind to hit one of those trailers that are sitting there\ntoday at this moment as my words come out of my mouth, and\npollute the whole countryside. I talked about negligent\nconstruction of the plant \xe2\x80\x93 that is one of our claims. Can you\nimagine? Do you remember young Apperson sitting there? You\nremember his open face \xe2\x80\x93 I liked him a lot \xe2\x80\x93 an open, honest\nboy \xe2\x80\x93 blond, curly hair \xe2\x80\x93 you remember him, two and a half\nmonths ago? He said, \xe2\x80\x9cThirty percent of the pipes weren\xe2\x80\x99t\nwelded when I came, when the plant was opened. Thirty percent\nof the pipes were welded after the plant was in operation, and I\nwas there and I saw those old welds.\xe2\x80\x9d And he wasn\xe2\x80\x99t a certified\nwelder himself, and he was teaching people in an hour or two to\nbe welders themselves \xe2\x80\x93 not a certified welder on the job.\n\xe2\x80\x9cThere was things leaking everywhere,\xe2\x80\x9d he said. You remember\nhow he was describing how he was there welding the pipe and\nthey jerked the oxygen out, and he had to gasp for air \xe2\x80\x93 the\ncontamination \xe2\x80\x93 to survive the moment? Jim Smith talked about\nthe valves breaking up from the acid. So much for the design of\nthe plant.\nWhat about the attitude of the management that followed? You\nknow, you can have a gun \xe2\x80\x93 most of us in my country know\nabout guns \xe2\x80\x93 we use guns \xe2\x80\x93 we use guns to go hunting, and it\xe2\x80\x99s\njust a tradition in the West. They probably are for many of us\nfolks. Now, a gun is safe in the hands of somebody that believes\nit is dangerous. If you do not believe it is dangerous, it isn\xe2\x80\x99t safe\n\xe2\x80\x93 if you don\xe2\x80\x99t understand a gun \xe2\x80\x93 if you don\xe2\x80\x99t respect it. Now,\nwhat about management? The first manager out there said,\n\xe2\x80\x9cSure, you can breathe in a pollen-size particle of plutonium and\nit won\xe2\x80\x99t even hurt you.\xe2\x80\x9d You heard the experts say that a pollensize of plutonium is lethal. Hammock, the highway patrolman,\nwas talking about how they shoveled up the contamination in\nthe dirt, threw it over the fence, and how the rocks and dirt\ncontaminated \xe2\x80\x93 how they played with the uranium, threw it\naround. One person was telling us about how they took it home\nand gave it to one of their children. Would $70 million stop\n\n381\n\n\x0cthat? Is it enough? Is two weeks\xe2\x80\x99 pay enough to dock them for\nthat? Plowman [one of the plant managers] said, you could give\n$500 million if you think that is right.\nPlowman said that he resigned his job because of his concern\nfor the plant operations. Here\xe2\x80\x99s a quote: \xe2\x80\x9cThe major factor was\nthat I didn\xe2\x80\x99t like the way the plant was running. I felt that the\nplutonium plant program was going the same way the uranium\nplant program was going. I just didn\xe2\x80\x99t think I could take much\nmore of it. It seems like things were going from one emergency\nto another. Nothing was right. I hardly knew where to begin.\nContamination was everywhere. The equipment leaked. There\nwas no real effort to control it.\xe2\x80\x9d\nNo real effort to control it.\nCan you hear their witness saying, \xe2\x80\x9cContainment is the name of\nthe game. The men were so contaminated on their arms and\nhands that you couldn\xe2\x80\x99t get it off without peeling their hides.\nThey went home like this nearly every night.\xe2\x80\x9d? And then he\nstopped them taking the truck to town, because they always\nwashed it in the car wash, and it would contaminate the town,\nand the sewer system in the town.\nWell, I look at Zitting [a Kerr-McGee manager]. He was the\nman over everybody. He was an adverse, hostile witness \xe2\x80\x93 and I\ncalled him in my case. Why would anybody do something that\nsilly? Well, I wanted you to see with your own eyes and hear\nwith your own ears what that man knew, who was in charge of\nthis whole lashup. The buck stopped with him. He\xe2\x80\x99s like the\ncommander-in-chief, like our president. Now, the president\ndoesn\xe2\x80\x99t need to know everything, but when he sends a bomb, he\nknows it. When he sends the troops, he knows it. When he\xe2\x80\x99s\ninvolved with the lives of thousands of people, he knows it,\nbecause the buck stops with him, and he\xe2\x80\x99s the one with all the\nultimate responsibility. And so was Mr. Zitting, who didn\xe2\x80\x99t\nknow a damn thing about that plant, or what was going on. He\nsaid repeatedly, \xe2\x80\x9cI don\xe2\x80\x99t recall.\xe2\x80\x9d I showed him 574 worker\ncontamination reports \xe2\x80\x93 574 were marched up and dumped\nright here on this stand, and I said, \xe2\x80\x9cWhat about those?\xe2\x80\x9d\n\n382\n\n\x0cAnd do you know what he said to me \xe2\x80\x93 you remember? \xe2\x80\x9cThis is\nthe first time I have ever seen those,\xe2\x80\x9d in this courtroom.\nThat is the kind of management, that is the kind of caring. I\nasked him about the truck that was leaking, that they buried\nparts of. He said he never heard of it before.\nIs there any wonder that Mr. Keppler of the AEC [Atomic\nEnergy Commission, a federal regulatory body] \xe2\x80\x93 poor Mr.\nKeppler \xe2\x80\x93 I probably pushed him a little further than I should\nhave. I hope you don\xe2\x80\x99t hold that against me, but I wanted to\nshake out the last bit of information I could from him so you\ncould see it. Poor Mr. Keppler said, \xe2\x80\x9cI was of the opinion I\ncouldn\xe2\x80\x99t find anybody knowledgeable enough in management\nwho knew anything about it, or who cared.\xe2\x80\x9d\nThis is the man who said, when I asked him, \xe2\x80\x9cWere you ever\xe2\x80\x9d \xe2\x80\x93\nhere is an actual question \xe2\x80\x93 \xe2\x80\x9cWere you ever advised by anybody\nthat employees were of the opinion that any amount of\nplutonium could be taken out of that plant?\xe2\x80\x9d He said, \xe2\x80\x9cNo, I\nnever heard of it.\xe2\x80\x9d Was production put over safety? What did\nthey do with a contaminated room? Did they ever stop\nproduction? Is there any evidence that they even once stopped\nproduction? If they did stop production for a contaminated\nroom, don\xe2\x80\x99t you think they would have brought somebody in, in\nfive years? Not once.\nThey painted it \xe2\x80\x93 one hundred gallons of paint, and \xe2\x80\x93 \xe2\x80\x9cIt is\nchipping off today\xe2\x80\x9d \xe2\x80\x93 to this very day. Dr. Morgan [plaintiff\xe2\x80\x99s\nexpert witness] called that reckless. You know why it is reckless?\nBecause as it chips of, it comes down in a fine powder form and\ncan be breathed into your lungs. \xe2\x80\x9cHow big a piece do you\nbreathe into your lungs?\xe2\x80\x9d \xe2\x80\x9cNobody knows.\xe2\x80\x9d \xe2\x80\x9cDo you know\nwhen you breathe it into your lungs?\xe2\x80\x9d \xe2\x80\x9cNo. Nobody knows if\nyou breathe it. It is too late after you breathe it, and once you\nget it from the air sample, by the time you get it in the air\nsample, it is 24 hours too late, or longer now.\xe2\x80\x9d By the time you\nunderstand you have been poisoned, the poisoning has already\nhappened.\n\n383\n\n\x0cThat is why it is negligence. That is why it is callous. That is why\nDr. Morgan said, \xe2\x80\x9cIt is worse than reckless.\xe2\x80\x9d Documented\ndoctored X-rays. They were always behind. Always behind. They\ndenied that, but they were always behind. Finally Zitting\nadmitted, when I took him through the monthly reports \xe2\x80\x93 you\nremember that \xe2\x80\x93 \xe2\x80\x9cYes, they were behind.\xe2\x80\x9d\nAnd Hammock said they were shipping defective pins. It just\nturns my guts. They were shipping defective pins to a breeder\nreactor knowing they were defective, to Washington where\npeople \xe2\x80\x93 the state of Washington \xe2\x80\x93 where people are going to\nsomehow be subjected to the first breeder reactor in this\ncountry. Here is the actual testimony of Hammock. Now, hear\nthis: He said, \xe2\x80\x9cThe rods were defective because they had a bad\nweld, or too large a weld sealing in the plutonium pellets.\xe2\x80\x9d This\nis an exact quote: \xe2\x80\x9cEven though we rejected them, we would go\nahead and ship them because we were too far behind in\nproduction. The workers, on orders from the supervisors, would\nsimply sand down the welds, which weakened them.\xe2\x80\x9d\nNow, I want to tell you something. That evidence is before you.\nIt is uncontradicted. If that wasn\xe2\x80\x99t true, they would have\nbrought somebody here to tell differently.\nNow, here we are next on training. I talked a good bit about\nthat. I was satisfied, I will admit I was satisfied with my $10\nmillion request \xe2\x80\x93 which the judge now says the sky is the limit \xe2\x80\x93\nI was satisfied with that $10 million request until I heard about\nthe training. I almost didn\xe2\x80\x99t come out for the next round after\nthat. I couldn\xe2\x80\x99t get over it. I couldn\xe2\x80\x99t sleep. I couldn\xe2\x80\x99t believe\nwhat I had heard.\nI don\xe2\x80\x99t know how it affected you. Maybe you get so numb after\nawhile. I guess people just stand and say, \xe2\x80\x9cExposure, exposure,\nexposure, exposure, exposure, cancer, cancer, cancer, cancer,\ncancer, cancer, cancer, cancer, cancer, cancer, cancer, cancer,\ncancer, cancer, cancer, cancer, cancer, cancer,\xe2\x80\x9d until you don\xe2\x80\x99t\nhear it anymore. Maybe that is what happens to us.\nI tell you, if it is throbbing in your breast, if cancer is eating at\nyour guts, or it\xe2\x80\x99s eating at your lungs, or it\xe2\x80\x99s gnawing away at\n\n384\n\n\x0cyour gonads, and you\xe2\x80\x99re losing your life, and your manhood, and\nyour womanhood, and your child, or your children, it then has\nmeaning. They are not just words. You multiply it by hundreds\nof workers, and thousands of workers, that is why this case is\nthe most important case, maybe, in the history of man. That is\nwhy I\xe2\x80\x99m so proud to be here with you. That\xe2\x80\x99s why I\xe2\x80\x99m so glad\nyou\xe2\x80\x99re on this jury and that we are apart of this thing together.\nIt wasn\xe2\x80\x99t until I read this document \xe2\x80\x93 that came to me almost\nlike it was divinely given \xe2\x80\x93 and, you know, I don\xe2\x80\x99t know how\nyou feel about things like that, but I reached out my hand, and\nthat man had it, that man right there, Mr. Paul, put it in my\nhand. This is the \xe2\x80\x9959 data that you saw, that Mr. Valentine [an\nexpert witness for the defense] had in his possession. Now, Dr.\nMorgan told you there were thousands of articles written,\navailable to people that wanted to read them, about the danger\nof plutonium. Thousands. This is the one, the only one that\ntheir expert, Valentine, could tell us he read, and he had it\nclutched in his own little hand, and it was this document, from\nwhich he had put together this infamous manual, the manual\nthat hides, and is full of gobbledygook so that workers who took\nthat home in their hands and sat down at the table with their\nchildren, ladies and gentlemen, as they sat down at the table with\ntheir family around, and they said we should read this, and here\nit is. [Indicating the exhibit.] That infamous piece of junk said\nnothing about cancer of the lungs, it said nothing about\nanything excepting once a word about \xe2\x80\x93 the fancy word\n\xe2\x80\x9cmalignancy\xe2\x80\x9d \xe2\x80\x93 and with respect to the respiratory problems\nand of the lungs, it said nothing. And I read it to you, and you\nheard it, and you will have it in your jury room, and you can read\nit to yourselves and see if it told you anything. And this is the\ndocument that told him about the radium workers clear back in\n\xe2\x80\x9959 and the uranium workers clear back in the 1800s that were\ndying like flies from alpha particles and they knew it. That man\nknew it.\nIt is the most dastardly crime in the history of man, to cheat\nworkers of their right to live, of their right to make a free choice.\nHow would you like it if somebody wanted your body for $3.50\na lousy hour, and to get it, told you \xe2\x80\x93 like those books told you \xe2\x80\x93\n\n385\n\n\x0clike the big man told them, \xe2\x80\x9cthat the nuclear industry is\nprobably the safest industry ever developed.\xe2\x80\x9d\nI wish I could just tell you how bad that makes me feel. I wish I\ncould just express to you how dastardly a trick that is.\nIt would be one thing, you know, if they said to workers,\n\xe2\x80\x9cListen, we\xe2\x80\x99ve known for years that uranium people have died\nlike flies, we know that radium dial people have died from alpha\nparticles just like in the plutonium business. Here is a picture,\nladies and gentlemen, my dear workers, people that are going to\ngive your lives to my company \xe2\x80\x93 here is a picture of a particle,\nan alpha particle \xe2\x80\x93 millions of those will be in your lungs if you\nbreathe any, and we don\xe2\x80\x99t know how much it takes to cause\ncancer. You have the right to know that is the danger you\xe2\x80\x99re\nexposed to.\xe2\x80\x9d\nIf you\xe2\x80\x99re working with electricity, nobody goes around and says,\nyou know, \xe2\x80\x9cThere isn\xe2\x80\x99t any danger in electricity if you grab that\nwire \xe2\x80\x93 it won\xe2\x80\x99t hurt you.\xe2\x80\x9d If you\xe2\x80\x99re working with a structure\nwhere men\xe2\x80\x99s lives are involved, you don\xe2\x80\x99t tell them it is safe if it\nis not safe. You tell them the truth.\nIt was that night, ladies and gentlemen, that I woke up the next\nmorning, after a fitful night\xe2\x80\x99s sleep, and decided that I was going\nto ask you to make this case meaningful, and I increased my\nrequest for a prayer from 10 to 70 million \xe2\x80\x93 two weeks\xe2\x80\x99 wages. I\nhope it is enough. I leave it to your good judgment.\nHow does this all tie in with Karen Silkwood? Well the court\nsays that they\xe2\x80\x99re liable if the lion got away, even if they used the\nutmost care. If the lion got away, they have to pay \xe2\x80\x93 they have\nto pay for what happened to her. If it is willful, wanton, and\ngross negligence, they have to pay such sum as you feel is\ncorrect, even if it is half a billion \xe2\x80\x93 even if it is 500 million. The\nassessment of the damages is left for you.\nI want to quote an instruction that you will hear. It is the basis\nof punitive damages \xe2\x80\x93 that\xe2\x80\x99s the $70 million to punish. Punitive.\nTo exemplify. Exemplary. So that the rest of the uranium,\nplutonium, and the nuclear industries in this country will have to\ntell the truth.\n\n386\n\n\x0cThe basis of punitive and exemplary damages rests upon the\nprinciple that they are allowed as punishment of the offender\nfor the general benefit of society, both as a restraint upon the\ntransgressor \xe2\x80\x93 restraint upon the transgressor \xe2\x80\x93 that is against\nKerr-McGee, so they won\xe2\x80\x99t do it anymore, and a meaningful\nwarning and example \xe2\x80\x93 to deter the commission of like offenses\nin the future. If the defendants are grossly or wantonly negligent\n\xe2\x80\x93 listen to this language in the court\xe2\x80\x99s instructions \xe2\x80\x93 you may\nallow exemplary or punitive damages, and you may consider the\nfinancial worth. I didn\xe2\x80\x99t bring that out to try to have you be\nprejudiced against a large corporation, I brought it out because\nwhat is fair punishment for one isn\xe2\x80\x99t for another.\nIt is fair punishment to take a paper boy who makes five dollars\na week~ to take away five dollars from him for not coming\nhome when he was suppose to~. If one of your children lied\nabout something \xe2\x80\x93 one of your children lied about something\nthat had to do with the life and health of a brother or sister, and\nhe covered it up, and he lied about it, and he said that the\nbrother and the sister were safe when he knew that he had\nexposed them to death \xe2\x80\x93 I suppose that you might not find it\nunreasonable to hold him responsible for two weeks, two\npiddling weeks, allowance in bucks, and leave fifty weeks left for\nhim.\nThat is what 70 million is to this corporation: Two weeks.\nLeaving 50 weeks\xe2\x80\x99 income.\nMaybe it isn\xe2\x80\x99t enough, but I was afraid to ask for more. You\nknow why I\xe2\x80\x99m afraid? This case is so important that I\xe2\x80\x99m afraid\nthat if I stand here and ask you what I really think the case is\nentitled to, you will laugh at me, and I can\xe2\x80\x99t have that. I can\xe2\x80\x99t\nhave you thinking that I\xe2\x80\x99m silly. I can\xe2\x80\x99t have you thinking that\nI\xe2\x80\x99m ridiculous. Because it is important to me, it is important for\nwhat I\xe2\x80\x99m trying to do that you find me credible. And I\xe2\x80\x99ve tried\nto retain my credibility with you through this trial.\nNow, Dr. Karl Morgan said the plant employees themselves\nwere deceived into entering a lion\xe2\x80\x99s cage \xe2\x80\x93 it was his language \xe2\x80\x93\nnot even meeting permissible standards. They were sent into a\nlion\xe2\x80\x99s cage \xe2\x80\x93 this actually quoting him \xe2\x80\x93 being told there were no\n\n387\n\n\x0canimals in the cage. He said they had unqualified people there.\nHe took great exception to the fact they weren\xe2\x80\x99t told about\ncancer, and he said that is willful. \xe2\x80\x9cIs it wanton?\xe2\x80\x9d \xe2\x80\x9cYes, it is\nwanton.\xe2\x80\x9d \xe2\x80\x9cIs it reckless?\xe2\x80\x9d \xe2\x80\x9cYes, it is reckless.\xe2\x80\x9d \xe2\x80\x9cWhat would you\ncall it, doctor?\xe2\x80\x9d He said: \xe2\x80\x9cI would call it callous.\xe2\x80\x9d He said, and I\nwant to give you a quote from that great man of science \xe2\x80\x93 the\nfather of health physics, who has taught the teachers and\nprofessors, and he\xe2\x80\x99s a fine, old, beautiful man \xe2\x80\x93 and if I were a\nlittle child wanting to be protected from the great exposures of\nplutonium I would curl up in his lap and close my eyes and put\nmy hands and my faith in him, and I do. And, he said, \xe2\x80\x9cI could\nnot imagine that such a lackadaisical attitude could be developed\nin an organization toward the health and safety of people. It was\ncallous, willful, and wanton negligence.\xe2\x80\x9d\nI will be back with you after the defendants have concluded\ntheir arguments. Thank you.\nSPENCE delivered the plaintiff\xe2\x80\x99s REBUTTAL CLOSING\nARGUMENT:\nThank you, your honor.\nFellow counsel, Mr. Paul,~ ladies and gentlemen:\nI, during the recess, wondered about whether there is enough in\nall of us to do what we have to do.\nI\xe2\x80\x99m afraid \xe2\x80\x93 I\xe2\x80\x99m afraid of two things.\nI\xe2\x80\x99m afraid that you have been worn out, and that there may not\nbe enough left in you to hear, even if you try and I know you\nwill try but I know you are exhausted.\nAnd I\xe2\x80\x99ve been afraid that there isn\xe2\x80\x99t enough left in me, that my\nmind isn\xe2\x80\x99t clear and sharp now, and that I can\xe2\x80\x99t say the things\nquickly that I need to say, and yet it has to be done, and it has to\nbe done well.\nI have asked my friends, during the recess \xe2\x80\x93 and they are here, I\nasked my father, my mother, my close friends for strength to do\nthis. I hope that you have been able to do that yourselves, and\nthat you can, with each other, and call upon your own strength\nand from your own sources, because this is the last time that we,\n\n388\n\n\x0cas living, breathing humans, will talk together about this subject.\nAnd it is the last time that anybody will speak for Karen\nSilkwood. And when your verdict comes out, it will be the last\ntime that anybody will have the opportunity that you have, and\nso it is important that we have the strength and the power to do\nwhat we need to do.\nYou know history has always at crucial times reached down into\nthe masses and picked ordinary people and gave ordinary people\nextraordinary power. That is the way it has always been in\nhistory and I have no reason to believe that it is any different\nnow.\nLadies and gentlemen, I need to get to the issues \xe2\x80\x93 our time is\nshort.~ You know, if all of the leaks, and all of the spills, and the\nincidents, and all the rest of the 500 things \xe2\x80\x93 if all of those\nviolations, some 75 of them \xe2\x80\x93 violations \xe2\x80\x93 all those weeks, from\nthe testimony of all of those people, wouldn\xe2\x80\x99t somehow\nembarrass them enough, if the fact that they were doctoring \xe2\x80\x93\none of the world\xe2\x80\x99s great corporations doctoring \xe2\x80\x93 now that\nwouldn\xe2\x80\x99t embarrass them enough?\nShe didn\xe2\x80\x99t need to embarrass them. She wasn\xe2\x80\x99t trying to\nembarrass them. She was trying to do something that was\nimportant to people. Her words were: \xe2\x80\x9cSomething has to be\ndone about this.\xe2\x80\x9d~\nI think she was a heroine. I think her name will be one of the\nnames that go down in history along with the great names of\nwomen heroines. I think she will be the woman who speaks\nthrough you, and may save this industry and this progress and\nmay save, out of that industry hundreds of thousands of lives.\nBut Mr. Paul calls it \xe2\x80\x9cdespicable.\xe2\x80\x9d\nI think it was the greatest service that was ever conceived. I\nthink she was exactly what the people said she was: \xe2\x80\x9cA\ncourageous woman.\xe2\x80\x9d~\nNow, they rest their case on her emotional state. They say \xe2\x80\x93 I\xe2\x80\x99m\nreferring to their notes \xe2\x80\x93 \xe2\x80\x9cThis woman was in an emotional\nstate, and therefore because she was in an emotional state she\ndoctored her own urine sample.\xe2\x80\x9d That is what they said. How\n\n389\n\n\x0cdid she get in such an emotional state? How was it that she was\nalmost ready to break? How was it that she was nervous and\nmoody? She couldn\xe2\x80\x99t find the contamination. How would you\nlike to come home all clean, go to your bed \xe2\x80\x93 cleaned up at the\nplant \xe2\x80\x93 go to your own bed, and come back the next day and\nfind you\xe2\x80\x99re dirty again, and be cleaned up again, and come back\nto go to your own bed, and come back the second day and find\nyou\xe2\x80\x99re dirty again? How would you like that? Would it upset\nyou? Would it scare you? Would you say to people, \xe2\x80\x9cI don't\nknow why they're doing this. Somebody is contaminating me. I\ndon't know where this is coming from. It must be coming out of\nmy body. It is in my nose. It must be coming out of my lungs.\nI've been cleaned up. It isn't anywhere else. I go home, and I\ncome back the next day. What is going on, Mr. People of the\nManagement, Mr. Morgan Moore? I gave you my samples,\nthey\xe2\x80\x99re hot. You\xe2\x80\x99re not doing anything about it. It is coming out\nof my lungs.\xe2\x80\x9d\nAnd you know what they do? They accuse her.\nThey accused her then, and they accuse her now, and they\ncontinue to accuse her. They said, \xe2\x80\x9cYou\xe2\x80\x99re unstable. You\xe2\x80\x99ve lost\ncontrol.\xe2\x80\x9d And then Mr. Paul says: \xe2\x80\x9cLet\xe2\x80\x99s be fair.\xe2\x80\x9d\nI heard him say it over and over. \xe2\x80\x9cLet\xe2\x80\x99s be fair.\xe2\x80\x9d She thought she\nwas going to die, and they gave her lawyers \xe2\x80\x93 \xe2\x80\x9cLet\xe2\x80\x99s be fair\xe2\x80\x9d \xe2\x80\x93\nnot doctors.~ \xe2\x80\x9cLet\xe2\x80\x99s be fair.\xe2\x80\x9d And they continued to blame her.~\nThey are still blaming her today.~\nI would have thought a lot more of them if they had come in\nand said, \xe2\x80\x9cYes, we let it go. Yes, we had a sloppy operation. Yes,\nwe did it. We\xe2\x80\x99re sorry. We will pay the damages. We\xe2\x80\x99ll pay the\nfiddler.\xe2\x80\x9d I don\xe2\x80\x99t think I would be nearly so angry as when they\ntry to slander.\nYou know what Will Rogers said about slander? Will Rogers\nsaid, \xe2\x80\x9cSlander is the cheapest defense going.\xe2\x80\x9d\nIt doesn\xe2\x80\x99t cost anything to slander anybody. I can slander you,\nand if I say it enough, somebody will start believing it. And, it is\npretty hard to defend. You remember when you were a kid in\nhigh school, and somebody said you did certain things, and you\n\n390\n\n\x0cdidn\xe2\x80\x99t do it, but your mother accused you of something and you\ncouldn\xe2\x80\x99t prove you didn\xe2\x80\x99t do it, or your daddy said you did\nsomething and you couldn\xe2\x80\x99t prove it. How about when people\nslander you like this in the most important case in the world,\nand base their defense upon it? Now stop and think about what\nI just said. How about it when the slander is in the most\nimportant case of this century \xe2\x80\x93 maybe of this nation\xe2\x80\x99s history \xe2\x80\x93\nand all the defense is a slander? What about that \xe2\x80\x93 how do you\nfeel? How does it make you feel? How do you feel about the\nkind of corporation that tells Mr. Paul this is what he has to do?\nNow let me ask you this question: When we walk out of here I\nain\xe2\x80\x99t going to be able to say another word, and you\xe2\x80\x99re going to\nhave to make some decisions, and they are going to be made not\njust about Karen Silkwood, and not just about those people at\nthat plant, but people involved in this industry and the public\nthat is exposed to this industry.\nThat is a frightening obligation. You need to trust somebody.\nYou need not to get in mud springs. If you get in there, you\xe2\x80\x99re\nlost forever. If you get down in there and start dealing with the\nnumber crunches, and this exhibit and that exhibit, and all the\nother junk, you get into mud springs. But you don\xe2\x80\x99t need to.\nYou need to trust somebody. Who are you going to trust? Are\nyou going to trust Kerr-McGee? Are you going to leave your\nkids to them? Do you feel safe in that? Are you going to leave\nyour children and their futures to those people, the men in gray?\nDo you feel safe about that? I\xe2\x80\x99m not saying they are bad men \xe2\x80\x93\nI\xe2\x80\x99m saying are you going to leave it on those arguments? Do\nthey satisfy you? Can you do it? Is your verdict going to say\nsomething about the number-crunching game \xe2\x80\x93 that it\xe2\x80\x99s got to\nstop? Is it going to be heard from here around the world? Can\nyou do it? Do you have the power? Are you afraid? If you are, I\ndon\xe2\x80\x99t blame you, because I\xe2\x80\x99m afraid, too.\nI\xe2\x80\x99m afraid that I haven\xe2\x80\x99t the power for you to hear me. I\xe2\x80\x99m\nafraid that somehow I can\xe2\x80\x99t explain my knowledge and my\nfeelings that are in my guts to you. I wish I had the magic to put\nwhat I feel in my gut and stomach into the pit of every one of\nyou.\n\n391\n\n\x0cI want to tell you something about me. I have been in\ncourtrooms in Wyoming, little old towns in Wyoming, 5,000\nhere \xe2\x80\x93 I grew up in Riverton, Wyoming \xe2\x80\x93 5,000 people there \xe2\x80\x93\nDubois, Rock Springs, I\xe2\x80\x99ve been all over. I\xe2\x80\x99ve been the county\nattorney, and I\xe2\x80\x99ve prosecuted murderers \xe2\x80\x93 eight years I was a\nprosecutor \xe2\x80\x93 and I prosecuted murderers and thieves, and drunk\nand crazy people, and I\xe2\x80\x99ve sued careless corporations in my life,\nand I want to tell you that I have never seen a company who\nmisrepresented to the workers that the workers were cheated\nout of their lives.\nThese people that were in charge knew of plutonium. They\nknew what alpha particles did. They hid the facts, and they\nconfused the facts, and they tried to confuse you, and they tried\nto cover it, and they tried to get you in the mud springs.\nYou know and I know what it was all about. It was about a\nlousy $3.50-an-hour job. And if those people knew they were\ngoing to die from cancer 20 or 40 years later, would they have\ngone to work? The misrepresentations stole their lives. It\xe2\x80\x99s\nsickening, it\xe2\x80\x99s willful, it\xe2\x80\x99s callous.\nNobody seriously contends Kerr-McGee told these people\nabout cancer. No one said that they heard about cancer.~ They\nhid it. They hid the fact. It was a trap, surely as deadly as the\nworst kind of landmines, the worse kind of traps. I tell you, if\nyou were in the army, and your officer said to you to walk down\nthat road, and that it was safe, and they knew it was full of\nlandmines, and the only reason they told you it was safe was\nbecause that was the only way they could get you to go down\nthe road, and that they blew you all to hell, what would your\nfeelings be? It\xe2\x80\x99s that kind of misconduct that we are talking\nabout in this case, and it is that kind of misconduct relative to\nthe entire training of these people that this case is about. They\nblame it on something else after it is all over.\nNow, I have a vision. It is not a dream \xe2\x80\x93 it\xe2\x80\x99s a nightmare. It\ncame to me in the middle of the night, and I got up and wrote it\ndown, and I want you to hear it because I wrote it in the middle\nof the night about a week ago. Twenty years from now \xe2\x80\x93 the\nmen are not old, some say they\xe2\x80\x99re just in their prime, they\xe2\x80\x99re\n\n392\n\n\x0clooking forward to some good things. The men that worked at\nthat plant are good men with families who love them. They are\ngood men, but they are dying \xe2\x80\x93 not all of them but they are\ndying like men die in a plague. Cancer they say, probably from\nthe plutonium plant. He worked there as a young man. They\ndidn\xe2\x80\x99t know much about it in those days. He isn\xe2\x80\x99t suffering\nmuch; but it is just a tragedy. They all loved him. Nobody in top\nmanagement seemed to care. Those were the days when nobody\nin management in the plutonium plant could be found, even by\nthe AEC, who knew or cared. They worked the men in\nrespirators. The pipes leaked. The paint dropped from the walls.\nThe stuff was everywhere. Nobody cared very much. The place\nwas run by good money men. They were good money men \xe2\x80\x93\ngood managers. The company, well, it covered things up.~ And\nthe information was kept from them, or they wouldn\xe2\x80\x99t have\nworked.~ The training. Well, it was as bad as telling children that\nthe Kool-Aid, laced with poison, is good for them. A hidden\ndanger \xe2\x80\x93 they never knew. Some read about plutonium and\ncancer in the paper for the first time during a trial \xe2\x80\x93 the trial\ncalled \xe2\x80\x9cThe Silkwood Case\xe2\x80\x9d \xe2\x80\x93 but it was too late for them.\nKaren Silkwood was dead, the company was trying to convince\nan Oklahoma jury that she contaminated herself. They took two\nand a half months for trial. The company had an excuse for\neverything. Blamed it all on the union. Blamed it all on\neverybody else \xe2\x80\x93 on Karen Silkwood, on the workers, on\nsabotage, on the AEC. It was a sad time in the history of our\ncountry. They said the AEC was tough \xe2\x80\x93 75 violations later they\nhadn\xe2\x80\x99t even been fined once. It was worse than the days of\nslavery. It was a worse time of infamy than the days of slavery\nbecause the owners of the slaves cared about their slaves, and\nmany of them loved their slaves. It was a time of infamy, and a\ntime of deceit, corporate dishonesty. A time when men used\nmen like disposable commodities \xe2\x80\x93 like so much expendable\nproperty. It was a time when corporations fooled the public,\nwere more concerned with the public image than with the truth.\nIt was a time when the government held hands with these\ngiants, and played footsie with their greatest scientists. At the\ndisposal of the corporation, to testify, to strike down the claims\n\n393\n\n\x0cof people, and it was too late. It was a sad time, the era between\n\xe2\x80\x9970 and \xe2\x80\x9979 \xe2\x80\x93 they called it the Cimarron Syndrome.\nWhat is this case about? It is about Karen Silkwood, who was a\nbrave, ordinary woman who did care. And she risked her life,\nand she lost it. And she had something to tell the world, and she\ntried to tell the world. What was it that Karen Silkwood had to\ntell the world? That has been left to us to say now. It is for you,\nthe jury to say. It is for you, the jury to say it for her. What was\nshe trying to tell the world? Ladies and gentlemen of the jury I\nwish Karen Silkwood was standing here by me now and could\nsay what she wanted to say. I think she would say, \xe2\x80\x9cBrothers\nand sisters \xe2\x80\xa6\xe2\x80\x9d I don\xe2\x80\x99t think she would say ladies and gentlemen.\nI think she would say, \xe2\x80\x9cBrothers and sisters, they were just 18and 19-year-olds. They didn\xe2\x80\x99t understand. There wasn\xe2\x80\x99t any\ntraining. They kept the danger a secret. They covered it with\nword games and number games.\xe2\x80\x9d And she would say: \xe2\x80\x9cFriends,\nit has to stop here today, here in Oklahoma City today.\xe2\x80\x9d\nLadies and gentlemen, I\xe2\x80\x99ve still got half an hour, and I\xe2\x80\x99m not\ngoing to use it. I\xe2\x80\x99m going to close my case with you right now\nI\xe2\x80\x99m going to tell you a story a simple story about a wise old man\n\xe2\x80\x93 and a smart-aleck young boy who wanted to show up the wise\nold man for a fool. The boy\xe2\x80\x99s plan was this: He found a little\nbird in the forest and captured the little bird. And he had the\nidea he would go to the wise old man with the bird in his hand\nand say, \xe2\x80\x9cWise old man, what have I got in my hand?\xe2\x80\x9d And the\nold man would say, \xe2\x80\x9cWell, you have a bird, my son.\xe2\x80\x9d And he\nwould say, \xe2\x80\x9cWise old man, is the bird alive, or is it dead?\xe2\x80\x9d And\nthe old man knew if he said, \xe2\x80\x9cIt is dead\xe2\x80\x9d the little boy would\nopen his hand and the bird would fly away. Or if he said, \xe2\x80\x9cIt is\nalive,\xe2\x80\x9d then the boy would take the bird in his hand and crunch\nit and crunch it, and crunch the life out of it, and then open his\nhand and say, \xe2\x80\x9cSee, it is dead.\xe2\x80\x9d And so the boy went up to the\nwise old man and he said, \xe2\x80\x9cWise old man, what do I have in my\nhand?\xe2\x80\x9d \xe2\x80\x9cThe old man said, \xe2\x80\x9cWhy it is a bird, my son.\xe2\x80\x9d He said,\n\xe2\x80\x9cWise old man, is it alive, or is it dead?\xe2\x80\x9d And the wise old man\nsaid, \xe2\x80\x9cThe bird is in your hands, my son.\xe2\x80\x9d\nThank you very much.\n\n394\n\n\x0cIt\xe2\x80\x99s been my pleasure, my God-given pleasure, to be a part of\nyour lives. I mean that. Thank you, your honor.\n\nIncidence and Magnitude of Punitive Damages\nPunitive damages are not typical. A U.S. Department of Justice study\nfound that plaintiffs sought punitive damages in about 12% of civil\ntrials. Success in getting such an award is considerably rarer. Of all\ncases proceeding through trial, punitive damages were awarded about\n2% of the time. THOMAS H. COHEN & KYLE HARBACEK, PUNITIVE\nDAMAGE AWARDS IN STATE COURTS, 2005, NCJ 233094 (DOJ\nBureau of Justice Statistics, 2011).\nAlthough punitive damages are a permissible remedy for most tort\ncauses of action, they are far more common with certain claims,\nincluding intentional torts, defamation, and fraud. The DOJ study\nfound punitive damages were sought in 33% of defamation cases,\n32% of fraud cases, and 30% of intentional tort cases (including\nconversion and other intentional torts). By contrast, in medical\nmalpractice cases, punitives were sought 8% of the time. For auto\naccidents, the figure was 7%.\nThe median award of punitive damages was $64,000, and 13% of\nawards were for amounts of $1 million or more.\n\nCaps and Rakes for Punitive Damages Under State\nLaw\nAbout half the states place caps on punitive damages. Most involve\nhard dollar amounts or maximum multiples of compensatory\ndamages. Others take a hybrid approach, considering both a hard cap\nand the mathematical relationship between compensatory and\npunitive damages. Still other states tie caps to the net worth of the\ndefendant.\nA very different limit on punitive damages occurs when states rake\noff a percentage of punitive damages awarded and deposit those\nfunds into the state treasury. The idea behind such rakes is that since\nthe money awarded is for the purpose of punishing the defendant\nrather than compensating the plaintiff, the plaintiff has no special\nclaim to it.\n\n395\n\n\x0cA few hops around the map will give you an idea of the variety that\xe2\x80\x99s\nout there.\nAmong those states with caps, Montana is at the high end. In\nMontana, punitive damages may be awarded in cases of actual fraud,\nor when the defendant \xe2\x80\x9cdeliberately proceeds to act in conscious or\nintentional disregard of the high probability of injury to the plaintiff,\xe2\x80\x9d\nor \xe2\x80\x9cdeliberately proceeds to act with indifference to the high\nprobability of injury to the plaintiff.\xe2\x80\x9d Mont. Code 27-1-221. Punitive\ndamages are capped at $10 million or 3% of the defendant\xe2\x80\x99s net\nworth, whichever is less. The cap is not applicable to class actions.\nMont. Code \xc2\xa7 27-1-220.\nIndiana is a state at the stricter end of the spectrum. There, punitive\ndamages are generally allowed where the plaintiff can show, by clear\nand convincing evidence, that the defendant has a quasi-criminal state\nof mind or engages in willful or wanton misconduct that the\ndefendant knows is likely to cause injury. When permitted, Ind. Code\n34-51-3-3 limits punitive damages to the greater of $50,000 or three\ntimes compensatory damages. A defendant paying punitive damages\nmust submit the payment to the clerk of the court, who will remit\n25% to the plaintiff and 75% to the state treasury. The jury cannot be\nadvised of the cap on punitive damages, nor can it be told about the\nstate\xe2\x80\x99s 75% rake.\nIn Arkansas, the legislature passed a general cap on punitive damages\nof the greater of $250,000 or three times compensatory damages up\nto a hard limit of $1 million. Ark. Code \xc2\xa716-55-208. But in 2011, the\nArkansas Supreme Court struck down \xc2\xa716-55-208 as violating the\nstate constitution, which provides that except for workers\ncompensation, \xe2\x80\x9cno law shall be enacted limiting the amount to be\nrecovered for injuries resulting in death or for injuries to persons or\nproperty.\xe2\x80\x9d Ark. Const. art. 5, \xc2\xa7 32. Notably, the Arkansas decision\nspurred business leaders to finance the election campaigns of state\nSupreme Court judges \xe2\x80\x93 presumably those likely to vote differently\non such issues in the future.\nNew Hampshire stands alone with how its law treats punitive\ndamages. In the Granite State, punitive damages are not allowed at all\n\n396\n\n\x0cunless they are specifically authorized by statute. The list of torts that\nhave been given a legislative blessing for punitive damages is eclectic.\nWillful or wanton misappropriation of trade secrets can merit\npunitive damages. N.H. Rev. Stat. \xc2\xa7 350-B:3. And treble damages are\npermitted against willful removers of gravel, clay, sand, turf, mold, or\nloam for another\xe2\x80\x99s property. N.H. Rev. Stat. \xc2\xa7 167:61. One wonders\nhow often this comes up: Owners of sewer systems and sewage\ndisposal plants can obtain treble damages from persons maliciously\nor wantonly damaging their facilities. N.H. Rev. Stat. \xc2\xa7 167:61. One\nlast thing of note \xe2\x80\x93 although punitive damages are generally\nunavailable in New Hampshire, something called \xe2\x80\x9cliberal\ncompensatory damages\xe2\x80\x9d are allowed as a general matter in egregious\ncases.\n\nFederal Constitutional Limits on Punitive Damages\nWhile state limits on punitive damages vary, the federal constitution\nsets an outer bound beyond which punitive damages are not allowed.\nThe constitutionalization of punitive damages in tort cases is a fairly\nrecent development. The Supreme Court rejected an early attempt to\nfind such an outer boundary in the Excessive Fines Clause of the\nEighth Amendment in Browning-Ferris Industries of Vermont, Inc. v. Kelco\nDisposal, Inc., 492 U.S. 257 (1989). That case held that the Excessive\nFines Clause concerns direct actions by the government to inflict\npunishment. Since civil trials between private parties fall outside that\nconcern, the Eighth Amendment provides no limit.\nSoon thereafter, in Pacific Mutual Life Ins. Co. v. Haslip, 499 U.S. 1\n(1991), the Supreme Court rebuffed a challenge to a punitive\ndamages award on a theory that it violated the Due Process Clause of\nthe Fourteenth Amendment. But the Pacific Mutual court\nconspicuously left the door open to Due Process challenges of\npunitive damages awards in future cases. Then, two years later, the\nSupreme Court held that the Due Process Clause was violated by an\naward of civil-jury punitive damages in BMW of North America, Inc. v.\nGore, 509 U.S. 443 (1993). In the BMW case, the buyer of a \xe2\x80\x9cnew\xe2\x80\x9d\nBMW found out that his car had \xe2\x80\x93 before he purchased it \xe2\x80\x93 suffered\nsome cosmetic damage that was repaired at an auto-body shop. While\n\n397\n\n\x0cthe repairs made the car look new again, they provably decreased the\nmarket value of the car by $4,000. In the trial court, Gore got his\ncompensatory damages. Then, on top of that, the court awarded\n$4 million in punitive damages. The Supreme Court found this award\nconstitutionally excessive.\nThe court revisited the issue of punitive damages more systematically\nin State Farm v. Campbell, 538 U.S. 408 (2003), a case which is\nreproduced below.\nSubsequently, in Phillip Morris USA v. Williams, 549 U.S. 346 (2007),\nthe court held that punitive damages may not be imposed for a\ndefendant\xe2\x80\x99s conduct toward persons other than the plaintiff. The\ncourt did say, however, that evidence of harming other persons was\nrelevant as evidence of the reprehensibility of the defendant\xe2\x80\x99s\nconduct toward the plaintiff.\n\nCase: State Farm v. Campbell\nThis case contains the U.S. Supreme Court\xe2\x80\x99s most comprehensive\nstatement of the law with regard to the constitutionality of punitive\ndamage awards.\n\nState Farm v. Campbell\nSupreme Court of the United States\nApril 7, 2003\n538 U.S. 408. Formally styled as \xe2\x80\x9cState Farm Mutual\nAutomobile Insurance Co. v. Campbell.\xe2\x80\x9d STATE FARM\nMUTUAL AUTOMOBILE INSURANCE COMPANY,\nPetitioner, v. Inez Preece CAMPBELL and Matthew C.\nBarneck, special administrator and personal representative of the\nEstate of Curtis B. Campbell. No. 01-1289. KENNEDY, J.,\ndelivered the opinion of the Court, in which REHNQUIST,\nC.J., and STEVENS, O\xe2\x80\x99CONNOR, SOUTER, and BREYER,\nJJ., joined. SCALIA, J., THOMAS, J., and GINSBURG, J., post,\np. 1527, filed dissenting opinions.\nJustice ANTHONY KENNEDY delivered the opinion of\nthe Court:\n\n398\n\n\x0cWe address once again the measure of punishment, by means of\npunitive damages, a State may impose upon a defendant in a\ncivil case. The question is whether, in the circumstances we shall\nrecount, an award of $145 million in punitive damages, where\nfull compensatory damages are $1 million, is excessive and in\nviolation of the Due Process Clause of the Fourteenth\nAmendment to the Constitution of the United States.\nI\nIn 1981, Curtis Campbell (Campbell) was driving with his wife,\nInez Preece Campbell, in Cache County, Utah. He decided to\npass six vans traveling ahead of them on a two-lane highway.\nTodd Ospital was driving a small car approaching from the\nopposite direction. To avoid a head-on collision with Campbell,\nwho by then was driving on the wrong side of the highway and\ntoward oncoming traffic, Ospital swerved onto the shoulder,\nlost control of his automobile, and collided with a vehicle driven\nby Robert G. Slusher. Ospital was killed, and Slusher was\nrendered permanently disabled. The Campbells escaped\nunscathed.\nIn the ensuing wrongful death and tort action, Campbell insisted\nhe was not at fault. Early investigations did support differing\nconclusions as to who caused the accident, but \xe2\x80\x9ca consensus\nwas reached early on by the investigators and witnesses that Mr.\nCampbell\xe2\x80\x99s unsafe pass had indeed caused the crash.\xe2\x80\x9d 65 P.3d\n1134, 1141 (Utah 2001). Campbell\xe2\x80\x99s insurance company,\npetitioner State Farm Mutual Automobile Insurance Company\n(State Farm), nonetheless decided to contest liability and\ndeclined offers by Slusher and Ospital\xe2\x80\x99s estate (Ospital) to settle\nthe claims for the policy limit of $50,000 ($25,000 per claimant).\nState Farm also ignored the advice of one of its own\ninvestigators and took the case to trial, assuring the Campbells\nthat \xe2\x80\x9ctheir assets were safe, that they had no liability for the\naccident, that [State Farm] would represent their interests, and\nthat they did not need to procure separate counsel.\xe2\x80\x9d To the\ncontrary, a jury determined that Campbell was 100 percent at\nfault, and a judgment was returned for $185,849, far more than\nthe amount offered in settlement.\n\n399\n\n\x0cAt first State Farm refused to cover the $135,849 in excess\nliability. Its counsel made this clear to the Campbells: \xe2\x80\x9c \xe2\x80\x98You\nmay want to put for sale signs on your property to get things\nmoving.\xe2\x80\x99 \xe2\x80\x9c Ibid. Nor was State Farm willing to post a\nsupersedeas bond to allow Campbell to appeal the judgment\nagainst him. Campbell obtained his own counsel to appeal the\nverdict. During the pendency of the appeal, in late 1984, Slusher,\nOspital, and the Campbells reached an agreement whereby\nSlusher and Ospital agreed not to seek satisfaction of their\nclaims against the Campbells. In exchange the Campbells agreed\nto pursue a bad faith action against State Farm and to be\nrepresented by Slusher\xe2\x80\x99s and Ospital\xe2\x80\x99s attorneys. The Campbells\nalso agreed that Slusher and Ospital would have a right to play a\npart in all major decisions concerning the bad-faith action. No\nsettlement could be concluded without Slusher\xe2\x80\x99s and Ospital\xe2\x80\x99s\napproval, and Slusher and Ospital would receive 90 percent of\nany verdict against State Farm.\nIn 1989, the Utah Supreme Court denied Campbell\xe2\x80\x99s appeal in\nthe wrongful-death and tort actions. Slusher v. Ospital, 777 P.2d\n437 (Utah 1989). State Farm then paid the entire judgment,\nincluding the amounts in excess of the policy limits. The\nCampbells nonetheless filed a complaint against State Farm\nalleging bad faith, fraud, and intentional infliction of emotional\ndistress.~ [T] jury determined that State Farm\xe2\x80\x99s decision not to\nsettle was unreasonable because there was a substantial\nlikelihood of an excess verdict.\nBefore the second phase of the action against State Farm we\ndecided BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996),\nand refused to sustain a $2 million punitive damages award\nwhich accompanied a verdict of only $4,000 in compensatory\ndamages. Based on that decision, State Farm again moved for\nthe exclusion of evidence of dissimilar out-of-state conduct. The\ntrial court denied State Farm\xe2\x80\x99s motion.\nThe second phase addressed State Farm\xe2\x80\x99s liability for fraud and\nintentional infliction of emotional distress, as well as\ncompensatory and punitive damages. The Utah Supreme Court\naptly characterized this phase of the trial:\n\n400\n\n\x0cState Farm argued during phase II that its\ndecision to take the case to trial was an \xe2\x80\x98honest\nmistake\xe2\x80\x99 that did not warrant punitive damages.\nIn contrast, the Campbells introduced evidence\nthat State Farm\xe2\x80\x99s decision to take the case to\ntrial was a result of a national scheme to meet\ncorporate fiscal goals by capping payouts on\nclaims company wide. This scheme was referred\nto as State Farm\xe2\x80\x99s \xe2\x80\x98Performance, Planning and\nReview,\xe2\x80\x99 or PP & R, policy. To prove the\nexistence of this scheme, the trial court allowed\nthe Campbells to introduce extensive expert\ntestimony regarding fraudulent practices by\nState Farm in its nation-wide operations.\nAlthough State Farm moved prior to phase II of\nthe trial for the exclusion of such evidence and\ncontinued to object to it at trial, the trial court\nruled that such evidence was admissible to\ndetermine whether State Farm\xe2\x80\x99s conduct in the\nCampbell case was indeed intentional and\nsufficiently egregious to warrant punitive\ndamages.\nEvidence pertaining to the PP & R policy concerned State\nFarm\xe2\x80\x99s business practices for over 20 years in numerous States.\nMost of these practices bore no relation to third-party\nautomobile insurance claims, the type of claim underlying the\nCampbells\xe2\x80\x99 complaint against the company. The jury awarded\nthe Campbells $2.6 million in compensatory damages and $145\nmillion in punitive damages, which the trial court reduced to $1\nmillion and $25 million respectively. Both parties appealed.\nThe Utah Supreme Court sought to apply the three guideposts\nwe identified in Gore, and it reinstated the $145 million punitive\ndamages award. Relying in large part on the extensive evidence\nconcerning the PP & R policy, the court concluded State Farm\xe2\x80\x99s\nconduct was reprehensible. The court also relied upon State\nFarm\xe2\x80\x99s \xe2\x80\x9cmassive wealth\xe2\x80\x9d and on testimony indicating that \xe2\x80\x9cState\nFarm\xe2\x80\x99s actions, because of their clandestine nature, will be\npunished at most in one out of every 50,000 cases as a matter of\nstatistical probability,\xe2\x80\x9d and concluded that the ratio between\n\n401\n\n\x0cpunitive and compensatory damages was not unwarranted.\nFinally, the court noted that the punitive damages award was not\nexcessive when compared to various civil and criminal penalties\nState Farm could have faced, including $10,000 for each act of\nfraud, the suspension of its license to conduct business in Utah,\nthe disgorgement of profits, and imprisonment. We granted\ncertiorari.\nII\nWe recognized in Cooper Industries, Inc. v. Leatherman Tool Group,\nInc., 532 U.S. 424 (2001), that in our judicial system\ncompensatory and punitive damages, although usually awarded\nat the same time by the same decisionmaker, serve different\npurposes. Compensatory damages \xe2\x80\x9care intended to redress the\nconcrete loss that the plaintiff has suffered by reason of the\ndefendant\xe2\x80\x99s wrongful conduct.\xe2\x80\x9d By contrast, punitive damages\nserve a broader function; they are aimed at deterrence and\nretribution. Cooper Industries, supra, at 432; see also Gore, supra, at\n568 (\xe2\x80\x9cPunitive damages may properly be imposed to further a\nState\xe2\x80\x99s legitimate interests in punishing unlawful conduct and\ndeterring its repetition\xe2\x80\x9d); Pacific Mut. Life Ins. Co. v. Haslip, 499\nU.S. 1, 19 (1991) (\xe2\x80\x9c[P]unitive damages are imposed for purposes\nof retribution and deterrence\xe2\x80\x9d).\nWhile States possess discretion over the imposition of punitive\ndamages, it is well established that there are procedural and\nsubstantive constitutional limitations on these awards. The Due\nProcess Clause of the Fourteenth Amendment prohibits the\nimposition of grossly excessive or arbitrary punishments on a\ntortfeasor.~\nAlthough these awards serve the same purposes as criminal\npenalties, defendants subjected to punitive damages in civil cases\nhave not been accorded the protections applicable in a criminal\nproceeding. This increases our concerns over the imprecise\nmanner in which punitive damages systems are administered.\nWe have admonished that \xe2\x80\x9c[p]unitive damages pose an acute\ndanger of arbitrary deprivation of property. Jury instructions\ntypically leave the jury with wide discretion in choosing\namounts, and the presentation of evidence of a defendant\xe2\x80\x99s net\n\n402\n\n\x0cworth creates the potential that juries will use their verdicts to\nexpress biases against big businesses, particularly those without\nstrong local presences.\xe2\x80\x9d~ Our concerns are heightened when the\ndecisionmaker is presented, as we shall discuss, with evidence\nthat has little bearing as to the amount of punitive damages that\nshould be awarded. Vague instructions, or those that merely\ninform the jury to avoid \xe2\x80\x9cpassion or prejudice,\xe2\x80\x9d do little to aid\nthe decisionmaker in its task of assigning appropriate weight to\nevidence that is relevant and evidence that is tangential or only\ninflammatory.\nIn light of these concerns, in Gore, we instructed courts\nreviewing punitive damages to consider three guideposts: (1) the\ndegree of reprehensibility of the defendant\xe2\x80\x99s misconduct; (2) the\ndisparity between the actual or potential harm suffered by the\nplaintiff and the punitive damages award; and (3) the difference\nbetween the punitive damages awarded by the jury and the civil\npenalties authorized or imposed in comparable cases. We\nreiterated the importance of these three guideposts in Cooper\nIndustries and mandated appellate courts to conduct de novo\nreview of a trial court\xe2\x80\x99s application of them to the jury\xe2\x80\x99s award.\nExacting appellate review ensures that an award of punitive\ndamages is based upon an \xe2\x80\x9capplication of law, rather than a\ndecisionmaker\xe2\x80\x99s caprice.\xe2\x80\x9d\nIII\nUnder the principles outlined in BMW of North America, Inc. v.\nGore, this case is neither close nor difficult. It was error to\nreinstate the jury\xe2\x80\x99s $145 million punitive damages award. We\naddress each guidepost of Gore in some detail.\nA\n\xe2\x80\x9c[T]he most important indicium of the reasonableness of a\npunitive damages award is the degree of reprehensibility of the\ndefendant\xe2\x80\x99s conduct.\xe2\x80\x9d We have instructed courts to determine\nthe reprehensibility of a defendant by considering whether: the\nharm caused was physical as opposed to economic; the tortious\nconduct evinced an indifference to or a reckless disregard of the\nhealth or safety of others; the target of the conduct had financial\n\n403\n\n\x0cvulnerability; the conduct involved repeated actions or was an\nisolated incident; and the harm was the result of intentional\nmalice, trickery, or deceit, or mere accident. The existence of\nany one of these factors weighing in favor of a plaintiff may not\nbe sufficient to sustain a punitive damages award; and the\nabsence of all of them renders any award suspect. It should be\npresumed a plaintiff has been made whole for his injuries by\ncompensatory damages, so punitive damages should only be\nawarded if the defendant\xe2\x80\x99s culpability, after having paid\ncompensatory damages, is so reprehensible as to warrant the\nimposition of further sanctions to achieve punishment or\ndeterrence.\nApplying these factors in the instant case, we must acknowledge\nthat State Farm\xe2\x80\x99s handling of the claims against the Campbells\nmerits no praise. The trial court found that State Farm\xe2\x80\x99s\nemployees altered the company\xe2\x80\x99s records to make Campbell\nappear less culpable. State Farm disregarded the overwhelming\nlikelihood of liability and the near-certain probability that, by\ntaking the case to trial, a judgment in excess of the policy limits\nwould be awarded. State Farm amplified the harm by at first\nassuring the Campbells their assets would be safe from any\nverdict and by later telling them, postjudgment, to put a for-sale\nsign on their house. While we do not suggest there was error in\nawarding punitive damages based upon State Farm\xe2\x80\x99s conduct\ntoward the Campbells, a more modest punishment for this\nreprehensible conduct could have satisfied the State\xe2\x80\x99s legitimate\nobjectives, and the Utah courts should have gone no further.\nThis case, instead, was used as a platform to expose, and punish,\nthe perceived deficiencies of State Farm\xe2\x80\x99s operations throughout\nthe country. The Utah Supreme Court\xe2\x80\x99s opinion makes explicit\nthat State Farm was being condemned for its nationwide policies\nrather than for the conduct directed toward the Campbells.~ The\ncourts awarded punitive damages to punish and deter conduct\nthat bore no relation to the Campbells\xe2\x80\x99 harm. A defendant\xe2\x80\x99s\ndissimilar acts, independent from the acts upon which liability\nwas premised, may not serve as the basis for punitive damages.\nA defendant should be punished for the conduct that harmed\nthe plaintiff, not for being an unsavory individual or business.\n\n404\n\n\x0cDue process does not permit courts, in the calculation of\npunitive damages, to adjudicate the merits of other parties\xe2\x80\x99\nhypothetical claims against a defendant under the guise of the\nreprehensibility analysis, but we have no doubt the Utah\nSupreme Court did that here. Punishment on these bases creates\nthe possibility of multiple punitive damages awards for the same\nconduct; for in the usual case nonparties are not bound by the\njudgment some other plaintiff obtains.\nThe same reasons lead us to conclude the Utah Supreme Court\xe2\x80\x99s\ndecision cannot be justified on the grounds that State Farm was\na recidivist. Although \xe2\x80\x9c[o]ur holdings that a recidivist may be\npunished more severely than a first offender recognize that\nrepeated misconduct is more reprehensible than an individual\ninstance of malfeasance,\xe2\x80\x9d Gore at 577, in the context of civil\nactions courts must ensure the conduct in question replicates\nthe prior transgressions.\nThe Campbells have identified scant evidence of repeated\nmisconduct of the sort that injured them. Nor does our review\nof the Utah courts\xe2\x80\x99 decisions convince us that State Farm was\nonly punished for its actions toward the Campbells. Although\nevidence of other acts need not be identical to have relevance in\nthe calculation of punitive damages, the Utah court erred here\nbecause evidence pertaining to claims that had nothing to do\nwith a third-party lawsuit was introduced at length.~ The\nreprehensibility guidepost does not permit courts to expand the\nscope of the case so that a defendant may be punished for any\nmalfeasance, which in this case extended for a 20-year period. In\nthis case, because the Campbells have shown no conduct by\nState Farm similar to that which harmed them, the conduct that\nharmed them is the only conduct relevant to the reprehensibility\nanalysis.\nB\nTurning to the second Gore guidepost, we have been reluctant to\nidentify concrete constitutional limits on the ratio between\nharm, or potential harm, to the plaintiff and the punitive\ndamages award. We decline again to impose a bright-line ratio\nwhich a punitive damages award cannot exceed. Our\n\n405\n\n\x0cjurisprudence and the principles it has now established\ndemonstrate, however, that, in practice, few awards exceeding a\nsingle-digit ratio between punitive and compensatory damages,\nto a significant degree, will satisfy due process. In Haslip, in\nupholding a punitive damages award, we concluded that an\naward of more than four times the amount of compensatory\ndamages might be close to the line of constitutional impropriety.\nWe cited that 4-to-1 ratio again in Gore. The Court further\nreferenced a long legislative history, dating back over 700 years\nand going forward to today, providing for sanctions of double,\ntreble, or quadruple damages to deter and punish. While these\nratios are not binding, they are instructive. They demonstrate\nwhat should be obvious: Single-digit multipliers are more likely\nto comport with due process, while still achieving the State\xe2\x80\x99s\ngoals of deterrence and retribution, than awards with ratios in\nrange of 500 to 1, or, in this case, of 145 to 1.\nNonetheless, because there are no rigid benchmarks that a\npunitive damages award may not surpass, ratios greater than\nthose we have previously upheld may comport with due process\nwhere \xe2\x80\x9ca particularly egregious act has resulted in only a small\namount of economic damages.\xe2\x80\x9d The converse is also true,\nhowever. When compensatory damages are substantial, then a\nlesser ratio, perhaps only equal to compensatory damages, can\nreach the outermost limit of the due process guarantee. The\nprecise award in any case, of course, must be based upon the\nfacts and circumstances of the defendant\xe2\x80\x99s conduct and the\nharm to the plaintiff.\nIn sum, courts must ensure that the measure of punishment is\nboth reasonable and proportionate to the amount of harm to\nthe plaintiff and to the general damages recovered. In the\ncontext of this case, we have no doubt that there is a\npresumption against an award that has a 145-to-1 ratio. The\ncompensatory award in this case was substantial; the Campbells\nwere awarded $1 million for a year and a half of emotional\ndistress. This was complete compensation. The harm arose from\na transaction in the economic realm, not from some physical\nassault or trauma; there were no physical injuries; and State\nFarm paid the excess verdict before the complaint was filed, so\n\n406\n\n\x0cthe Campbells suffered only minor economic injuries for the 18month period in which State Farm refused to resolve the claim\nagainst them. The compensatory damages for the injury suffered\nhere, moreover, likely were based on a component which was\nduplicated in the punitive award. Much of the distress was\ncaused by the outrage and humiliation the Campbells suffered at\nthe actions of their insurer; and it is a major role of punitive\ndamages to condemn such conduct. Compensatory damages,\nhowever, already contain this punitive element. See Restatement\n(Second) of Torts \xc2\xa7 908, Comment c, p. 466 (1977) (\xe2\x80\x9cIn many\ncases in which compensatory damages include an amount for\nemotional distress, such as humiliation or indignation aroused\nby the defendant\xe2\x80\x99s act, there is no clear line of demarcation\nbetween punishment and compensation and a verdict for a\nspecified amount frequently includes elements of both\xe2\x80\x9d).~\nC\nThe third guidepost in Gore is the disparity between the punitive\ndamages award and the \xe2\x80\x9ccivil penalties authorized or imposed in\ncomparable cases.\xe2\x80\x9d We note that, in the past, we have also\nlooked to criminal penalties that could be imposed. The\nexistence of a criminal penalty does have bearing on the\nseriousness with which a State views the wrongful action. When\nused to determine the dollar amount of the award, however, the\ncriminal penalty has less utility. Great care must be taken to\navoid use of the civil process to assess criminal penalties that\ncan be imposed only after the heightened protections of a\ncriminal trial have been observed, including, of course, its higher\nstandards of proof. Punitive damages are not a substitute for the\ncriminal process, and the remote possibility of a criminal\nsanction does not automatically sustain a punitive damages\naward.\nHere, we need not dwell long on this guidepost. The most\nrelevant civil sanction under Utah state law for the wrong done\nto the Campbells appears to be a $10,000 fine for an act of\nfraud, an amount dwarfed by the $145 million punitive damages\naward. The Supreme Court of Utah speculated about the loss of\nState Farm\xe2\x80\x99s business license, the disgorgement of profits, and\n\n407\n\n\x0cpossible imprisonment, but here again its references were to the\nbroad fraudulent scheme drawn from evidence of out-of-state\nand dissimilar conduct. This analysis was insufficient to justify\nthe award.\nIV\nAn application of the Gore guideposts to the facts of this case,\nespecially in light of the substantial compensatory damages\nawarded (a portion of which contained a punitive element),\nlikely would justify a punitive damages award at or near the\namount of compensatory damages. The punitive award of $145\nmillion, therefore, was neither reasonable nor proportionate to\nthe wrong committed, and it was an irrational and arbitrary\ndeprivation of the property of the defendant. The proper\ncalculation of punitive damages under the principles we have\ndiscussed should be resolved, in the first instance, by the Utah\ncourts.\nThe judgment of the Utah Supreme Court is reversed, and the\ncase is remanded for further proceedings not inconsistent with\nthis opinion.\nIt is so ordered.\nJustice ANTONIN SCALIA, dissenting:\nI adhere to the view expressed in my dissenting opinion in\nBMW of North America, Inc. v. Gore, 517 U.S. 559, 598-99 (1996),\nthat the Due Process Clause provides no substantive protections\nagainst \xe2\x80\x9cexcessive\xe2\x80\x9d or \xe2\x80\x9c\xe2\x80\x98unreasonable\xe2\x80\x99\xe2\x80\x9d awards of punitive\ndamages. I am also of the view that the punitive damages\njurisprudence which has sprung forth from BMW v. Gore is\ninsusceptible of principled application; accordingly, I do not feel\njustified in giving the case stare decisis effect. See id., at 599. I\nwould affirm the judgment of the Utah Supreme Court.\nJustice CLARENCE THOMAS, dissenting:\nI would affirm the judgment below because \xe2\x80\x9cI continue to\nbelieve that the Constitution does not constrain the size of\npunitive damages awards.\xe2\x80\x9d Cooper Industries, Inc. v. Leatherman Tool\nGroup, Inc., 532 U.S. 424, 443 (2001) (THOMAS, J., concurring)\n\n408\n\n\x0c(citing BMW of North America, Inc. v. Gore, 517 U.S. 559, 599\n(1996) (SCALIA, J., joined by THOMAS, J., dissenting)).\nAccordingly, I respectfully dissent.\nJustice RUTH BADER GINSBURG, dissenting:\n~The\n\nlarge size of the award upheld by the Utah Supreme Court\nin this case indicates why damages-capping legislation may be\naltogether fitting and proper. Neither the amount of the award\nnor the trial record, however, justifies this Court\xe2\x80\x99s substitution\nof its judgment for that of Utah\xe2\x80\x99s competent decisionmakers. In\nthis regard, I count it significant that, on the key criterion\n\xe2\x80\x9creprehensibility,\xe2\x80\x9d there is a good deal more to the story than\nthe Court\xe2\x80\x99s abbreviated account tells.\nAmple evidence allowed the jury to find that State Farm\xe2\x80\x99s\ntreatment of the Campbells typified its \xe2\x80\x9cPerformance, Planning\nand Review\xe2\x80\x9d (PP & R) program; implemented by top\nmanagement in 1979, the program had \xe2\x80\x9cthe explicit objective of\nusing the claims-adjustment process as a profit center.\xe2\x80\x9d \xe2\x80\x9c[T]he\nCampbells presented considerable evidence,\xe2\x80\x9d the trial court\nnoted, documenting \xe2\x80\x9cthat the PP & R program ... has\nfunctioned, and continues to function, as an unlawful scheme ...\nto deny benefits owed consumers by paying out less than fair\nvalue in order to meet preset, arbitrary payout targets designed\nto enhance corporate profits.\xe2\x80\x9d That policy, the trial court\nobserved, was encompassing in scope; it \xe2\x80\x9capplied equally to the\nhandling of both third-party and first-party claims.\xe2\x80\x9d\nEvidence the jury could credit demonstrated that the PP & R\nprogram regularly and adversely affected Utah residents. Ray\nSummers, \xe2\x80\x9cthe adjuster who handled the Campbell case and\nwho was a State Farm employee in Utah for almost twenty\nyears,\xe2\x80\x9d described several methods used by State Farm to deny\nclaimants fair benefits, for example, \xe2\x80\x9cfalsifying or withholding of\nevidence in claim files.\xe2\x80\x9d A common tactic, Summers recounted,\nwas to \xe2\x80\x9cunjustly attac[k] the character, reputation and credibility\nof a claimant and mak[e] notations to that effect in the claim file\nto create prejudice in the event the claim ever came before a\njury.\xe2\x80\x9d State Farm manager Bob Noxon, Summers testified,\nresorted to a tactic of this order in the Campbell case when he\n\n409\n\n\x0c\xe2\x80\x9cinstruct[ed] Summers to write in the file that Todd Ospital\n(who was killed in the accident) was speeding because he was on\nhis way to see a pregnant girlfriend.\xe2\x80\x9d In truth, \xe2\x80\x9c[t]here was no\npregnant girlfriend.\xe2\x80\x9d Expert testimony noted by the trial court\ndescribed these tactics as \xe2\x80\x9ccompletely improper.\xe2\x80\x9d\nThe trial court also noted the testimony of two Utah State Farm\nemployees, Felix Jensen and Samantha Bird, both of whom\nrecalled \xe2\x80\x9cintolerable\xe2\x80\x9d and \xe2\x80\x9crecurrent\xe2\x80\x9d pressure to reduce\npayouts below fair value. When Jensen complained to top\nmanagers, he was told to \xe2\x80\x9cget out of the kitchen\xe2\x80\x9d if he could not\ntake the heat; Bird was told she should be \xe2\x80\x9cmore of a team\nplayer.\xe2\x80\x9d At times, Bird said, she \xe2\x80\x9cwas forced to commit\ndishonest acts and to knowingly underpay claims.\xe2\x80\x9d Eventually,\nBird quit. Utah managers superior to Bird, the evidence\nindicated, were improperly influenced by the PP & R program\nto encourage insurance underpayments. For example, several\ndocuments evaluating the performance of managers Noxon and\nBrown \xe2\x80\x9ccontained explicit preset average payout goals.\xe2\x80\x9d\nRegarding liability for verdicts in excess of policy limits, the trial\ncourt referred to a State Farm document titled the \xe2\x80\x9cExcess\nLiability Handbook\xe2\x80\x9d; written before the Campbell accident, the\nhandbook instructed adjusters to pad files with \xe2\x80\x9cself-serving\xe2\x80\x9d\ndocuments, and to leave critical items out of files, for example,\nevaluations of the insured\xe2\x80\x99s exposure. Divisional superintendent\nBill Brown used the handbook to train Utah employees. While\noverseeing the Campbell case, Brown ordered adjuster Summers\nto change the portions of his report indicating that Mr.\nCampbell was likely at fault and that the settlement cost was\ncorrespondingly high. The Campbells\xe2\x80\x99 case, according to expert\ntestimony the trial court recited, \xe2\x80\x9cwas a classic example of State\nFarm\xe2\x80\x99s application of the improper practices taught in the\nExcess Liability Handbook.\xe2\x80\x9d\nThe trial court further determined that the jury could find State\nFarm\xe2\x80\x99s policy \xe2\x80\x9cdeliberately crafted\xe2\x80\x9d to prey on consumers who\nwould be unlikely to defend themselves. In this regard, the trial\ncourt noted the testimony of several former State Farm\nemployees affirming that they were trained to target \xe2\x80\x9cthe\n\n410\n\n\x0cweakest of the herd\xe2\x80\x9d \xe2\x80\x93 \xe2\x80\x9cthe elderly, the poor, and other\nconsumers who are least knowledgeable about their rights and\nthus most vulnerable to trickery or deceit, or who have little\nmoney and hence have no real alternative but to accept an\ninadequate offer to settle a claim at much less than fair value.\xe2\x80\x9d\nThe Campbells themselves could be placed within the \xe2\x80\x9cweakest\nof the herd\xe2\x80\x9d category. The couple appeared economically\nvulnerable and emotionally fragile. At the time of State Farm\xe2\x80\x99s\nwrongful conduct, \xe2\x80\x9cMr. Campbell had residuary effects from a\nstroke and Parkinson\xe2\x80\x99s disease.\xe2\x80\x9d Id., at 3360a.\nTo further insulate itself from liability, trial evidence indicated,\nState Farm made \xe2\x80\x9csystematic\xe2\x80\x9d efforts to destroy internal\ncompany documents that might reveal its scheme, efforts that\ndirectly affected the Campbells. For example, State Farm had \xe2\x80\x9ca\nspecial historical department that contained a copy of all past\nmanuals on claim-handling practices and the dates on which\neach section of each manual was changed.\xe2\x80\x9d Ibid. Yet in discovery\nproceedings, State Farm failed to produce any claim-handling\npractice manuals for the years relevant to the Campbells\xe2\x80\x99 badfaith case.\nState Farm\xe2\x80\x99s inability to produce the manuals, it appeared from\nthe evidence, was not accidental. Documents retained by former\nState Farm employee Samantha Bird, as well as Bird\xe2\x80\x99s testimony,\nshowed that while the Campbells\xe2\x80\x99 case was pending, Janet\nCammack, \xe2\x80\x9can in-house attorney sent by top State Farm\nmanagement, conducted a meeting ... in Utah during which she\ninstructed Utah claims management to search their offices and\ndestroy a wide range of material of the sort that had proved\ndamaging in bad-faith litigation in the past-in particular, old\nclaim-handling manuals, memos, claim school notes, procedure\nguides and other similar documents.\xe2\x80\x9d \xe2\x80\x9cThese orders were\nfollowed even though at least one meeting participant, Paul\nShort, was personally aware that these kinds of materials had\nbeen requested by the Campbells in this very case.\xe2\x80\x9d\nConsistent with Bird\xe2\x80\x99s testimony, State Farm admitted that it\ndestroyed every single copy of claim-handling manuals on file in\nits historical department as of 1988, even though these\n\n411\n\n\x0cdocuments could have been preserved at minimal expense. Ibid.\nFortuitously, the Campbells obtained a copy of the 1979 PP & R\nmanual by subpoena from a former employee. Although that\nmanual has been requested in other cases, State Farm has never\nitself produced the document.\nState Farm\xe2\x80\x99s \xe2\x80\x9cwrongful profit and evasion schemes,\xe2\x80\x9d the trial\ncourt underscored, were directly relevant to the Campbells\xe2\x80\x99 case:\n\xe2\x80\x9cThe record fully supports the conclusion that the bad-faith\nclaim handling that exposed the Campbells to an excess verdict\nin 1983, and resulted in severe damages to them, was a product\nof the unlawful profit scheme that had been put in place by top\nmanagement at State Farm years earlier.~\xe2\x80\x9d\nState Farm\xe2\x80\x99s \xe2\x80\x9cpolicies and practices,\xe2\x80\x9d the trial evidence thus\nbore out, were \xe2\x80\x9cresponsible for the injuries suffered by the\nCampbells,\xe2\x80\x9d and the means used to implement those policies\ncould be found \xe2\x80\x9ccallous, clandestine, fraudulent, and dishonest.\xe2\x80\x9d\nThe Utah Supreme Court, relying on the trial court\xe2\x80\x99s recordbased recitations, understandably characterized State Farm\xe2\x80\x99s\nbehavior as \xe2\x80\x9cegregious and malicious.\xe2\x80\x9d~\nWhen the Court first ventured to override state-court punitive\ndamages awards, it did so moderately. The Court recalled that\n\xe2\x80\x9c[i]n our federal system, States necessarily have considerable\nflexibility in determining the level of punitive damages that they\nwill allow in different classes of cases and in any particular case.\xe2\x80\x9d\nGore, 517 U.S., at 568. Today\xe2\x80\x99s decision exhibits no such respect\nand restraint. No longer content to accord state-court judgments\n\xe2\x80\x9ca strong presumption of validity,\xe2\x80\x9d the Court announces that\n\xe2\x80\x9cfew awards exceeding a single-digit ratio between punitive and\ncompensatory damages, to a significant degree, will satisfy due\nprocess.\xe2\x80\x9d~\nI remain of the view that this Court has no warrant to reform\nstate law governing awards of punitive damages. Gore, 517 U.S.,\nat 607 (GINSBURG, J., dissenting). Even if I were prepared to\naccept the flexible guides prescribed in Gore, I would not join\nthe Court\xe2\x80\x99s swift conversion of those guides into instructions\nthat begin to resemble marching orders. For the reasons stated,\n\n412\n\n\x0cI would leave the judgment of the Utah Supreme Court\nundisturbed.\n\nQuestions to Ponder About State Farm v. Campbell\nA. The Supreme Court scolded the Utah court for allowing punitive\ndamages to be correlated with reference to nationwide conduct, as\nopposed to just conduct directed toward the Campbells. How does\nthis square with the idea that punitive damages are meant to deter\nbad conduct? What would it mean to create a punitive damages figure\nbased solely on reference to the Campbells? Would that be\n\xe2\x80\x9cpunitive\xe2\x80\x9d at all \xe2\x80\x93 or at that point are we just talking about\ncompensatory damages?\nB. Criminal sentences are typically longer for prior offenders. Should\npunitive damages work the same way, made larger for defendants\nwith a track record of abuse?\nC. If you agree with the Utah court\xe2\x80\x99s reference to nationwide\nconduct in setting the amount of punitive damages, then what should\nhappen in the next litigation, where another couple brings suit against\nState Farm for similar conduct. At that point would it be just for\nState Farm to enter evidence that it had already paid a large punitive\ndamages judgment, under the theory that it had already been\n\xe2\x80\x9cpunished enough\xe2\x80\x9d? Assuming a trial court thought it proper to\nadmit such evidence, what effect do you imagine that would have on\nthe jury?\nD. If pinning punitive damages to nationwide conduct seems too\nboundless, and if focusing solely on conduct toward the Campbells\nseems too limited, then what should be done to give the\nquantification of punitive damages some mooring? Or is any mooring\neven necessary?\nE. How would Campbell\xe2\x80\x99s reasoning apply to Gerry Spence\xe2\x80\x99s closing\nargument in Silkwood?\n\n413\n\n\x0c26. Multiple Tortfeasors\n\xe2\x80\x9cSome day, they\xe2\x80\x99ll go down together\nThey\xe2\x80\x99ll bury them side by side\nTo a few, it\xe2\x80\x99ll be grief\nTo the law, a relief\nBut it\xe2\x80\x99s death for Bonnie and Clyde.\xe2\x80\x9d\n\xe2\x80\x93 Bonnie and Clyde, 1967\n\nIntroduction\nWe live in a complicated world. That fact is easy to lose track of in a\ntorts course where you get used to thinking in terms of abstract,\nsimplified hypotheticals \xe2\x80\x93 a stick-figure world where one solitary\ndefendant walks up and does something tortious to a single plaintiff.\nBut reality is messier. It is seldom the case that there is only one\nperson who bears tortious responsibility for an injury. It\xe2\x80\x99s often said\nthat no person is an island. Certainly few tortfeasors are.\nThis chapter explores various doctrines relating to the existence of\nmultiple tortfeasors within the scope of a single lawsuit. Here\xe2\x80\x99s a\npreview: Doctrines of vicarious liability allow plaintiffs to sue\nparties who stand in the shoes of the primary tortfeasor. Particularly\nimportant among them is respondeat superior, which allows\nplaintiffs to sue employers for the torts committed by their\nemployees. Where the actions of more than one tortfeasor combine\nto injure the plaintiff \xe2\x80\x93 such as with a negligent driver operating a\ndefective car \xe2\x80\x93 the doctrine of joint and several liability allows\nplaintiffs to satisfy their full claim against any single defendant. The\ndoctrine of contribution allows defendants saddled with outsized\njudgments to get partially reimbursed by fellow blameworthy parties,\nand the related doctrine of indemnification provides a way for\ndefendants to shift their entire liability burdens on to other parties.\nMany of these doctrines have been the subject of defendant-friendly\nmodifications passed as part of tort-reform efforts.\n\n414\n\n\x0cVicarious Liability\nIn general, tort law requires that persons be blameworthy before their\nactions are considered tortious. The defendant\xe2\x80\x99s intent may make the\ndefendant blameworthy, as can the defendant\xe2\x80\x99s carelessness. One\nglaring exception to this idea, as we have seen, is strict liability.\nVicarious liability is another. Through the application of vicarious\nliability, one entity is regarded by the law as if it performed the\ntortious actions of another \xe2\x80\x93 even when it didn\xe2\x80\x99t.\nRespondeat Superior\nThe most important form of vicarious liability is respondeat superior,\nwhich causes an employer to be automatically liable for torts\ncommitted by employees acting within the scope of their\nemployment. In fact, companies would rarely be liable otherwise. No\ncompany can act except through the actions of actual human beings.\nAnd because of respondeat superior, when a company is acting\nthrough its employees, it is capable of committing torts.\nThe historical roots of respondeat superior go back at least to\nAncient Rome. Even today, some of the terminology in the cases\nseems antiquated, particularly in its references to \xe2\x80\x9cmasters\xe2\x80\x9d and\n\xe2\x80\x9cservants\xe2\x80\x9d: Masters are said to be responsible for the torts of their\nservants. This terminology is potentially confusing. When you think\nof \xe2\x80\x9cmasters\xe2\x80\x9d and \xe2\x80\x9cservants, \xe2\x80\x9d you are probably more likely to picture\na scene from Downton Abbey than a regular Tuesday at ExxonMobil.\nBut the basic doctrine is the same whenever people are employed to\ncarry out actions on behalf of others \xe2\x80\x93 whether they are carrying\nsoup tureens or steering supertankers.\nThe flow of liability under respondeat superior works only in one\ndirection: Up. Masters are liable for the torts of their servants.\nServants are not liable for the torts of their masters. Because of this,\nrespondeat superior works only to expand, not contract, liability.\nWhere a truck driver negligently causes a collision, the fact that the\ntruck driver was employed by a trucking company only causes the\ntrucking company to become liable, it does not relieve the employee\ntrucker of liability. If the plaintiff decides to sue both the employer\n\n415\n\n\x0cand the employee and is successful in the suit, then both will be on\nthe hook \xe2\x80\x93 which is to say they have joint and several liability.\nThis means that an employer stuck with a judgment premised on\nrespondeat superior would be theoretically able to sue the employee\nmore directly at fault for indemnification. For many reasons \xe2\x80\x93 e.g.,\ndamage to employee morale, bad trial dynamics, and all-around\npointlessness \xe2\x80\x93 this is a capability rarely invoked.\nActing in Concert\nAnother important occasion for vicarious liability is persons acting in\nconcert. Acting in concert is the same as acting in \xe2\x80\x9cconspiracy,\xe2\x80\x9d to\nborrow a criminal law word. When two or more people work\ntogether in the commission of a tort, each is liable for the other\xe2\x80\x99s\ntortious action. If two burglars break into a house and one negligently\ncauses a fire, the other is liable as well.\nIt is important to understand that there is no need for an elaborately\ndrawn up joint venture agreement in order for tortfeasors to be\nconsidered acting in concert. If one aids or encourages another to\ncommit a tort, then that person will be liable along with the primary\ntortfeasor. Even if the aid or encouragement was not necessary to\nbring about the tort \xe2\x80\x93 that is to say, even if there is an absence of\nbut-for causation \xe2\x80\x93 the act of aiding or encouraging causes the\naider/encourager to become jointly and severally liable with the\nprimary tortfeasor.\nOther Situations and Relevant Statutes\nIt seems intuitive to many people that parents should be vicariously\nliable for the torts of their minor children. The traditional commonlaw, however, has no such doctrine. If parents themselves are\nnegligent in supervising their children, they may have first-party\nliability for negligence. There is, however, no general common-law\nrule by which parents are liable for torts committed by their children.\nIn the absence of common-law doctrine, most states have added\nsome form of parental vicarious liability by way of statute. In many\njurisdictions, however, this liability is quite limited.\n\n416\n\n\x0cSome states exclude negligence and have hard monetary caps.\nAlabama, for instance, makes parents liable for up to $1,000 worth of\na child\xe2\x80\x99s willful, wanton, or intentional property damage. Ala. Code\n\xc2\xa7 6-5-380. Montana\xe2\x80\x99s law is similar, but the cap is $2,500. Mont. Stat.\n\xc2\xa7 40-6-237.\nOther states are more generous to plaintiffs. Hawaii\xe2\x80\x99s statute provides\nfor joint and several liability for all tortious actions committed by\nminor children, with no cap. One interesting exception \xe2\x80\x93 and a\nreminder that you never know what you will find in a statute until\nyou look \xe2\x80\x93 the Hawaii law excludes vicarious liability for minor\nchildren who are married. Haw. Rev. Stat. \xc2\xa7 577-3.\nThere are statutes that provide for vicarious liability outside the\nparent/child context as well. Some jurisdictions make owners of\nmotor vehicles vicariously liable for persons who use their car with\ntheir express or implied permission. So, before you let someone\nborrow your ride in California, you should know that the owner is\nliable for compensatory damages of up to $15,000 per person injured\nor killed, subject to a $30,000 maximum, plus up to $5,000 for\nproperty damage. Cal. Vehicle Code \xc2\xa7 17150-17151.\nAnd some states provide for vicarious liability where parenting and\ndriving meet. In Nevada, the adult signing the child\xe2\x80\x99s driver\xe2\x80\x99s license\napplication takes on unlimited joint and several liability for the\nminor\xe2\x80\x99s torts behind the wheel. Nev. Rev. Stat. \xc2\xa7 483.300.\n\nJoint and Several Liability \xe2\x80\x93 The Traditional Approach\nWhen there are two or more defendants whose tortious actions\ncaused the plaintiff\xe2\x80\x99s injury, how is the responsibility for paying a\ndamages award divided among them? The answer, under the\ntraditional common law, is that it is entirely up to the plaintiff.\nUnder the doctrine of joint and several liability, the plaintiff can\ncollect all of the judgment from one defendant, 50% from each, or\naccording to any arbitrary division the plaintiff desires. The plaintiff\ncannot, however, double collect: Once the plaintiff has collected the\nfull amount of the judgment, the plaintiff is done.\n\n417\n\n\x0cJoint and several liability applies where multiple tortfeasors are all\nliable to the same plaintiff for the same harm. Remember that an\ninjury can have any number of actual causes, as an injury is often the\nfinal point along a line of unfortunate events. It may take a\nnegligently engineered machine that is negligently operated by a\nperson in a negligently secured area to bring about just one injury.\nJoint and several liability means that the injured plaintiff can go after\nany one tortfeasor or any combination of the tortfeasors whose\nnegligence was a but-for cause of injury.\nThe argument for joint and several liability is that as between the\nplaintiff and the defendants, it is more important to make sure the\nplaintiff gets compensated than to worry about equity among\ndefendants. If a tort case gets to the point where there is a judgment\nfor the plaintiff, that necessarily means the plaintiff has been injured,\nand it means that, in the eyes of the law, all defendants against whom\njudgment is entered are responsible for that injury.\nSuppose there are four parties whose negligence caused the plaintiff\nto suffer a $1 million injury, and suppose the four parties are equally\nat fault, so that it would be fair to have each pay 25%. Assuming all\nfour are defendants in the lawsuit and that each can pay a quarter of\nthe judgment, then no harm is done to the plaintiff by requiring the\nplaintiff to collect no more than 25% of the judgment from each. But\nsuppose three defendants lack the assets to pay the judgment: a\nbankrupt gas station, an unemployed and uninsured motorist, and a\nfloral shop operated as a sole proprietorship. And suppose the fourth\ndefendant is one of the world\xe2\x80\x99s largest oil companies. In the view of\njoint and several liability, it\xe2\x80\x99s fair for the oil company to pay the entire\njudgment. After all, but for the oil company\xe2\x80\x99s negligence, the plaintiff\nwould not have suffered an injury. And without the oil company\nbeing on the hook, the plaintiff will not be made whole.\nYet even the most ardent defenders of joint and several liability\nwould be hard pressed not to admit that it creates some strange\nresults. An excellent example is the case of Walt Disney World Co. v.\nWood, 515 So.2d 198 (Fla. 1987). The accident at issue happened on\nthe Grand Prix Raceway attraction in Walt Disney World, where\ndiminutive race cars (essentially go-karts with cosmetic\n\n418\n\n\x0cenhancements) were driven by park goers on a winding roadway\ncircuit, with the cars being kept from deviating more than several\ninches to the left or right by a metal guiderail running down the\nmiddle of the road. (Today the same attraction, somewhat\nrefurbished, is the Tommorowland Speedway. Its sister attraction in\nCalifornia is Disneyland\xe2\x80\x99s Autopia.) Back in 1971, Plaintiff Aloysia\nWood was in one car, while Daniel Wood \xe2\x80\x93 her then-fianc\xc3\xa9 and later\nhusband \xe2\x80\x93 was riding in the car behind. Daniel rammed Aloysia\xe2\x80\x99s car,\nand she suffered personal injuries as a result. Aloysia sued Disney,\nand Disney brought Daniel into the suit as a means of seeking\ncontribution. In a special verdict, the jury assessed total damages at\n$75,000 and found Daniel 85% at fault, Aloysia 14% at fault, and\nDisney 1% at fault. Thanks to joint and several liability, the court\nentered judgment against Disney for all damages save Aloysia\xe2\x80\x99s\nportion. Thus, Disney was liable for $64,500. The judgment was\nupheld on appeal.\n\nThe Realities of Shallow-Pocketed Defendants\nThe doctrine of joint and several liability is of much more help to\nplaintiffs than merely simplifying the collection of a judgment or\npreserving marital harmony between a plaintiff-bride and tortfeasorgroom. There are important practical reasons why recovery is not\nsought from certain defendants.\nFirst, as mentioned, it may be that one or more co-defendants lack\nthe resources to pay the judgment. Many commentators speak in a\nshort-hand way of joint and several liability being useful where one or\nmore defendants is \xe2\x80\x9cinsolvent.\xe2\x80\x9d This can be confusing, however,\nbecause a defendant does not need to be insolvent to lack the\nresources to pay the judgment. In fact, for a decent-sized personal\ninjury case, it may well be that most individuals in the United States\nare not worth suing on account of lacking adequate assets. Take, for\nexample, an automobile collision that puts the plaintiff in the hospital\nfor a week or two and requires a couple of surgeries. The medical bill\nmight be $250,000. Your run-of-the-mill middle class individual\ncertainly doesn\xe2\x80\x99t have cash on hand to pay this. But, you might think,\ncan\xe2\x80\x99t the plaintiff seize the defendant\xe2\x80\x99s house to satisfy the judgment?\nThe answer is probably not, because state judgment-debtor laws\n\n419\n\n\x0cshield certain property from confiscation to satisfy judgments. In our\nhypothetical, what\xe2\x80\x99s called a homestead exemption may well place the\nproperty off-limits.\nDebtor exemption laws vary wildly from one state to the next, and\nhomestead exemptions are a good example. Rhode Island, for\ninstance, has an exemption to protect the debtor\xe2\x80\x99s primary residence\nup to $300,000. In Florida, the homestead exemption is unlimited as\nto value \xe2\x80\x93 subject instead to an acreage limitation of half an acre in\nurban areas and 160 acres in rural areas. But watch out Wyoming\nhomeowners \xe2\x80\x93 the exemption limit there is just $20,000.\nOther exemptions apply to retirement accounts, family jewelry,\nvehicles, and more. There are also state-law limitations on collection\nmethods such as wage garnishments.\nThat is not the end of the story, however. Even if the judgment\ncreditor would be satisfied with whatever nonexempt assets a normal\nmiddle-class individual would have, when the judgment creditor goes\nto collect, the debtor may be able to declare bankruptcy. Bankruptcy\nis possible where all of the debtor\xe2\x80\x99s current obligations put together \xe2\x80\x93\nincluding those of the plaintiff creditor and everyone else \xe2\x80\x93 exceeds\nthe ability of the debtor to pay. Once a debtor declares bankruptcy,\nfederal law prohibits all attempts to collect on the debt. This will\nforce the victorious personal-injury plaintiff to go to the bankruptcy\ncourt and get in line with all of the debtor\xe2\x80\x99s other creditors. At that\npoint, the plaintiff may be lucky to get a few pennies on the dollar.\nNone of this is to say that bankruptcy is a pleasant option for the\ndefendant debtor. But the fact that bankruptcy is out there as a\ncontingency means that a wide array of tort plaintiffs are discouraged\nfrom ever knocking at the door with a summons.\nIn other words, a tortfeasor does not need to be \xe2\x80\x9cinsolvent\xe2\x80\x9d to be\neffectively judgment-proof.\n\nOther Practical and Strategic Reasons Some CoTortfeasors Don\xe2\x80\x99t Become Defendants\nThe lack of depth of a tortfeasor\xe2\x80\x99s pockets isn\xe2\x80\x99t the only reason a\nplaintiff may be disinclined to sue.\n\n420\n\n\x0cSome tortfeasors may simply be outside of the court\xe2\x80\x99s jurisdiction.\nWith products manufactured overseas, this can be a common\noccurrence. In such a case, the defendant may be unreachable.\nIn other cases, personal jurisdiction can be had, but the defendant\xe2\x80\x99s\ndistance still presents a barrier for the plaintiff. If an important part\nof that defendant\xe2\x80\x99s operations are located overseas, then it may prove\npractically impossible to take full discovery of that defendant.\nSuppose the defendant has most of its operations in Japan. Japanese\ncourts do not compel expansive American-style discovery. The\nJapanese company might stipulate to discovery to avoid sanctions in\nan American court, but Japanese law forbids American attorneys\nfrom taking depositions on Japanese soil or even entering the country\nfor the purpose of taking a deposition. Pursuant to a treaty, an\nattorney can obtain a special deposition visa to enter Japan so as to\ntake a deposition of a Japanese national at the U.S. embassy or a U.S.\nconsulate in that country. The waiting list for private parties to use\nthese consular facilities, however, can be many months long.\nThus, in a products liability case, the anticipation of such difficulties\nmay discourage a plaintiff from even trying to sue a distant\ndefendant.\nThere are also strategic reasons to leave defendants off a complaint \xe2\x80\x93\neven if they are readily reachable and have unexempt assets that\ncould satisfy the judgment. This is particularly the case where the\npotential defendants are individuals. Consider that the individual will\nlikely be a witness at trial. A witness whose name is on the other side\nof the \xe2\x80\x9cv\xe2\x80\x9d in a lawsuit is likely to be much less cooperative and\nforthcoming on the stand. Moreover, the fact that an individual is on\nthe complaint might engender sympathies with the jury that a faceless\ncorporation could never muster. Also, multiple defendants in a\nlitigation will often save money on their defense by cooperating \xe2\x80\x93\npooling discovery efforts and taking turns writing briefs that all\ndefendants sign. The more defendants there are to share the costs of\nthe defense, the less likely they will be to settle. All of these are\nconsiderations for the plaintiff in deciding whom to sue.\n\n421\n\n\x0cJoint and Several Liability \xe2\x80\x93 Modifications\nToday, the doctrine of joint and several liability is on the decline. Or,\nat least, it is losing its purity. Fewer than 10 states still follow the\ndoctrine in its original, unmodified form. The trend is toward\nallocating liability on the front end, so that, at least in some\nsituations, a plaintiff cannot collect from defendants out of\nproportion to their relative fault.\nSeveral states have moved by statute to a system of pure several\nliability, where any given defendant can only be held liable for the\nshare of the total damages that is proportional to that defendant\xe2\x80\x99s\nfault. Many states that use this system have exceptions for certain\nkinds of cases, such as hazardous waste or medical-device liability.\nMany states have a hybrid system, such that where there is a\njudgment-proof tortfeasor, that tortfeasor\xe2\x80\x99s share will be reallocated\nto other parties in accordance with their share of comparative\nresponsibility. In some states, the reallocation is only to the other\ndefendants; in other states, it is to the plaintiff as well. Some states\nhave a hybrid system that allows joint and several liability for\ntortfeasors whose share of comparative responsibility exceeds a\ncertain threshold, but several liability for those whose share falls\nbelow the threshold. Still other states draw distinctions on the type of\ndamages, such as having joint and several liability for pecuniary (or\n\xe2\x80\x9ceconomic\xe2\x80\x9d) damages, but several liability only for nonpecuniary (or\n\xe2\x80\x9cnoneconomic\xe2\x80\x9d) damages.\nAmong all these modified approaches, the states also differ as to\nwhether fault can be assigned to a non-party tortfeasor, such as a\nwould-be defendant that is outside the court\xe2\x80\x99s jurisdiction.\nSuffice it to say that these variations, even if seemingly slight as an\nabstract matter, can easily make or break a particular case.\n\nContribution \xe2\x80\x93 Letting the Defendants Fight It Out\nThe doctrine of contribution helps to ameliorate the seeming\ninjustice of joint and several liability. Losing defendants who feel they\nhave been made to overpay can seek contribution from codefendants or other blameworthy parties.\n\n422\n\n\x0cThe most important thing to understand about contribution is that it\nis generally irrelevant to the plaintiff. Traditional joint and several\nliability does its job for the plaintiff by making it easy for the plaintiff\nto recover. Given that, sorting out who ought to reimburse whom on\nthe defendants\xe2\x80\x99 side isn\xe2\x80\x99t the plaintiff\xe2\x80\x99s concern.\nHow contribution works as a procedural matter is subject to\nconsiderable variation among jurisdictions. Contribution might be\nbrought into the trial proceedings \xe2\x80\x93 where the defendants begin to\nresolve the problems amongst themselves even as they are battling\nthe plaintiff \xe2\x80\x93 or contribution might be sought in a separate litigation\nthat begins after the plaintiff\xe2\x80\x99s trial has concluded.\nThe substance of contribution also varies greatly. Some approaches\ncall for defendants to split the burden pro rata, with each defendant\nbeing ultimately liable for an equal share. Other approaches call for\nresponsibility to be apportioned by relative fault.\n\nIndemnification \xe2\x80\x93 Shifting the Loss\nIndemnification allows one entity to shift the entire burden of loss on\nto another. There are two kinds of indemnification \xe2\x80\x93 one is a\ndoctrine applied by the courts; the other is an obligation arising out\nof contract.\nThe doctrine version of indemnification allows a cause of action by a\nrelatively innocent party against a more blameworthy party. Recall\nthat there are many situations in which a relatively blameless party\nmight find itself liable \xe2\x80\x93 strict liability and vicarious liability being two\nleading examples. Assuming the losing defendant can find a party\nwho is \xe2\x80\x9creally to blame\xe2\x80\x9d for the plaintiff\xe2\x80\x99s injury, then the defendant\ncan become an indemnification plaintiff, suing the more blameworthy\nparty to get reimbursed for the judgment. The ability of a defendant\nto seek indemnification does a great deal of work in making doctrines\nsuch as strict liability more intuitively fair. For instance, when it\ncomes to strict products liability, the tort system seems to say: First,\nlet\xe2\x80\x99s make sure the plaintiff gets paid. If you sell a defective product in your store,\nthen you are going to have to stand by to make whole any plaintiff who gets\ninjured. Afterward, of course, you can get reimbursed by the manufacturer who is\nactually responsible for introducing the defect.\n\n423\n\n\x0cSome courts characterize the doctrine of indemnification as an\nequitable doctrine, others describe it as a legal doctrine or commonlaw doctrine. As a result, this doctrinal indemnification often goes by\nthe name \xe2\x80\x9cequitable indemnification\xe2\x80\x9d or \xe2\x80\x9ccommon-law\nindemnification.\xe2\x80\x9d Either way, it is important to distinguish it from\nthe other kind of indemnification \xe2\x80\x93 that which arises by contract.\nContractual indemnification is created by a promise made binding\nunder contract law. It has nothing to do with fairness or blame. One\nparty in a business deal may agree to indemnify the other as part of\nthe overall bargain of money, services, goods, and promises that are\nexchanged between the two parties. Insurance, in fact, is a\nparticularized and highly regulated form of indemnity, wherein the\ninsurance company agrees to make payments to a policyholder to\noffset certain contingent losses. When a hurricane destroys a house,\nit\xe2\x80\x99s not the insurance company\xe2\x80\x99s fault, of course. The insurance\ncompany indemnifies the homeowner simply because it agreed to do\nso: The indemnification was part of a mutually beneficial bargain\nmade between the parties.\nSometimes, however, an indemnification clause is not really about a\nsensible bargain reached between parties; instead it is just a matter of\none party having much more bargaining power than the other. In\nfact, you might be shocked to know how many times you have agreed\nto indemnify another party in seemingly innocuous agreements\nyou\xe2\x80\x99ve signed, or clicked-through online.\nThere is one aspect of contractual indemnification that it is crucial for\nyou to understand for torts purposes: No defendant can escape\nliability to a plaintiff by way of an indemnification provision with a\nthird party. Many people misapprehend this, so it is important to\nthink through it carefully. If A agrees to indemnify B, that does\nnothing to stop C from suing B and collecting from B. The\nagreement between A and B does not and cannot affect C\xe2\x80\x99s rights.\nAll the indemnification agreement means is that B can go after A to\nget reimbursed if B must pay C. This makes sense if you think about\nit in its most abstract terms: Should a contract between two people\nbe able to deprive a person not a party to the contract of her or his\nrights? Of course not.\n\n424\n\n\x0cThis concept is so important, and so frequently misunderstood, it is\nworth emphasizing with an example.\n\nExample: The Whirler \xe2\x80\x93 Suppose that General Amusement\nIndustries wants to sell a ride called The Whirler to a small,\nfamily-owned theme park, Wonder Cove. Wonder Cove is\nworried that operator error could lead to injuries on The\nWhirler. So, to close the deal, General Amusement Industries\nagrees to indemnify and hold harmless Wonder Cove for any\nand all injuries sustained in connection with The Whirler.\nPlaintiff Gene Gbaj is injured on The Whirler because of\noperator negligence. Can Gbaj successfully sue Wonder\nCove? You bet. The indemnification agreement does not\naffect Gbaj\xe2\x80\x99s rights. What Wonder Cove can do is demand\nGeneral Amusement Industries reimburse Wonder Cove, and\nif General Amusement Industries refuses, Wonder Cove can\nsue them for breach of contract.\n\nSettlements in Circumstances Involving Contribution\nThe law encourages settlements. Whenever parties can resolve their\ndispute in a mutually agreeable way without needing a judge and jury\nto decide the matter, so much the better. Unfortunately for the\ncourts, settlements, when combined with questions of contribution,\ncan themselves create thorny issues that courts may be called upon to\nresolve.\nSuppose there are four defendants who have all tortuously\ncontributed to the plaintiff\xe2\x80\x99s injury. What happens if one settles?\nSuppose they are equally to blame, and one settles before trial for\n$10,000. Then, the jury returns a verdict against the remaining three\ndefendants for $10 million. Can the losing defendants go after the\ndefendant who ducked out for contribution on the difference\nbetween $2.5 million and $10,000?\nOr consider the opposite sort of situation: One defendant in the case\nsettles for $10 million \xe2\x80\x93 an amount that fully compensates the\nplaintiff. The other three successfully evaded service of process and\ntherefore were not part of the trial. Can the settling defendant get\n\n425\n\n\x0ccontribution from the other three provided they can be tracked down\n\xe2\x80\x93 even though they had no chance to defend against the suit?\nHow courts treat situations such as these varies greatly from state to\nstate. If you are planning to practice litigation when you graduate, you\nwould be well served to leave a note for your future self to check the\nlaws of the jurisdiction you land in. The finer points of law in this\narea can have important effects on litigation strategy. It also matters\nto how a settlement agreement is drafted, since the language can\naffect settling defendants\xe2\x80\x99 rights vis-\xc3\xa0-vis their co-tortfeasors.\n\nCase: Great Lakes Dredge Dock Company v. Tanker\nRobert Watt Miller\nThis case explains different approaches to the problem of partial\nsettlements and contribution. Because this case uses admiralty law \xe2\x80\x93 a\ncommon-law form of federal law for maritime claims \xe2\x80\x93 it provides\ninsightful comparisons among the various approaches used in state\ntort law of various jurisdictions.\n\nGreat Lakes Dredge Dock Company v. Tanker Robert\nWatt Miller\nUnited States Court of Appeals for the Eleventh Circuit\nApril 16, 1992\n957 F. 2d 1575. GREAT LAKES DREDGE & DOCK\nCOMPANY, Plaintiff-Appellant, v. TANKER ROBERT\nWATT MILLER, Defendant-Appellee. Complaint of\nCHEVRON TRANSPORT CORPORATION, as owner of the\nS/S ROBERT WATT MILLER, in an action for exoneration\nfrom or limitation of liability, Plaintiff. GREAT LAKES\nDREDGE & DOCK CO., a corporation, Plaintiff-Appellant, v.\nCHEVRON SHIPPING COMPANY and Italia Societe Per Az\nDi Nav., Defendants-Appellees. No. 90-3466.Before COX and\nDUBINA, Circuit Judges, and GODBOLD, Senior Circuit\nJudge.\nCircuit Judge EMMETT RIPLEY COX:\nGreat Lakes Dredge & Dock Co. (\xe2\x80\x9cGreat Lakes\xe2\x80\x9d) appeals the\ndistrict court\xe2\x80\x99s grant of summary judgment in favor of Chevron\n\n426\n\n\x0cTransport Corp. and Chevron Shipping Corp. (collectively\nreferred to as \xe2\x80\x9cChevron\xe2\x80\x9d). For the reasons discussed below, we\nreverse and remand.\nI. Facts and Procedural Background\n~In\n\nFebruary 1975, the Robert Watt Miller, a tanker owned by\nChevron Transport Corp. and operated by Chevron Shipping\nCorp., collided with the Alaska, a dredge owned by Great Lakes,\nin the St. Johns River near Jacksonville, Florida. As a result of\nthe collision, eight crewmen of the Alaska were injured and two\nlost their lives.\nThe injured crewmen and the estates of the deceased filed\nseparate suits against Great Lakes under the Jones Act and\ngeneral maritime law. Great Lakes in turn filed third-party\ncomplaints against Chevron for contribution, indemnity, and\ndamage to the Alaska. Meanwhile, Chevron settled with the\ninjured crewmen and the estates of the deceased crewmen for a\ntotal of $707,800.\nThe district court severed the third-party claims against Chevron\nand tried before a jury the cases against Great Lakes. After a\nverdict was returned in favor of Great Lakes, the crewmen and\nestates appealed to this court. They argued that the district court\nerred in framing special interrogatories submitted to the jury.\nThose interrogatories asked the jury to determine the\ncomparative degrees of fault of Great Lakes and Chevron,\nwhich was not a party to the suit. We reversed and remanded\nfor a new trial, saying:\nSince the plaintiff is entitled to recover, as stated\nby the Court, against either of several\ntortfeasors, without regard to the percentage of\nfault, it was error for the trial court to distract\nthe juror\xe2\x80\x99s attention by requiring it to allocate\nthe degree of fault between the defendant and a\nnon-party. If the jury had found the causation in\nthe negligence which it found against Great\nLakes, and Great Lakes considered that the total\namount of damages for the injuries received by\nthese plaintiffs was disproportionate for it to\n\n427\n\n\x0cbear, it could have obtained contributions\nagainst Chevron, as it had already undertaken to\ndo, in a different proceeding. That issue was to\nbe tried at a different time and between two live\nopponents, and not as part of the suit by the\ninjured workman and representative of a\ndeceased workman against their employer~.\nAfter that decision, Great Lakes settled with all the claimants\nexcept the estate of Danny Self for a total of $943,199. The Self\nclaim, brought by his widow Vivian Self, was then heard in\nconjunction with Great Lakes\xe2\x80\x99s claims against Chevron. The\ndistrict court concluded that Great Lakes was 30% responsible\nand Chevron was 70% responsible. It also found Self\xe2\x80\x99s total\ndamages to be $661,354. Because Self had already settled with\nChevron (which was 70% responsible), the district court limited\nSelf\xe2\x80\x99s recovery against Great Lakes to 30% of her damages or\n$198,406.\nOn appeal, this court rejected the district court\xe2\x80\x99s limitation of\nSelf\xe2\x80\x99s recovery to the percentage of Great Lakes\xe2\x80\x99s fault. We held\nthe district court\xe2\x80\x99s~ limitation~ was inconsistent with the\nprinciples of joint and several liability~. We held that Self was\nentitled to recover her entire damages from Great Lakes,\nregardless of its percentage of fault, with a credit for the dollar\namount ($315,000) of the settlement paid by Chevron, not a\ncredit based upon Chevron\xe2\x80\x99s percentage of fault. We also\nconcluded that the district court underestimated the amount of\nSelf\xe2\x80\x99s damages through faulty assumptions about her husband\xe2\x80\x99s\npain and suffering and his future earnings potential. As a result,\nSelf was likely to recover far more than the $198,406 judgment\nentered by the district court.\nGreat Lakes subsequently settled with the Self estate for\n$2,050,000. The sole remaining issue was Great Lakes\xe2\x80\x99s claims\nfor contribution from Chevron. Great Lakes maintained that it\nwas forced to pay far more than its proportionate share of all of\nthe personal injury and wrongful death claims. The district court\ngranted Chevron\xe2\x80\x99s motion for summary judgment on the\ncontribution claims under the so-called \xe2\x80\x9csettlement bar\xe2\x80\x9d rule.\nThe settlement bar rule prohibits one joint tortfeasor from\n\n428\n\n\x0cseeking contribution from another joint tortfeasor who has\nsettled with the injured party. The district court also held that\nGreat Lakes\xe2\x80\x99s claims for contribution were barred because Great\nLakes itself had settled with the personal injury and death\nclaimants. Great Lakes appeals.\nII. Issues on Appeal\nGreat Lakes contends that the district court erred in granting\nChevron summary judgment on Great Lakes\xe2\x80\x99s contribution\nclaims. Resolving this issue requires that we answer two\nquestions:\n1) Whether a settlement bar rule precludes a\njoint tortfeasor from seeking contribution from\nanother joint tortfeasor who has settled with the\ninjured party?\n2) Whether, under what may be called a \xe2\x80\x9csettler\nbarred\xe2\x80\x9d rule, a joint tortfeasor who has settled\nwith the injured party may seek contribution\nfrom another joint tortfeasor?\n~Discussion\n\nHistorical Background\nBefore addressing the settlement bar question directly, it is\nnecessary to briefly review the historical evolution of the law\nregarding distribution of liability among joint tortfeasors in\nmaritime actions. At common law, contribution among joint\ntortfeasors was not recognized. In admiralty, however, a limited\nright to contribution has been recognized for more than 135\nyears. See, e.g., The Schooner Catharine v. Dickinson, 58 U.S. (17\nHow.) 170 (1855). Under the admiralty \xe2\x80\x9cdivided damages\xe2\x80\x9d rule,\nif two vessels were both at fault for a collision, each was held\nresponsible for one-half of the total damage. Although damages\nfor the collision were shared among the joint tortfeasors, liability\nwas not based on the parties\xe2\x80\x99 relative degrees of fault.\nIn 1974, the Supreme Court established the modern right to\ncontribution among joint tortfeasors in maritime personal injury\ncases. Cooper Stevedoring Co. v. Fritz Kopke, Inc., 417 U.S. 106\n(1974). A year later, the Court abandoned the divided damages\n\n429\n\n\x0crule in collision cases and adopted a comparative negligence\napproach. United States v. Reliable Transfer Co., 421 U.S. 397,\n(1975). The Court held that liability should be distributed among\nthe parties according to each party\xe2\x80\x99s comparative degree of fault.\nThe same proportionate fault rule applies in personal injury\ncases.\nA difficult problem arises in the personal injury context when\none of the joint tortfeasors settles with the victim. What effect\nshould that settlement have on the liability of the remaining\njoint tortfeasors? It is generally agreed that non-settling joint\ntortfeasors are entitled to have a judgment against them reduced\nby the amount of any settlement. Otherwise, the injured party\nwould receive a double recovery. There is a split of authority,\nhowever, over how to calculate the settlement credit. Some\ncourts use a pro rata approach under which the non-settling joint\ntortfeasor receives a credit based upon the percentage of the\nsettling party\xe2\x80\x99s fault. Other courts apply a pro tanto approach and\ngive a credit for the actual dollar amount of the settlement. A\nsimple hypothetical will demonstrate the effect of these two\nmethods.\nAssume, for example, that the negligence of A and B combine\nto injure C, who then files a lawsuit against A and B. On the\nmorning of trial A settles with C for $50,000. The jury\nsubsequently finds that A was 75% responsible and B was 25%\nresponsible for the accident and that C\xe2\x80\x99s damages totaled\n$100,000. If neither party had settled, judgment would be\nentered against A for $75,000 and B for $25,000. But given A\xe2\x80\x99s\nsettlement for $50,000, how much should B pay? Under a pro\nrata approach, B would receive a credit for 75% of C\xe2\x80\x99s damages\n($75,000) because A, the settling joint tortfeasor, was 75%\nresponsible for the accident. Thus, B would owe $25,000\n($100,000-$75,000) to C. Under the pro tanto approach, B would\nonly receive a credit for the dollar value of A\xe2\x80\x99s settlement\n($50,000). Therefore, B would owe $50,000 ($100,000-$50,000)\nto C. Clearly, the manner in which the settlement credit is\ncalculated has a significant effect.~\n\n430\n\n\x0cIn Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256\n(1979), a longshoreman was injured in an accident for which the\njury determined he was 10% at fault, his employer (via another\nemployee\xe2\x80\x99s negligence) was 70% at fault, and the shipowner was\n20% at fault. The longshoreman collected benefits from his\nemployer under the Longshoremen\xe2\x80\x99s and Harbor Worker\xe2\x80\x99s\nCompensation Act (LHWCA), which provides statutory benefits\nin exchange for the loss of the right to sue the employer for\nnegligence. The longshoreman filed suit against the shipowner.\nThe jury found the longshoreman\xe2\x80\x99s total damages to be\n$100,000. The district court entered judgment against the\nshipowner for $90,000, which represented the $100,000 of\ndamages less a 10% credit ($10,000) for the longshoreman\xe2\x80\x99s\ncontributory negligence.\nThe shipowner argued that it should only be liable for $20,000,\nwhich is that portion of the damages attributable to its 20%\nfault. The Supreme Court, however, held that the\nLongshoremen\xe2\x80\x99s Act did not modify the pre-existing admiralty\nrule that a longshoreman may recover the full measure of his\ndamages from a shipowner who is partially responsible for an\naccident. Id. at 266. Unfortunately for the shipowner, it was also\nbarred by the exclusive remedy provision of the LHWCA from\nseeking contribution from the employer who was 70%\nresponsible. The Court sympathized with the shipowner\xe2\x80\x99s\nargument that it was being forced to bear more than its fair\nshare, concluding that \xe2\x80\x9c[s]ome inequity appears inevitable in the\npresent statutory scheme, but we find nothing to indicate and\nshould not presume that Congress intended to place the burden\nof the inequity on the longshoreman whom the Act seeks to\nprotect.\xe2\x80\x9d\nCiting Edmonds by analogy, this court [adopted] the pro tanto\nmethod. Self v. Great Lakes Dredge & Dock Co., 832 F.2d 1540,\n1548 (11th Cir.1987).~ The court candidly admitted that the pro\ntanto method may cause a joint tortfeasor to pay more damages\nthan were actually caused by its proportionate share of fault.\nNevertheless, \xe2\x80\x9c[t]he philosophy governing Edmonds is clear: any\ninequity which results from the implementation of a seaman\xe2\x80\x99s\ndamage award should be borne by the tortfeasors rather than\n\n431\n\n\x0cthe seaman himself.\xe2\x80\x9d This court concluded that the Edmond\xe2\x80\x99s\nphilosophy requires the non-settling joint tortfeasor to bear a\ndisproportionate burden even when the \xe2\x80\x9cinequity\xe2\x80\x9d was caused\nby the seaman\xe2\x80\x99s own imprudent settlement with another joint\ntortfeasor for less than its fair share of the damages.\nWith this background in mind, we now turn to the central issue\non this appeal: Whether, given the pro tanto method adopted in\nSelf, a joint tortfeasor who is forced to bear more than its fair\nshare of an injured party\xe2\x80\x99s damages is prohibited by a settlement\nbar rule from seeking contribution from a settling joint\ntortfeasor.\nThe Settlement Bar Rule\nThe Ninth Circuit accurately summarized the confusion\nsurrounding the maritime settlement bar rule in Miller v.\nChristopher, 887 F.2d 902 (9th Cir.1989). \xe2\x80\x9cWe sympathize with\nthe district court\xe2\x80\x99s difficulties in finding guidance from\ncontrolling authority on the settlement bar issue. There is none.\xe2\x80\x9d\nId. at 903. The court noted that there are three possible\nsolutions to the question:\n(1) allowing an action for contribution against a\nsettling tortfeasor by any other tortfeasor who\nhas paid more than his equitable share of the\nplaintiff\xe2\x80\x99s claim;\n(2) imposing a bar to contribution claims against\na settling tortfeasor, perhaps in conjunction\nwith a requirement that the settlement be in\n\xe2\x80\x9cgood faith\xe2\x80\x9d; and\n(3) reducing the claim of the plaintiff by the pro\nrata share of a settling tortfeasor\xe2\x80\x99s liability for\ndamages, which has the effect of eliminating any\nreason to sue a settling tortfeasor for\ncontribution.\nId. at 905 (citing Restatement (Second) of Torts \xc2\xa7 886A cmt. m\n(1977)). Other circuits have failed to reach a consensus on this\nissue. See, e.g., Associated Electric Co-op., 931 F.2d at 1266 (8th\nCir.1991) (adopting third approach); In re Oil Spill by the Amoco\nCadiz, 954 F.2d 1279 (7th Cir.1992) (rejecting third approach\n\n432\n\n\x0cbut not deciding between first and second); Miller v. Christopher,\n887 F.2d 902 (9th Cir.1989) (rejecting first approach but not\ndeciding between the second and third). Of course, this same\nissue arises in tort law generally. The Restatement (Second) of\nTorts refuses to take a position on the issue. Restatement\n(Second) of Torts \xc2\xa7 886A Caveat. The Restatement notes that\neach approach has drawbacks and that no one is satisfactory. Id.\n\xc2\xa7 886A cmt. m.~\nSelf~ rejected the proportionate distribution of liability.\nAccordingly, the third approach described above is not available.\nThis court, therefore, must choose between the first and second\napproaches \xe2\x80\x93 permitting an action for contribution or adopting\nsome kind of settlement bar rule. Permitting contribution\nensures that liability will be shared by all joint tortfeasors in\nproportion to their respective degrees of fault. Critics, however,\nargue that it may discourage settlements because the settling\ntortfeasor still faces litigation and potential liability to nonsettling joint tortfeasors. Adopting a settlement bar rule, on the\nother hand, generally encourages at least partial settlements.\nNon-settling tortfeasors, however, may be forced to pay far\nmore than their proportionate share of damages. Given the\nnecessity of deciding between these two approaches, we select\nthe former and reject the adoption of a settlement bar rule.\nPermitting contribution is clearly supported by the Supreme\nCourt\xe2\x80\x99s decision in Reliable Transfer[, which] held that liability\namong joint tortfeasors in maritime actions should be\ndistributed according to their comparative degree of fault. The\npublic policy underlying this quest for a \xe2\x80\x9cjust and equitable\xe2\x80\x9d\nallocation of damages is not eroded by the fact that the party\nfrom whom contribution is sought has settled with the victim.\nRequiring each party to bear that portion of the damages caused\nby its own negligence guarantees an efficient level of deterrence\nagainst future negligence. If a negligent party was forced to pay\nmore or less than its fair share, future negligence would be\neither over- or under-deterred. See, e.g., Smith & Kelly Co. v. The\nS/S Concordia Tadj, 718 F.2d 1022, 1029-30 (11th Cir. 1983)\n(stating that \xe2\x80\x9c[t]he clear trend in maritime cases is to reject allor-nothing or other arbitrary allotments of liability in favor of a\n\n433\n\n\x0csystem that divides damages on the basis of the relative degrees\nof fault\xe2\x80\x9d and that such a system \xe2\x80\x9cmatches the power of its\nincentives to the ability of each party to prevent injury\xe2\x80\x9d); Reliable\nTransfer, 421 U.S. at 405 n. 11 (noting that comparative fault\n\xe2\x80\x9cimposes the strongest deterrent upon the wrongful behavior\nthat is most likely to harm others\xe2\x80\x9d). Allowing an action for\ncontribution is also consistent with Edmonds. The injured party is\nassured of full compensation for his damages (less a deduction\nfor any contributory negligence) and is unaffected by any\nsubsequent action among the joint tortfeasors for contribution.\nChevron argues that allowing contribution will discourage\nsettlements because the settling party may still face liability to\nthe non-settling joint tortfeasors for contribution. The deterrent\neffect on settlements, however, is far from clearly established.\nFurthermore, the potential negative side effects of the\nsettlement bar rule outweigh its purported advantage.\nThe pro tanto approach may encourage irresponsible settlements\nby plaintiffs. If we then apply a settlement bar rule, we force\nnon-settling defendants to bear a disproportionate share of\nliability. When a single tortfeasor causes an injury and the parties\nsettle, both the plaintiff and the defendant accept the certainty\nof a fixed result in exchange for forgoing the chance of a more\nfavorable outcome at trial. The balancing of risk by both sides\nof the bargaining table ensures that the result is equitable. This,\nhowever, is not the case with multiple tortfeasors under the pro\ntanto approach. The plaintiff is free to accept the certainty of a\nsettlement without losing the chance of obtaining more at trial. If\nit turns out that the plaintiff settled for too little from one\ndefendant, he automatically recovers the shortfall from the nonsettling defendants. The normal balancing of risks by both sides\nis disrupted. The party who makes the decision relative to\nsettlement is not the party who bears the responsibility for that\ndecision. If we apply a settlement bar rule in this situation, the\ndefendants will be unable to equitably divide liability among\nthemselves. It will be the non-settling defendants, not the\nplaintiff or the settling defendant, who bear the risk that the\nplaintiff settled for too little.\n\n434\n\n\x0cAssuming, arguendo, that rejecting the settlement bar rule has a\nslight disincentive effect upon settlements, we nevertheless\nauthorize an action for contribution. The Supreme Court came\nto a similar conclusion when it adopted the doctrine of\ncomparative fault in Reliable Transfer. \xe2\x80\x9c[The argument against\ncomparative fault] asks us to continue the operation of an\narchaic rule because its facile application out of court yields\nquick, though inequitable, settlements, and relieves the courts of\nsome litigation.\xe2\x80\x9d Reliable Transfer, 421 U.S. at 408.\nFor the reasons discussed above, therefore, we reject the\nsettlement bar rule in admiralty. We hold that an action for\ncontribution against a settling tortfeasor may be maintained by a\nnon-settling joint tortfeasor that has paid more than its share of\nthe plaintiff\xe2\x80\x99s damages based upon the respective degrees of\nfault.\nThe \xe2\x80\x9cSettler Barred\xe2\x80\x9d Rule\n~Chevron~\n\nargues that Great Lakes\xe2\x80\x99s claims for contribution are\nprohibited by Great Lakes\xe2\x80\x99s own settlement with the injured\ncrewmen and estates under what may be called a \xe2\x80\x9csettler barred\xe2\x80\x9d\nrule.\nGreat Lakes,~ might well have been forced to pay far more than\nits proportionate share of damages. Accordingly,\nnotwithstanding the fact that Great Lakes itself settled with the\nclaimants, Great Lakes may be entitled to contribution from\nChevron.\nIn Wisconsin Barge Line, Inc. v. The Barge Chem 300, 546 F.2d 1125\n(5th Cir. 1977), a seaman sued his employer for injuries\nsubsequently determined to have been caused by a third party.\nThe employer requested that the third party defend the lawsuit,\nbut the third party never responded. The employer then entered\ninto a court approved settlement with the injured seaman for\n$32,419. In a separate action for indemnity from the third party,\nthe third party claimed that the employer was not entitled to\nindemnification for its settlement.\nThe court rejected the third-party\xe2\x80\x99s argument that, absent a\njudgment, the employer was not required to pay the employee\xe2\x80\x99s\n\n435\n\n\x0cdamages. \xe2\x80\x9c[I]n the facts of the instant case, appellant\xe2\x80\x99s payment\nto the claimant could hardly be said to be \xe2\x80\x98voluntary\xe2\x80\x99 in the\nsense of there being no legal liability, with the result of\nforeclosing indemnification.\xe2\x80\x9d The court held that the employer\nwas entitled to indemnity for its settlement payment if the\nsettlement amount was reasonable. We recently reiterated this\nprinciple in Weissman v. Boating Magazine, 946 F.2d 811 (11th\nCir.1991).\n[A] settling indemnitee can recover from an\nindemnitor upon proof of the indemnitee\xe2\x80\x99s\npotential liability if the settlement terms are\nreasonable and if the indemnitor has notice of\nthe suit, and has failed to object to those terms\neven though he has had a reasonable\nopportunity to approve or disapprove the\nsettlement.\nId. at 813 (quoting Burke v. Ripp, 619 F.2d 354, 360 (5th\nCir.1980)).~\nAs discussed above, liability in maritime actions should be\ndistributed according to the parties\xe2\x80\x99 comparative degrees of\nfault. If Great Lakes paid more than its proportionate share, it\nmight well be entitled to contribution from Chevron. We hold\nthat Great Lakes\xe2\x80\x99s claims for contribution from Chevron are not\nbarred by the fact that Great Lakes itself settled with the injured\ncrewmen and estates.~\nConclusion\nFor the reasons discussed above, we reject both the settlement\nbar and \xe2\x80\x9csettler barred\xe2\x80\x9d rules in maritime actions for\ncontribution under the Self pro tanto approach. The district\ncourt\xe2\x80\x99s grant of summary judgment in favor of Chevron on\nGreat Lakes\xe2\x80\x99s claims for contribution is reversed.~\nREVERSED and REMANDED.\n\nProblem: A Lucky Break for Bad Brakes?\nOmar was driving on a divided mountain highway consisting of two\nlanes of traffic in each direction separated by the familiar 42-inchhigh concrete wall that is known \xe2\x80\x9cK-rail\xe2\x80\x9d or \xe2\x80\x9cJersey wall.\xe2\x80\x9d On a\n\n436\n\n\x0cdownhill section, Omar\xe2\x80\x99s brakes failed, and, after travelling for one\nmile, he finally careened off the road to avoid a jackknifed tractortrailer. Omar\xe2\x80\x99s car somersaulted down the mountainside.\nAt the resulting trial, the jury calculated total damages at $1 million\nand, using a special verdict form, assigned fault as follows: 60% of\nthe responsibility to the brake manufacturer; 20% to the operator of\nthe tractor-trailer; 5% to the civil engineering firm that decided no\nguardrail was needed on the right shoulder; and 15% to Omar, for\nfailing to slow down with lower gears or the hand brake and for\nchoosing to steer the car into the void rather than nudge it into the\nK-rail.\nOmar would like to collect $850,000 from the civil engineering firm.\nWhat might be some reasons he would want to do this? And will he\nbe permitted under the law? How could doctrinal differences among\njurisdictions affect Omar\xe2\x80\x99s ability to collect?\n\n437\n\n\x0cPart VII: Special Issues\nwith Parties and Actions\n\n438\n\n\x0c27. Immunities and Tort\nLiability of the Government\n\xe2\x80\x9cThat\xe2\x80\x99s the good thing about being president, I can do\nwhatever I want.\xe2\x80\x9d\n\xe2\x80\x93 Barack Obama, in an offhand remark while visiting\nMonticello, 2014\n\nIntroduction\nThe basic idea of tort law is that if you are responsible for someone\nelse\xe2\x80\x99s injuries, then you are responsible for making them whole.\nPlaintiffs bring claims, and defendants are judged by the care they\ntook, the knowledge they had, and the intent or indifference they\nmanifested. If they are blameworthy, then they\xe2\x80\x99ve got to pay up.\nBut sometimes the law allows blameworthy defendants to escape all\nlegal responsibility. They are not let go because of anything they did\nor didn\xe2\x80\x99t do. Instead, they are let go because of who they are. This is\nhow immunity works. It makes certain defendants legally\nuntouchable. Whatever destruction they wreak, they can dust off\ntheir hands and walk away.\nImmunities can be asserted by family members, charities, sovereign\ngovernments, and government officials. Some immunities depend on\nthe circumstances. Others are absolute in character. In terms of\nhistorical trends, immunity doctrines are in a state of flux. Some are\non the wane; others are waxing larger.\nWhen they apply, immunities can bring an absolute halt to litigation,\nregardless of whether the defendant\xe2\x80\x99s conduct was egregious and\neven if it leaves the plaintiff with no remedy at all.\n\nFamily Immunities\nHistorically, American law recognized two forms of immunity within\nthe family \xe2\x80\x93 spousal immunity and parent-child immunity. The\nnational trend is toward the abrogation of both.\n\n439\n\n\x0cSpousal immunity prohibited one spouse from suing the other. The\nhistorical rationale was that, once married, a husband and wife were\none person. More accurately, a man and his wife became just the\nman, with the wife losing her legal personhood upon marriage.\nSpousal immunity follows from the idea that it doesn\xe2\x80\x99t make sense to\nallow a man to sue himself.\nIn keeping with the general arc of American history, the lessening of\ndiscrimination against women has been a slow historical process for\nthe common law. In the late 1800s, legal reforms began allowing\nmarried women to have distinct legal personality and to own property\nin their own name. On account of these changes, the theoretical basis\nfor spousal immunity eroded: A wife suing the husband was no\nlonger equivalent to a man suing himself.\nConfronted with this logic, some courts offered up a separate\nrationale for spousal immunity \xe2\x80\x93 that preventing spouses from suing\none another assisted in the cause of marital harmony. The\ncounterargument, of course, is that once things have gotten to the\npoint that spouses want to sue each other, there isn\xe2\x80\x99t a lot of marital\nharmony left to preserve.\nThere is a more subtle counter-argument: There may be non-hostile\nreasons for one spouse to sue another \xe2\x80\x93 for instance, to establish\nnegligence in an automobile accident so as to trigger the obligation of\nan insurance company to pay for personal injuries. These days, a\nmajority of jurisdictions have abolished spousal immunity entirely.\nOthers have weakened and limited it.\nParent-child immunity precludes minor children from suing their\nparents. This immunity, never recognized in England, was an\ninvention of American law. Like spousal immunity, parent-child\nimmunity seems to have rested largely on outdated ideas of the family\nbeing a single legal unit represented by the man of the house. A large\nnumber of jurisdictions have eliminated the immunity, and where it is\nstill recognized, it is often limited or weakened.\nIn case you are wondering, there is no immunity for any other family\nrelationship \xe2\x80\x93 such as between siblings or between grandparents and\ntheir grandchildren.\n\n440\n\n\x0cCharitable Immunity\nAmerican law also long recognized immunity for charitable\norganizations, including hospitals, educational institutions, and\nreligious entities. Charitable immunity was justified largely on two\ntheories. First, the trust fund theory held that donors who funded these\nentities gave their money in trust to fund the provision of services \xe2\x80\x93\nnot to pay judgments. Second, the implied waiver theory held that\nbeneficiaries of a charity\xe2\x80\x99s munificence had impliedly waived their\nright to sue for injury.\nCharitable immunity may have felt justified in a bygone era, when\nhospitals, perhaps staffed by nuns, gave free care to the indigent.\nToday, however, non-profit hospitals are run like giant corporations.\nThey expect full payment for their services, and patients who lack the\nresources to pay are turned away. Increasingly, universities and even\nmuseums are operating as corporate entities, jockeying for \xe2\x80\x9cmarket\nshare,\xe2\x80\x9d looking to \xe2\x80\x9cmonetize assets,\xe2\x80\x9d and extend the reach of their\n\xe2\x80\x9cbrand.\xe2\x80\x9d Such entities frequently assert intellectual property\nentitlements so as to extract maximum licensing revenues from\ninventions, artistic works, and recognizable elements of their\ncorporate identity.\nGiven our present-day reality, it\xe2\x80\x99s no wonder that charitable\nimmunity is on the decline. More than 30 states have abolished it all\ntogether. Others have repealed it for non-profit hospitals.\n\nGovernment Immunities\nThe doctrine of sovereign immunity precludes suit against a\nsovereign entity. In the United States, that means the federal\ngovernment and each of the states.\nWhile immunities for charities, spouses, and parents are on the ebb,\nthe doctrine of sovereign immunity remains very strong. Individuals\nare generally powerless to sue the state or federal government unless\nthe government decides, of its own volition, to allow itself to be sued.\nNotably, over the course of the 20th Century, sovereign governments\nincreasingly decided to allow themselves to be sued, at least under\ncertain circumstances.\n\n441\n\n\x0cThe Federal Tort Claims Act (discussed more below), and similar\nstatutes in the states, permit citizens to sue their government to get\ntort recovery in many of the same circumstances where tort recovery\nwould be possible against a private entity. Yet since sovereign\nimmunity remains solid as judicial doctrine, legislatures have\ncomplete discretion to pick and choose what they will and will not be\nliable for. And they can give themselves a variety of procedural\nadvantages in the process.\nThe doctrine of sovereign immunity in American law was inherited\nfrom the English courts. In England, sovereign immunity rested on\nthe theory of the divine right of kings and the idea that, in the eyes of\nthe law, the king could do no wrong. Commentators have pointed\nout that, since the American Revolution was premised on the idea of\nrejecting the divine right of kings, it seems odd to retain the doctrine\nof sovereign immunity. Yet whether or not the doctrine of sovereign\nimmunity is theoretically well-grounded, its continuing vitality has not\ncome under serious attack.\nIt is important to keep in mind what sovereign immunity is and is\nnot. It offers immunity only for the sovereign itself \xe2\x80\x93 that means the\nfederal government, the state governments, and the various\ndepartments and agencies of the federal and state governments. State\nuniversities, the military, and state and federal administrative agencies\nare generally embraced by the doctrine. But local governments, since\nthey have historically not been considered arms of the states, are not\nprotected by sovereign immunity. In the absence of a statute to the\ncontrary, cities and towns can generally be sued like anyone else \xe2\x80\x93 but\njurisdictions vary.\nSovereign immunity also does not apply to government employees \xe2\x80\x93\nat least not as a general matter. It is the government itself that is\nimmune from suit. This conception is not universal, however. In\nVirginia, a middle school football coach, as a school board employee,\nwas able to invoke what the court called \xe2\x80\x9csovereign immunity\xe2\x80\x9d to\nshield himself from personal liability for acts of simple negligence.\nYet the court said he remained liable for any damages arising out of\ngross negligence. See Koffman v. Garnett, 265 Va. 12, 15 (Va. 2003).\n\n442\n\n\x0cDespite the general unavailability of sovereign immunity for public\nemployees, there are other, related immunity doctrines that public\nemployees can assert.\n\nImmunities for Individuals in the Government\nContext\nImmunity for public officials is distinct from sovereign immunity.\nWhere sovereign immunity has monolithic simplicity and unchecked\nvigor, immunities for public employees exist in a patchwork of\nstatutes and common-law rules.\nTo understand immunity for public employees, it helps to start with\nthe traditional default rule, which is that unless an exception applies,\na public official has no immunity. That being said, exceptions have\naccumulated to the point that it is often impossible to sue a public\nemployee for on-the-job conduct \xe2\x80\x93 even in egregious cases.\nMoreover, the trend is toward erecting more barriers to holding\npublic employees liable in their personal capacity.\nProbably the most longstanding form of immunity provided to\nindividuals involved in the business of the government is immunity\nfor individuals who are involved in judicial and legislative functions.\nSuch immunities, often labeled \xe2\x80\x9cabsolute,\xe2\x80\x9d are quite powerful: Judges\ncannot be sued for any judicial function; prosecutors cannot be sued\nfor any prosecutorial function; legislators cannot be sued for any\nlegislative function. The absolute nature of these immunities means\nthat if, for instance, a judge renders a decision from the bench that is\nin bad faith, contrary to law, and motivated more by greed or\npersonal animus than anything else, the judge is still completely and\ntotally immune. This immunity extends as well to individuals who are\nnot public employees, but who are carrying out the business of the\ncourts. In this way, immunity protects lawyers, witnesses, and jurors\nfor civil liability for anything they say or do within the confines of\njudicial business. So a lawyer cannot be sued for defamation after\ntelling the most heinous lies about a witness \xe2\x80\x93 so long as she or he\ndoes so in the course of a hearing, trial, or other official court matter.\n(Note that lawyer would, however, could face court sanctions and bar\ndisciplinary action.) Similarly, legislators cannot be sued in tort for\n\n443\n\n\x0cproposing and voting on a new law, even if the law will result in, say,\nfalse imprisonment of private citizens, or even if the law is motivated\nby personal or racial animus.\nConsonant with the immunities of judges and legislators, the\nPresident of the United States is immune from suit over any official\nacts.\nRank-and-file employees of government agencies present a more\ncomplicated set of issues. Traditionally, employees within the\nexecutive branch of government had no immunity at all. The trend,\nhowever, has been toward greater and greater recognition of\nimmunity for public employees. A widely recognized doctrine gives\npublic employees \xe2\x80\x9cqualified immunity\xe2\x80\x9d for acts done within the\ncourse and scope of employment so long as the acts were of a\ndiscretionary rather than a ministerial character. (This distinction is\ndiscussed below in context of the Federal Tort Claims Act and Kohl\nv. United States.)\nGovernments also protect their employees through statutes that\nprovide indemnities or immunities. Some statutes require or allow the\nstate to defend public employees who are sued for actions\nundertaken while on the job \xe2\x80\x93 whether or not those actions were\ndiscretionary or ministerial in nature. And such statutes may require\nthe government to indemnify the employee for any judgment. This\nan be beneficial for both the defendant employee and the plaintiff:\nThe plaintiff has a guaranteed source of payment, and the\ngovernment employee will not be on the hook.\nOther statutory schemes provide immunity to government employees\nfor actions within the scope of their employment. \xe2\x80\x9cScope of\nemployment\xe2\x80\x9d is often interpreted very broadly. If you are a state\ntrooper, is it really part of your job to taser a nonthreatening suspect?\nMost would say it\xe2\x80\x99s not. But for purposes of immunity and\nindemnity, it can be considered within the scope of employment.\nSince 1988, federal employees have received the benefit of a\nsweeping form of immunity provided by the Federal Employees\nLiability Reform and Tort Compensation Act, 28 U.S.C. \xc2\xa7\xc2\xa7 2671,\n2679(b)(1), better known as the Westfall Act. The statute immunizes\n\n444\n\n\x0cfederal employees from personal liability for torts committed while\non the job \xe2\x80\x93 whether classifiable as ministerial or not. The Westfall\nAct substitutes the United States into the action as a defendant, then\npermits liability only to the extent it is consistent with the Federal\nTort Claims Act (discussed below). This means that in cases where\nthe Federal Tort Claims Act disallows recovery, there may be no way\nfor a tort victim to recover. In the case of United States v. Smith, 499\nU.S. 160 (1991), the spouse of military service member stationed in\nItaly sought to sue armed forces physicians for negligence in the\ndelivery of her baby, who suffered massive brain damage. The court\nheld that the Westfall Act shielded the physicians from personal\nliability, and since the Federal Tort Claims Act did not allow tort\nliability for actions arising in a foreign country, Smith was left\nwithout any remedy.\nStates have various statutes that protect police officers from suit to\ndifferent extents. But even these statutes do nothing to protect police\nfrom lawsuits brought under 42 U.S.C. \xc2\xa7 1983 (discussed later in the\nConstitutional Torts chapter). The federal claim under \xc2\xa7 1983 trumps\nall contrary state laws.\n\nThe Federal Tort Claims Act and Limited Waivers of\nSovereign Immunity\nOver the course of American history, the role of government has\nexpanded radically. Instead of merely governing, governments have\nmoved to providing more and more services of the kind that were\npreviously provided by private entities. The earliest example was\nprobably the Post Office in the late 18th Century. A movement to\nestablish state universities took hold in the 19th Century. In the 20th\nCentury, the federal government began providing recreation facilities\nunder the auspices of the National Park Service, and it got into the\nbusiness of generating electric power through the Tennessee Valley\nAuthority.\nIn recognition of the changing role of government , Congress passed\nthe Federal Tort Claims Act of 1946 (\xe2\x80\x9cFTCA\xe2\x80\x9d). The FTCA waives\nsovereign immunity in a carefully controlled and limited way to allow\npersons to sue the federal government for damages resulting from\n\n445\n\n\x0cthe government\xe2\x80\x99s negligence during the course of non-governing\nactivities. Its provisions are both substantive and procedural, creating\na comprehensive system for tort suits against the federal government.\nWhen it comes to suing the federal government in tort, the FTCA is\nthe only game in town. If a plaintiff does not comply with the FTCA,\nthe plaintiff will not be able to recover anything.\nProcedurally, the FTCA requires that a plaintiff must first file an\nadministrative claim with whatever governmental unit is alleged to be\nat fault \xe2\x80\x93 anything from the U.S. Air Force to the Smithsonian \xe2\x80\x93 and\nthe plaintiff must specify a particular amount of compensatory\ndamages. The agency then has six months to decide whether to pay\nthe claim or deny it. If the claim is denied, the plaintiff can sue in\nfederal district court. Suits in state court are not permitted.\nSubstantively, the tort liability of the federal government is\ndetermined with reference to the tort law of the state whose law\nwould apply if the suit were against a private actor: That means that\nif, under the circumstances, a private actor would have been liable,\nthen the federal government will be liable too. This is true even if the\nactivity the government was engaging in is of a kind that would be\nincredibly unusual for a private person to undertake \xe2\x80\x93 such as\nhostage negotiations or munitions testing.\nThere are a number of important exclusions from liability.\nFirst, there is an important exclusion based on remedies. Only\ncompensatory damages are recoverable from the federal government.\nNo punitive damages are allowed.\nAnother set of exclusions has to do with the cause of action: The\nfederal government does not allow itself to be sued for battery,\nassault, false imprisonment, false arrest, fraud, interference with\ncontract rights, defamation, malicious prosecution, or abuse of\nprocess. Also, no theory of strict liability can be used. That means the\nwould-be strict liability plaintiff has to prove negligence \xe2\x80\x93 no matter\nhow ultrahazardous the activity might have been. (From nuclear\nweapons testing to experiments with smallpox, the federal\ngovernment engages in an impressive array of ultrahazardous\n\n446\n\n\x0cactivities.) For the most part, that leaves negligence as the lone cause\nof action that can be used to sue the United States.\nThe FTCA also has very important exemptions based on the nature\nof the conduct: No claim can be brought for any combatant actions\nof the military in wartime. 28 U.S.C. \xc2\xa7 2680(j). No claim can be\nbrought for any action taking place in a foreign country. 28 U.S.C. \xc2\xa7\n2680(k). Most importantly, no claim can be brought for any\n\xe2\x80\x9cdiscretionary function.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2680(a).\nThe discretionary function exception requires elaboration.\nGovernment actions are divided into two categories: ministerial\nfunctions and discretionary functions. Ministerial actions can incur\nnegligence liability for the government, discretionary functions\ncannot. The term ministerial function denotes government action\nthat implements some policy-making decision. The term\ndiscretionary function denotes the policy-making decision itself. In\nessence, to exercise a discretionary function is to engage in an act of\ngoverning. And the idea is that you can\xe2\x80\x99t sue the government for\ngoverning. It is as if the doctrine is saying that democracy and\nelections are the intended mode of redress for bad government \xe2\x80\x93 not\nlawsuits.\nThus, if a postal truck runs a red light and hits your car, you can sue.\nBut if a new health insurance mandate has caused you to lose money,\nyou can write a letter to member of Congress. As a matter of theory,\nthe distinction is clear. In practice, however, the dividing line\nbetween discretionary functions and ministerial functions is not\nalways easy to discern.\nCase: Kohl v. United States\nThe case tackles the question of how to differentiate a discretionary\nfunction from a ministerial function.\n\nKohl v. United States\nUnited States Court of Appeals for the Sixth Circuit\nNovember 16, 2012\n699 F.3d 935. Debra R. KOHL, Plaintiff\xe2\x80\x93Appellant, v. the\nUNITED STATES OF AMERICA, Defendant\xe2\x80\x93Appellee. No.\n\n447\n\n\x0c11\xe2\x80\x936213. MOORE, J., delivered the opinion of the court in\nwhich McKEAGUE, J., joined. MERRITT, J., delivered a\nseparate dissenting opinion.\nCircuit Judge KAREN NELSON MOORE:\nThis case arises out of the execution of a field experiment aimed\nat improving the government\xe2\x80\x99s technical capacity to respond to\nImprovised Explosive Devices (IEDs). Plaintiff\xe2\x80\x93Appellant\nDebra R. Kohl (\xe2\x80\x9cKohl\xe2\x80\x9d) seeks recovery for injuries allegedly\nsustained due to negligence of a federal employee operating a\nwinch while collecting debris generated by the planned\ndetonation of explosives during this government-funded\nresearch experiment. Kohl appeals the district court\xe2\x80\x99s\ndetermination that her claims were barred by the discretionaryfunction exception to the Federal Tort Claims Act\n(\xe2\x80\x9cFTCA\xe2\x80\x9d), 28 U.S.C. \xc2\xa7\xc2\xa7 1346(b), 2671 et seq., and that the court\nthus lacked subject-matter jurisdiction. Because we conclude\nthat the government\xe2\x80\x99s decisions about how to extract evidence\nfrom the site of the explosions, and what types of equipment to\nuse to do so, are shielded from liability by the discretionaryfunction exception, we AFFIRM the judgment of the district\ncourt.\nI. BACKGROUND\nOn December 4, 2007, Kohl, a certified bomb technician with\nthe Hazardous Devices Unit of the Metropolitan Nashville\nPolice Department (\xe2\x80\x9cMNPD\xe2\x80\x9d), participated in a research\nexperiment funded by the U.S. Department of Defense at the\nTennessee State Fire Academy in Bell Buckle, Bedford County,\nTennessee. The experiment involved constructing and\ndetonating explosive devices in vehicles and then collecting\npost-blast debris for laboratory analysis as forensic evidence.\nThis experiment was part of a larger research project conducted\nby scientists working at Oak Ridge National Laboratory,\nmanaged by the University of Tennessee\xe2\x80\x93Battelle for the\nDepartment of Energy. Explosives Enforcement Officers of the\nfederal Bureau of Alcohol, Tobacco, Firearms and Explosives\n(\xe2\x80\x9cATF\xe2\x80\x9d), Jason Harrell and Alex Guerrero, assisted and\nparticipated in the experiment.\n\n448\n\n\x0cFollowing the detonation of the explosives, and after an \xe2\x80\x9callclear\xe2\x80\x9d was given, participants in the project, including Kohl,\nentered the explosives range to inspect the vehicles. Kohl and\nOfficer Todd Mask, another MNPD bomb technician\nparticipating in the project, proceeded to investigate one of the\nvehicles, a minivan. Kohl searched the passenger\xe2\x80\x99s side of the\nminivan for evidence, while Mask attempted to search the\ndriver\xe2\x80\x99s side of the vehicle. However, the driver\xe2\x80\x99s side door of\nthe minivan had \xe2\x80\x9cbuckled,\xe2\x80\x9d and as a result, it would not open.\nThe investigation team decided to try to access the inside of the\nvan by using a winch on the driver\xe2\x80\x99s side door. After a first\nfailed attempt to winch the door, a second attempt was made.\nWhile other team members were preparing to winch the door a\nsecond time, Kohl testified that she returned to the passenger\xe2\x80\x99s\nside door of the van and continued searching for evidence.\nDuring this time, Kohl was \xe2\x80\x9cleaning into the passenger side of\nthe vehicle.\xe2\x80\x9d\nThen, although the record is not clear about exactly how Kohl\ncame into contact with the vehicle, Kohl testified that\nshe remembers feeling \xe2\x80\x9cpain in the top of [her] head\xe2\x80\x9d and that\nshe \xe2\x80\x9csaw stars.\xe2\x80\x9d The complaint alleges that \xe2\x80\x9c[d]ue to the\nwinching, the door came loose and the door frame of the\nvehicle crashed into Ms. Kohl\xe2\x80\x99s head.\xe2\x80\x9d After seeking medical\ncare the following day, Kohl was referred to a neurologist, who\ndiagnosed her with \xe2\x80\x9cpost-concussive syndrome with persistent\nheadaches and cognitive changes.\xe2\x80\x9d Since the incident, Kohl has\nnot been employed.\nKohl filed this action on December 16, 2009 in the U.S. District\nCourt for the Middle District of Tennessee under the FTCA,\nseeking damages. The complaint alleges that federal employees\nwere negligent in \xe2\x80\x9coperat[ing] the winch in an unsafe manner,\xe2\x80\x9d\n\xe2\x80\x9cfail[ing] to warn Plaintiff of dangers regarding the winch,\xe2\x80\x9d\n\xe2\x80\x9cconduct[ing] the operation, including winching of the vehicle,\nwithout proper safety protocols,\xe2\x80\x9d and by \xe2\x80\x9cfail[ing] to use\nreasonable and due care to prevent injury to Plaintiff.\xe2\x80\x9d\nDefendant United States filed a motion to dismiss or,\nalternatively, for summary judgment on January 7, 2011, in part\non the basis that the district court lacked subject-matter\n\n449\n\n\x0cjurisdiction. Finding that the conduct at issue in this case falls\nwithin the discretionary-function exception to the FTCA, the\ndistrict court dismissed Kohl\xe2\x80\x99s claims for lack of subject-matter\njurisdiction.\nII. ANALYSIS\nA. Discretionary\xe2\x80\x93Function Exception: Legal Framework\nAt issue is whether the district court erred in finding that it\nlacked subject-matter jurisdiction over Kohl\xe2\x80\x99s claims. We review\nde novo a district court\xe2\x80\x99s dismissal based on the application of\nthe discretionary-function exception to the FTCA.\nSovereign immunity generally bars claims against the United\nStates without its consent. Congress, through the FTCA, waived\nthis governmental immunity for claims brought for injury or loss\nof property, or personal injury or death caused by the negligent\nor wrongful act or omission of any employee of the\nGovernment while acting within the scope of his office or\nemployment, under circumstances where the United States, if a\nprivate person, would be liable to the claimant in accordance\nwith the law of the place where the act or omission occurred.\nThe FTCA\xe2\x80\x99s waiver of immunity is limited, and contains a series\nof exceptions. One of these exceptions\xe2\x80\x94known as the\ndiscretionary-function exception\xe2\x80\x94states that the FTCA\xe2\x80\x99s waiver\ndoes not apply to \xe2\x80\x9c[a]ny claim ... based upon the exercise or\nperformance or the failure to exercise or perform a discretionary\nfunction or duty on the part of a federal agency or an employee\nof the Government, whether or not the discretion involved be\nabused.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2680(a). If a claim falls within this\nexception, then federal courts lack subject-matter jurisdiction,\nand the claim must be dismissed. This appeal concerns whether\nthe conduct at issue in Kohl\xe2\x80\x99s claims falls within the\ndiscretionary-function exception.\nDetermining whether a claim falls within the discretionaryfunction exception involves a two-step test. The first step\n\xe2\x80\x9crequires a determination of whether the challenged act or\nomission violated a mandatory regulation or policy that allowed\nno judgment or choice.\xe2\x80\x9d Rosebush v. United States, 119 F.3d 438,\n\n450\n\n\x0c441 (6th Cir.1997). If there was such a violation of a mandatory\nregulation or policy, then the discretionary-function exception\nwill not apply, because \xe2\x80\x9cthere was no element of judgment or\nchoice,\xe2\x80\x9d id., and thus \xe2\x80\x9cthe employee has no rightful option but\nto adhere to the directive.\xe2\x80\x9dBerkovitz v. United States, 486 U.S. 531,\n536 (1988).\nIf, on the other hand, there was room for judgment or choice in\nthe decision made, then the challenged conduct was\ndiscretionary. In such a case, the second step of the test requires\na court to evaluate \xe2\x80\x9cwhether the conduct is \xe2\x80\x98of the kind that the\ndiscretionary function exception was designed to shield\xe2\x80\x99\xe2\x80\x9d from\nliability. Rosebush, 119 F.3d at 441. The discretionary-function\nexception is meant \xe2\x80\x9cto prevent judicial \xe2\x80\x98second-guessing\xe2\x80\x99 of ...\nadministrative decisions grounded in social, economic, and\npolitical policy through the medium of an action in tort.\xe2\x80\x9d United\nStates v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig\nAirlines), 467 U.S. 797, 814 (1984).\nThe discretionary-function exception\xe2\x80\x99s scope extends beyond\nhigh-level policymakers, and includes government employees at\nany rank exercising discretion. Id. at 813 (\xe2\x80\x9c[I]t is the nature of\nthe conduct, rather than the status of the actor, that governs\nwhether the discretionary function exception applies in a given\ncase.\xe2\x80\x9d). \xe2\x80\x9cA discretionary act is one that involves choice or\njudgment; there is nothing in that description that refers\nexclusively to policymaking or planning functions.\xe2\x80\x9d Gaubert, 499\nU.S. at 325. Even where government action is taken on the dayto-day operational level, and implements broader governmental\nobjectives, if that action involves choice or judgment that is\n\xe2\x80\x9csusceptible to policy analysis,\xe2\x80\x9d then it falls within the\ndiscretionary-function exception. Id. \xe2\x80\x9cWe also consider the fact\nthat \xe2\x80\x98[w]hen established governmental policy, as expressed or\nimplied by statute, regulation, or agency guidelines, allows a\nGovernment agent to exercise discretion, it must be presumed\nthat the agent\xe2\x80\x99s acts are grounded in policy when exercising that\ndiscretion.\xe2\x80\x99 \xe2\x80\x9d Sharp ex rel. Estate of Sharp v. United States, 401 F.3d\n440, 443 (6th Cir.2005).\nB. Application to Kohl\xe2\x80\x99s Case\n\n451\n\n\x0cIn determining whether Kohl\xe2\x80\x99s claims fall within the\ndiscretionary-function exception, \xe2\x80\x9cthe crucial first step is to\ndetermine exactly what conduct is at issue.\xe2\x80\x9d Rosebush, 119 F.3d at\n441. Theparties disagree about how to characterize appropriately\nthe conduct. Kohl argues that the relevant conduct is \xe2\x80\x9cuse of a\nwinch on a large minivan while people are working in and\naround the minivan, and whether the Government employee\nsufficiently alerted those people before doing so.\xe2\x80\x9d Kohl\xe2\x80\x99s theory\nis that the context of the use of the winch is irrelevant to the\nanalysis of the discretionary-function exception. Using this\nnarrow characterization of the conduct at issue, Kohl goes on to\nargue that the ministerial act of using a winch does not involve\npolicy-related judgments, and thus is not shielded from liability\nby the discretionary-function exception. The Government, on\nthe other hand, emphasizes the context in which the alleged\ninjury occurred: a field experiment which recreated a bomb\nscene and required trained bomb technicians to recover\nevidence from the scene. Using this broad characterization, the\nGovernment argues that the decisions related to how best to\nconduct the experiment did involve policy-related judgments\nand thus are shielded from liability. The Government\xe2\x80\x99s theory\nappears to be tantamount to a contention that every decision,\n\xe2\x80\x9c[a]t every level,\xe2\x80\x9d in the context of the post-blast investigation\nwould be shielded from liability. Each of these views is too\nextreme.\nKohl\xe2\x80\x99s narrow characterization must be rejected, because it\n\xe2\x80\x9ccollapses the discretionary function inquiry into a question of\nwhether the [government] was negligent.\xe2\x80\x9d Rosebush, 119 F.3d at\n442. \xe2\x80\x9cNegligence, however, is irrelevant to our inquiry at this\npoint.\xe2\x80\x9d Id. We rejected a similarly narrow approach\nin Rosebush, which involved a child who was severely burned\nwhen she fell into a fire pit on a campground site maintained by\nthe United States Forest Service. Plaintiff argued that the Forest\nService was negligent in \xe2\x80\x9cfail[ing] to make the fire pit safe for\nunsupervised toddlers, and to warn of the dangers of the fire\npit.\xe2\x80\x9d Id. at 441. The Rosebush court held that this characterization\nwas too narrow, and that instead, the conduct at issue was the\nmaintenance of the Forest Service\xe2\x80\x99s campsites and fire\n\n452\n\n\x0cpits. Similarly, in Bell v. United States, 238 F.3d 419 (6th Cir. Nov.\n6, 2000) a panel of this court in an unpublished opinion rejected\na narrow characterization of the conduct at issue for purposes\nof analysis under the discretionary-function exception. Bell\ninvolved a slip and fall due to a wet floor of a lobby of a post\noffice building, which was open to the public even during hours\nwhen the Post Office itself was closed and unstaffed. Suing the\nUnited States under the FTCA to recover for her injuries, the\nplaintiff argued that the relevant conduct was the \xe2\x80\x9cPost Office\xe2\x80\x99s\nlack of efforts to maintain the premises in a reasonably safe\nmanner.\xe2\x80\x9d Again, we concluded that this formulation was too\nnarrow, instead holding that \xe2\x80\x9cthe conduct at issue here is the~\npostmaster\xe2\x80\x99s conduct in deciding under what circumstances to\nallow the lobby area to remain open to the public at times when\nthe service windows were closed.\xe2\x80\x9d Id.; see also Merando v. United\nStates, 517 F.3d 160, 168 (3d Cir.2008) (rejecting a narrow\nframing of the conduct at issue as whether the government had\ndiscretion \xe2\x80\x9cnot to find and remove the hazardous tree,\xe2\x80\x9d instead\nconcluding that the \xe2\x80\x9crelevant issue\xe2\x80\x9d was whether the\ngovernment \xe2\x80\x9chad discretion in formulating and executing [the\nhazardous tree management] plan\xe2\x80\x9d); Autery v. United States, 992\nF.2d 1523, 1527\xe2\x80\x9328 (11th Cir.1993) (rejecting plaintiff\xe2\x80\x99s\ncontention that the relevant conduct was the allegedly negligent\nmanner in which the park\xe2\x80\x99s employees carried out a plan to\nremove hazardous trees, instead concluding that the relevant\nissue was \xe2\x80\x9c[w]hether park personnel had discretion in executing\nthat plan\xe2\x80\x9d).\nKohl\xe2\x80\x99s formulation of the conduct at issue is inappropriate for\nthe same reason: by framing the question as whether the ATF\nemployee operated the winch in a safe manner, Kohl \xe2\x80\x9cbegs the\nquestion.\xe2\x80\x9d To characterize the issue as whether the ATF\nemployees had discretion to operate the winch in an unsafe\nmanner is to ask whether the employees had discretion to be\nnegligent. As we stated in Rosebush, negligence is irrelevant at this\nstage of the inquiry. The issues of whether the ATF employee\nwho operated the winch was negligent, and whether the safety\nprecautions taken were reasonable, are separate inquiries from\nthe analysis of the discretionary-function exception. \xe2\x80\x9cIt is the\n\n453\n\n\x0cgoverning administrative policy,\xe2\x80\x9d rather than the negligence of a\nparticular employee, \xe2\x80\x9cthat determines whether certain conduct is\nmandatory for purposes of the discretionary function\nexception.\xe2\x80\x9d Autery, 992 F.2d at 1528. Thus, the conduct at issue\nmust be framed in terms of the scope of administrative authority\nto use discretion in executing the research experiment. More\nproperly formulated, the conduct at issue is \xe2\x80\x9cthe recovery of\nforensic evidence and the necessary actions taken to facilitate\nthat recovery, including actions taken to dislodge the door of the\nminivan so that evidence could be recovered.\xe2\x80\x9d Kohl, 2011 WL\n4537969, at *7. Our analysis thus focuses on whether ATF\xe2\x80\x99s\nactions in collecting the forensic evidence from the field test,\nincluding decisions about what equipment to use, are protected\nby the discretionary-function exception.\nRegarding the first step of the discretionary-function-exception\ntest, neither party in this case argues that there was a mandatory\npolicy or regulation at issue. Because there was no specific\nregulation or policy governing the post-blast investigation, the\nchallenged government conduct involved discretion. \xef\x81\x81Kohl\nappears to argue in her brief that because there was no formal or\nwritten policy addressing the conduct at issue, the discretionaryfunction exception cannot apply. This argument makes little\nsense. The governing precedents do not imply that government\nconduct can be discretionary only if it is taken pursuant to a\nwritten directive of some sort. Rather, the existence of such a\nformal statute, regulation, or policy prescribing a course of\naction means that the discretionary-function exception will not\napply. Indeed, it is more likely that government agents are\nexercising discretion if they are conducting an experiment that is\nnot governed by a written manual or regulation, because such\ndecisions will involve \xe2\x80\x9can element of judgment or\nchoice.\xe2\x80\x9d Berkovitz, 486 U.S. at 536.\xef\x81\x80\nThus, the district court properly concluded that the \xe2\x80\x9crelevant\ninquiry\xe2\x80\x9d is at the second step of the two-part discretionaryfunction-exception test.\nThe second step of the test requires a determination of whether\nthe conduct is \xe2\x80\x9c \xe2\x80\x98of the kind that the discretionary function\n\n454\n\n\x0cexception was designed to shield\xe2\x80\x99 \xe2\x80\x9d from governmental\nliability. Gaubert, 499 U.S. at 322\xe2\x80\x9323. It is important to note that\nframing the conduct more broadly, as we have done, does not\nimply that every action taken in connection with a government\nprogram will be brought under the umbrella of the broader\npolicy-related judgments involved in the program. Although\ndifficult to draw, there is a line between conduct \xe2\x80\x9cof the kind\nthat the discretionary function exception was designed to\nshield,\xe2\x80\x9d Berkovitz, 486 U.S. at 536, and the sorts of run-of-themill torts, which, while tangentially related to some government\nprogram, are not sufficiently \xe2\x80\x9cgrounded in regulatory policy\xe2\x80\x9d so\nas to be shielded from liability. Gaubert, 499 U.S. at 325 n. 7; see\nalso Totten v. United States, 806 F.2d 698, 700 (6th\nCir.1986) (explaining that Congress, in the discretionaryfunction exception, \xe2\x80\x9cwas drawing a distinction between torts\ncommitted in the course of such routine activities as the\noperation of a motor vehicle and those associated with activities\nof a more obviously governmental nature\xe2\x80\x9d). Where an act\n\xe2\x80\x9ccannot be said to be based on the purposes that the regulatory\nregime seeks to accomplish,\xe2\x80\x9d the discretionary-function\nexception will not apply. Gaubert, 499 U.S. at 325 n.\n7. The Gaubert Court used negligent driving by a government\nactor on government business as an example of conduct that\nwould not be shielded by the discretionary-function\nexception. Driving a car, while it \xe2\x80\x9crequires the constant exercise\nof discretion,\xe2\x80\x9d is not sufficiently connected to regulatory policy\nto fall within the discretionary-function exception.\nThe key question in this appeal is whether the conduct at issue\nhere was sufficiently based on the purposes that the regulatory\nregime \xe2\x80\x93 here the research experiment \xe2\x80\x93 sought to\naccomplish. Although this is a close case, we conclude that the\nanswer to this question is yes. The decision to use a winch was\npart of the decisionmaking involved in deciding how best to\nconduct the post-blast investigation. Cf. Konizeski v. Livermore\nLabs (In re Consol. U.S. Atmospheric Testing Litig.), 820 F.2d 982,\n993\xe2\x80\x9395 (9th Cir. 1987) (finding that claims of negligence for\nfailure to maintain sufficient safety precautions during\n\xe2\x80\x9cinherently dangerous\xe2\x80\x9d field testing of nuclear weapons were\n\n455\n\n\x0cbarred by the discretionary-function exception); Creek Nation\nIndian Hous. v. United States, 677 F.Supp. 1120, 1124\xe2\x80\x9326\n(E.D.Okla.1988) (finding, in a case involving an explosion of\nbombs being transported by a commercial carrier, that the\ndiscretionary-function exception barred negligence claims\nagainst the United States for alleged failure to take adequate\nsafety precautions regarding transportation of explosives).\nThe planning and execution of the research experiment is\nsusceptible to policy analysis, including judgments about how to\nrespond to hazards, what level of safety precautions to take, and\nhow best to execute the experiment in a way that balanced the\nsafety needs of the personnel and the need to gather evidence\nfrom the vehicles. See Rosebush, 119 F.3d at 444(explaining that\neven if there is no indication \xe2\x80\x9cthat policy concerns were the\nbasis of a challenged decision, the discretionary function\nexception applies if the decision is susceptible to policy\nanalysis\xe2\x80\x9d) (citing Myslakowski v. United States, 806 F.2d 94, 97 (6th\nCir.1986)). Decisions about how to execute the experiment\ninclude judgments as to what kinds of equipment to use to\nextract the evidence for forensic laboratory analysis. These\nequipment-related decisions were \xe2\x80\x9cintimately related\xe2\x80\x9d to the\nexecution of the field experiment\xe2\x80\x94in other words, judgments as\nto how to extract the evidence from the vehicles after the\nbombs were detonated, including what equipment to use, were\nnecessary to the execution of the project. Thus, a challenge to\nthe use of a particular piece of equipment, i.e., the winch, would\namount to a challenge as to the overall execution of the research\nproject. The conduct at issue is thus unlike the Gaubert Court\xe2\x80\x99s\nexample of driving a car in connection with a government\nmission; the ATF employee\xe2\x80\x99s use of the winch was sufficiently\nrelated to the purposes that the post-blast investigation sought\nto accomplish to fall within the discretionary-function\nexception.~\n\nFurther, Kohl\xe2\x80\x99s contention that the conduct falls outside the\nexception because it involved \xe2\x80\x9cmachine operator error\xe2\x80\x9d is of\nno avail. The Supreme Court\xe2\x80\x99s discretionary-functionexception cases have made clear that the fact that the\n\n456\n\n\x0cdecisionmaking involved occurred on an operational level\ndoes not affect the analysis. The discretionary-function\nexception protects both high-level policymakers and the\nemployees who implement broader governmental objectives.\nIn Varig Airlines, the Court held that the discretionaryfunction exception shielded not only the federal\ngovernment\xe2\x80\x99s broad decision to implement a \xe2\x80\x9cspot-check\xe2\x80\x9d\nsystem for ensuring compliance of airplanes with FAA\nregulations, but also \xe2\x80\x9cthe acts of FAA employees in\nexecuting\xe2\x80\x9d the program.\nIII. CONCLUSION\nFor the foregoing reasons, we AFFIRM the judgment of the\ndistrict court dismissing Kohl\xe2\x80\x99s claims for lack of subject-matter\njurisdiction.\nCircuit Judge GILBERT S. MERRITT, dissenting:\nIt seems to me that a private person acting as agent of a\ncompany, who is trying to open the door of a car with a regular\nwinch with a strong spring, would normally be subject to\nstandard tort principles in case of injury. Instead, my colleagues\nsimply say there can be no such liability, despite the statutory\nlanguage, if the conduct \xe2\x80\x9cinvolves choice or judgment\xe2\x80\x9d\nbecause\xe2\x80\x94for some unstated reason\xe2\x80\x94liability for such a choice\n\xe2\x80\x9camount[s] to a challenge as to the overall execution of the\nresearch project.\xe2\x80\x9d Why? The problem with formulating a\nstandard or principle this way is that almost every act by\ngovernment or private agent in the scope of employment would\n\xe2\x80\x9cchallenge a policy\xe2\x80\x9d if it is for the purpose of carrying out some\ngovernment or private interest, policy or plan.~\nThe court\xe2\x80\x99s theory is incoherent and directly contrary to the\nearly case of Indian Towing Co. v. United States, 350 U.S. 61, 76\nS.Ct. 122, 100 L.Ed. 48 (1955), decided not long after the\nFederal Tort Claims Act was enacted. In the Indian Towing case\nthe Court concluded that once the government makes a\nprotected policy, every implementing step like conducting an\nexperiment or repairing damaged equipment must proceed with\n\xe2\x80\x9cdue care\xe2\x80\x9d in carrying out its decision. In Indian Towing the\n\n457\n\n\x0cgovernment set up a lighthouse service. The government agent\ndid not \xe2\x80\x9crepair\xe2\x80\x9d the light properly:\nThe Coast Guard need not undertake the\nlighthouse service. But once it exercised its\ndiscretion to operate a light on Chandeleur\nIsland and engendered reliance on the guidance\nafforded by the light, it was obligated to use due\ncare to make certain that the light was kept in\nworking order ... and to repair the light or give\nwarning that it was not functioning.\n350 U.S. at 69 (Emphasis added). Likewise, once the\ngovernment decided to carry out the hazardous IED experiment\n\xe2\x80\x9cit was obligated to use due care.\xe2\x80\x9d The firearms agent using the\nwinch did not have to ponder the nature of a policy. No\nconsiderations of social policy would come to mind in getting\nthe door opened. The question should be the regular tort\nquestion for \xe2\x80\x9cprivate\xe2\x80\x9d persons in the economy: did the agent\nuse due care?\nOtherwise, there are severe distributional consequences for the\nentire society. The costs of torts by government agents are\ndistributed only to private individuals. Here the plaintiff is\npermanently disabled by alleged government error. The\ngovernment distributes income to the private companies that\nmanufacture the IED\xe2\x80\x99s, the car and the winch. But the plaintiff\xe2\x80\x99s\ninjuries somehow become a \xe2\x80\x9cchallenge to government policy\xe2\x80\x9d\nand cannot be compensated.~\nThe nature of the conduct here is perfectly clear: a federal agent\nattempted to remove a door from a minivan with a winch in\norder to obtain evidence from within.~ Having defined the\nconduct, its context becomes relevant to the legal standard we\nmust apply: Whether the government agent\xe2\x80\x99s decision was\n\xe2\x80\x9cgrounded in social, economic, [or] political policy.\xe2\x80\x9d United States\nv. Gaubert, 499 U.S. 315, 323 (1991). To make this determination,\nwe typically must discern the legal authority for an agent\xe2\x80\x99s\naction. Even where there is no explicit constraint on an agent\xe2\x80\x99s\naction \xe2\x80\x93 and here there is not \xe2\x80\x93 discretion is guided by some\nsort of governmental pronouncement. An agent acquires\n\n458\n\n\x0cimmunity for the government not simply by making a choice \xe2\x80\x93\nshe acquires it by making a choice that substantively constitutes\nthe policy behind a statute, regulation, or agency guidance.\nSee id. at 325 (holding that the discretionary function exception\nonly protects actions \xe2\x80\x9cgrounded in the policy of the regulatory\nregime\xe2\x80\x9d).\nIn this case, the Government has been quite sketchy about the\nauthority or purpose of the IED experiment at issue. Without\nan adequate explanation of the authority for the experiment\xe2\x80\x94\nwhich appears not to have been disclosed before the district\ncourt granted the motion to dismiss\xe2\x80\x94it is clear that the agent\xe2\x80\x99s\ndecision was not grounded in any policy that the government or\nmy colleagues can articulate. Even if we assume some sort of\nagency guidance and interpret the exercise in the way most\nfavorable to the Government \xe2\x80\x93 as a training mission to recover\nevidence \xe2\x80\x93 I fail to see how the decision to winch the door off\nthe van required any sort of policy judgment.\nAt root, policy judgment requires a balancing of\ninterests. See Myers v. United States, 17 F.3d 890, 898 (6th\nCir.1994) (\xe2\x80\x9cTh[e] balancing of interests ... characterizes the type\nof discretion that the discretionary function exception was\nintended to protect.\xe2\x80\x9d). Of course, balancing is a necessary\nelement of discretion. The majority believes that the agent\xe2\x80\x99s\ndecision to use a winch was susceptible to policy analysis\nbecause it required him to \xe2\x80\x9cexecute the experiment in a way that\nbalanced the safety needs of the personnel and the need to\ngather evidence from the vehicles.\xe2\x80\x9d This sort of balancing is a\nmeaningless way to identify policy analysis. Had the agent\ncrashed his car while speeding to the scene of the exploded van,\nhe would have tacitly been balancing the safety of his passengers\nagainst the need to reach the subject of the experiment. Yet\ncrashing a car is not behavior from which the government can\nclaim immunity. The relevant question is not whether the\ngovernment actor engaged in some sort of balancing, but\nwhether judicial interference with the actor\xe2\x80\x99s balancing would\n\xe2\x80\x9cseriously handicap efficient government operations.\xe2\x80\x9d United\nStates v. Varig Airlines, 467 U.S. 797, 814 (1984).~\n\n459\n\n\x0cComplex balancing pursuant to stated regulatory authority has\ncharacterized the situations in which courts apply the\ndiscretionary function exception.~ By contrast, no complex\nbalancing was required in this case. The challenge facing the\nagent was how to get the door off the van to recover evidence.\nThe Government points to no statute, regulation, or agency\nguidance granting the agent discretion to choose among a\nnumber of methods to achieve this task. Assuming that the\nagent had authority to remove the door, the ultimate decision to\nuse the winch required no calculus as to the best use of\ngovernment resources or the cost of proceeding otherwise.\nIndeed, there is no evidence that the agent had any tool but the\nwinch available, or that he did anything other than grab the\ninstrument nearest at hand. The decisional process the agent\nemployed is not the sort of judgment characteristic of social,\neconomic, or political policy.~\nBecause the agent\xe2\x80\x99s decision to use a winch required no policy\njudgment, and because the plaintiff\xe2\x80\x99s suit would in no way\ninterfere with government operations, I respectfully dissent.\n\nQuestions to Ponder About Kohl v. United States\nA. Under the Kohl court\xe2\x80\x99s conception of the discretionary function\ntest, is there anything that a government employee could do, other\nthan crash a car, which would fall outside of the discretionary\nfunction exception?\nB. What do we make of the policy question at the heart of the\ndiscretionary function exemption? Would the government\xe2\x80\x99s ability to\ngovern be hamstrung if liability were permitted in a case such as this?\nC. The majority writes, \xe2\x80\x9cThe discretionary-function exception\nprotects both high-level policymakers and the employees who\nimplement broader governmental objectives.\xe2\x80\x9d What do you think the\ncourt means when it says the exception \xe2\x80\x9cprotects \xe2\x80\xa6 employees\xe2\x80\x9d?\nLiterally, the exception shields the federal government from liability \xe2\x80\x93\nnot the employees. (The employees are already fully immune because\nof the Westfall Act, discussed above.) So why does the court phrase it\nthis way? Is there any sense to it, or is it just a relaxed style of\nwriting?\n\n460\n\n\x0cDifferent Views of Discretionary Function\nIn Downs v. United States, 522 F.2d 990 (6th Cir. 1975), hijackers seized\na small plane in Nashville, Tennessee and then forced it to fly to\nJacksonville, Florida for a fuel stop. The FBI was alleged to have\nbotched the rescue attempt by refusing to refuel the plane in Florida\nand instead attempting to shoot out the aircraft\xe2\x80\x99s engines and tires. In\nresponse to being fired on, one of the hijackers shot and killed two\nhostages.\nEmphasizing the \xe2\x80\x9csweeping language\xe2\x80\x9d of the FTCA\xe2\x80\x99s waiver of\nsovereign immunity, the Downs court held that decisions of the FBI\nagent in charge of the hijacking response were not protected as being\nwithin a discretionary function:\nWe recognize that the agent was called upon to\nuse judgment in dealing with the hijacking.\nJudgment is exercised in almost every human\nendeavor. It is not the mere exercise of\njudgment, however, which immunizes the\nUnited States from liability for the torts of its\nemployees.~ We believe that the basic question\nconcerning the exception is whether the\njudgments of a Government employee are of\n\xe2\x80\x9cthe nature and quality\xe2\x80\x9d which Congress\nintended to put beyond judicial review.\nCongress intended \xe2\x80\x9cdiscretionary functions\xe2\x80\x9d to\nencompass those activities which entail the\nformulation of governmental policy, whatever\nthe rank of those so engaged. We agree with a\ncommentator's analysis of the provision: It\nwould seem that the justifications for the\nexception do not necessitate a broader\napplication than to those decisions which are\narrived at through an administrator's exercise of\na quasi-legislative or quasi-judicial function. In\nthis case, the FBI agents were not involved in\nformulating governmental policy. Rather, the\nchief agent was engaged in directing the actions\nof other Government agents in the handling of\na particular situation. FBI hijacking policy was\nnot being set as an ad hoc or exemplary matter\n\n461\n\n\x0csince it had been formulated before this\nhijacking.~\nThe prospect of governmental liability for the\nactions of law enforcement officers should not\ncause those officers less vigorously to enforce\nthe law. The need for compensation to citizens\ninjured by the torts of government employees\noutweighs whatever slight effect vicarious\ngovernment liability might have on law\nenforcement efforts.\n\nDowns, 522 F.2d at 995-98. Judge Merritt\xe2\x80\x99s dissenting opinion in Kohl\n\xe2\x80\x93 in a portion not reproduced above \xe2\x80\x93 cited Downs as a laudable\nexample of discretionary-function jurisprudence. That was in contrast\nto the majority\xe2\x80\x99s work in Kohl, which he called \xe2\x80\x9cmuddled.\xe2\x80\x9d\nIt seems difficult to reconcile Downs with Kohl. While Downs is still\ngood law, it may reflect the predilections of a different era, when\nthere was more skepticism of government action. Implying a trend,\nJudge Merritt wrote, \xe2\x80\x9cWe now seem inclined to redistribute the costs\nof accidents created by government to private individuals who are\nmuch less capable of shouldering the burden.\xe2\x80\x9d\nIndeed, the cover of discretionary function seems to have grown to\nbe very expansive.\nIn United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig\nAirlines), 467 U.S. 797 (1984), the Supreme Court held that the\ndiscretionary-function exception reaches far enough to shield the acts\nof FAA employees carrying out \xe2\x80\x9cspot check\xe2\x80\x9d inspections of\nmaintenance records:\nThe FAA employees who conducted\ncompliance reviews of the aircraft involved in\nthis case were specifically empowered to make\npolicy judgments regarding the degree of\nconfidence that might reasonably be placed in a\ngiven manufacturer, the need to maximize\ncompliance with FAA regulations, and the\nefficient allocation of agency resources. In\nadministering the \xe2\x80\x9cspot-check\xe2\x80\x9d program, these\nFAA engineers and inspectors necessarily took\n\n462\n\n\x0ccertain calculated risks, but those risks were\nencountered for the advancement of a\ngovernmental purpose and pursuant to the\nspecific grant of authority in the regulations and\noperating manuals. Under such circumstances,\nthe FAA's alleged negligence in failing to check\ncertain specific items in the course of\ncertificating a particular aircraft falls squarely\nwithin the discretionary function exception of \xc2\xa7\n2680(a).\n\nVarig Airlines, 467 U.S. at 820.\nThe discretionary function has also been upheld in numerous cases\nalleging negligent maintenance of facilities. In Rosebush v. United States,\n119 F.3d 438 (6th Cir. 1997), the plaintiff\xe2\x80\x99s 16-month old daughter\nfell into a fire pit at a campsite and was badly burned by smoldering\ncoals. The parents argued that the U.S. Forest Service was negligent\nin not placing a grating over the pit or a protective railing around it.\nThe court held that the discretionary-function exception applied,\nsince fire-pit maintenance involved \xe2\x80\x9cbalancing the needs of the\ncampground users, the effectiveness of various types of warnings,\naesthetic concerns, financial considerations, and the impact on the\nenvironment, as well as other considerations.\xe2\x80\x9d\n\nDiplomatic Immunity and Immunities for\nInternational Organizations\nAs an extension of the principles of sovereign immunity, and also for\npractical concerns of keeping the machinery of international relations\nrunning smoothly, diplomats from foreign countries are immune\nfrom court process in the country where they are stationed.\nTechnically, diplomats are subject to the laws of the United States\nwhile they are here, it is just that they are immune from the courts. For\nmost practical purposes, this ends up being a distinction without a\ndifference.\nA historical outgrowth of diplomatic immunity is immunity for many\ninternational organizations. Immunity for these organizations is\nprovided \xe2\x80\x93 if at all \xe2\x80\x93 by a treaty to which the United States is a\nsignatory. Since international organizations increasingly engage in\n\n463\n\n\x0chighly complex, large-scale operations that are not merely diplomatic\nin character, this form of immunity is arguably of increasing\nimportance. The United Nations, for instance, was recently sued for\nnegligence over its disaster relief operations in Haiti. Following the\n2010 earthquake in the country, the U.N. allegedly caused sewage to\nbe dumped into a river, precipitating an outbreak of cholera that\nraged through 2013, killing roughly 9,000 people and sickening about\n700,000. Sued in New York, the U.N. asserted its immunity to avoid\nliability.\n\nThe Firefighter\xe2\x80\x99s Rule\nA final topic for us to consider along with various forms of\nimmunities is a doctrine called the firefighter\xe2\x80\x99s rule. This doctrine\nprohibits firefighters from suing for injuries sustained because of a\nnegligently set fire.\nSuppose a homeowner carelessly starts a fire. A small child is trapped\ninside. A firefighter, in the course of rescuing the child, suffers smoke\ninhalation injuries. Anyone else in this situation \xe2\x80\x93 coming to the\nrescue of someone in danger \xe2\x80\x93 could sue the careless homeowner in\nnegligence. But the firefighter cannot, because of the firefighter rule.\nThe firefighter rule can be characterized as a \xe2\x80\x9creverse immunity,\xe2\x80\x9d\nbecause instead of precluding suit against a particular class of\ndefendants, the firefighter rule precludes a particular class of\nplaintiffs from suing.\nThe firefighter rule does not apply only to firefighters. It also may\nalso apply to police officers and to other professional emergency\nresponders. It has even been extended to the case of a veterinarian\nwho sued after being bit by a dog brought for in for care.\nOne justification for the firefighter rule is assumption of the risk. By\nvoluntarily taking on their job, professional emergency responders, or\nothers in analogous situations, have assumed the risk of injury \xe2\x80\x93 or so\ngoes the theory. The problem with assumption of the risk as the\ntheoretical underpinning for the firefighter rule is that when\nbystanders come to the rescue \xe2\x80\x93 that is, nonprofessional emergency\nresponders \xe2\x80\x93 they are considered foreseeable plaintiffs under\n\n464\n\n\x0cnegligence doctrine, and assumption of risk does not bar their\nrecovery.\nThe firefighter rule does have some flexibility to prevent certain\ninstances of rank unfairness. Courts have held, for instance, that\narsonists \xe2\x80\x93 those who intentionally start fires \xe2\x80\x93 are not protected by\nthe firefighter rule.\n\nProblem: Museum Gala\nThe Museum of Municipal Accomplishment, jointly owned and\noperated by the City of Metropolis and the non-profit Metropolis\nMuseum Trust, has opened a new exhibition: 70 Years of Safety.\nDuring the opening gala, a large steel structure \xe2\x80\x93 holding up various\nexamples of \xe2\x80\x9csafe\xe2\x80\x9d scaffolding \xe2\x80\x93 collapses. Gala invitee Carl Cinitez\nis injured and trapped by the wreckage. It turns out that museum\nstaff negligently failed to install several bolts, causing the collapse.\nThe Metropolis Fire Department responds, and firefighter Fiona\nFreeman attempts to lift part of the structure up to free Carl, but\nwhen she does, she slips on a patch of cooking oil negligently left\nthere by the Fiona\xe2\x80\x99s husband, Harold Heltenmayer, who happened to\nbe serving as the caterer for the event. As a result, the structure\ncollapses further, which further injures Carl and causes Fiona to\nsuffer a compound leg fracture.\nAfter Carl is finally freed, he and Fiona are whisked away by\nambulance to the hospital via the closest route, which goes through\nthe Metropolis Battlefield National Historic Park. Unfortunately for\nCarl and Fiona, the National Park Service has been undertaking a\nmaintenance project that has involved removing key structural\nsupports from a small bridge. The Superintendent Stu Strinden of\nNPS lost the order form for a new sign and figured it wasn\xe2\x80\x99t that\nimportant anyway. Thus, the NPS neglected to place any posted\nwarning of the bridge\xe2\x80\x99s compromised condition. When the\nambulance carrying Carl and Fiona goes over the bridge, the weight\nof the vehicle causes the structure to collapse, resulting in additional\ninjuries for Carl and Fiona.\nWho among the following defendants, on the basis of immunity or a\nrelated doctrine, can escape liability in a lawsuit brought by Carl for\n\n465\n\n\x0cpersonal injuries? And, separately, who among the following can\nassert immunity or some related doctrine to block a personal injury\nsuit brought by Fiona?\nA. The City of Metropolis\nB. The Metropolis Museum Trust\nC. Fiona Freeman\nD. Harold Heltenmayer\nE. The National Park Service\nF. Superintendent Stu Strinden\n\n466\n\n\x0c28. Constitutional Torts\n\xe2\x80\x9cDon\xe2\x80\x99t taze me, bro!\xe2\x80\x9d\n\xe2\x80\x93 Andrew Meyer, University of Florida student, 2007\n\nIntroduction\nIf one of your fellow citizens invades your home, that\xe2\x80\x99s trespass to\nland. If the neighbors lock you in their basement, that\xe2\x80\x99s false\nimprisonment. But what if the government does these things to you?\nAs discussed in the last chapter, tort law does not apply to the\ngovernment unless it waives its sovereign immunity. And, as we saw,\nthe federal government has not waived its sovereign immunity with\nrespect to intentional torts. The result is that people are often left\nwith no common-law tort cause of action to use when the\ngovernment undertakes abusive actions that would otherwise be\ntortious.\nIt might occur to you that the Constitution offers protection.\nEntering your home without probable cause and a warrant is\ngenerally a violation of the Fourth Amendment. Locking you in a\nbasement without due process of law would be a violation of the\nFifth Amendment. But so what? If the government violates the\nConstitution, what are you going to do about it? Patiently explaining\nyour constitutional rights to a group of armed agents in blue\nwindbreakers is unlikely to help you. Theoretically, you could go to\ncourt to ask for an injunction, but as a practical matter, how will that\nhelp you while agents are in your house?\nAfter the dust settles and the dark-tinted Chevy Suburbans drive off,\nyou could file a lawsuit. The problem, however, is finding a cause of\naction. The Constitution says nothing about the ability of citizens to\nsue the government for damages arising from violations of its\nprovisions.\nThe solution is to use a \xe2\x80\x9cconstitutional tort\xe2\x80\x9d as the basis for your suit.\n\n467\n\n\x0cThe cause of action you can use depends on whether your rights were\nviolated by state officials or federal officials. A claim under \xc2\xa7 1983\nallows a cause of action against state officials, and a Bivens action\nallows a claim against federal officials.\n\nSection 1983\nThe federal statute known as \xc2\xa7 1983 is the great workhorse of the\ncivil-rights plaintiffs\xe2\x80\x99 bar. It provides a cause of action to use against\nany state or local authorities who violate someone\xe2\x80\x99s federally\nguaranteed rights. In other words, it\xe2\x80\x99s a basis for suing non-federal\ndefendants alleged to have violated federal rights.\nWhen someone says \xe2\x80\x9cSection 1983,\xe2\x80\x9d they mean 42 U.S.C. \xc2\xa7 1983.\nThe statute is so well known, however, you rarely see the \xe2\x80\x9c42 U.S.C.\xe2\x80\x9d\nAppreciating the history of \xc2\xa7 1983 is helpful in understand its\nessential function. During the reconstruction era after the Civil War,\nthe United States added the Reconstruction Amendments to the\nConstitution \xe2\x80\x93 the 13th, 14th, and 15th. Those amendments\nabolished slavery and guaranteed essential rights to all citizens,\nincluding freed slaves. Yet it became clear that local police and courts\nin the South could simply decline to enforce these rights. In fact,\n\xc2\xa7 1983 was originally part of a set of legal provisions designed to\ncombat the Ku Klux Klan, a secret vigilante network dedicated to\nwhite supremacy.\nThus, \xc2\xa7 1983 provides a private right of action for plaintiffs to sue\nstate and local officials in federal court for violations of their rights.\nHere is the text:\n42 U.S.C. \xc2\xa7 1983. Civil action for deprivation of\nrights\nEvery person who, under color of any statute,\nordinance, regulation, custom, or usage, of any\nState or Territory or the District of Columbia,\nsubjects, or causes to be subjected, any citizen\nof the United States or other person within the\njurisdiction thereof to the deprivation of any\nrights, privileges, or immunities secured by the\nConstitution and laws, shall be liable to the\n\n468\n\n\x0cparty injured in an action at law, suit in equity,\nor other proper proceeding for redress, except\nthat in any action brought against a judicial\nofficer for an act or omission taken in such\nofficer\xe2\x80\x99s judicial capacity, injunctive relief shall\nnot be granted unless a declaratory decree was\nviolated or declaratory relief was unavailable.\nFor the purposes of this section, any Act of\nCongress applicable exclusively to the District\nof Columbia shall be considered to be a statute\nof the District of Columbia.\n\nAfter its passage, a string of cases gave \xc2\xa7 1983 a restrictive\ninterpretation. The modern power of \xc2\xa7 1983 blossomed in 1961,\nwhen the U.S Supreme Court established the statute\xe2\x80\x99s vitality in the\nlandmark case of Monroe v. Pape, 365 U.S. 167 (1961).\nToday, \xc2\xa7 1983 lawsuits routinely involve claims by arrestees against\npolice officers for using excessive force and claims by inmates against\ncorrections officers for various constitutional violations. But \xc2\xa7 1983\nhas much broader applicability, and it can be used entirely outside of\nthe law enforcement context. For instance, a public school teacher\ndenied free speech rights could use \xc2\xa7 1983 to get vindication.\nThe Elements of a \xc2\xa7 1983 Action\nHere is the blackletter formulation of a cause of action under \xc2\xa7 1983:\nA plaintiff can establish a prima facie case\nunder \xc2\xa7 1983 by showing the defendant was (1)\na person (2) who acted under color of state law\nto (3) deprive the plaintiff of a right protected\nby the Constitution or a federal statute.\n\nPerson\nThere are many issues as to who qualifies as a \xe2\x80\x9cperson\xe2\x80\x9d under \xc2\xa7 1983.\nA natural person definitely qualifies as a \xe2\x80\x9cperson,\xe2\x80\x9d and therefore\n\xc2\xa7 1983 lawsuits are commonly filed against state or local officials in\ntheir personal capacity.\nA state government, however, does not qualify as a \xe2\x80\x9cperson,\xe2\x80\x9d and a\n\xc2\xa7 1983 suit cannot be brought against a state. Nor can state officials\nbe sued \xe2\x80\x9cin their official capacity,\xe2\x80\x9d as doing so is the same thing as\n\n469\n\n\x0csuing the state. Arms of the state \xe2\x80\x93 such the Department of\nCorrections \xe2\x80\x93 are generally considered the same as the state, so\n\xc2\xa7 1983 suits cannot name them as defendants either.\nLargely for historical reasons, a local government is not considered an\narm of the state. Thus, municipalities, counties, and municipal\nagencies can each qualify as a \xe2\x80\x9cperson\xe2\x80\x9d and be a \xc2\xa7 1983 defendant.\nSuing a local government entity is tricky, however, because the\nprinciple of vicarious liability (including respondeat superior) does\nnot apply to \xc2\xa7 1983. A local government entity is not liable merely\nbecause one of its employees committed a deprivation of\nconstitutional rights against the plaintiff. Because of this, a \xc2\xa7 1983\nplaintiff wishing to sue a local government must show that the\ngovernment entity itself is to blame for the constitutional violation.\nThis can be accomplished by showing that there is a law, policy, or\nwell-established custom within municipal government that gave rise\nto the constitutional violation. A municipality can also be held liable\nfor a failure to adequately train officials. For instance, a local police\ndepartment that fails to provide adequate training to police officers\non the use of nonlethal force could be liable on that basis for the\noverzealous tazing of suspects.\nActing Under Color of State Law\nTo have a cause of action under \xc2\xa7 1983, the defendant must act\n\xe2\x80\x9cunder color\xe2\x80\x9d of some \xe2\x80\x9cstatute, ordinance, regulation, custom, or\nusage, of any State or Territory or the District of Columbia.\xe2\x80\x9d The\nconcept is referred to in shorthand as \xe2\x80\x9cacting under color of state\nlaw.\xe2\x80\x9d\nDefendants act under color of state law when they have \xe2\x80\x9cexercised\npower possessed by virtue of state law and made possible only\nbecause the wrongdoer is clothed with the authority of state law.\xe2\x80\x9d\nWest v. Atkins, 487 U.S. 42, 49 (1988) (internal quotes omitted). This\nincludes authority of a local or municipal character.\nTo put it simply, local and state government employees act \xe2\x80\x9cunder\ncolor of law\xe2\x80\x9d when they are on the job, and maybe when they are off\n\n470\n\n\x0cthe job too, if they are flashing a badge or otherwise undertaking\nconduct pursuant to their governmental powers and duties.\nThe cases are clear that the phrase \xe2\x80\x9cunder color\xe2\x80\x9d does not require\nthat defendants act \xe2\x80\x9cin accordance\xe2\x80\x9d with state law. Monroe v. Pape\nestablished that even when a state or local official acts contrary to\nstate law, she or he can act \xe2\x80\x9cunder color\xe2\x80\x9d of state law within the\nmeaning of \xc2\xa7 1983. For example, a parks-and-recreation employee\nwho denies a rally permit to an organization the employee finds\npersonally distasteful might well be violating state law, municipal\nordinances, and departmental policy by doing so. But because the\nemployee is acting as a parks-and-rec official at the time, \xc2\xa7 1983\napplies.\nPrivate persons usually cannot be sued under \xc2\xa7 1983, since they are\nnot exercising state power. An exception applies when a private\nperson conspires with state or local officials to deprive others of their\nconstitutional rights. In such a situation, the private person can be\nliable.\nWhile \xe2\x80\x9cunder color of state law\xe2\x80\x9d embraces state and local authority, it\nmost certainly does not include federal authority. If a federal official\nis alleged to have violated constitutional rights, a \xc2\xa7 1983 action will\nnot work. Instead, the plaintiff must look to a Bivens action (discussed\nbelow).\nDepriving a Person of a Right\nAny of the rights guaranteed by the U.S. Constitution are eligible for\n\xc2\xa7 1983 actions. In addition, rights guaranteed by federal statute may\nbe enforced through \xc2\xa7 1983 \xe2\x80\x93 at least if Congress has not provided\notherwise. The question of whether a federal statute creates a\nguaranteed right, however, can be a complex one.\nAs already mentioned, any right created by state statute or state\nconstitution is outside \xc2\xa7 1983\xe2\x80\x99s ambit.\n\nCase: Scott v. Harris\nThe following case is a recent example of \xc2\xa7 1983 in action.\n\n471\n\n\x0cScott v. Harris\nSupreme Court of the United States\nApril 30, 2007\n550 U.S. 372. TIMOTHY SCOTT, PETITIONER v. VICTOR\nHARRIS. CERTIORARI TO THE UNITED STATES\nCOURT OF APPEALS FOR THE ELEVENTH CIRCUIT.\nNo. 05\xe2\x80\x931631. SCALIA, J., delivered the opinion of the Court, in\nwhich ROBERTS, C. J., and KENNEDY, SOUTER,\nTHOMAS, GINSBURG, BREYER, and ALITO, JJ., joined.\nGINSBURG, J., and BREYER, J., filed concurring opinions,\nomitted here. STEVENS, J., filed a dissenting opinion, also\nomitted.\nJustice ANTONIN SCALIA delivered the opinion of the\nCourt:\nWe consider whether a law enforcement official can, consistent\nwith the Fourth Amendment, attempt to stop a fleeing motorist\nfrom continuing his public-endangering flight by ramming the\nmotorist\xe2\x80\x99s car from behind. Put another way: Can an officer take\nactions that place a fleeing motorist at risk of serious injury or\ndeath in order to stop the motorist\xe2\x80\x99s flight from endangering the\nlives of innocent bystanders?\nI\nIn March 2001, a Georgia county deputy clocked respondent\xe2\x80\x99s\nvehicle traveling at 73 miles per hour on a road with a 55-mileper-hour speed limit. The deputy activated his blue flashing\nlights indicating that respondent should pull over. Instead,\nrespondent sped away, initiating a chase down what is in most\nportions a two-lane road, at speeds exceeding 85 miles per hour.\nThe deputy radioed his dispatch to report that he was pursuing a\nfleeing vehicle, and broadcast its license plate number.\nPetitioner, Deputy Timothy Scott, heard the radio\ncommunication and joined the pursuit along with other officers.\nIn the midst of the chase, respondent pulled into the parking lot\nof a shopping center and was nearly boxed in by the various\npolice vehicles. Respondent evaded the trap by making a sharp\n\n472\n\n\x0cturn, colliding with Scott\xe2\x80\x99s police car, exiting the parking lot, and\nspeeding off once again down a two-lane highway.\nFollowing respondent\xe2\x80\x99s shopping center maneuvering, which\nresulted in slight damage to Scott\xe2\x80\x99s police car, Scott took over as\nthe lead pursuit vehicle. Six minutes and nearly 10 miles after the\nchase had begun, Scott decided to attempt to terminate the\nepisode by employing a \xe2\x80\x9cPrecision Intervention Technique\n(\xe2\x80\x98PIT\xe2\x80\x99) maneuver, which causes the fleeing vehicle to spin to a\nstop.\xe2\x80\x9d Brief for Petitioner 4. Having radioed his supervisor for\npermission, Scott was told to \xe2\x80\x9c \xe2\x80\x98[g]o ahead and take him out.\xe2\x80\x99 \xe2\x80\x9d\nHarris v. Coweta County, 433 F.3d 807, 811 (CA11 2005). Instead,\nScott applied his push bumper to the rear of respondent\xe2\x80\x99s\nvehicle. As a result, respondent lost control of his vehicle, which\nleft the roadway, ran down an embankment, overturned, and\ncrashed. Respondent was badly injured and was rendered a\nquadriplegic.\nRespondent filed suit against Deputy Scott and others under\nRev. Stat. \xc2\xa7 1979, 42 U.S.C. \xc2\xa7 1983, alleging, inter alia, a violation\nof his federal constitutional rights, viz. use of excessive force\nresulting in an unreasonable seizure under the Fourth\nAmendment. In response, Scott filed a motion for summary\njudgment based on an assertion of qualified immunity. The\nDistrict Court denied the motion, finding that \xe2\x80\x9cthere are\nmaterial issues of fact on which the issue of qualified immunity\nturns which present sufficient disagreement to require\nsubmission to a jury.\xe2\x80\x9d Harris v. Coweta County, No. 3:01-CV-148WBH (ND Ga., Sept. 23, 2003), App. to Pet. for Cert. 41a-42a.\nOn interlocutory appeal, the United States Court of Appeals for\nthe Eleventh Circuit affirmed the District Court\xe2\x80\x99s decision to\nallow respondent\xe2\x80\x99s Fourth Amendment claim against Scott to\nproceed to trial. Taking respondent\xe2\x80\x99s view of the facts as given,\nthe Court of Appeals concluded that Scott\xe2\x80\x99s actions could\nconstitute \xe2\x80\x9cdeadly force\xe2\x80\x9d under Tennessee v. Garner, 471 U.S. 1\n(1985), and that the use of such force in this context \xe2\x80\x9cwould\nviolate [respondent\xe2\x80\x99s] constitutional right to be free from\nexcessive force during a seizure. Accordingly, a reasonable jury\ncould find that Scott violated [respondent\xe2\x80\x99s] Fourth\nAmendment rights.\xe2\x80\x9d 433 F.3d, at 816. The Court of Appeals\n\n473\n\n\x0cfurther concluded that \xe2\x80\x9cthe law as it existed [at the time of the\nincident], was sufficiently clear to give reasonable law\nenforcement officers \xe2\x80\x98fair notice\xe2\x80\x99 that ramming a vehicle under\nthese circumstances was unlawful.\xe2\x80\x9d Id. at 817. The Court of\nAppeals thus concluded that Scott was not entitled to qualified\nimmunity. We granted certiorari and now reverse.\nII\nIn resolving questions of qualified immunity, courts are required\nto resolve a \xe2\x80\x9cthreshold question: Taken in the light most\nfavorable to the party asserting the injury, do the facts alleged\nshow the officer\xe2\x80\x99s conduct violated a constitutional right? This\nmust be the initial inquiry.\xe2\x80\x9d Saucier v. Katz, 533 U.S. 194, 201\n(2001). If, and only if, the court finds a violation of a\nconstitutional right, \xe2\x80\x9cthe next, sequential step is to ask whether\nthe right was clearly established ... in light of the specific context\nof the case.\xe2\x80\x9d Ibid. Although this ordering contradicts \xe2\x80\x9c[o]ur\npolicy of avoiding unnecessary adjudication of constitutional\nissues,\xe2\x80\x9d United States v. Treasury Employees, 513 U.S. 454, 478\n(1995) (citing Ashwander v. TVA, 297 U.S. 288, 346-347 (1936)\n(Brandeis, J., concurring)), we have said that such a departure\nfrom practice is \xe2\x80\x9cnecessary to set forth principles which will\nbecome the basis for a [future] holding that a right is clearly\nestablished.\xe2\x80\x9d Saucier, supra, at 201. We therefore turn to the\nthreshold inquiry: whether Deputy Scott\xe2\x80\x99s actions violated the\nFourth Amendment.\nIII\nThe first step in assessing the constitutionality of Scott\xe2\x80\x99s actions\nis to determine the relevant facts. As this case was decided on\nsummary judgment, there have not yet been factual findings by a\njudge or jury, and respondent\xe2\x80\x99s version of events\n(unsurprisingly) differs substantially from Scott\xe2\x80\x99s version. When\nthings are in such a posture, courts are required to view the facts\nand draw reasonable inferences \xe2\x80\x9cin the light most favorable to\nthe party opposing the [summary judgment] motion.\xe2\x80\x9d United\nStates v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam); Saucier,\nsupra, at 201. In qualified immunity cases, this usually means\n\n474\n\n\x0cadopting (as the Court of Appeals did here) the plaintiff\xe2\x80\x99s\nversion of the facts.\nThere is, however, an added wrinkle in this case: existence in the\nrecord of a videotape capturing the events in question. There are\nno allegations or indications that this videotape was doctored or\naltered in any way, nor any contention that what it depicts\ndiffers from what actually happened. The videotape quite clearly\ncontradicts the version of the story told by respondent and\nadopted by the Court of Appeals. For example, the Court of\nAppeals adopted respondent\xe2\x80\x99s assertions that, during the chase,\n\xe2\x80\x9cthere was little, if any, actual threat to pedestrians or other\nmotorists, as the roads were mostly empty and [respondent]\nremained in control of his vehicle.\xe2\x80\x9d 433 F.3d at 815. Indeed,\nreading the lower court\xe2\x80\x99s opinion, one gets the impression that\nrespondent, rather than fleeing from police, was attempting to\npass his driving test:\n[T]aking the facts from the non-movant\xe2\x80\x99s\nviewpoint, [respondent] remained in control of\nhis vehicle, slowed for turns and intersections,\nand typically used his indicators for turns. He\ndid not run any motorists off the road. Nor was\nhe a threat to pedestrians in the shopping center\nparking lot, which was free from pedestrian and\nvehicular traffic as the center was closed.\nSignificantly, by the time the parties were back\non the highway and Scott rammed [respondent],\nthe motorway had been cleared of motorists and\npedestrians allegedly because of police\nblockades of the nearby intersections.\xe2\x80\x9d Id. at\n815-816 (citations omitted).\nThe videotape tells quite a different story. There we see\nrespondent\xe2\x80\x99s vehicle racing down narrow, two-lane roads in the\ndead of night at speeds that are shockingly fast. We see it swerve\naround more than a dozen other cars, cross the double-yellow\nline, and force cars traveling in both directions to their\nrespective shoulders to avoid being hit. We see it run multiple\nred lights and travel for considerable periods of time in the\noccasional center left-turn-only lane, chased by numerous police\n\n475\n\n\x0ccars forced to engage in the same hazardous maneuvers just to\nkeep up. Far from being the cautious and controlled driver the\nlower court depicts, what we see on the video more closely\nresembles a Hollywood-style car chase of the most frightening\nsort, placing police officers and innocent bystanders alike at\ngreat risk of serious injury.\nAt the summary judgment stage, facts must be viewed in the\nlight most favorable to the nonmoving party only if there is a\n\xe2\x80\x9cgenuine\xe2\x80\x9d dispute as to those facts. Fed. Rule Civ. Proc. 56(c).\nAs we have emphasized, \xe2\x80\x9c[w]hen the moving party has carried\nits burden under Rule 56(c), its opponent must do more than\nsimply show that there is some metaphysical doubt as to the\nmaterial facts... . Where the record taken as a whole could not\nlead a rational trier of fact to find for the nonmoving party,\nthere is no \xe2\x80\x98genuine issue for trial.\xe2\x80\x99 \xe2\x80\x9d Matsushita Elec. Industrial Co.\nv. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986) (footnote\nomitted). \xe2\x80\x9c[T]he mere existence of some alleged factual dispute\nbetween the parties will not defeat an otherwise properly\nsupported motion for summary judgment; the requirement is\nthat there be no genuine issue of material fact.\xe2\x80\x9d Anderson v. Liberty\nLobby, Inc., 477 U.S. 242, 247-248 (1986). When opposing parties\ntell two different stories, one of which is blatantly contradicted\nby the record, so that no reasonable jury could believe it, a court\nshould not adopt that version of the facts for purposes of ruling\non a motion for summary judgment.\nThat was the case here with regard to the factual issue whether\nrespondent was driving in such fashion as to endanger human\nlife. Respondent\xe2\x80\x99s version of events is so utterly discredited by\nthe record that no reasonable jury could have believed him. The\nCourt of Appeals should not have relied on such visible fiction;\nit should have viewed the facts in the light depicted by the\nvideotape.\nJudging the matter on that basis, we think it is quite clear that\nDeputy Scott did not violate the Fourth Amendment.~\nThe car chase that respondent initiated in this case posed a\nsubstantial and immediate risk of serious physical injury to\nothers; no reasonable jury could conclude otherwise. Scott\xe2\x80\x99s\n\n476\n\n\x0cattempt to terminate the chase by forcing respondent off the\nroad was reasonable, and Scott is entitled to summary judgment.\nThe Court of Appeals\xe2\x80\x99 decision to the contrary is reversed.\n\nBivens Actions\nA Bivens action is the federal counterpart to \xc2\xa7 1983 \xe2\x80\x93 that is, a Bivens\naction allows you to sue federal officials for violating rights guaranteed\nby the federal Constitution. The name comes from the case of Bivens v.\nSix Unknown Agents, 403 U.S. 388 (1971), in which the court first\napproved a cause of action for damages for unconstitutional search and\nseizure under the Fourth Amendment.\nSince then, the Bivens action has been extended beyond the Fourth\nAmendment to a range of constitutional rights, and, as a result, it is\nlargely analogous to \xc2\xa7 1983. Yet the cause of action under Bivens lacks\nthe sprawling vigor of \xc2\xa7 1983 \xe2\x80\x93 especially so because of a line of recent\nSupreme Court decisions expressing skepticism about the need for and\nwisdom behind Bivens.\nCompared to \xc2\xa7 1983, the Bivens plaintiff faces additional hurdles to\nmaintaining a successful claim. First, the plaintiff must show there is no\nviable alternative federal or state remedy or process that would provide\nadequate protection for the plaintiff\xe2\x80\x99s rights. Then, the court must look\nfor special factors that would counsel hesitation before allowing the kind\nof claim at issue in the case to go forward.\n\nCase: Bivens v. Six Unknown Agents\nHere is the case that started it all \xe2\x80\x93 the eponym of all Bivens actions to\ncome afterward.\n\nBivens v. Six Unknown Agents\nSupreme Court of the United States\nJune 21, 1971\n403 U.S. 388. Webster BIVENS, Petitioner, v. SIX\nUNKNOWN NAMED AGENTS OF FEDERAL BUREAU\nOF NARCOTICS. No. 301. Mr. Justice Harlan concurred in the\njudgment and filed opinion, Mr. Chief Justice Burger, Mr.\nJustice Black and Mr. Justice Blackmun filed dissenting\n\n477\n\n\x0copinions. Stephen A. Grant, for petitioner. Jerome Feit,\nWashington, D.C., for respondents.\nJustice WILLIAM J. BRENNAN, JR. delivered the\nopinion of the Court:\nThe Fourth Amendment provides that:\nThe right of the people to be secure in their\npersons, houses, papers, and effects, against\nunreasonable searches and seizures, shall not be\nviolated. \xe2\x80\xa6\nIn Bell v. Hood, 327 U.S. 678 (1946), we reserved the question\nwhether violation of that command by a federal agent acting\nunder color of his authority gives rise to a cause of action for\ndamages consequent upon his unconstitutional conduct. Today\nwe hold that it does.\nThis case has its origin in an arrest and search carried out on the\nmorning of November 26, 1965. Petitioner\xe2\x80\x99s complaint alleged\nthat on that day respondents, agents of the Federal Bureau of\nNarcotics acting under claim of federal authority, entered his\napartment and arrested him for alleged narcotics violations. The\nagents manacled petitioner in front of his wife and children, and\nthreatened to arrest the entire family. They searched the\napartment from stem to stern. Thereafter, petitioner was taken\nto the federal courthouse in Brooklyn, where he was\ninterrogated, booked, and subjected to a visual strip search.\nOn July 7, 1967, petitioner brought suit in Federal District\nCourt. In addition to the allegations above, his complaint\nasserted that the arrest and search were effected without a\nwarrant, and that unreasonable force was employed in making\nthe arrest; fairly read, it alleges as well that the arrest was made\nwithout probable cause.~ Petitioner claimed to have suffered\ngreat humiliation, embarrassment, and mental suffering as a\nresult of the agents\xe2\x80\x99 unlawful conduct, and sought $15,000\ndamages from each of them. The District Court, on\nrespondents\xe2\x80\x99 motion, dismissed the complaint on the ground,\ninter alia, that it failed to state a cause of action.~ The Court of\n\n478\n\n\x0cAppeals, one judge concurring specially,~ affirmed on that basis.\nWe granted certiorari. We reverse.\nRespondents do not argue that petitioner should be entirely\nwithout remedy for an unconstitutional invasion of his rights by\nfederal agents. In respondents\xe2\x80\x99 view, however, the rights that\npetitioner asserts \xe2\x80\x93 primarily rights of privacy \xe2\x80\x93 are creations of\nstate and not of federal law. Accordingly, they argue, petitioner\nmay obtain money damages to redress invasion of these rights\nonly by an action in tort, under state law, in the state courts. In\nthis scheme the Fourth Amendment would serve merely to limit\nthe extent to which the agents could defend the state law tort\nsuit by asserting that their actions were a valid exercise of federal\npower: if the agents were shown to have violated the Fourth\nAmendment, such a defense would be lost to them and they\nwould stand before the state law merely as private individuals.\nCandidly admitting that it is the policy of the Department of\nJustice to remove all such suits from the state to the federal\ncourts for decision, respondents nevertheless urge that we\nuphold dismissal of petitioner\xe2\x80\x99s complaint in federal court, and\nremit him to filing an action in the state courts in order that the\ncase may properly be removed to the federal court for decision\non the basis of state law. \xef\x81\x81\xe2\x80\x98(S)ince it is the present policy of the\nDepartment of Justice to remove to the federal courts all suits in\nstate courts against federal officers for trespass or false\nimprisonment, a claim for relief, whether based on state\ncommon law or directly on the Fourth Amendment will\nultimately be heard in a federal court.\xe2\x80\x99 Brief for Respondents 13\n(citations omitted); see 28 U.S.C. s 1442(a); Willingham v.\nMorgan, 395 U.S. 402 (1969). In light of this, it is difficult to\nunderstand our Brother BLACKMUN\xe2\x80\x99s complaint that our\nholding today \xe2\x80\x98opens the door for another avalanche of new\nfederal cases.\xe2\x80\x99 Post, at 2021. In estimating the magnitude of any\nsuch \xe2\x80\x98avalanche,\xe2\x80\x99 it is worth noting that a survey of comparable\nactions against state officers under 42 U.S.C. s 1983 found only\n53 reported cases in 17 years (1951-1967) that survived a motion\nto dismiss. Ginger & Bell, Police Misconduct LitigationPlaintiff\xe2\x80\x99s Remedies, 15 Am.Jur. Trials 555, 580-590 (1968).\nIncreasing this figure by 900% to allow for increases in rate and\n\n479\n\n\x0cunreported cases, every federal district judge could expect to try\none such case every 13 years.\xef\x81\x80\nWe think that respondents\xe2\x80\x99 thesis rests upon an unduly\nrestrictive view of the Fourth Amendment\xe2\x80\x99s protection against\nunreasonable searches and seizures by federal agents, a view that\nhas consistently been rejected by this Court. Respondents seek\nto treat the relationship between a citizen and a federal agent\nunconstitutionally exercising his authority as no different from\nthe relationship between two private citizens. In so doing, they\nignore the fact that power, once granted, does not disappear like\na magic gift when it is wrongfully used. An agent acting \xe2\x80\x93 albeit\nunconstitutionally \xe2\x80\x93 in the name of the United States possesses a\nfar greater capacity for harm than an individual trespasser\nexercising no authority other than his own. Accordingly, as our\ncases make clear, the Fourth Amendment operates as a\nlimitation upon the exercise of federal power regardless of\nwhether the State in whose jurisdiction that power is exercised\nwould prohibit or penalize the identical act if engaged in by a\nprivate citizen. It guarantees to citizens of the United States the\nabsolute right to be free from unreasonable searches and\nseizures carried out by virtue of federal authority. And \xe2\x80\x9cwhere\nfederally protected rights have been invaded, it has been the rule\nfrom the beginning that courts will be alert to adjust their\nremedies so as to grant the necessary relief.\xe2\x80\x9d Bell v. Hood, 327\nU.S., at 684.\nFirst. Our cases have long since rejected the notion that the\nFourth Amendment proscribes only such conduct as would, if\nengaged in by private persons, be condemned by state law. Thus\nin Gambino v. United States, 275 U.S. 310 (1927), petitioners were\nconvicted of conspiracy to violate the National Prohibition Act\non the basis of evidence seized by state police officers incident\nto petitioners\xe2\x80\x99 arrest by those officers solely for the purpose of\nenforcing federal law. Notwithstanding the lack of probable\ncause for the arrest, it would have been permissible under state\nlaw if effected by private individuals.~ It appears, moreover, that\nthe officers were under direction from the Governor to aid in\nthe enforcement of federal law. Accordingly, if the Fourth\n\n480\n\n\x0cAmendment reached only to conduct impermissible under the\nlaw of the State, the Amendment would have had no application\nto the case. Yet this Court held the Fourth Amendment\napplicable and reversed petitioners\xe2\x80\x99 convictions as having been\nbased upon evidence obtained through an unconstitutional\nsearch and seizure. Similarly, in Byars v. United States, 273 U.S. 28\n(1927), the petitioner was convicted on the basis of evidence\nseized under a warrant issued, without probable cause under the\nFourth Amendment, by a state court judge for a state law\noffense. At the invitation of state law enforcement officers, a\nfederal prohibition agent participated in the search. This Court\nexplicitly refused to inquire whether the warrant was \xe2\x80\x9cgood\nunder the state law \xe2\x80\xa6 since in no event could it constitute the\nbasis for a federal search and seizure.\xe2\x80\x9d Id., at 29.~ And our\nrecent decisions regarding electronic surveillance have made it\nclear beyond peradventure that the Fourth Amendment is not\ntied to the niceties of local trespass laws. In light of these cases,\nrespondents\xe2\x80\x99 argument that the Fourth Amendment serves only\nas a limitation on federal defenses to a state law claim, and not\nas an independent limitation upon the exercise of federal power,\nmust be rejected.\nSecond. The interests protected by state laws regulating trespass\nand the invasion of privacy, and those protected by the Fourth\nAmendment\xe2\x80\x99s guarantee against unreasonable searches and\nseizures, may be inconsistent or even hostile. Thus, we may bar\nthe door against an unwelcome private intruder, or call the\npolice if he persists in seeking entrance. The availability of such\nalternative means for the protection of privacy may lead the\nState to restrict imposition of liability for any consequent\ntrespass. A private citizen, asserting no authority other than his\nown, will not normally be liable in trespass if he demands, and is\ngranted, admission to another\xe2\x80\x99s house. But one who demands\nadmission under a claim of federal authority stands in a far\ndifferent position. The mere invocation of federal power by a\nfederal law enforcement official will normally render futile any\nattempt to resist an unlawful entry or arrest by resort to the local\npolice; and a claim of authority to enter is likely to unlock the\ndoor as well.~ \xe2\x80\x9cIn such cases there is no safety for the citizen,\n\n481\n\n\x0cexcept in the protection of the judicial tribunals, for rights which\nhave been invaded by the officers of the government, professing\nto act in its name. There remains to him but the alternative of\nresistance, which may amount to crime.\xe2\x80\x9d United States v. Lee, 106\nU.S. 196, 219 (1882).~ Nor is it adequate to answer that state law\nmay take into account the different status of one clothed with\nthe authority of the Federal Government. For just as state law\nmay not authorize federal agents to violate the Fourth\nAmendment, neither may state law undertake to limit the extent\nto which federal authority can be exercised. The inevitable\nconsequence of this dual limitation on state power is that the\nfederal question becomes not merely a possible defense to the\nstate law action, but an independent claim both necessary and\nsufficient to make out the plaintiff\xe2\x80\x99s cause of action.\nThird. That damages may be obtained for injuries consequent\nupon a violation of the Fourth Amendment by federal officials\nshould hardly seem a surprising proposition. Historically,\ndamages have been regarded as the ordinary remedy for an\ninvasion of personal interests in liberty. Of course, the Fourth\nAmendment does not in so many words provide for its\nenforcement by an award of money damages for the\nconsequences of its violation. But \xe2\x80\x9cit is \xe2\x80\xa6 well settled that\nwhere legal rights have been invaded, and a federal statute\nprovides for a general right to sue for such invasion, federal\ncourts may use any available remedy to make good the wrong\ndone.\xe2\x80\x9d Bell v. Hood, 327 U.S., at 684. The present case involves\nno special factors counseling hesitation in the absence of\naffirmative action by Congress.~ Finally, we cannot accept\nrespondents\xe2\x80\x99 formulation of the question as whether the\navailability of money damages is necessary to enforce the Fourth\nAmendment. For we have here no explicit congressional\ndeclaration that persons injured by a federal officer\xe2\x80\x99s violation of\nthe Fourth Amendment may not recover money damages from\nthe agents, but must instead be remitted to another remedy,\nequally effective in the view of Congress. The question is merely\nwhether petitioner, if he can demonstrate an injury consequent\nupon the violation by federal agents of his Fourth Amendment\nrights, is entitled to redress his injury through a particular\n\n482\n\n\x0cremedial mechanism normally available in the federal courts.\n\xe2\x80\x9cThe very essence of civil liberty certainly consists in the right of\nevery individual to claim the protection of the laws, whenever he\nreceives an injury.\xe2\x80\x9d Marbury v. Madison, 1 Cranch 137 (1803).\nHaving concluded that petitioner\xe2\x80\x99s complaint states a cause of\naction under the Fourth Amendment, we hold that petitioner is\nentitled to recover money damages for any injuries he has\nsuffered as a result of the agents\xe2\x80\x99 violation of the Amendment.~\nJudgment reversed and case remanded.\n\nBivens Since Bivens\nThe U.S. Supreme Court has approved Bivens actions two times since\nBivens itself.\nIn Davis v. Passman, 442 U.S. 228 (1979), the Supreme Court held that\ndamages were available under the equal protection guarantee of the Fifth\nAmendment where a female federal employee was allegedly fired\nbecause of her gender. In that case, there was no adequate alternative\nremedy because the employee worked as a staffer for a member of\nCongress. Congress had chosen to exempt its own employees from\ncoverage of the Civil Rights Act of 1964, which otherwise would have\nallowed a cause of action.\nIn Carlson v. Green, 446 U.S. 14 (1980), the Supreme Court allowed a\ndamages suit against federal prison officials for violations of the Eighth\nAmendment\xe2\x80\x99s prohibition on cruel and unusual punishments. While the\nplaintiff could have sued under the Federal Tort Claims Act, the court\nsaid such a remedy was not adequate for several reasons: First, the\nFTCA was, in the court\xe2\x80\x99s judgment, insufficient to deter individuals\nfrom violating constitutional rights; second, the FTCA does not allow\njury trials; and third, the FTCA would not lead to uniform standards\nsince it borrows state law in any given jurisdiction to determine what is\nand what is not actionable.\nCarlson was the high-water mark for Bivens cases. Since then, a grant of\ncert on Bivens case has been a kiss of death for plaintiffs, with the U.S.\nSupreme Court rebuffing each case before it. In the process, the high\ncourt has signaled that it strongly disfavors the prospect of further\nextending the list of circumstances under which Bivens will apply.\n\n483\n\n\x0cCase: Minneci v. Pollard\nThe following is the court\xe2\x80\x99s recent pronouncement on Bivens actions.\n\nMinneci v. Pollard\nSupreme Court of the United States\nJanuary 10, 2012\n565 U.S. ___; 132 S.Ct. 617. Margaret MINNECI, et al.,\nPetitioners, v. Richard Lee POLLARD, et al. No. 10-1104.\nJustice Clarence THOMAS joined the concurrence of Justice\nSCALIA.\nJustice STEPHEN BREYER delivered the opinion of the\nCourt:\nThe question is whether we can imply the existence of an Eighth\nAmendment-based damages action (a Bivens action) against\nemployees of a privately operated federal prison. See generally\nBivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 389\n(1971) (\xe2\x80\x9c[V]iolation of [the Fourth Amendment] by a federal\nagent ... gives rise to a cause of action for damages\xe2\x80\x9d against a\nFederal Government employee). Because we believe that in the\ncircumstances present here state tort law authorizes adequate\nalternative damages actions \xe2\x80\x93 actions that provide both\nsignificant deterrence and compensation \xe2\x80\x93 we cannot do so. See\nWilkie v. Robbins, 551 U.S. 537, 550 (2007) (no Bivens action\nwhere \xe2\x80\x9calternative, existing\xe2\x80\x9d processes provide adequate\nprotection).\nI\nRichard Lee Pollard was a prisoner at a federal facility operated\nby a private company, the Wackenhut Corrections Corporation.\nIn 2002 he filed a pro se complaint in federal court against several\nWackenhut employees, who (now) include a security officer, a\nfood-services supervisor, and several members of the medical\nstaff. As the Federal Magistrate Judge interpreted Pollard\xe2\x80\x99s\ncomplaint, he claimed that these employees had deprived him of\nadequate medical care, had thereby violated the Eighth\nAmendment\xe2\x80\x99s prohibition against \xe2\x80\x9ccruel and unusual\xe2\x80\x9d\npunishment, and had caused him injury. He sought damages.\n\n484\n\n\x0cPollard said that a year earlier he had slipped on a cart left in the\ndoorway of the prison\xe2\x80\x99s butcher shop. The prison medical staff\ntook x rays, thought he might have fractured both elbows,\nbrought him to an outside clinic for further orthopedic\nevaluation, and subsequently arranged for surgery. In particular,\nPollard claimed:\n(1) Despite his having told a prison guard that\nhe could not extend his arm, the guard forced\nhim to put on a jumpsuit (to travel to the\noutside clinic), causing him \xe2\x80\x9cthe most\nexcruciating pain,\xe2\x80\x9d;\n(2) During several visits to the outside clinic,\nprison guards made Pollard wear arm restraints\nthat were connected in a way that caused him\ncontinued pain;\n(3) Prison medical (and other) personnel failed\nto follow the outside clinic\xe2\x80\x99s instructions to put\nPollard\xe2\x80\x99s left elbow in a posterior splint, failed\nto provide necessary physical therapy, and failed\nto conduct necessary studies, including nerve\nconduction studies;\n(4) At times when Pollard\xe2\x80\x99s arms were in casts\nor similarly disabled, prison officials failed to\nmake alternative arrangements for him to\nreceive meals, with the result that (to avoid\n\xe2\x80\x9cbeing humiliated\xe2\x80\x9d in the general food service\narea) Pollard had to auction off personal items\nto obtain funds to buy food at the commissary;\n(5) Prison officials deprived him of basic\nhygienic care to the point where he could not\nbathe for two weeks;\n(6) Prison medical staff provided him with\ninsufficient medicine, to the point where he was\nin pain and could not sleep; and\n(7) Prison officials forced him to return to work\nbefore his injuries had healed.\nAfter concluding that the Eighth Amendment did not provide\nfor a Bivens action against a privately managed prison\xe2\x80\x99s\n\n485\n\n\x0cpersonnel, the Magistrate Judge recommended that the District\nCourt dismiss Pollard\xe2\x80\x99s complaint. The District Court did so.\nBut on appeal the Ninth Circuit found that the Eighth\nAmendment provided Pollard with a Bivens action.~\nThe defendants sought certiorari. And, in light of a split among\nthe Courts of Appeals, we granted the petition.\nII\nRecently, in Wilkie v. Robbins, supra, we rejected a claim that the\nFifth Amendment impliedly authorized a Bivens action that\nwould permit landowners to obtain damages from government\nofficials who unconstitutionally interfere with their exercise of\nproperty rights. After reviewing the Court\xe2\x80\x99s earlier Bivens cases,\nthe Court stated:\n\xe2\x80\x9c[T]he decision whether to recognize a Bivens\nremedy may require two steps. In the first place,\nthere is the question whether any alternative,\nexisting\nprocess\nfor\nprotecting\nthe\n[constitutionally recognized] interest amounts to\na convincing reason for the Judicial Branch to\nrefrain from providing a new and freestanding\nremedy in damages... . But even in the absence\nof an alternative, a Bivens remedy is a subject of\njudgment: \xe2\x80\x98the federal courts must make the\nkind of remedial determination that is\nappropriate for a common-law tribunal, paying\nparticular heed, however, to any special factors\ncounselling hesitation before authorizing a new\nkind of federal litigation.\xe2\x80\x99\xe2\x80\x9d 551 U.S., at 550,\n(quoting Bush v. Lucas, 462 U.S. 367, 378\n(1983)).\nThese standards seek to reflect and to reconcile the Court\xe2\x80\x99s\nreasoning set forth in earlier cases.~ Since Carlson v. Green, 446\nU.S. 14 (1980), the Court has had to decide in several different\ninstances whether to imply a Bivens action. And in each instance\nit has decided against the existence of such an action. These\ninstances include:\n\n486\n\n\x0c(1) A federal employee\xe2\x80\x99s claim that his federal\nemployer dismissed him in violation of the First\nAmendment, Bush, supra, at 386-388, 103 S.Ct.\n2404 (congressionally created federal civil\nservice procedures provide meaningful redress);\n(2) A claim by military personnel that military\nsuperiors violated various constitutional\nprovisions, Chappell v. Wallace, 462 U.S. 296,\n298-300 (1983) (special factors related to the\nmilitary counsel against implying a Bivens action),\nsee also United States v. Stanley, 483 U.S. 669,\n683-684 (1987) (similar);\n(3) A claim by recipients of Social Security\ndisability benefits that benefits had been denied\nin violation of the Fifth Amendment, Schweiker\nv. Chilicky, 487 U.S. 412, 414, 425 (1988)\n(elaborate administrative scheme provides\nmeaningful alternative remedy);\n(4) A former bank employee\xe2\x80\x99s suit against a\nfederal banking agency, claiming that he lost his\njob due to agency action that violated the Fifth\nAmendment\xe2\x80\x99s Due Process Clause, FDIC v.\nMeyer, 510 U.S. 471, 484-486 (1994) (no Bivens\nactions against government agencies rather than\nparticular\nindividuals\nwho\nact\nunconstitutionally);\n(5) A prisoner\xe2\x80\x99s Eighth Amendment-based suit\nagainst a private corporation that managed a\nfederal prison, Correctional Services Corporation v.\nMalesko, 534 U.S. 61, 70-73 (2001) (to permit\nsuit against the employer-corporation would risk\nskewing relevant incentives; at the same time,\nthe ability of a prisoner to bring state tort law\ndamages action against private individual\ndefendants means that the prisoner does not\n\xe2\x80\x9clack effective remedies.\xe2\x80\x9d\nAlthough the Court, in reaching its decisions, has not always\nsimilarly emphasized the same aspects of the cases, Wilkie fairly\nsummarizes the basic considerations that underlie those\n\n487\n\n\x0cdecisions. We consequently apply its approach here. And we\nconclude that Pollard cannot assert a Bivens claim.\nThat is primarily because Pollard\xe2\x80\x99s Eighth Amendment claim\nfocuses upon a kind of conduct that typically falls within the\nscope of traditional state tort law. And in the case of a privately\nemployed defendant, state tort law provides an \xe2\x80\x9calternative,\nexisting process\xe2\x80\x9d capable of protecting the constitutional\ninterests at stake. The existence of that alternative here\nconstitutes a \xe2\x80\x9cconvincing reason for the Judicial Branch to\nrefrain from providing a new and freestanding remedy in\ndamages.\xe2\x80\x9d Our reasoning is best understood if we set forth and\nexplain why we reject Pollard\xe2\x80\x99s arguments to the contrary.\nIII\nPollard (together with supporting amici) asks us to imply a Bivens\naction for four basic reasons \xe2\x80\x93 none of which we find\nconvincing. First, Pollard argues that this Court has already\ndecided in Carlson that a federal prisoner may bring an Eighth\nAmendment-based Bivens action against prison personnel; and\nwe need do no more than simply apply Carlson\xe2\x80\x99s holding here.\nCarlson, however, was a case in which a federal prisoner sought\ndamages from personnel employed by the government, not\npersonnel employed by a private firm. 446 U.S., at 25, 100 S.Ct.\n1468. And for present purposes that fact \xe2\x80\x93 of employment\nstatus \xe2\x80\x93 makes a critical difference.\n[T]he potential existence of an adequate \xe2\x80\x9calternative, existing\nprocess\xe2\x80\x9d differs dramatically in the two sets of cases. Prisoners\nordinarily cannot bring state-law tort actions against employees of\nthe Federal Government. See 28 U.S.C. \xc2\xa7\xc2\xa7 2671, 2679(b)(1)\n(Westfall Act).~ But prisoners ordinarily can bring state-law tort\nactions against employees of a private firm.~\nSecond, Pollard argues that, because of the \xe2\x80\x9cvagaries\xe2\x80\x9d of state\ntort law, Carlson, 446 U.S., at 23, 100 S.Ct. 1468, we should\nconsider only whether federal law provides adequate alternative\nremedies. This argument flounders, however, on the fact that\nthe Court rejected it in Malesko. State tort law, after all, can help\nto deter constitutional violations as well as to provide\n\n488\n\n\x0ccompensation to a violation\xe2\x80\x99s victim. And it is consequently\nunsurprising that several cases have considered the adequacy or\ninadequacy of state-law remedies when determining whether to\nimply a Bivens remedy. See, e.g., Bivens, 403 U.S., at 394, 91 S.Ct.\n1999 (state tort law \xe2\x80\x9cinconsistent or even hostile\xe2\x80\x9d to Fourth\nAmendment); Davis, 442 U.S., at 245, n. 23, 99 S.Ct. 2264\n(noting no state-law remedy available); cf. Malesko, supra, at 70,\n122 S.Ct. 515 (noting that the Court has implied Bivens action\nonly where any alternative remedy against individual officers was\n\xe2\x80\x9cnonexistent\xe2\x80\x9d or where plaintiff \xe2\x80\x9clacked any alternative remedy\xe2\x80\x9d at\nall).\nThird, Pollard argues that state tort law does not provide\nremedies adequate to protect the constitutional interests at issue\nhere. Pollard\xe2\x80\x99s claim, however, is a claim for physical or related\nemotional harm suffered as a result of aggravated instances of\nthe kind of conduct that state tort law typically forbids. That\nclaim arose in California, where state tort law provides for\nordinary negligence actions, for actions based upon \xe2\x80\x9cwant of\nordinary care or skill,\xe2\x80\x9d for actions for \xe2\x80\x9cnegligent failure to\ndiagnose or treat,\xe2\x80\x9d and for actions based upon the failure of one\nwith a custodial duty to care for another to protect that other\nfrom \xe2\x80\x9c\xe2\x80\x98unreasonable risk of physical harm.\xe2\x80\x99\xe2\x80\x9d See Cal. Civ.Code\nAnn. \xc2\xa7\xc2\xa7 1714(a), 1714.8(a). California courts have specifically\napplied this law to jailers, including private operators of prisons.\nMoreover, California\xe2\x80\x99s tort law basically reflects general\nprinciples of tort law present, as far as we can tell, in the law of\nevery State. We have found specific authority indicating that\nstate law imposes general tort duties of reasonable care\n(including medical care) on prison employees in every one of the\neight States where privately managed secure federal facilities are\ncurrently located.\nWe note, as Pollard points out, that state tort law may\nsometimes prove less generous than would a Bivens action, say,\nby capping damages, or by forbidding recovery for emotional\nsuffering unconnected with physical harm, or by imposing\nprocedural obstacles, say, initially requiring the use of expert\nadministrative panels in medical malpractice cases. But we\n\n489\n\n\x0ccannot find in this fact sufficient basis to determine state law\ninadequate.\nState-law remedies and a potential Bivens remedy need not be\nperfectly congruent. See Bush, supra, at 388 (administrative\nremedies adequate even though they \xe2\x80\x9cdo not provide complete\nrelief\xe2\x80\x9d). Indeed, federal law as well as state law contains\nlimitations. Prisoners bringing federal lawsuits, for example,\nordinarily may not seek damages for mental or emotional injury\nunconnected with physical injury. And Bivens actions, even if\nmore generous to plaintiffs in some respects, may be less\ngenerous in others. For example, to show an Eighth\nAmendment violation a prisoner must typically show that a\ndefendant acted, not just negligently, but with \xe2\x80\x9cdeliberate\nindifference.\xe2\x80\x9d~\nRather, in principle, the question is whether, in general, state tort\nlaw remedies provide roughly similar incentives for potential\ndefendants to comply with the Eighth Amendment while also\nproviding roughly similar compensation to victims of violations.\nThe features of the two kinds of actions just mentioned suggest\nthat, in practice, the answer to this question is \xe2\x80\x9cyes.\xe2\x80\x9d And we\nhave found nothing here to convince us to the contrary.\nFourth, Pollard argues that there \xe2\x80\x9cmay\xe2\x80\x9d be similar kinds of\nEighth Amendment claims that state tort law does not cover.\nBut Pollard does not convincingly show that there are such\ncases.~\nRegardless, we concede that we cannot prove a negative or be\ntotally certain that the features of state tort law relevant here will\nuniversally prove to be, or remain, as we have described them.\nNonetheless, we are certain enough about the shape of present\nlaw as applied to the kind of case before us to leave different\ncases and different state laws to another day. That is to say, we\ncan decide whether to imply a Bivens action in a case where an\nEighth Amendment claim or state law differs significantly from\nthose at issue here when and if such a case arises. The possibility\nof such a different future case does not provide sufficient\ngrounds for reaching a different conclusion here.\n\n490\n\n\x0cFor these reasons, where, as here, a federal prisoner seeks\ndamages from privately employed personnel working at a\nprivately operated federal prison, where the conduct allegedly\namounts to a violation of the Eighth Amendment, and where\nthat conduct is of a kind that typically falls within the scope of\ntraditional state tort law (such as the conduct involving\nimproper medical care at issue here), the prisoner must seek a\nremedy under state tort law. We cannot imply a Bivens remedy in\nsuch a case.~\nSo ordered.\nJustice ANTONIN SCALIA, concurring:\nI join the opinion of the Court because I agree that a narrow\ninterpretation of the rationale of Bivens v. Six Unknown Fed.\nNarcotics Agents, 403 U.S. 388 (1971), would not cause the\nholding of that case to apply to the circumstances of this case.\nEven if the narrowest rationale of Bivens did apply here,\nhowever, I would decline to extend its holding. Bivens is \xe2\x80\x9ca relic\nof the heady days in which this Court assumed common-law\npowers to create causes of action\xe2\x80\x9d by constitutional implication.\nCorrectional Services Corp. v. Malesko, 534 U.S. 61, 75 (2001)\n(SCALIA, J., concurring); see also Wilkie v. Robbins, 551 U.S.\n537, 568 (2007) (THOMAS, J., concurring). We have abandoned\nthat power in the statutory field, see Alexander v. Sandoval, 532\nU.S. 275, 287 (2001), and we should do the same in the\nconstitutional field, where (presumably) an imagined\n\xe2\x80\x9cimplication\xe2\x80\x9d cannot even be repudiated by Congress. As I have\npreviously stated, see Malesko, I would limit Bivens and its two\nfollow-on cases (Davis v. Passman and Carlson v. Green) to the\nprecise circumstances that they involved.\nJustice RUTH BADER GINSBURG, dissenting:\nWere Pollard incarcerated in a federal-or state-operated facility,\nhe would have a federal remedy for the Eighth Amendment\nviolations he alleges. See Carlson v. Green, 446 U.S. 14 (1980)\n(Bivens action); Estelle v. Gamble, 429 U.S. 97, (1976) (42 U.S.C.\n\xc2\xa7 1983 action). For the reasons stated in the dissenting opinion I\njoined in Correctional Services Corp. v. Malesko, 534 U.S. 61, 75-83\n\n491\n\n\x0c(2001) (opinion of Stevens, J.), I would not deny the same\ncharacter of relief to Pollard, a prisoner placed by federal\ncontract in a privately operated prison. Pollard may have\nsuffered \xe2\x80\x9caggravated instances\xe2\x80\x9d of conduct state tort law\nforbids, but that same aggravated conduct, when it is engaged in\nby official actors, also offends the Federal Constitution. Rather\nthan remitting Pollard to the \xe2\x80\x9cvagaries\xe2\x80\x9d of state tort law, I\nwould hold his injuries, sustained while serving a federal\nsentence, \xe2\x80\x9ccompensable according to uniform rules of federal\nlaw,\xe2\x80\x9d Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388,\n409 (1971) (Harlan, J., concurring in judgment).\nIndeed, there is stronger cause for providing a federal remedy in\nthis case than there was in Malesko. There, the question\npresented was whether a Bivens action lies against a private\ncorporation that manages a facility housing federal prisoners.\nSuing a corporate employer, the majority observed in Malesko,\nwould not serve to deter individual officers from conduct\ntransgressing constitutional limitations on their authority.\nIndividual deterrence, the Court reminded, was the\nconsideration central to the Bivens decision. Noting the\navailability of state tort remedies, the majority in Malesko\ndeclined to \xe2\x80\x9cexten[d] Bivens beyond [that decision\xe2\x80\x99s] core\npremise,\xe2\x80\x9d i.e., deterring individual officers. Pollard\xe2\x80\x99s case, in\ncontrast, involves Bivens\xe2\x80\x99 core concern: His suit seeking damages\ndirectly from individual officers would have precisely the\ndeterrent effect the Court found absent in Malesko.\nFor the reasons stated, I would hold that relief potentially\navailable under state tort law does not block Pollard\xe2\x80\x99s recourse\nto a federal remedy for the affront to the Constitution he\nsuffered.~\n\nQuestions to Ponder About Minneci v. Pollard\nA. Justice Scalia calls Bivens actions \xe2\x80\x9ca relic of the heady days in which\nthis Court assumed common-law powers to create causes of action\xe2\x80\x9d\nunder the Constitution. Is it unfortunate that those heady days are\nnow past? Did the heady days serve a purpose, but one that is now\nobsolete? Or were the heady days a mistake at the time?\n\n492\n\n\x0cB. Justice Scalia would not overturn Bivens, instead he would limit\nBivens actions to the circumstances specifically approved in the U.S.\nSupreme Court\xe2\x80\x99s three cases of Bivens, Davis, and Carlson. Why do you\nthink Justice Scalia and Justice Thomas do not favor overturning\nBivens altogether? Given their articulated position, what is good about\nkeeping it around?\nC. Justice Ginsberg references Bivens\xe2\x80\x99s stated purpose of deterrence.\nIs the deterrence issue one that allows drawing a helpful distinction\nwith the past? Do federal officials today have checks on their conduct\nsuch that there is less of a need for deterring violations of\nconstitutional rights now than there was in the later 20th Century?\nD. How do Bivens actions fit with the gestalt of common-law torts,\ngiven the deterrence rationale? Is it fair to say that the common law\nof torts emphasizes compensation and treats deterrence as a welcome\nside effect? Or is deterrence more central to the common law than\nthat?\nE. How would you characterize Justice Breyer\xe2\x80\x99s majority opinion?\nDoes it seem to focus more on compensation, deterrence, both, or\nneither?\n\n493\n\n\x0c29. Thresholds of Life\n\xe2\x80\x9cI liked being a person. I wanted to keep at it.\xe2\x80\x9d\n\xe2\x80\x95 John Green, The Fault in Our Stars, 2012\n\nIntroduction\nLike the parent of a preschooler, tort law has displayed great unease\nwhen confronted with the topics of sex, pregnancy, and death.\nHistorically, tort law largely refused to deal with these subjects at all.\nFor instance, under the traditional English common law, death was\nnot considered a compensable injury. Tort causes of action were said\nto die with the plaintiff. If you have already taken your property\ncourse, you might find this surprising. Under the common law, the\ndead can exercise exquisite control over the ownership of real\nproperty. (For example, conveying real property in defeasible fee can\nlimit what the grantees may do with the property into indefinite\nfuture.) By contrast, the common law courts believed that tort law\nwas exclusively for the living.\nToday\xe2\x80\x99s tort law deals head-on with sex, pregnancy, and death. But\nthe doctrine bears the marks of a legacy of discomfiture. In fact,\nmuch of the modern law in this area has been created by statute\nrather than through evolution of judge-made law.\nTo deal with tortiously caused death, legislatures everywhere have\ncreated post-mortem causes of action known as wrongful death and\nsurvival claims. These can be brought by the decedent\xe2\x80\x99s loved ones\nwhether the death was caused negligently, intentionally, or in a\nsituation in which strict liability applies.\nWhen the tortfeasor\xe2\x80\x99s victim is still alive but left disabled, loved ones\ncan sue for loss of consortium, a way of claiming damages for the\nloss of an essential part of life that two people once shared \xe2\x80\x93\nintimacy, companionship, and the like. Again, it can be used where\nthe underlying theory of recovery is based in negligence, intentional\ntorts, or strict liability.\n\n494\n\n\x0cThen there are questions about how negligence and other torts\nshould apply in the context of pregnancy. For instance, can an injury\nsuffered in utero vest as a tort claim upon birth? While advances in\nmedicine have forced courts to confront these sorts of cases\nincreasingly frequently, not all courts have responded in the same\nway.\nAs you explore this area, you may notice that none of the\njurisprudence in this area is very far from the squirminess that all of\nus feel \xe2\x80\x93 judges included \xe2\x80\x93 upon confronting the fragility of our own\nlives.\n\nWrongful Death\nThe common law allows no cause of action to an estate where the\nalleged harm is death. This is astonishing to many people, but it is\nnonetheless true. If the defendant injures and maims a person, then\nthe defendant might be on the hook for a fortune. But if the\ndefendant goes just a little bit further and actually kills the person?\nUnder the traditional common law, the defendant is off the hook\nentirely. Zero balance due.\nFor a brief time in America\xe2\x80\x99s early years, some courts experimented\nwith departing from English precedent to hold that fatalities could be\ntortious. But by the middle 1800s, all American courts had returned\nto the original rule. The seeming absurdity of the common law on\nthis point eventually led legislatures in all states to pass wrongful\ndeath statutes.\nThis statutory arrangement is reflected in lawsuit pleadings. The\ncomplaint in a lawsuit over a fatality will often use the label\n\xe2\x80\x9cwrongful death\xe2\x80\x9d to describe the relevant cause of action. And as\ntechnical matter, wrongful death is its own tort. In practice, however,\nwrongful death functions as an attachment to existing theories of\nrecovery in the common-law. After all, alleging a claim for wrongful\ndeath means alleging that the death is \xe2\x80\x9cwrongful.\xe2\x80\x9d That, in turn,\nusually means pursing an underlying theory of negligence, strict\nliability, or intentional tort.\n\n495\n\n\x0cDamages for wrongful death can be measured in a couple of different\nways. Under one theory, dependents of the decedent can recover the\nvalue of lost pecuniary support in the form of food, shelter, clothing,\nand the like that the decedent would have provided through earnings.\nAnother theory takes the perspective of the decedent\xe2\x80\x99s estate,\nfiguring that the defendant owes the estate whatever the decedent\nwould have earned had she or he stayed alive. Some jurisdictions\nallow recovery for grief and anguish as well.\n\nCase: Benally v. Navajo Nation\nThis case presents a fascinating look at wrongful death from a fresh\nperspective \xe2\x80\x93 that of a tribal court. Tribal courts in the United States\napply their own law, which is separate from the Anglo-American\ncommon law. Here, the plaintiff estate is asking for the court to do\nwhat the Anglo-American courts have not \xe2\x80\x93 recognize a commonlaw cause of action where the injury is death.\n\nBenally v. Navajo Nation\nDistrict Court of the Navajo Nation,\nJudicial District of Window Rock\nApril 15, 1986\n5 Nav. R. 209 (W.R. Dist. Ct. 1986). FERN ANN BENALLY,\nPERSONAL REPRESENTATIVE OF THE ESTATE OF\nMONICA LULA BENALLY, PLAINTIFF, v. THE NAVAJO\nNATION, ET AL., DEFENDANTS.. No. WR-CV-430-84.\nJudge ROBERT YAZZIE:\nI. Findings Of Fact\nThis case involves a claim for the wrongful death of a minor\nchild. The allegations are that on May 7, 1984, Defendant Phillip\nLee, in the course of employment with the Navajo Nation, while\ndriving a Navajo tribal vehicle, struck and ran over a three year\nold child, Monica Lula Benally, who was at the time crossing a\ndirt road (commonly referred to as Bureau of Indian Affairs\nRoute No. 36) located about six miles west of the Nenahnezad\nBoarding School within the Navajo Reservation. It is further\nalleged that as a result of this accident, the minor child died\n\n496\n\n\x0cabout one (1) hour later at the Shiprock Public Health Service\nHospital, Shiprock, New Mexico.\nISSUE I: WHAT IS THE NAVAJO LAW FOR WRONGFUL\nDEATH ACTIONS, INVOLVING THE DEATH OF A\nMINOR\nA wrongful death action is a lawsuit brought by or on behalf of\na deceased person\xe2\x80\x99s beneficiaries (e.g. spouse, parent, children,\netc.), alleging that death was caused by the willful or negligent\nact of another. See Black\xe2\x80\x99s Law Dictionary (5th Ed.). Under\nAnglo common law, \xe2\x80\x9cthe death of a human being could not be\ncomplained of as an injury.\xe2\x80\x9d Baker v. Barton, 1 Campbell 493, 170\nEng. Reprint 1033 (1808); see also Prosser On Torts, p. 902.\nThis rule was later altered by state statutes. Most states have\nallowed civil actions for wrongful death and/or survival actions\nby statute, allowing a decedent\xe2\x80\x99s heirs or personal representative\nto make claims for the loss of the decedent; they also sometimes\nallow the representative to bring claims that the decedent might\nhave brought. The neighboring states of New Mexico, Arizona,\nand Utah have enacted wrongful death statutes. Although the\nNavajo Nation has never formally adopted either a statute to\ncreate a cause of action for wrongful death, or a survival statute,\na claim for the wrongful death of a tribal member has, however,\nbeen long recognized by Navajo common law. See Estate of Boyd\nApachee, 4 Nav. R. 178, 179-180 (Window Rock D. Ct. 1983)\n(defining Navajo common law to include custom, case law and\nmatters commonly known or easily verified in recognized works\non Navajo common law.).\nThe Anglo common law, as stated by Baker v. Barton, and\nProsser, does not allow a wrongful death action, unless enacted\nby legislation. The Courts of the Navajo Nation are not bound\nby this rule of Anglo common law.\n7 N.T.C. Section 204~ provides that:\n(a) In all civil cases the Court of the Navajo\nTribe shall apply any laws of the United States\nthat may be applicable, any authorized\nregulations of the Interior Department, and any\n\n497\n\n\x0cordinance or customs of the Tribe, not\nprohibited by such Federal laws.\n(b) Where any doubt arises as to the customs\nand usages of the Tribe, the court may request\nthe advice of counselors familiar with these\ncustoms and usages.\n(c) Any matters that are not covered by the\ntraditional customs and usages of the Tribe, or\nby applicable Federal laws and regulations, shall\nbe decided by the Court of the Navajo Tribe\naccording to the laws of the state in which the\nmatter in dispute may lie.\nBy the clear terms of Section 204(a), if there is an existing\ncustom, then that customary law should be applied, and state\nlaw does not have application. Thus, defendant is correct that\nunder 204(a), custom, where it exists, is held to be superior to\nthe common law of the states.\nThis Court finds that Navajo common law recognizes a\nwrongful death action. The Navajo experts who testified about\nthe Navajo concepts of tort, especially recovery of damages for\nwrongful death said that:\nWhen a Navajo dies from the careless conduct of another, the\nperson responsible for the death pays the immediate family\nlivestock and silver jewelry.\nDefendant referred to a written source, which explained:\n\xe2\x80\xa6 [W]hat is expected in all cases of injuries that\narise between traditional Navajos is that the\nperson who did the injury will make a symbolic\nmaterial payment for the loss that he has caused\n\xe2\x80\xa6 .\xe2\x80\x9d (See \xe2\x80\x9cTorts in Tribal Courts\xe2\x80\x9d by Barry K.\nBerkson, Esq., A presentation for the National\nAmerican Indian Court Judges Association in\nReno, Nevada, January 28, 1970).\nPlaintiff\xe2\x80\x99s complaint in the instant case alleges that the death of\nher minor child was caused by the negligence of the defendant.\nUnder the current Navajo case law, negligence is defined as the\nfailure to exercise the duty of care owed to the injured party,\n\n498\n\n\x0cthereby proximately causing injury. Mann v. Navajo Tribe, 4 Nav.\nR. 83 (1983). Plaintiff has urged that Defendant Phillip Lee was\nrequired to meet a higher than ordinary standard of care when\noperating a vehicle on Navajo roads. Navajo Tribe of Indians v.\nLittleman, 1 Nav. R. 33 (1971). This Court agrees. The Littleman\ncase was a criminal appeal, in which the Court of Appeals took\njudicial notice of the state of Navajo roads, and the need for\nextra care while driving, and recommended certain action be\ntaken regarding certain safety measures in places where there are\napt to be children near roadways. The defendant, therein, was\nfound guilty for failing to exercise due care while driving a\nvehicle upon a roadway, after striking and killing a six year old\nwho was crossing the highway immediately in front of\ndefendant\xe2\x80\x99s truck at the time. The Court of Appeals acquitted\ndefendant, because of insufficient evidence to sustain a finding\nof guilt beyond a reasonable doubt.\nConsidering the traffic, the road condition, and the fact that\npedestrians many times walk the Navajo roads without notice, in\nthe case at hand, Phillip Lee was under a duty to use a higher\ndegree of care while operating the vehicle at the time.\nISSUE II: WHAT IS THE MEASURE OF DAMAGES IN A\nWRONGFUL DEATH OF A MINOR UNDER NAVAJO\nCOMMON LAW\nIn the instant case, Plaintiff Fern Ann Benally, in her complaint\nfor the wrongful death of her minor child, is seeking recovery\nfor the following damages against the defendants:\n1. General damages for the negligent act of\ndefendant.\n2. Special damages for funeral and burial\nexpenses.\n3. The monetary worth of the life of the\ndeceased minor (including loss of earnings and\nfinancial support).\n4. Compensation for the loss of affection, love\nand companionship of her deceased minor\nchild.\n\n499\n\n\x0c5. Damages for pain and suffering experienced\nby the deceased minor between the time of her\ninjury and death.\nThis Court does not agree with the defendant\xe2\x80\x99s contention that\na wrongful death action is foreign to the custom and tradition of\nthe Navajo people. Compensation for wrongful death of a\nhuman being is and always has been recognized at Navajo\ncommon law. The Navajo experts in testimony before this\nCourt, on the issue of whether human loss from a wrongful act\nis compensable, agreed with the following:\nWhen a Navajo dies from the careless conduct of another, the\nperson responsible for the death pays the immediate family\nlivestock and silver jewelry.\nIf a person dies in a wrongful death situation, the closer relative\nwould be given sheep to relieve that person from loneliness.\nHow many sheep will be given varies depending upon what will\nfix the victim\xe2\x80\x99s mind. One at fault will say, \xe2\x80\x9cI will give this for\npayment.\xe2\x80\x9d\nIn other situations, where there is wrongful death, survivors get\ntogether and discuss what compensation should be given to\nmake up for the wrongdoing. When a settlement is reached\namong the survivors and the one at fault, payment may be made\nby giving sheep, a belt, or even one strand of beads. Sometimes,\nsurvivors may object and demand that more should be given.\nWhatever property of value is given for the wrong doing, the\npaying back, n\xc3\xa1ly\xc3\xa9\xc3\xa9h would make the person in sorrow get\nbetter, feel better, regain strength, and be able to go forth again\nin this life.\nFinally, the n\xc3\xa1ly\xc3\xa9\xc3\xa9h (a paying back of restitution), seems to be\nused today mostly in connection with what would be considered\ncivil matters, but in the past this symbolic restitution was usually\nall that would be required of the person who committed a\ncriminal act, as well. Nalyeeh, traditionally, has the power to\ncorrect wrongs of any kind ... The law of the People-Dine \xe2\x80\x98Bibee\nHaz\xe2\x80\x99a\xe2\x80\x99 nii; Volumes I-IV, Ramah High School, Ramah, New\nMexico, 1972, Dan Vicenti, et al.\n\n500\n\n\x0cRegarding the wrongful death of a minor child, the expert\ntestimony added that:\nIf a child died as a result of wrongful death in a situation where\nthe minor was run over by a car, payment for funeral expenses\nwould be expected by the immediate family.\nChildren are highly valued by Navajo families. Parents depend\nupon their children. They are resourceful in terms of future\nfinancial support and education. Youth should have full life to\ngain money, property and good life.\nDefendants contend that the principle of Navajo torts does not\nresult in an \xe2\x80\x9cintolerable burden upon all human activity\xe2\x80\x9d\nbecause the damages sought are not a direct monetary\nrepayment for the loss and all of its ramifications, but only\ntoken. Human loss cannot be fully compensated for by money.\nThis is certainly not the case in today\xe2\x80\x99s Navajo world. The value\nand expectation of the Navajo people with respect to money\nhave changed. For example, the value of dollars and cents, for\npain and suffering of a person disabled by an accident, has\nbecome a significant consideration for damage recovery, even to\na traditional Navajo person.\nTo be sure, money cannot replace the life of a child who dies\nfrom an accident. The Navajo experts stated what all Navajos\nknow; compensation for loss is part of our way. It is true that\nthe payback n\xc3\xa1ly\xc3\xa9\xc3\xa9h in the past may have been adequate if it was\nthree horses, ten head of sheep, a belt or strand of beads. The\nvalue of such compensation may have been high yesterday.\nTimes have changed. More Navajos work for money today. The\nconcepts of payment have changed. The law of Navajo tort has\nalso changed. Yesterday, wrongful death resulting from\nautomobile accidents was unheard of. Today, deaths caused by\nautomobile accidents are not only real, but there are numerous\nincidents of highway fatalities.\nPayment of material goods alone is no longer adequate. In Bryant\nv. Bryant, 3 Nav. R. 194 (Shiprock D. Ct. 1981), the jury had no\nproblem awarding money damages for the losses caused\nplaintiffs. There was no talk of sheep or horses in that opinion.\n\n501\n\n\x0cWhether or not the award for the death of the two minors was\nadequate is a question this Court does not address. The\nShiprock jury decided on the evidence before it. The jury in the\ninstant case at hand will do the same.\nNavajos today look to their own codes and tribal law to seek fair\ncompensation. The Court acknowledges, as defendant pointed\nout, the following important point:\nThe continued importance placed upon the\nprivate symbolic renumeration of injured parties\nas a cornerstone of Navajo justice is a factor\nthat cannot be ignored by judges and law\nadvocates who seriously desire that the legal\ninstitutions offer Navajo people a solution to\ntheir problems.\nThe Law of the People-Dine\xe2\x80\x99 Bibee Haz\xe2\x80\x99 a\xe2\x80\x99 nii,\nId.\nThe Navajo Tribal Council has ensured that an injured party be\nfairly compensated for the loss he or she has suffered; for the\ninjury inflicted as the result of the act of the person at fault. 7\nN.T.C. Section 701(6).\nThe Court finds that the notion of fair compensation today\nshould include compensation that would be normally available\nanywhere a person might file a wrongful death action. It is the\nopinion of this court that the purpose of 7 N.T.C. Section\n701(6) in light of Navajo common law discussed above, is to\ncompensate plaintiffs in wrongful death actions for the\nfollowing damages:\n\xe2\x80\x93 Special damages, such as funeral and burial\nexpenses, and medical expenses incurred.\n\xe2\x80\x93 General damages for the negligent act of\ndefendant, including (a) the sorrow, mental\nanguish, pain and suffering of the plaintiffs; (b)\nloss of affection, love and companionship of the\ndecedent. \xe2\x80\x93 Damages for the pain and suffering\nof the deceased minor between the time of her\ninjury and death. \xe2\x80\x93 Damages for the monetary\nworth of the life of the deceased minor,\n\n502\n\n\x0cincluding loss of earnings and financial support.\nBryant v. Bryant, allowed the jury to determine\nthe value of a child\xe2\x80\x99s life based upon their own\nunderstanding, taking into account the Navajo\nculture, the economy of the reservation, the\nusual ages of marriage, and many other things,\nto value a life in terms of the loss caused others.\nJUDGMENT\nIT IS THEREFORE ORDERED that, as a choice of law in the\ninstant case, the Navajo common law of tort in a wrongful death\naction and the measure of damages based upon the notion of\nfair compensation under 7 N.T.C. Section 701(b), will be applied\nas explained in the opinion above.\n\nQuestions to Ponder About Benally v. Navajo Nation\nA. On the question of whether death is a compensable harm, who\ngot it right \xe2\x80\x93 Anglo-American courts or the Navajo court? Or did\nthey both get it right? Is it cultural, with no one right answer?\nB. What do you think of the court\xe2\x80\x99s use of precedent \xe2\x80\x93 in particular\nits reliance on custom and cultural norms? Is this in stark contrast to\nAnglo-American courts? Do Anglo-American courts do the same\nthing, perhaps less overtly? If we could trace the roots of the English\ncommon law back far enough, do you think we would find a more\nupfront reliance on societal mores? Or would we find unsupported\nassertions, in lieu of precedent, that only implicitly rely on cultural\nunderstandings?\n\nSurvival Actions\nUnder the traditional common law, persons\xe2\x80\x99 causes of action died\nwith them unless legal action had already been commenced. This led\nto the strange situation in which a plaintiff who sustained fatal\ninjuries could leave her or his heirs an economically substantial legacy\nby way of a solid tort action \xe2\x80\x93 but only if she or he could make it to\nthe courthouse before succumbing. Survival actions, sometimes\ncalled survivor actions, make it so would-be plaintiffs who die on the\nroadway are treated equally with those who might first get to the\nclerk\xe2\x80\x99s office.\n\n503\n\n\x0cAs with wrongful death claims, survival actions are another way of\nsuing in tort for fatal injury. But they differ in their essential nature.\nIn a wrongful death action, the gravamen of the complaint is death.\nWith survival actions, the essence of the wrong is the decedent\xe2\x80\x99s\nexperience prior to death \xe2\x80\x93 including pain, fear, and anguish caused\nby the awareness of one\xe2\x80\x99s own imminent demise. Survival actions can\nalso include any lost wages from the time between the injury and\ndeath.\nBecause of the focus on claims accrued between injury and death, it\nmay well be that a person who dies instantaneously will occasion no\nsurvival action. On the other hand, the more horrible the death is, the\nmore valuable the survival claim will be. Notably in some\njurisdictions, survival actions are allowed for funeral expenses,\npunitive damages, and other amounts that do not depend on the\npost-tort/pre-death interstice.\nNote that the terms here are potentially confusing. The word\n\xe2\x80\x9csurvival\xe2\x80\x9d is this context is ironic \xe2\x80\x93 it is, after all, because someone\ndidn\xe2\x80\x99t survive that the survival action accrues. The name makes\nsense, however, if you remember that the survival refers to the claim.\nThat is, the claim survives even when the tort-victim does not. But\neven if we can make sense of the term \xe2\x80\x9csurvival action,\xe2\x80\x9d it seems\nimpossible to make sense of the alternate label used by many courts,\n\xe2\x80\x9csurvivor action.\xe2\x80\x9d The survivors are not the ones who own the claim.\nInstead, it is the estate that owns the claim. In fact, a decedent\nwithout any survivors could have a valuable \xe2\x80\x9csurvivor action\xe2\x80\x9d that\nescheats to the state.\nSurvival statutes also work in a completely different way \xe2\x80\x93 they can\nallow a living tort victim to recover from a dead tortfeasor. Under the\ntraditional common law, just as persons\xe2\x80\x99 claims died with them, so\ndid their liabilities. Today, survival statutes allow claims against the\ndeceased tortfeasor\xe2\x80\x99s estate for torts accrued during the tortfeasor\xe2\x80\x99s\nlifetime.\n\nLoss of Consortium\nLoss of consortium claims seek damages that come from not having\na person around any more \xe2\x80\x93 or at least not around in the same\n\n504\n\n\x0ccapacity. In addition to their post-mortem usage, loss of consortium\nclaims can arise for non-fatal injuries. Where a person suffers brain\ndamage or serious physical impairments, a measure of damages may\nbe taken based on what family members lose as a result.\nAmong the jurisdictions, the widest acceptance of loss of consortium\nclaims is for loss of consortium between spouses. Recovery may be\nhad for \xe2\x80\x9caffection, solace, comfort, companionship, society,\nassistance, and sexual relations.\xe2\x80\x9d Whittlesey v. Miller, 572 S.W.2d 665,\n666 (Tex. 1978).\nJurisdictions may also recognize parent/child consortium claims.\nChildren can recover for lost opportunities to receive \xe2\x80\x9ccounsel\xe2\x80\x9d and\n\xe2\x80\x9cadvice\xe2\x80\x9d from a parent, as well as \xe2\x80\x9closs of affection, comfort,\ncompanionship, society, emotional support and love.\xe2\x80\x9d Cavnar v.\nQuality Control Parking, Inc., 696 S.W.2d 549, 550-51 (Tex. 1985).\nMany jurisdictions recognize loss of consortium flowing the other\nway as well, so that parents can bring a consortium claim for the loss\nof children. Courts tend to be much more hesitant, however, in\nrecognizing any parent/child claim where the child is an adult. Thus,\ncourts commonly refuse to recognize as a compensable injury a\nparent\xe2\x80\x99s loss of an adult child or an adult child\xe2\x80\x99s loss of a parent.\nProblem: Death on Route 12\nAt 3 a.m. in a sparsely populated rural area, Melida was driving with\nher friends Felipe and Antone. Texting on a brightly lit cell phone,\nMelida\xe2\x80\x99s impaired night vision and distraction level caused her to\ncross the center line and hit an automobile driven by Ronni. Because\nof the remoteness of the location and its lack of cell coverage, no\nhelp arrived at the accident scene for five hours.\nThe evidence shows that Felipe stayed alive for two hours,\nimmobilized in the twisted wreckage, experiencing intense pain, a fact\nmemorialized in cell phone videos made by Antone. Felipe is\nsurvived by his husband and his one-year-old son.\nAntone retained consciousness for four hours \xe2\x80\x93 as evidenced by his\nphone logs. He lost consciousness when a carotid embolism severely\ndeprived a large part of his brain of oxygen. He nonetheless stayed\n\n505\n\n\x0calive. At the hospital, physicians determined that Antone was in a\npermanent vegetative state. Antone has a wife and an adult child.\nKyle was a hitchhiker riding as a passenger in Ronni\xe2\x80\x99s car. Because of\nthe angle of the impact, Kyle received catastrophic head trauma that\nkilled him instantly. Statements by Ronni established that Kyle was\nsleeping before the accident, and autopsy results showing high levels\nof opiate pain killers made it more likely than not that he died\nwithout any awareness of the accident. Kyle had no family or loved\nones who survived him.\nAs for Ronni, unsent texts on her phone show she was alive for at\nleast 20 minutes, during which she experienced a great deal of pain\nand fear.\nMelida \xe2\x80\x93 the tortfeasor at the center of it all \xe2\x80\x93 survived long enough\nto be taken by ambulance to the hospital. She died there several\nhours later from her injuries. A software engineer with a valuable\nportfolio of vested stock options, Melida is survived by a husband\nand two minor children.\nWhat liability will there be for wrongful death, survival actions,\nand/or loss of consortium?\n\nUnborn Plaintiffs\nIssues created by the beginning of life can be just as thorny as endof-life issues, if not more so. Under the traditional common law, an\ninfant injured in utero had no cause of action. The trend now,\nhowever, is toward allowing recovery for pre-natal injuries.\n\nCase: Dobson v. Dobson\nThe next case presents the issue of recovery for pre-natal injuries in a\nunique circumstance \xe2\x80\x93 where the party alleged to have caused the\ninjuries is the mother. Just as Benally provided a point of contrast with\nAnglo-American courts, this case does as well, coming as it does\nfrom Canada. Unlike in the United States, where there are more than\n50 jurisdictions, each with its own tort law, Canada has a single body\nof common law, which applies nationally. (Note that Quebec is an\nexception: In the French legal tradition, Quebec follows a civil code.)\n\n506\n\n\x0cAs you read Dobson v. Dobson, try to spot differences between\nCanadian jurisprudence and its American counterpart.\n\nDobson v. Dobson\nSupreme Court of Canada\nJuly 9, 1999\n2 S.C.R. 753, 1999 CanLII 698. Cynthia Dobson, Appellant, v.\nRyan Leigh MacLean Dobson by his Litigation Guardian,\nGerald M. Price, Respondent. Indexed as: Dobson (Litigation\nGuardian of) v. Dobson. File No.: 26152. The judgment of\nLamer C.J. and L\xe2\x80\x99Heureux-Dub\xc3\xa9, Gonthier, Cory, Iacobucci and\nBinnie JJ. was delivered by CORY J. McLachlin, Major, and\nBastarache did not join the opinion.\nJustice PETER CORY:\nI. Introduction\n1\xc2\xb6 Pregnancy speaks of the mystery of birth and life; of the\ncontinuation and renewal of the species. The relationship\nbetween a pregnant woman and her foetus is unique and\ninnately recognized as one of great and special importance to\nsociety. In the vast majority of cases, the expectant woman\nmakes every effort to ensure the good health and welfare of her\nfuture child. In addition, the sacrifices made by the mother for\nher newborn child are considerable. Yet, what if hopes for the\nfuture are dashed by an injury caused to the foetus as a result of\na prenatal negligent act of the mother\xe2\x80\x91 to\xe2\x80\x91 be? Should a mother\nbe held liable for the damages occasioned to her born alive\nchild? That is the question to be resolved in this appeal.\nII. Facts\n2\xc2\xb6 On March 14, 1993, the appellant was in the 27th week of her\npregnancy. On that day, she was driving towards Moncton in a\nsnowstorm. She lost control of her vehicle on a patch of slush\nand struck an oncoming vehicle. It is alleged that the accident\nwas caused by her negligent driving. The infant respondent,\nRyan Dobson, was allegedly injured while in utero, and was\ndelivered prematurely by Caesarean section later that same day.\n\n507\n\n\x0cHe suffers from permanent mental and physical impairment,\nincluding cerebral palsy.\n3\xc2\xb6 The infant respondent, by his grandfather and litigation\nguardian, launched a tort claim against, inter alia, the appellant\nfor the damages he sustained. The respondent\xe2\x80\x99s father was the\nowner of the vehicle driven by the appellant. As required by\nprovincial law, he was insured against damages caused by the\nnegligence of drivers of his motor vehicle.\n4\xc2\xb6 The issues of liability and quantum of damages were severed\nby a consent order dated June 25, 1996. Thus, the only question\nto be determined is whether Ryan Dobson has the legal capacity\nto bring a tort action against his mother for her allegedly\nnegligent act which occurred while he was in utero. Miller J., on\nan application for determination of this question of law, found\nthat the infant respondent had the legal capacity to sue for\ninjuries caused by the appellant\xe2\x80\x99s prenatal negligence. The Court\nof Appeal dismissed the appeal from that decision.\nIII. Judicial History\nA. New Brunswick Court of Queen\xe2\x80\x99s Bench, (1997), 186 N.B.R.\n(2d) 81\n5\xc2\xb6 Miller J. recognized the difficulty of reconciling competing\nlegal principles regarding the nature and extent of foetal rights.\nHe accepted that legal personality begins at birth and ends at\ndeath: Tremblay v. Daigle, 1989 CanLII 33 (S.C.C.), [1989] 2\nS.C.R. 530. Therefore, at the time of the commission of the tort,\nthe infant respondent did not exist as a person in law.\n6\xc2\xb6 Miller J. based his decision on two principles of tort law. First,\nthere is no common law bar to actions in tort by children\nagainst their parents: Deziel v. Deziel, [1953] 1 D.L.R. 651. The\ndoctrine of parental tort immunity, which exists in certain\nAmerican jurisdictions, has never been a part of Canadian law.\nSecond, Canadian courts have recognized the juridical\npersonality of the foetus as a fiction which is utilized, at least in\ncertain contexts, to protect future interests. Although a foetus is\nnot a legal person, certain rights accrue and may be asserted by\nthe infant upon being born alive and viable: Montreal Tramways\n\n508\n\n\x0cCo. v. L\xc3\xa9veill\xc3\xa9, [1933] S.C.R. 456. In this case, the injury was\nallegedly suffered by the foetus, but the damages sued for are\nthose sustained by the infant Ryan after his birth. Accordingly, if\nthe damages had been caused by the negligence of some thirdparty, the infant respondent would be entitled to seek\ncompensation in a tort action.\n7\xc2\xb6 Miller J. concluded that \xe2\x80\x9cif an action can be sustained by a\nchild against a parent, and if an action can be sustained against a\nstranger for injuries suffered by a child before birth, then it\nseems to me a reasonable progression to allow an action by a\nchild against his mother for prenatal injuries caused by her\nnegligence\xe2\x80\x9d (p. 88). He therefore held that the infant respondent\nhad the legal capacity to sue his mother for the injuries allegedly\ncaused by her prenatal negligence.\nB. New Brunswick Court of Appeal 1997 CanLII 9513 (NB\nC.A.), (1997), 189 N.B.R. (2d) 208\n8\xc2\xb6 Hoyt C.J.N.B. also accepted that, at the time of the accident,\nthe infant respondent did not possess juridical personality. He\nnoted that it was common ground between the parties that a\nchild may sue his or her parents in tort, and that a child may sue\na third-party for prenatal negligence. Moreover, he found that\nthere was a real distinction between an action brought by or on\nbehalf of a foetus and one brought by or on behalf of a child.\nAccordingly, Canadian decisions involving the former \xe2\x80\x93 Tremblay\nv. Daigle, supra; R. v. Sullivan, 1991 CanLII 85 (S.C.C.), [1991] 1\nS.C.R. 489; and Winnipeg Child and Family Services (Northwest Area)\nv. G. (D.F.), 1997 CanLII 336 (S.C.C.), [1997] 3 S.C.R. 925 \xe2\x80\x93 had\nno application to the case before him.\n9\xc2\xb6 Hoyt C.J.N.B. further found that different considerations\nwould arise if this case involved damages resulting from lifestyle\nchoices made by a woman during pregnancy, such as smoking,\ndrinking and the taking of or refusal to take medication.\nAlthough cases alleging such negligent conduct by a pregnant\nwoman would raise difficult policy decisions, those issues do not\narise in this case. Hoyt C.J.N.B. found that the narrow issue to\nbe resolved concerns the allegedly negligent driving of a\npregnant woman resulting in injuries to her born alive child, and\n\n509\n\n\x0cnot injuries occasioned as a result of her lifestyle choices. Hoyt\nC.J.N.B. found support for this distinction in Bonte v. Bonte, 616\nA.2d 464 (N.H. 1992), Lynch v. Lynch (1991), 25 N.S.W.L.R. 411,\nand J. G. Fleming, The Law of Torts (8th ed. 1992), at p. 168.\nHe observed that, in Lynch, supra, Clarke J.A. stated that\ndifferent policy considerations arise in the context of a claim\nbased on negligent driving as opposed to a case involving a\npregnant woman\xe2\x80\x99s lifestyle choices.\n10\xc2\xb6 Hoyt C.J.N.B. concluded that the duty on the appellant in\nthis case arose from her general duty to drive carefully and could\nnot be characterized as a lifestyle choice which is \xe2\x80\x9cpeculiar to\nparenthood\xe2\x80\x9d (p. 216). He noted that the same distinction was\nmade in the Congenital Disabilities (Civil Liability) Act 1976\n(U.K.), 1976, c. 28. That Act exempts a mother from tort\nliability for prenatal negligence to her children who are born\nalive. However, the exemption does not apply to prenatal\nnegligence which occurs when the pregnant woman is in breach\nof her general duty to drive carefully. Therefore, Hoyt C.J.N.B.\nheld that a pregnant woman has a general duty to drive carefully,\nin relation to both her subsequently born child and third-party\nmotorists. If, as alleged here, the child suffers injury during his\nor her lifetime as a result of the mother\xe2\x80\x99s negligent driving\nduring pregnancy, the child should be able to enforce his or her\nrights. To hold otherwise would create a partial exclusion to a\npregnant woman\xe2\x80\x99s general duty to drive carefully.\nIV. Issue\n11\xc2\xb6 This appeal raises but one issue. Should a mother be liable in\ntort for damages to her child arising from a prenatal negligent\nact which allegedly injured the foetus in her womb?\nV. Analysis\n12\xc2\xb6 Perhaps as a prelude to considering the public policy aspects\nof this appeal, it may be helpful to begin with a review of the\ncase law which allows infants to receive compensation in tort\nfor prenatally inflicted injuries.\nA. Tort Liability for Prenatal Negligence\n\n510\n\n\x0c13\xc2\xb6 In Montreal Tramways, supra, a child born with club feet two\nmonths after an incident of alleged negligence by the tramcar\ncompany brought an action for the prenatal injuries which\ncaused the damages. Lamont J., for the majority, held that the\nchild did indeed have the right to sue. He based his conclusion\non the following rationale (at p. 464):\nIf a child after birth has no right of action for pre-natal\ninjuries, we have a wrong inflicted for which there is no\nremedy, for, although the father may be entitled to\ncompensation for the loss he has incurred and the mother\nfor what she has suffered, yet there is a residuum of\ninjury for which compensation cannot be had save at the\nsuit of the child. If a right of action be denied to\nthe child it will be compelled, without any fault\non its part, to go through life carrying the seal of\nanother\xe2\x80\x99s fault and bearing a very heavy burden\nof infirmity and inconvenience without any\ncompensation therefor. To my mind it is but\nnatural justice that a child, if born alive and\nviable, should be allowed to maintain an action\nin the courts for injuries wrongfully committed\nupon its person while in the womb of its\nmother. (Emphasis added.)\n14\xc2\xb6 The infant respondent argued that the underlined passage\nprovides a born alive child with the right to sue in tort for all\nprenatally inflicted injuries, including those allegedly caused by\nthe prenatal negligence of his or her mother. It is true that the\nreasoning of Lamont J., on behalf of the majority of this Court,\nwas based in part on general principles of compensation and\nnatural justice. However, the decision contains no direct\nreference to the tort liability of a mother for prenatal negligence.\nEven if Montreal Tramways, supra, could be understood to\nencompass tortious acts by a pregnant woman that cause injury\nto her foetus, it must be emphasized that the decision dealt with\nthe negligence of a third-party tortfeasor. Nothing in the\ndecision suggests that the Court directed its attention to the\nsensitive issue of maternal tort liability for prenatal negligence.\nAccordingly, the decision in Montreal Tramways, while important,\n\n511\n\n\x0cshould not be taken as determinative of the issue raised in this\nappeal.\n15\xc2\xb6 A different legal analysis was employed to achieve the same\nresult in Duval v. Seguin, [1972] 2 O.R. 686 (H.C.), aff\xe2\x80\x99d (1973), 1\nO.R. (2d) 482 (C.A.). In that case, a pregnant woman was\ninvolved in an automobile accident caused by the negligent acts\nof another. Three weeks later, her child was born prematurely\nwith cerebral defects. Fraser J. held that once a child is born\nalive with injuries caused by an incident of prenatal negligence,\nthe cause of action is complete (at pp. 700\xe2\x80\x91 701):\n[T]he law has been clear that it is unnecessary\nthat the damages coincide in time or place with\nthe wrongful act or default. In this connection\nreference is made to Grant v. Australian Knitting\nMills, Ltd., [1936] A.C. 85, and to Dorset Yacht\nCo. v. Home Office, [1970] A.C. 1004. In these\ncases the existence of the plaintiffs was\nunknown to the defendant. It would have been\nimmaterial to the causes of action if the\nplaintiffs had been persons born after the\nnegligent acts.\n...\nProcreation is normal and necessary for the\npreservation of the race. If a driver drives on a\nhighway without due care for other users it is\nforeseeable that some of the other users of the\nhighway will be pregnant women and that a\nchild en ventre sa m\xc3\xa8re may be injured. Such a\nchild therefore falls well within the area of\npotential danger which the driver is required to\nforesee and take reasonable care to avoid.\n16\xc2\xb6 The approach adopted in Duval applies the \xe2\x80\x9cneighbour\nprinciple\xe2\x80\x9d articulated in the famous dictum of Lord Atkin in\nDonoghue v. Stevenson, [1932] A.C. 562 (H.L.), at p. 580. Since it is\nreasonably foreseeable at the time of an accident that negligent\ndriving may cause injury to a pregnant woman, the possibility of\ninjury to the child on birth is, as well, reasonably foreseeable. It\nis this foreseeability that creates a relationship which is\n\n512\n\n\x0csufficiently proximate to give rise to a duty of care. Once the\nchild is born alive with injuries, the relationship crystallizes and\nthe claim for damages can be made. By contrast, the holding in\nMontreal Tramways, supra, is based in part on a legal fiction\nborrowed from the civil law. Once the child is born alive with\ninjuries, it is \xe2\x80\x9cdeemed to have been born at the time of the\naccident to the mother\xe2\x80\x9d (per Lamont J., at p. 465).\n17\xc2\xb6 For the purposes of this appeal, it is not necessary to resolve\nthe differences apparent in the reasoning of Montreal Tramways\nand Duval. It is sufficient to observe that when a child sues some\nthird party for prenatal negligence, the interests of the newborn\nand the mother are perfectly aligned. Neither approach\naddresses the physical unity of a pregnant woman and her\nfoetus, or the post\xe2\x80\x91 natal conflict of interest between mother\nand child, which are raised in this appeal.\n18\xc2\xb6 It must be added that in City of Kamloops v. Nielsen, 1984\nCanLII 21 (S.C.C.), [1984] 2 S.C.R. 2, it was recognized that\neven where a duty of care exists, it may not be imposed for\nreasons of public policy. Although a duty of care to the born\nalive child may exist, for reasons of public policy, which will be\nexplored later, that duty should not be imposed upon a pregnant\nwoman. Matters of public policy are concerned with sensitive\nissues that involve far-reaching and unpredictable implications\nfor Canadian society. It follows that the legislature is the more\nappropriate forum for the consideration of such problems and\nthe implementation of legislative solutions to them.\nB. Imposing a Duty of Care in this Situation\n19\xc2\xb6 The test set out in Kamloops, supra, must be considered and\napplied in determining whether the appellant mother should be\nheld liable to her child in the present case. This analysis is\nparticularly important in light of the significant policy\nconsequences raised by this appeal. In Kamloops, it was held that\nbefore imposing a duty of care, the court must be satisfied: (1)\nthat there is a sufficiently close relationship between the parties\nto give rise to the duty of care; and (2) that there are no public\npolicy considerations which ought to negative or limit the scope\n\n513\n\n\x0cof the duty, the class of persons to whom it is owed, or the\ndamages to which a breach of it may give rise.\n20\xc2\xb6 The first criterion may be satisfied if it is assumed that a\npregnant woman and her foetus can be treated as distinct legal\nentities. It should be noted that this assumption might be seen\nas being contrary to the holding of McLachlin J. in Winnipeg,\nsupra, at p. 945 that \xe2\x80\x9cthe law has always treated the mother and\nunborn child as one\xe2\x80\x9d. Nonetheless, it is appropriate in the\npresent case to assume, without deciding, that a pregnant\nwoman and her foetus can be treated as separate legal entities.\nBased on this assumption, a pregnant woman and her foetus are\nwithin the closest possible physical proximity that two \xe2\x80\x9clegal\npersons\xe2\x80\x9d could be. With regard to foreseeability, it is clear that\nalmost any careless act or omission by a pregnant woman could\nbe expected to have a detrimental impact on foetal\ndevelopment. Indeed, the very existence of the foetus depends\nupon the pregnant woman. Thus, on the basis of the\nassumption of separate legal identities, it is possible to proceed\nto the more relevant analysis for the purposes of the present\nappeal, the second stage of the Kamloops test.\n21\xc2\xb6 However, even if it is assumed that the first stage of the\nKamloops test is satisfied, the public policy considerations in this\ncase clearly indicate that a legal duty of care should not be\nimposed upon a pregnant woman towards her foetus or\nsubsequently born child. The second branch of the Kamloops test\nrequires a consideration of those public policy consequences\nwhich may negate or limit the imposition of such a duty of care\nupon mothers-to-be. Although increased medical knowledge\nmakes the consequences of certain behaviour more foreseeable,\nand facilitates the establishment of a causative link in negligence\nsuits, public policy must also be considered. Significant policy\nconcerns militate against the imposition of maternal tort liability\nfor prenatal negligence. These relate primarily to (1) the privacy\nand autonomy rights of women and (2) the difficulties inherent\nin articulating a judicial standard of conduct for pregnant\nwomen.\n\n514\n\n\x0c22\xc2\xb6 In addition, an intervener submitted that to impose a legal\nduty of care upon a pregnant woman towards her foetus or\nsubsequently born child would give rise to a gender-based tort,\nin contravention of s. 15(1) of the Canadian Charter of Rights\nand Freedoms. That contention may be correct. However, in\nlight of the conclusion reached with respect to the second\nbranch of the Kamloops test, this case need not, and should not,\nbe decided on Charter grounds. It cannot be forgotten that the\nparties did not address the Charter. Indeed, apart from the\nsubmissions of one intervener, no argument was put forward on\nthe Charter. In those circumstances, it is inappropriate to\nresolve that issue in these reasons.\n1. Privacy and Autonomy Rights of Women\n23\xc2\xb6 First and foremost, for reasons of public policy, the Court\nshould not impose a duty of care upon a pregnant woman\ntowards her foetus or subsequently born child. To do so would\nresult in very extensive and unacceptable intrusions into the\nbodily integrity, privacy and autonomy rights of women. It is\ntrue that Canadian tort law presently allows a child born alive\nand viable to sue a third-party for injuries which were\nnegligently inflicted while in utero: Montreal Tramways, supra.\nHowever, of fundamental importance to the public policy\nanalysis is the particularly unique relationship that exists\nbetween a pregnant woman and the foetus she carries.\n(a) Overview\n24\xc2\xb6 Pregnancy represents not only the hope of future\ngenerations but also the continuation of the species. It is\ndifficult to imagine a human condition that is more important to\nsociety. From the dawn of history, the pregnant woman has\nrepresented fertility and hope. Biology decrees that it is only\nwomen who can bear children. Usually, a pregnant woman does\nall that is possible to protect the health and well-being of her\nfoetus. On occasion, she may sacrifice her own health and wellbeing for the benefit of the foetus she carries. Yet it should not\nbe forgotten that the pregnant woman \xe2\x80\x93 in addition to being the\ncarrier of the foetus within her \xe2\x80\x93 is also an individual whose\nbodily integrity, privacy and autonomy rights must be protected.\n\n515\n\n\x0c25\xc2\xb6 The unique and special relationship between a mother-to-be\nand her foetus determines the outcome of this appeal. There is\nno other relationship in the realm of human existence which can\nserve as a basis for comparison. It is for this reason that there\ncan be no analogy between a child\xe2\x80\x99s action for prenatal\nnegligence brought against some third-party tortfeasor, on the\none hand, and against his or her mother, on the other. The\ninseparable unity between an expectant woman and her foetus\ndistinguishes the situation of the mother-to-be from that of a\nnegligent third-party. The biological reality is that a pregnant\nwoman and her foetus are bonded in a union. This was\nrecognized in the majority reasons of McLachlin J. in Winnipeg,\nsupra, at pp. 944\xe2\x80\x91 45:\nBefore birth the mother and unborn child are\none in the sense that \xe2\x80\x9c[t]he \xe2\x80\x98life\xe2\x80\x99 of the foetus is\nintimately connected with, and cannot be\nregarded in isolation from, the life of the\npregnant woman\xe2\x80\x9d: Paton v. United Kingdom\n(1980), 3 E.H.R.R. 408 (Comm.), at p. 415,\napplied in Re F (in utero), [[1988] 2 All E.R.\n193]. It is only after birth that the fetus assumes\na separate personality. Accordingly, the law has\nalways treated the mother and unborn child as\none. To sue a pregnant woman on behalf of her\nunborn fetus therefore posits the anomaly of\none part of a legal and physical entity suing\nitself.\n26\xc2\xb6 It was recognized in both Montreal Tramways, supra, and\nDuval, supra, that the strongest argument for imposing a duty of\ncare upon third parties towards unborn children is that tort law\nis designed to provide compensation for harm caused by\nnegligence and, to a lesser extent, to deter tortfeasors. It was\nsubmitted that to deny recognition to the type of action at issue\nin this appeal could leave an infant plaintiff without the\nprotection and compensation provided by tort law, solely\nbecause the defendant is his or her mother. Accordingly, it was\nargued that the compensatory principle should be the basis for\nthe imposition of a similar duty of care upon expectant women.\n\n516\n\n\x0c27\xc2\xb6 Yet, this argument fails to take into account the fundamental\ndifference between a mother\xe2\x80\x91 to\xe2\x80\x91 be and a third-party\ndefendant. The unique relationship between a pregnant woman\nand her foetus is so very different from the relationship with\nthird parties. Everything the pregnant woman does or fails to do\nmay have a potentially detrimental impact on her foetus.\nEverything the pregnant woman eats or drinks, and every\nphysical action she takes, may affect the foetus. Indeed, the\nfoetus is entirely dependent upon its mother-to-be. Although\nthe imposition of tort liability on a third party for prenatal\nnegligence advances the interests of both mother and child, it\ndoes not significantly impair the right of third parties to control\ntheir own lives. In contrast to the third-party defendant, a\npregnant woman\xe2\x80\x99s every waking and sleeping moment, in\nessence, her entire existence, is connected to the foetus she may\npotentially harm. If a mother were to be held liable for prenatal\nnegligence, this could render the most mundane decision taken\nin the course of her daily life as a pregnant woman subject to the\nscrutiny of the courts.\n28\xc2\xb6 Is she to be liable in tort for failing to regulate her diet to\nprovide the best nutrients for the foetus? Is she to be required\nto abstain from smoking and all alcoholic beverages? Should she\nbe found liable for failing to abstain from strenuous exercise or\nunprotected sexual activity to protect her foetus? Must she\nundertake frequent safety checks of her premises in order to\navoid falling and causing injury to the foetus? There is no\nrational and principled limit to the types of claims which may be\nbrought if such a tortious duty of care were imposed upon\npregnant women.\n29\xc2\xb6 Whether it be considered a life-giving miracle or a matter of\nharsh reality, it is the biology of the human race which decrees\nthat a pregnant woman must stand in a uniquely different\nsituation to her foetus than any third-party. The relationship\nbetween a pregnant woman and her foetus is of fundamental\nimportance to the future mother and her born alive child, to\ntheir immediate family and to our society. So far as the foetus is\nconcerned, this relationship is one of complete dependence. As\n\n517\n\n\x0cto the pregnant woman, in most circumstances, the relationship\nis marked by her complete dedication to the well-being of her\nfoetus. This dedication is profound and deep. It affects a\npregnant woman physically, psychologically and emotionally. It\nis a very significant factor in this uniquely important\nrelationship. The consequences of imposing tort liability on\nmothers for prenatal negligence raise vastly different\nconsiderations, and will have fundamentally different results,\nfrom the imposition of such liability on third parties.\n30\xc2\xb6 In Winnipeg, supra, the majority rejected an argument which\nsought to extend tort principles in order to justify the forced\nconfinement and treatment of a pregnant woman with a gluesniffing addiction, as a means of protecting her foetus.\nMcLachlin J. observed that difficult legal and social issues arise\nin examining the policy considerations under the second branch\nof the Kamloops test. First, the recognition of a duty of care owed\nby a pregnant woman to her foetus has a very real potential to\nintrude upon that woman\xe2\x80\x99s fundamental rights. Any\nintervention may create a conflict between a pregnant woman as\nan autonomous decision-maker and the foetus she carries.\nSecond, the judicial definition of an appropriate standard of care\nis fraught with insoluble problems due to the difficulty of\ndistinguishing tortious and non-tortious behaviour in the daily\nlife of an expectant woman. Third, certain so-called lifestyle\n\xe2\x80\x9cchoices\xe2\x80\x9d such as alcoholism and drug addiction may be beyond\nthe control of the pregnant woman, and hence the deterrent\nvalue of the imposition of a duty of care may be non-existent.\nLastly, the imposition of a duty of care upon a pregnant woman\ntowards her foetus could increase, to an unwarranted degree, the\nlevel of external scrutiny focussed upon her. In Winnipeg, supra,\nit was held that the lifestyle choices of a pregnant woman should\nnot be regulated because to do so would result in an\nunacceptably high degree of intrusion into her privacy and\nautonomy rights. If that is so, then it follows that negligent acts\nresulting from unreasonable lapses of attention, which may so\noften occur in the course of a pregnant woman\xe2\x80\x99s daily life,\nshould not form the basis for the imposition of tort liability on\nmothers.\n\n518\n\n\x0c31\xc2\xb6 On behalf of the infant respondent, it was argued that the\nreasoning in Winnipeg is not determinative because it dealt with\nthe standing of the foetus to sue while still in utero. In Winnipeg,\nthe foetus which sought the detention of its mother-to-be was\nnot a legal person and possessed no legal rights. By contrast, the\npresent action is brought on behalf of an infant born alive\nwhose legal rights and interests vested at the moment of birth.\nIn other words, the sole issue in this appeal is whether a child\nborn alive \xe2\x80\x91 as opposed to a foetus \xe2\x80\x91 should be able to recover\ndamages for prenatal negligence from every person except his or\nher mother. Despite the important legal distinction between a\nfoetus and a child born alive, as a matter of social policy and\npragmatic reality, both situations involve the imposition of a\nduty of care upon a pregnant woman towards either her foetus\nor her subsequently born child. To impose either duty of care\nwould require judicial scrutiny into every aspect of that woman\xe2\x80\x99s\nbehaviour during pregnancy. Irrespective of whether the duty of\ncare is imposed upon a pregnant woman towards her foetus or\nher subsequently born child, both would involve severe\nintrusions into the bodily integrity, privacy and autonomous\ndecision\xe2\x80\x91 making of that woman. Accordingly, the policy\nconcerns raised by McLachlin J. in Winnipeg are equally pertinent\nto this appeal.\n32\xc2\xb6 I am strengthened in this conclusion by the final report of\nthe Royal Commission on New Reproductive Technologies,\nProceed with Care (1993), vol. 2, which rejected judicial\ninterventions in pregnancy and birth. The Commission\nexpressed its concern with these same policy issues, and\nrecognized the need to ensure support for pregnant women and\ntheir foetuses without interfering with the privacy interests and\nphysical autonomy of those women. It articulated its position in\nthe following way (at pp. 955-56):\nPermitting judicial intervention therefore has\nserious implications for the autonomy of\nindividual women and for the status of women\ncollectively in our society. All individuals have\nthe right to make personal decisions, to control\ntheir bodily integrity, and to refuse unwanted\n\n519\n\n\x0cmedical treatment. These are not mere legal\ntechnicalities; they represent some of the most\ndeeply held values in society and form the basis\nfor fundamental and constitutional human\nrights.\n\xe2\x80\xa6\nA woman has the right to make her own\nchoices, whether they are good or bad, because\nit is the woman whose body and health are\naffected, the woman who must live with her\ndecision, and the woman who must bear the\nconsequences of that decision for the rest of her\nlife.\n33\xc2\xb6 Thus, it was the far-reaching implications for the privacy and\nautonomy rights of pregnant women which caused the\nCommission to recommend specifically that \xe2\x80\x9ccivil liability never\nbe imposed upon a woman for harm done to her fetus during\npregnancy\xe2\x80\x9d (p. 964).\n34\xc2\xb6 At trial, Miller J. observed that the existing jurisprudence\npermits recovery from third parties, and permits a child to sue\nhis or her parents for postnatal negligence. He held that to\npermit an action by a child against his mother for prenatal\nnegligence is a \xe2\x80\x9creasonable progression\xe2\x80\x9d in tort jurisprudence.\nWith respect, I believe that the imposition of a duty of care\nupon pregnant women in these circumstances cannot be\ncharacterized as a reasonable progression. Rather, in my view, it\nconstitutes a severe intrusion into the lives of pregnant women,\nwith attendant and potentially damaging effects on the family\nunit. This case raises social policy concerns of a very real\nsignificance. Indeed, they are of such magnitude that they are\nmore properly the subject of study, debate and action by the\nlegislature.\n(b) Position in the United Kingdom\n35\xc2\xb6 A similar concern with the privacy and autonomy rights of\nwomen led the Parliament of the United Kingdom to fashion a\nrule of maternal tort immunity for prenatal negligence, with a\nlimited exception for negligent driving. This legislative solution\n\n520\n\n\x0cis set out in the Congenital Disabilities (Civil Liability) Act 1976\n(U.K.), s. 1(1), and will be discussed in greater detail below.\nHowever, it should be noted at this point that, in its\nmemorandum to the U.K. Law Commission, the Bar Council\nemphasized the social policy concerns inherent in the issue on\nappeal:\nWe recognise that logic and principle dictate\nthat if a mother\xe2\x80\x99s negligent act or omission\nduring or before pregnancy causes injury to a\nfoetus, she should be liable to her child when\nborn for the wrong done. But we have no doubt\nat all that in any system of law there are areas in\nwhich logic and principle ought to yield to social\nacceptability and natural sentiment and that this\nparticular liability lies in such an area. [Emphasis\nadded.]\n(Law Com. No. 60, \xe2\x80\x9cReport on Injuries to Unborn Children\xe2\x80\x9d\nCmnd. 5709 in Law Commission Reports (1979), vol. 5, at para.\n55.)\n36\xc2\xb6 Although the law of torts has traditionally been the province\nof the courts, to impose tort liability on mothers for prenatal\nnegligence would have consequences which are impossible for\nthe courts to assess adequately. This development would involve\nextensive intrusions and frequently unpredictable effects on the\nrights of bodily integrity, privacy and autonomous\ndecision\xe2\x80\x91 making of pregnant women. The resolution of such\nfundamental policy issues is a matter best left to the legislature.\nIn the United Kingdom, it was Parliament that provided a\ncarefully tailored and minimally intrusive legislative scheme of\nmotor vehicle insurance coverage. It was designed to provide a\nmeasure of compensation for a child who sustains prenatal\ninjuries as a result of the negligent driving of his or her mother.\nYet, it provides protection for mothers by prohibiting claims\nagainst them beyond the limits of their insurance policies.\n(c) American Case Law\n37\xc2\xb6 The American cases indicate that there is no judicial\nconsensus on the issue of maternal tort liability for prenatal\n\n521\n\n\x0cnegligence, in the context of motor vehicle accidents or\notherwise. However, in Stallman v. Youngquist, 531 N.E.2d 355\n(1988), the Supreme Court of Illinois declined to recognize a\ncause of action by a foetus, subsequently born alive, against his\nor her mother for the unintentional infliction of prenatal injuries\ncaused by her negligent driving. Cunningham J. held that to\nimpose a duty of care in this context would infringe the\nmother\xe2\x80\x99s rights of privacy and bodily integrity. His decision\nemphasized the policy concerns which militate against imposing\ntort liability on mothers for prenatal negligence. He articulates\nhis position in this manner (at pp. 359-60):\nIt is clear that the recognition of a legal right to\nbegin life with a sound mind and body on the\npart of a fetus which is assertable after birth\nagainst its mother would have serious\nramifications for all women and their families,\nand for the way in which society views women\nand women\xe2\x80\x99s reproductive abilities. The\nrecognition of such a right by a fetus would\nnecessitate the recognition of a legal duty on the\npart of the woman who is the mother; a legal\nduty, as opposed to a moral duty, to effectuate\nthe best prenatal environment possible.\n...\nHolding a third person liable for prenatal\ninjuries furthers the interests of both the mother\nand the subsequently born child and does not\ninterfere with the defendant\xe2\x80\x99s right to control\nhis or her own life. Holding a mother liable for\nthe unintentional infliction of prenatal injuries\nsubjects to State scrutiny all the decisions a\nwoman must make in attempting to carry a\npregnancy to term, and infringes on her right to\nprivacy and bodily autonomy.\n...\nThe relationship between a pregnant woman\nand her fetus is unlike the relationship between\nany other plaintiff and defendant. No other\nplaintiff depends exclusively on any other\n\n522\n\n\x0cdefendant for everything necessary for life itself.\nNo other defendant must go through biological\nchanges of the most profound type, possibly at\nthe risk of her own life, in order to bring forth\nan adversary into the world. It is, after all, the\nwhole life of the pregnant woman which\nimpacts on the development of the fetus. As\nopposed to the third\xe2\x80\x91 party defendant, it is the\nmother\xe2\x80\x99s every waking and sleeping moment\nwhich, for better or worse, shapes the prenatal\nenvironment which forms the world for the\ndeveloping fetus. That this is so is not a\npregnant woman\xe2\x80\x99s fault: it is a fact of life.\n38\xc2\xb6 In the case of Bonte, supra, a child sued his mother for\ninjuries sustained as a result of her negligent failure to use a\ndesignated crosswalk when she was seven months pregnant. The\nthree\xe2\x80\x91 to\xe2\x80\x91 two split in the Supreme Court of New Hampshire,\nin favour of allowing the infant\xe2\x80\x99s cause of action to proceed, is\ntypical of the division of judicial opinion in the United States.\nThe reasons of Thayer J., for the majority, reflect those of the\ntrial judge in the instant appeal. Thayer J. recognized the infant\xe2\x80\x99s\ncause of action for the following reasons (at p. 466):\nBecause our cases hold that a child born alive\nmay maintain a cause of action against another\nfor injuries sustained while in utero, and a child\nmay sue his or her mother in tort for the\nmother\xe2\x80\x99s negligence, it follows that a child born\nalive has a cause of action against his or her\nmother for the mother\xe2\x80\x99s negligence that caused\ninjury to the child when in utero.\n39\xc2\xb6 With respect, I believe that the public policy considerations\nare paramount in this appeal.~\n40\xc2\xb6 The willingness of the trial judge and the New Brunswick\nCourt of Appeal to impose tort liability on mothers for prenatal\nnegligence appears to be based in large part on principles of tort\nlaw which, to date, have been applied solely to negligent third\nparties. The infant respondent argues that these general\nprinciples, which may result in third-party liability, may equally\n\n523\n\n\x0cresult in maternal prenatal liability. Yet, I agree with the position\nput forward by the dissent in Bonte, which was expressed as\nfollows: \xe2\x80\x9c[W]hether to subject the day\xe2\x80\x91 to\xe2\x80\x91 day decisions and\nacts of a woman concerning her pregnancy to judicial scrutiny is\nnot properly a question to be decided by a mechanical\napplication of logic\xe2\x80\x9d (p. 467).\n41\xc2\xb6 Rather, it is the policy concerns, so central to this issue,\nwhich should determine whether tort liability should be imposed\non mothers for prenatal negligence. With the greatest respect, I\nam of the view that the judgments below failed to appreciate\nfully the extensive intrusion into the privacy and autonomy\nrights of women that would be required by the imposition of\ntort liability on mothers for prenatal negligence. Such a rule of\nlaw would have profound implications and consequences for all\nCanadian women who are or may become pregnant.\n(d) Consequences of Recognizing this Cause of Action\n42\xc2\xb6 There are many circumstances in which the acts or failures\nto act of a pregnant woman may constitute negligence and result\nin injury to her foetus. A general social survey indicates that of\nall the types of accidents in which women were involved, 28\npercent occurred in motor vehicles and 21 percent occurred in\nthe home: Statistics Canada, Catalogue No. 82\xe2\x80\x91 003, Health\nReports (1995), vol. 7, No. 2, at p. 12. In addition, for hospital\nadmissions due to unintentional falls, the place of occurrence is\nthe home for 47 percent of the females who reported injuries:\nCanadian Institute for Health Information, National Trauma\nRegistry Report \xe2\x80\x93 Hospital Injury Admissions, 1995/96 (1998),\nat p. 57. If a legal duty of care is imposed upon a pregnant\nwoman towards her foetus or subsequently born child, such\naccidents, if they occur while the woman is pregnant, could be\ncharacterized as prenatal negligence and result in tort liability.\n43\xc2\xb6 Moreover, a pregnant woman will very often choose, or be\ncompelled by economic reality, to continue her employment in\norder to support and maintain, or to assist in the support and\nmaintenance, of her family. It seems clear that imposing a legal\nduty of care upon a pregnant woman would adversely affect that\nwoman\xe2\x80\x99s ability to work during pregnancy. Indeed, all of the\n\n524\n\n\x0clegal problems inherent in maternal tort liability for prenatal\nnegligence, in the context of household and highway accidents,\nare equally apparent in the workplace setting. Statistical data\nindicates that, of all the accidents in which women were injured,\n14 percent occurred in the course of employment: Health\nReports, supra, at p. 12.\n44\xc2\xb6 Whether it be in the household, on the roadways, or in the\nworkplace, the imposition of a duty of care upon a pregnant\nwoman towards her foetus or subsequently born child could\nrender that woman liable in tort, even in situations where her\nconduct could not possibly affect a third-party. A mother could\nbe held liable in tort for negligent acts or defaults, which\noccurred while she was pregnant and alone, and which\nsubsequently caused damages to her born alive child. This could\ninclude the careless performance of household activities \xe2\x80\x93 such\nas preparing meals, carrying loads of laundry, or shovelling snow\n\xe2\x80\x93 while alone in the home. It could include the negligent\noperation of any motor vehicle \xe2\x80\x93 be it for personal, family or\nwork-related purposes \xe2\x80\x93 even if no third-party could possibly be\naffected. A mother who injured her foetus in a careless fall, or\nwho had an unreasonable lapse of attention in the home, at\nwork or on the roadways, could potentially be held liable in tort\nfor the damages suffered by her born alive child. The imposition\nof tort liability in those circumstances would significantly\nundermine the privacy and autonomy rights of women.\n45\xc2\xb6 It becomes apparent that many potential acts of negligence\nare inextricably intertwined with the lifestyle choices, the familial\nroles and the working lives of pregnant women. Women alone\nbear the burdens of pregnancy. Our society collectively benefits\nfrom the remarkably important role played by pregnant women.\nThe imposition by courts of tort liability on mothers for\nprenatal negligence would restrict a pregnant woman\xe2\x80\x99s activities,\nreduce her autonomy to make decisions concerning her health,\nand have a negative impact upon her employment opportunities.\nIt would have a profound effect upon every woman, who is\npregnant or merely contemplating pregnancy, and upon\nCanadian society in general. Any imposition of such tort liability\n\n525\n\n\x0cshould be undertaken, not by the courts, but by the legislature\nafter careful study and debate.\n46\xc2\xb6 Moreover, the imposition of tort liability in this context\nwould carry psychological and emotional repercussions for a\nmother who is sued in tort by her newborn child. To impose\ntort liability on a mother for an unreasonable lapse of prenatal\ncare could have devastating consequences for the future\nrelationship between the mother and her born alive child. In\nessence, the judicial recognition of a cause of action for maternal\nprenatal negligence is an inappropriate response to the pressing\nsocial issue of caring for children with special needs. Putting a\nmother through the trauma of a public trial to determine\nwhether she was at fault for the injury suffered by her child can\nonly add emotional and psychological trauma to an already\ntragic situation.\n47\xc2\xb6 Such litigation would, in all probability, have detrimental\nconsequences, not only for the relationship between mother and\nchild, but also for the relationship between the child and his or\nher family. Yet, family harmony will be particularly important\nfor the creation of a caring and nurturing environment for the\ninjured child, who will undoubtedly require much loving\nattention. It seems clear that the well\xe2\x80\x91 being of such a child\ncannot be readily severed from the interests of his or her family.\nIn short, neither the best interests of the injured child, nor those\nof the remainder of the family, would be served by the judicial\nrecognition of the suggested cause of action.\n48\xc2\xb6 The primary purposes of tort law are to provide\ncompensation to the injured and deterrence to the tortfeasor. In\nthe ordinary course of events, the imposition of tort liability on\na mother for prenatal negligence would provide neither\ncompensation nor deterrence. The pressing societal issue at the\nheart of this appeal is the lack of financial support currently\navailable for the care of children with special needs. The\nimposition of a legal duty of care on a pregnant woman towards\nher foetus or subsequently born child will not solve this\nproblem. If anything, attempting to address this social problem\nin a litigious setting would merely exacerbate the pain and\n\n526\n\n\x0ctrauma of a tragic situation. It may well be that carefully\nconsidered legislation could create a fund to compensate\nchildren with prenatally inflicted injuries. Alternatively,\namendments to the motor vehicle insurance laws could achieve\nthe same result in a more limited context. If, as a society,\nCanadians believe that children who sustain damages as a result\nof maternal prenatal negligence should be financially\ncompensated, then the solution should be formulated, after\ncareful study and debate, by the legislature.\nJustice JOHN C. MAJOR, dissenting:\n91\xc2\xb6 ~On March 14, 1993, the appellant Cynthia Dobson was\ndriving a motor vehicle towards Moncton, New Brunswick, on\nRoute 126. There were patches of drifted snow and slush on\nthe road and the weather was unsettled. At approximately 12:30\np.m., her vehicle collided with that of John Carter. Cynthia\nDobson was 27 weeks pregnant. The respondent Ryan Dobson\nwas born by Caesarean section later the same day. He suffered\ninjuries in the collision resulting in permanent mental and\nphysical impairment, including cerebral palsy, and alleges that\nthe collision was caused by his mother\xe2\x80\x99s negligent driving.\n92\xc2\xb6 The issue is whether a born alive child has the legal capacity\nto commence a tort action against his mother for prenatal\ninjuries sustained as a result of her alleged negligent driving.\n93\xc2\xb6 The trial judge granted the respondent standing to sue. He\nreasoned that since a child has a right to sue his parents in tort\n(Deziel v. Deziel, [1953] 1 D.L.R. 651 (Ont. H.C.)), and since a\nborn alive child has a right to sue third parties in tort for injuries\nsustained in utero (Montreal Tramways Co. v. L\xc3\xa9veill\xc3\xa9, [1933] S.C.R.\n456; Duval v. Seguin, [1972] 2 O.R. 686 (H.C.), aff\xe2\x80\x99d (1973), 1\nO.R. (2d) 482 (C.A.), it follows that a born alive child has a right\nto sue his mother in tort for injuries sustained in utero.~\n130\xc2\xb6 To grant a pregnant woman immunity from the reasonably\nforeseeable consequences of her acts for her born alive child\nwould create a legal distortion as no other plaintiff carries such\na one-sided burden, nor any defendant such an advantage.\n\n527\n\n\x0c131\xc2\xb6 Aside from a pregnant woman\xe2\x80\x99s autonomy interests, there\nmay be policy considerations flowing from concerns about the\nappropriateness of intra-familial litigation that may be sufficient\nto negative any child\xe2\x80\x99s right to sue its parents in tort. The\nconsiderations, however, must apply to all members of the\ndefined family unit. The conclusion that such concerns only bar\ntort action brought by born alive children who sustained injuries\nwhile still in utero is not justified.\n132\xc2\xb6 As no policy concerns sufficient to negative the child\xe2\x80\x99s\nright to sue arise on the facts of this case, the born alive\nrespondent has the legal capacity to commence a tort action\nagainst his appellant mother for prenatal injuries allegedly\nsustained as a result of her negligent driving.\n133\xc2\xb6 Under the direction given by the majority in Winnipeg,\nsupra, it is my opinion that the removal of Ryan Dobson\xe2\x80\x99s right\nto sue in tort for negligent violations of his physical integrity lies\nwithin the exclusive purview of the legislature, subject to the\nlimits imposed by the Canadian Charter of Rights and\nFreedoms.\n134\xc2\xb6 I would dismiss this appeal.\n\nQuestions to Ponder About Dobson v. Dobson\nA. What strikes you as different about Canadian jurisprudence? What\nis the same?\nB. Can one side or the other be said to be \xe2\x80\x9cjudicially activist\xe2\x80\x9d in\nDobson? If so, which one?\n\n528\n\n\x0cPart VIII: Oblique Torts\n\n529\n\n\x0c30. Transactional Torts\n\xe2\x80\x9cIn business, sir, one has no friends, only correspondents.\xe2\x80\x9d\n\xe2\x80\x93 Alexandre Dumas\n\nIntroduction\nIn this chapter we look at torts that arise in the context of business\ntransactions. These are often called \xe2\x80\x9cbusiness torts,\xe2\x80\x9d although\nbusinesses deal with all torts, from negligence to defamation. What\nmakes these torts unique is that they are tied to deals and transactions\n\xe2\x80\x93 the business of business, if you like. We will see buyers suing sellers,\nlawyers suing accountants, and sports agents suing sports agents. As\nopposed to the personal injury torts we have been exploring, the\nprimary harm here is economic. But that is not to say things don\xe2\x80\x99t get\npersonal. Transactional-tort cases frequently involve a surprising\namount of spite and pique \xe2\x80\x93 something you will see in the cases\nbelow.\nThere are a variety of causes of action that could fall under the\numbrella of transactional torts, but this chapter covers a few\nparticularly important ones: intentional economic interference, fraud,\nand breach of fiduciary duty. They are all torts that pick up where\ncontract law leaves off in defining the legal landscape for conducting\ncommerce.\nFor all transactional torts, it is important to keep in mind the\noverarching default rule: Where the gravamen of the plaintiff\xe2\x80\x99s\ncomplaint is that a contract has been breached, then the plaintiff\xe2\x80\x99s\nonly remedy is breach of contract. Tort law is not supposed to\ninterfere in the contractual context \xe2\x80\x93 at least not unless the rationale\nis highly compelling. But that is not to say that these torts are\ninfrequently alleged. For plaintiffs in business disputes, tort law has\ngreat allure. Tort law\xe2\x80\x99s concepts of compensatory damages are more\nexpansive than those under contract law. Plus, for real bad apples,\nthere is the possibility of punitive damages. And business disputes\noften turn up bad apples. Also, plaintiffs going to trial on a tort may\n\n530\n\n\x0cbenefit from a strategic advantage. In a regular contract dispute,\nevidence that makes the defendant look bad is likely to be irrelevant,\nand therefore inadmissible. But if a tort is alleged, the plaintiff\xe2\x80\x99s\nlawyers may be able to put before the jury all sorts of disparaging\nevidence because it is relevant to showing tortious intent.\nBecause of these advantages, plaintiffs are always looking for ways to\ntortify contract disputes. And that means courts are always looking\nfor ways to keep this drive toward tortification from getting out of\nhand. In fact, one theme that runs through the doctrines of\nintentional economic interference, fraud, and breach of fiduciary\nduty, is the existence of safeguards put into the doctrine that are\nmeant to prevent workaday contract disputes from morphing into\nmudslinging tort litigation.\n\nIntentional Economic Interference\nThe idea behind the cause of action for intentional economic\ninterference is that a person should be free to seek economic\nopportunities without being impeded by intermeddling ne\xe2\x80\x99er-dowells.\nSuppose I manage to get a contract with my neighbors to mow their\nlawn \xe2\x80\x93 something that will give me enough cash to go to the movies\nand buy a few new video games. Yet you \xe2\x80\x93 just because you want to\nsee me fail \xe2\x80\x93 work to destroy my nascent lawn mowing business, and\nyou manage to cause my neighbors to terminate my services.\nAt this point, I can sue you for intentional economic interference.\nBut we should stop to wonder why I would need such a cause of\naction to sue you. Most of the things you could do to sabotage me\nare already tortious. For instance, you could tell lies about me that\nwould cause my neighbor to fire me. You could steal my lawn\nmower. Or you could put sugar in the mower\xe2\x80\x99s gas tank. If you do all\nthat to me, I can sue you for intentional economic interference, but I\ncan also sue you for defamation, trespass to chattels, and conversion.\nSo the question is, why does tort law need an independent cause of\naction for intentional economic interference?\n\n531\n\n\x0cThe true value of the intentional economic interference tort shows its\nworth when something particularly sneaky is afoot. Say you convince\nyour little brother and sister to go over to play with the neighbors\xe2\x80\x99\nkids and convince them to host an elaborate tea party on the lawn\nduring what you know to be the only hours I have free to get the\nmowing done. Let\xe2\x80\x99s say you do this two weeks in a row, at which\npoint the neighbors terminate my services because I\xe2\x80\x99m not getting the\njob done. In such a situation, I would have no claim for trespass,\nconversion, or defamation, but my claim for intentional economic\ninterference will let me in the courthouse doors.\nInstead of having a single tort of \xe2\x80\x9cintentional economic\ninterference,\xe2\x80\x9d many jurisdictions have two causes of action: the tort\nof intentional interference with contract and the separate tort of\nintentional interference with prospective economic advantage.\nBoth torts are essentially the same, except that with the former, there\nis a contract between the plaintiff and a third party. With the later,\nthere would have been a contract but for the defendant\xe2\x80\x99s actions.\nHere is a statement of the blackletter rule for intentional economic\ninterference:\nA plaintiff can establish a prima facie case for\nintentional economic interference by\nshowing: (1) there is a valid contract or nonspeculative economic expectancy between the\nplaintiff and a third party; (2) the defendant had\nknowledge of this economic interest; (3) the\ndefendant intended to interfere with this\neconomic interest; (4) but for the interference,\nthe plaintiff would have received the benefit of\nthe economic interest; and (5) the plaintiff\nthereby accrued damages.\n\nThese elements are mostly self-explanatory, but a few observations\nshould be made.\nFirst, it bears emphasis that the economic interest (the contract or\nprospective economic advantage) must arise between the plaintiff and\na third party \xe2\x80\x93 that is, someone who is not the defendant. If the\ndefendant backs out of a contract, the remedy is breach of contract.\n\n532\n\n\x0cTort law will not enter the mix. Another way of putting this is that a\ndefendant cannot interfere with its own contract \xe2\x80\x93 it can merely\nbreach it.\nAlthough it may not be apparent at first glance, the blackletter\nformulation of intentional economic interference is very expansive.\nThe fact is that competitors try to deny each other economic interests\nall the time. Check the elements above, and you\xe2\x80\x99ll see, for instance,\nthat a car dealer undercutting a competitor\xe2\x80\x99s price could be\nactionable. But that\xe2\x80\x99s the essence of our free-market economy, and\nwe don\xe2\x80\x99t want it to be deemed tortious. Another vast category of\nconduct that could be swept up into the scope of the prima facie case\nfor intentional economic interference is what attorneys do: Give\nadvice. Suppose a client asks you for a mixture of business and legal\njudgment about whether she or he should back out of a deal. Taking\naccount of the legal liabilities and the business ramifications, you\nadvise your client to do just that, and your client follows your advice.\nCheck the elements above: That qualifies as a prima facie case. And\nyet we don\xe2\x80\x99t want attorney advice to be considered tortious.\nBecause of the overinclusive scope of the prima facie case for\nintentional economic interference, much of the doctrinal work is\ndone in the form of affirmative defenses, in particular the nebulous\nand wide-ranging concepts of \xe2\x80\x9cprivileges\xe2\x80\x9d and \xe2\x80\x9cjustifications.\xe2\x80\x9d Bonafide competition, for instance, is considered a justification. Bona-fide\nbusiness or legal advice is also considered a justification \xe2\x80\x93 although\nunder some formulations, the advice must be asked for. Other\njustifications include having a financial interest in the matter or being\nin a position of responsibility for the welfare of the third party.\nCourts generally have wide latitude in determining whether to find\nconduct privileged or justified, and courts are expected to take public\npolicy concerns into account in making that determination.\nThe fact that ill-defined defenses are so heavily relied upon to give\nshape to the doctrine of intentional economic interference means\nthat even a losing claim can have legs in litigation. Since justifications\nare fact-intensive affirmative defenses, it follows that they generally\ncannot be used at the pleadings stage. This means that even a losing\nclaim for intentional economic interference can have considerable\n\n533\n\n\x0cstrategic value in litigation. Until it can be knocked out on summary\njudgment, it can permit discovery into otherwise irrelevant matters,\ndrive up expense, and give defendants an extra incentive to settle.\nCase: Calbom v. Knudtzon\nThis intentional economic interference case pits accountants against a\nlawyer.\n\nCalbom v. Knudtzon\nSupreme Court of Washington\nOctober 29, 1964\n65 Wn.2d 157. HARRY B. CALBOM, JR., Respondent, v.\nHALVOR KNUDTZON, SR. et al., Appellants. No. 37076.\nJustice ORRIS L. HAMILTON:\nPlaintiff (respondent) instituted this action seeking recovery of\ndamages upon the grounds that defendants (appellants) had\ninterferred with and induced a breach of an attorney-client\nrelationship. Defendants appeal from an adverse judgment.\nOn May 1, 1958, K.T. Henderson, sole proprietor of a\nsuccessful general contracting business, unexpectedly died of a\nheart attack. His death created pressing problems pertaining to\nthe continuing operations of his business. Mrs. Jessie Bridges,\nMr. Henderson\xe2\x80\x99s office manager, immediately contacted\nplaintiff, who was personally acquainted with the Hendersons\nand who, as a practicing attorney, had served them occasionally.\nPlaintiff, in substance, advised Mrs. Bridges that before he could\nintelligently give counsel he would have to know whether Mr.\nHenderson left a will and, if so, who was named as executor or\nexecutrix therein, and the provisions thereof. Mrs. Bridges then\ncontacted Mrs. Henderson and a meeting was arranged between\nplaintiff, Mrs. Henderson, and Mrs. Bridges. At this meeting, it\nwas disclosed that Mr. Henderson had left a will naming Mrs.\nHenderson his executrix, and that she desired to continue the\nbusiness. She requested that plaintiff make arrangements to\ncarry out her wishes.\n\n534\n\n\x0cPlaintiff prepared the necessary papers and at 4 p.m. on May 1,\n1958, appeared with Mrs. Henderson and Mrs. Bridges before\nthe Superior Court of Cowlitz County, at which time the will\nwas offered for probate, Mrs. Henderson designated as\nexecutrix, and an order authorizing continuance of the business\nwas entered. The following day, Mrs. Henderson was fully\nqualified as executrix and, with plaintiff\xe2\x80\x99s assistance, accounts at\nthe bank were adjusted whereby business obligations, including\nthe payroll of the business then due, were met, and a letter\nrelating to and confirming an outstanding bid to a local school\ndistrict for school construction dispatched. Plaintiff prepared to\nperfect and continue probate of the estate.\nOn May 6th, it was necessary for plaintiff to go to California.\nBefore leaving, he checked with Mrs. Bridges to ascertain any\nimmediate needs, and was informed there was none. Between\nMay 6th and May 8th, Halvor Knudtzon, Sr., the senior member\nof the firm of Knudtzon and Associates, certified public\naccountants, returned from a trip. On May 8th, he was\nconsulted by Mrs. Henderson relative to performing the tax\nwork in connection with the estate. At this meeting, Mr.\nKnudtzon inquired of Mrs. Henderson if she had selected an\nattorney, to which she replied \xe2\x80\x9cYes, I suppose Harry Calbom.\xe2\x80\x9d\nWhereupon, Mr. Knudtzon shook his head and indicated, by\ninference at least, that plaintiff was unsatisfactory. Mr.\nKnudtzon thereupon recommended a list of attorneys from\nwhich one was selected.\nOn May 9th, plaintiff returned and was advised by Mrs. Bridges\nthat another attorney was handling the probate matter.\nThereupon, he contacted Mr. Knudtzon, Sr., and requested a\nmeeting, which was arranged for that morning. Mr. Knudtzon,\nwho was at home when contacted by plaintiff, telephoned his\nson at the office and advised him that plaintiff was coming in to\nconfer with them, and that they would give him \xe2\x80\x9ca line of hot\nair.\xe2\x80\x9d When confronted by plaintiff at their office, plaintiff was\nadvised by Mr. Knudtzon, Sr., that they, as accountants, hired\nand fired attorneys for their clients and made reference to a\nformer probate matter in which they had been instrumental in\ndischarging the attorney.\n\n535\n\n\x0cSubsequently, an effort was made to pay plaintiff for services he\nhad performed and secure his signature upon a notice of\nsubstitution of attorneys. Plaintiff refused to submit a bill for his\nservices up to the time of his termination, refused to agree to a\nsubstitution of attorneys, and instituted the present action\nagainst the defendants alleging intentional interference with\nplaintiff\xe2\x80\x99s employment contract.\nTrial of the action consumed several days, at the conclusion of\nwhich the trial court rendered an oral decision in favor of\nplaintiff and thereafter entered findings of fact, conclusions of\nlaw, and judgment. The essence of the trial court\xe2\x80\x99s findings\nwere: (a) Plaintiff was an ethical, reputable, and competent\nattorney; (b) plaintiff had a contract with the surviving widow to\nprobate the estate of K.T. Henderson, pursuant to which\nplaintiff undertook performance of the probate proceedings; (c)\ndefendants, with knowledge of plaintiff\xe2\x80\x99s contract of\nemployment, intentionally, maliciously, and without justification\ninduced the surviving widow to discharge plaintiff as attorney\nfor the estate, and (d) plaintiff suffered damage in the amount of\nthe reasonable attorney\xe2\x80\x99s fee he would have earned had he\ncontinued to the conclusion of the probate.~\nIntentional and unjustified third-party interference with valid\ncontractual relations or business expectancies constitutes a tort,\nwith its taproot embedded in early decisions of the courts of\nEngland~.\nThe fundamental premise of the tort \xe2\x80\x93 that a person has a right\nto pursue his valid contractual and business expectancies\nunmolested by the wrongful and officious intermeddling of a\nthird party \xe2\x80\x93 has been crystallized and defined in Restatement,\nTorts \xc2\xa7 766, as follows:\nExcept as stated in Section 698 [betrothal\npromises], one who, without a privilege to do\nso, induces or otherwise purposely causes a\nthird person not to\n(a) perform a contract with another, or\n\n536\n\n\x0c(b) enter into or continue a business relation\nwith another\nis liable to the other for the harm caused\nthereby.\nClause (a) relates to those cases in which the purposeful\ninterference of a third party induces or causes a breach of an\nexisting and valid contract relationship. Clause (b) embraces two\ntypes of situations. One is that in which the interferor purposely\ninduces or causes a party not to enter into a business\nrelationship with another. The second is where a business\nrelationship, terminable at the will of the parties thereto, exists,\nand the intermeddler purposely induces or causes a termination\nof such relationship. The distinction between the situations\npropounded by clauses (a) and (b) lies not so much in the nature\nof the wrong, as in the existence or nonexistence, and\navailability as a defense, of privilege or justification for the\ninterference. Restatement, Torts \xc2\xa7 766, Comment c.\nThe basic elements going into a prima facie establishment of the\ntort are (1) the existence of a valid contractual relationship or\nbusiness expectancy; (2) knowledge of the relationship or\nexpectancy on the part of the interferor; (3) intentional\ninterference inducing or causing a breach or termination of the\nrelationship or expectancy; and (4) resultant damage to the party\nwhose relationship or expectancy has been disrupted. Ill will,\nspite, defamation, fraud, force, or coercion, on the part of the\ninterferor, are not essential ingredients, although such may be\nshown for such bearing as they may have upon the defense of\nprivilege.\nThe burden of showing privilege for interference with the\nexpectancy involved rests upon the interferor. The basic issue\nraised by the assertion of the defense is whether, under the\ncircumstances of the particular case, the interferor\xe2\x80\x99s conduct is\njustifiable, bearing in mind such factors as the nature of the\ninterferor\xe2\x80\x99s conduct, the character of the expectancy with which\nthe conduct interferes, the relationship between the various\nparties, the interest sought to be advanced by the interferor, and\nthe social desirability of protecting the expectancy or the\n\n537\n\n\x0cinterferor\xe2\x80\x99s freedom of action. Some of the privileges and their\nlimitations, which have been recognized, depending upon the\ncircumstances and the factors involved, are legitimate business\ncompetition, financial interest, responsibility for the welfare of\nanother, directing business policy, and the giving of requested\nadvice.\nAgainst the backdrop of the foregoing, we turn to defendants\xe2\x80\x99\ncontentions.\nDefendants first assert that the evidence does not support the\ntrial court\xe2\x80\x99s finding concerning the existence of an attorneyclient relationship between plaintiff and Mrs. Henderson\nwhereby plaintiff would undertake the \xe2\x80\x9clong term\xe2\x80\x9d probate of\nthe estate. This assertion is predicated upon the argument that\nthe testimony of Mrs. Henderson and Mrs. Bridges, coupled\nwith the surrounding circumstances, indicate that Mrs.\nHenderson only intended to engage plaintiff\xe2\x80\x99s services for the\nlimited purpose of admitting the will to probate and securing an\norder authorizing continuation of the business.\nWe agree that the evidence presented by defendants upon this\npoint is susceptible of the interpretation defendants would place\nupon it. However, such is not the only interpretation finding\nsupport in the evidence as a whole. The evidence reveals that at\nthe meeting on May 1, 1958, after plaintiff had explained the\nnecessity for probate proceedings, Mrs. Henderson stated to\nplaintiff she wanted him to \xe2\x80\x9chandle this thing for me.\xe2\x80\x9d Plaintiff\nthereupon prepared all papers incidental to the admission of the\nwill to probate; arranged for the testimony of the witnesses to\nthe will; appeared in court and presented the testimony of Mrs.\nHenderson, Mrs. Bridges, and the witnesses to the will; provided\nfor, counseled, and participated in arrangements to meet\npending business obligations; and, to all intents and purposes,\nbecame the attorney in fact and of record for the estate.\nAlthough the relationship thus established was terminable at the\nwill of the parties, we are convinced the evidence and the\nreasonable inferences therefrom amply support the trial court\xe2\x80\x99s\nfinding of an existing attorney-client relationship which plaintiff\n\n538\n\n\x0chad every right to anticipate would continue, and which would\nhave continued but for the intervention of defendants.~\nDefendants next assert that the evidence does not support the\ntrial court\xe2\x80\x99s finding that they had knowledge of the existence of\nthe attorney-client relationship in issue. Here again, the evidence\nand the inferences therefrom produce a conflict. On the one\nhand, defendants claim they were advised by Mrs. Bridges that\nplaintiff\xe2\x80\x99s employment was limited. On the other hand,\nplaintiff\xe2\x80\x99s evidence indicates that defendants were not only\naware of plaintiff\xe2\x80\x99s position as attorney in fact and of record for\nthe estate, but in fact boasted of their ability to terminate that\nrelationship. Additional evidence supportive of plaintiff\xe2\x80\x99s\nversion is the admission of defendants that they determined to\ngive plaintiff a \xe2\x80\x9cline of hot air\xe2\x80\x9d when he called upon them,\nrather than rely upon what they now assert was their knowledge\nof his status in the estate.\nAlthough knowledge of the existence of the business\nrelationship in issue is an essential element in establishing\nliability for interference therewith, it is sufficient if the evidence\nreveals that the alleged interferor had knowledge of facts giving\nrise to the existence of the relationship. It is not necessary that\nthe interferor understand the legal significance of such facts.\nWe are satisfied that the evidence presented supports the trial\ncourt\xe2\x80\x99s finding of the requisite knowledge of the circumstances\non the part of defendants.~\nDefendants next contention is that plaintiff's employment as\nattorney for the estate created a conflict of interest with his\nduties as a member of the local school board, and was,\ntherefore, contrary to public policy and invalid. This is\npredicated upon the fact that the Henderson Construction\nCompany had pending before the school board a bid for school\nconstruction at the time plaintiff initiated the probate\nproceedings.\nWe find no merit in this contention because (a) plaintiff stepped\ndown from the school board at the time it considered the bid;\n(b) the board did not consider the bid until May 12, 1958, at\n\n539\n\n\x0cwhich time plaintiff's services with the estate had been\nterminated; (c) the board, upon advice of the prosecuting\nattorney, rejected the bid; and (d) neither plaintiff nor his\nsuccessor represented the estate before the school board. It is\npossible that had plaintiff continued as counsel for the estate he\nwould have been confronted with a choice between his position\nupon the school board and as attorney for the estate. The fact is,\nhowever, that he was not afforded this opportunity, and\nspeculation that he might have made a wrong choice cannot\nnow form the basis of a declaration that his continued\nemployment as attorney for the estate would have been invalid.\nParticularly is this so in the face of the unchallenged finding by\nthe trial court that plaintiff acted \xe2\x80\x9cat all times herein material \xe2\x80\xa6\nwith the highest degree of integrity consistent with the\nprofessional ethics of an attorney at law.\xe2\x80\x9d\nDefendants next contend that their interference with plaintiff\xe2\x80\x99s\nrelationship to the estate was privileged. Defendants predicate\nthis assertion upon the claim that they occupied a confidential\nrelationship with Mrs. Henderson by virtue of their long time\nservice to the Hendersons as tax consultants. In essence,\ndefendants rely upon the privileges capsulized in Restatement,\nTorts \xc2\xa7\xc2\xa7 770 and 772, or a combination thereof.\n\xef\x81\x81\n\n\xe2\x80\x98One who is charged with responsibility for\nthe welfare of another is privileged purposely to\ncause him not to perform a contract, or enter\ninto or continue a business relation, with a third\nperson if the actor \xe2\x80\x98(a) does not employ\nimproper means and \xe2\x80\x98(b) acts to protect the\nwelfare of the other.\xe2\x80\x99 Restatement, Torts \xc2\xa7\n770.2\xef\x81\x80\n\xef\x81\x81\n\n\xe2\x80\x98One is privileged purposely to cause another\nnot to perform a contract, or enter into or\ncontinue a business relation, with a third person\nby giving honest advice to the other within the\nscope of a request for advice made by him,\nexcept that, if the actor is under a special duty to\nthe third person with reference to the accuracy\n\n540\n\n\x0cof the advice, he is subject to liability for breach\nof that duty.\xe2\x80\x99 Restatement, Torts \xc2\xa7 772.\xef\x81\x80\nThe basic reason supporting both of the mentioned privileges is\nthe protection of public and private interests in freedom of\ncommunication, decent conduct, and professional as well as lay\ncounsel. Such privileges, however, do not justify officious, selfserving, or presumptious assumption of responsibility and\ninterference with the rights of others. The burden of\nestablishing the existence of such a privilege or privileges rests,\nas heretofore indicated, upon the one asserting justification\nthereby.\nWe are satisfied, from our examination of the record, that\ndefendants have not sustained their burden of proof. Suffice it\nto say the evidence supports the trial court\xe2\x80\x99s finding that\ndefendants\xe2\x80\x99 interference was malicious, intentional and without\njustification.\n\nQuestions to Ponder About Calbom v. Kundtzon\nA. Are you surprised by the result here \xe2\x80\x93 that an accountant\xe2\x80\x99s shaking\nhis head and suggesting other attorneys caused him to incur liability\nfor intentional economic interference?\nB. Of what significance is it that the Knudtzons decided to give\nCalbom \xe2\x80\x9ca line of hot air\xe2\x80\x9d and that they bragged about hiring and\nfiring attorneys?\nC. Issues of privilege or justification are supposed to take into\naccount \xe2\x80\x9cthe social desirability of protecting the expectancy or the\ninterferor\xe2\x80\x99s freedom of action.\xe2\x80\x9d Which way does that cut here?\nD. Was Knudtzon disadvantaged by the fact that he was an\naccountant while Calbom was a lawyer? After all, judges decide cases,\nand judges are lawyers. Suppose this case had been decided by a\nboard of accountants reviewing Knudtzon on professional ethics\ncharges? And suppose the rule he was alleged to have violated was\nthe same in substance as the cause of action for intentional economic\ninterference. Do you think Knudtzon would be vindicated or\ndisciplined?\n\n541\n\n\x0cE. Could Knudtzon have done anything to protect himself with\nregard to tort liability while still giving his advice to Mrs. Henderson?\nCase: Speakers of Sport v. ProServ\nThe next case presents an example of a claim for intentional\neconomic interference in the sports-agency context.\n\nSpeakers of Sport v. ProServ\nUnited States Court of Appeals for the Seventh Circuit\nMay 13, 1999\n178 F.3d 862. SPEAKERS OF SPORT, INC., PlaintiffAppellant, v. PROSERV, INC., Defendant-Appellee. No. 983113. Before POSNER, Chief Judge, and FLAUM and\nMANION, Circuit Judges.\nChief Judge RICHARD A. POSNER:\nThe plaintiff, Speakers of Sport, appeals from the grant of\nsummary judgment to the defendant, ProServ, in a diversity suit\nin which one sports agency has charged another with tortious\ninterference with a business relationship and related violations\nof Illinois law. The essential facts, construed as favorably to the\nplaintiff as the record will permit, are as follows. Ivan\nRodriguez, a highly successful catcher with the Texas Rangers\nbaseball team, in 1991 signed the first of several one-year\ncontracts making Speakers his agent. ProServ wanted to expand\nits representation of baseball players and to this end invited\nRodriguez to its office in Washington and there promised that it\nwould get him between $2 and $4 million in endorsements if he\nsigned with ProServ \xe2\x80\x93 which he did, terminating his contract\n(which was terminable at will) with Speakers. This was in 1995.\nProServ failed to obtain significant endorsement for Rodriguez\nand after just one year he switched to another agent who the\nfollowing year landed him a five-year $42 million contract with\nthe Rangers. Speakers brought this suit a few months later,\ncharging that the promise of endorsements that ProServ had\nmade to Rodriguez was fraudulent and had induced him to\nterminate his contract with Speakers.\n\n542\n\n\x0cThe parties agree that the substantive issues in this diversity suit\nare governed by Illinois law, and we do not look behind such\nagreements so long as they are reasonable~.\nSpeakers could not sue Rodriguez for breach of contract,\nbecause he had not broken their contract, which was, as we said,\nterminable at will. Nor, therefore, could it accuse ProServ of\ninducing a breach of contract, as in J.D. Edwards & Co. v. Podany,\n168 F.3d 1020, 1022 (7th Cir.1999). But Speakers did have a\ncontract with Rodriguez, and inducing the termination of a\ncontract, even when the termination is not a breach because the\ncontract is terminable at will, can still be actionable under the\ntort law of Illinois, either as an interference with prospective\neconomic advantage, or as an interference with the contract at\nwill itself. Nothing turns on the difference in characterization.\nThere is in general nothing wrong with one sports agent trying\nto take a client from another if this can be done without\nprecipitating a breach of contract. That is the process known as\ncompetition, which though painful, fierce, frequently ruthless,\nsometimes Darwinian in its pitilessness, is the cornerstone of\nour highly successful economic system. Competition is not a\ntort, but on the contrary provides a defense (the \xe2\x80\x9ccompetitor\xe2\x80\x99s\nprivilege\xe2\x80\x9d) to the tort of improper interference. It does not\nprivilege inducing a breach of contract, \xe2\x80\x93 conduct usefully\nregarded as a separate tort from interfering with a business\nrelationship without precipitating an actual breach of contract \xe2\x80\x93\nbut it does privilege inducing the lawful termination of a\ncontract that is terminable at will. Sellers (including agents, who\nare sellers of services) do not \xe2\x80\x9cown\xe2\x80\x9d their customers, at least not\nwithout a contract with them that is not terminable at will.\nThere would be few more effective inhibitors of the competitive\nprocess than making it a tort for an agent to promise the client\nof another agent to do better by him, \xe2\x80\x93 which is pretty much\nwhat this case comes down to. It is true that Speakers argues\nonly that the competitor may not make a promise that he knows\nhe cannot fulfill, may not, that is, compete by fraud. Because the\ncompetitor\xe2\x80\x99s privilege does not include a right to get business\nfrom a competitor by means of fraud, it is hard to quarrel with\n\n543\n\n\x0cthis position in the abstract, but the practicalities are different. If\nthe argument were accepted and the new agent made a promise\nthat was not fulfilled, the old agent would have a shot at\nconvincing a jury that the new agent had known from the start\nthat he couldn\xe2\x80\x99t deliver on the promise. Once a case gets to the\njury, all bets are off. The practical consequence of Speakers\xe2\x80\x99\napproach, therefore, would be that a sports agent who lured\naway the client of another agent with a promise to do better by\nhim would be running a grave legal risk.\nThis threat to the competitive process is blocked by the\nprinciple of Illinois law that promissory fraud is not actionable\nunless it is part of a scheme to defraud, that is, unless it is one\nelement of a pattern of fraudulent acts. By requiring that the\nplaintiff show a pattern, by thus not letting him rest on proving\na single promise, the law reduces the likelihood of a spurious\nsuit; for a series of unfulfilled promises is better (though of\ncourse not conclusive) evidence of fraud than a single unfulfilled\npromise.\nCriticized for vagueness, and rejected in most states, the Illinois\nrule yet makes sense in a case like this, if only as a filter against\nefforts to use the legal process to stifle competition. Consider in\nthis connection the characterization by Speakers\xe2\x80\x99 own chairman\nof ProServ\xe2\x80\x99s promise to Rodriguez as \xe2\x80\x9cpure fantasy and gross\nexaggeration\xe2\x80\x9d \xe2\x80\x93 in other words, as puffing. Puffing in the usual\nsense signifies meaningless superlatives that no reasonable\nperson would take seriously, and so it is not actionable as fraud.\nRodriguez thus could not have sued ProServ (and has not\nattempted to) in respect of the promise of $2\xe2\x80\x93$4 million in\nendorsements. If Rodriguez thus was not wronged, we do not\nunderstand on what theory Speakers can complain that ProServ\ncompeted with it unfairly.\nThe promise of endorsements was puffing not in the most\ncommon sense of a cascade of extravagant adjectives but in the\nequally valid sense of a sales pitch that is intended, and that a\nreasonable person in the position of the \xe2\x80\x9cpromisee\xe2\x80\x9d would\nunderstand, to be aspirational rather than enforceable \xe2\x80\x93 an\nexpression of hope rather than a commitment. It is not as if\n\n544\n\n\x0cProServ proposed to employ Rodriguez and pay him $2 million\na year. That would be the kind of promise that could found an\nenforceable obligation. ProServ proposed merely to get him\nendorsements of at least that amount. They would of course be\npaid by the companies whose products Rodriguez endorsed,\nrather than by ProServ. ProServ could not force them to pay\nRodriguez, and it is not contended that he understood ProServ\nto be warranting a minimum level of endorsements in the sense\nthat if they were not forthcoming ProServ would be legally\nobligated to make up the difference to him.\nIt is possible to make a binding promise of something over\nwhich one has no control; such a promise is called a warranty.\nBut it is not plausible that this is what ProServ was doing \xe2\x80\x93 that\nit was guaranteeing Rodriguez a minimum of $2 million a year in\noutside earnings if he signed with it. The only reasonable\nmeaning to attach to ProServ\xe2\x80\x99s so-called promise is that ProServ\nwould try to get as many endorsements as possible for\nRodriguez and that it was optimistic that it could get him at least\n$2 million worth of them. So understood, the \xe2\x80\x9cpromise\xe2\x80\x9d was\nnot a promise at all. But even if it was a promise (or a warranty),\nit cannot be the basis for a finding of fraud because it was not\npart of a scheme to defraud evidenced by more than the\nallegedly fraudulent promise itself.\nIt can be argued, however, that competition can be tortious even\nif it does not involve an actionable fraud (which in Illinois\nwould not include a fraudulent promise) or other independently\ntortious act, such as defamation, or trademark or patent\ninfringement, or a theft of a trade secret; that competitors\nshould not be allowed to use \xe2\x80\x9cunfair\xe2\x80\x9d tactics; and that a promise\nknown by the promisor when made to be unfulfillable is such a\ntactic, especially when used on a relatively unsophisticated, albeit\nvery well to do, baseball player. Considerable support for this\nview can be found in the case law. The doctrine\xe2\x80\x99s conception of\nwrongful competition is vague \xe2\x80\x93 \xe2\x80\x9dwrongful by reason of ... an\nestablished standard of a trade or profession,\xe2\x80\x9d or \xe2\x80\x9ca violation of\nrecognized ethical rules or established customs or practices in\nthe business community,\xe2\x80\x9d or \xe2\x80\x9cimproper because they [the\nchallenged competitive tactics] violate an established standard of\n\n545\n\n\x0ca trade or profession, or involve unethical conduct, ... sharp\ndealing[, or] overreaching.\xe2\x80\x9d Worse, the established standards of\na trade or profession in regard to competition, and its ideas of\nunethical competitive conduct, are likely to reflect a desire to\nlimit competition for reasons related to the self-interest of the\ntrade or profession rather than to the welfare of its customers or\nclients. We agree with Professor Perlman that the tort of\ninterference with business relationships should be confined to\ncases in which the defendant employed unlawful means to stiff a\ncompetitor, Harvey S. Perlman, \xe2\x80\x9cInterference With Contract\nand Other Economic Expectancies: A Clash of Tort and\nContract Doctrine,\xe2\x80\x9d 49 U. Chi. L.Rev. 61 (1982), and we are\nreassured by the conclusion of his careful analysis that the case\nlaw is generally consistent with this position as a matter of\noutcomes as distinct from articulation.\nInvoking the concept of \xe2\x80\x9cwrongful by reason of ... an\nestablished standard of a trade or profession,\xe2\x80\x9d Speakers points\nto a rule of major league baseball forbidding players\xe2\x80\x99 agents to\ncompete by means of misrepresentations. The rule is designed\nto protect the players, rather than their agents, so that even if it\nestablished a norm enforceable by law Speakers would not be\nentitled to invoke it; it is not a rule designed for Speakers\xe2\x80\x99\nprotection. In any event its violation would not be the kind of\n\xe2\x80\x9cwrongful\xe2\x80\x9d conduct that should trigger the tort of intentional\ninterference; it would not be a violation of law.~\nWe add that even if Speakers could establish liability under\neither the common law of torts or the deceptive practices act, its\nsuit would fail because it cannot possibly establish, as it seeks to\ndo, a damages entitlement (the only relief it seeks) to the agent\xe2\x80\x99s\nfee on Rodriguez\xe2\x80\x99s $42 million contract. That contract was\nnegotiated years after he left Speakers, and by another agent.\nSince Rodriguez had only a year-to-year contract with Speakers\n\xe2\x80\x93 terminable at will, moreover \xe2\x80\x93 and since obviously he was\ndissatisfied with Speakers at least to the extent of switching to\nProServ and then when he became disillusioned with ProServ of\nnot returning to Speakers\xe2\x80\x99 fold, the likelihood that Speakers\nwould have retained him had ProServ not lured him away is too\nslight to ground an award of such damages. Such an award\n\n546\n\n\x0cwould be the best example yet of puffing in the pie-in the-sky\nsense.\nAFFIRMED.\n\nQuestions to Ponder About Speakers of Sport v. ProServ\nA. Judge Posner writes in this decision, \xe2\x80\x9cOnce a case gets to the jury,\nall bets are off.\xe2\x80\x9d Is he showing shockingly little faith in the jury\nsystem \xe2\x80\x93 especially considering his position as a judge? Or is he just\nbeing realistic?\nB. Do you agree that a promise of obtaining $2 million to $4 million\nin endorsements is \xe2\x80\x9cpure fantasy and gross exaggeration\xe2\x80\x9d and\n\xe2\x80\x9cmeaningless superlatives that no reasonable person would take\nseriously\xe2\x80\x9d? Do you think Rodriguez took it seriously?\nC. Does the existence of tort doctrine in this area stifle competition\nby creating a cloud of possible liability when competitors fight for\nclients? Or does it aid competition by forcing business interests to\nprovide information that is more accurate, thus leading to more\nefficient outcomes in the marketplace?\n\nFraud\nThe most hallowed way to turn a contract dispute into a tort lawsuit\nis through a charge of fraud. The cause of action for fraud, which is\nsometimes called \xe2\x80\x9cdeceit\xe2\x80\x9d or \xe2\x80\x9cintentional misrepresentation,\xe2\x80\x9d\nprovides a cause of action where the defendant knowingly\nmisrepresents facts for the purpose of inducing the plaintiff to do\nsomething, and the plaintiff actually, justifiably, and detrimentally\nrelies on the misrepresentation.\nHere is the blackletter formulation:\nA plaintiff can establish a prima facie case for\nfraud\nby\nshowing:\n(1) A\nmaterial\nmisrepresentation by defendant, (2) scienter\n(defendant\xe2\x80\x99s knowledge of falsity), (3) the\ndefendant\xe2\x80\x99s intent to induce reliance on the part\nof the plaintiff, (4) the plaintiff\xe2\x80\x99s (a) actual and\n(b) justifiable reliance on the misrepresentation,\n\n547\n\n\x0cand (5) the plaintiff\xe2\x80\x99s accrual of actual damages\nas a result.\n\nSeveral of these elements bear elaboration.\nFirst, the there must be a misrepresentation. The misrepresentation\nis usually an affirmative statement of fact that turns out to not be\ntrue. There are as many examples of misrepresentations as there are\ncon-artists: saying that land is owned free and clear by the defendant\n(when it\xe2\x80\x99s not), saying that certain computer equipment can process a\ncertain amount of data per hour (when it can\xe2\x80\x99t), or saying that a\ncertain motor oil meets certain industry standards (when it doesn\xe2\x80\x99t).\nAny of these sorts of statements, if false, can be the basis for a fraud\nclaim.\nYet a misrepresentation does not need to be an affirmative statement\nof fact to be the basis of a fraud claim. Actively concealing facts can\ncount as a misrepresentation as well, as can nondisclosure when there\nis a duty to disclose. Suppose a real estate agent installs a fake circuitbreaker panel to make a home inspector think that a house\xe2\x80\x99s wiring is\nup to code. That concealment counts as a fraudulent\nmisrepresentation.\nEven a promise can constitute a misrepresentation \xe2\x80\x93 that is, if the\ndefendant has no intention of keeping it. Taking an advance payment\nfrom your neighbor for mowing the lawn next weekend \xe2\x80\x93 when you\nalready have airplane tickets to abscond overseas \xe2\x80\x93 counts as a\nfraudulent misrepresentation. Where a promise is the basis of a fraud\nclaim, the cause of action is sometimes called \xe2\x80\x9cpromissory fraud.\xe2\x80\x9d\nIt is often said that the misrepresentation must be material. In law,\nto say something is material is to say \xe2\x80\x9cit matters.\xe2\x80\x9d Suppose a sales\nassociate at a used car lot lies by telling you the car you are thinking\nabout buying was inspected on Tuesday, when, in fact, it was\ninspected on Monday. This misrepresentation is immaterial, and\ntherefore it could not be used as the basis for a fraud claim.\nHowever, suppose the sales associate tells you the car has never been\ninvolved in an accident \xe2\x80\x93 when, in fact, it once skidded off the road\ninto a lake where it sat for three days before being pulled out. That is\n\n548\n\n\x0cdefinitely a material misrepresentation. So it could form the basis for\na fraud claim.\nSecond is the requirement of scienter. The word scienter (\xe2\x80\x9csigh-ENtur,\xe2\x80\x9d among other pronunciations) is a legal term that often comes up\nin economic contexts. It is from the Latin for \xe2\x80\x9cto know,\xe2\x80\x9d the same\nroot word underlying \xe2\x80\x9cscience.\xe2\x80\x9d In fraud, the scienter requirement is\nthe requirement that the plaintiff either knew that the representation\nwas false or else acted recklessly as to the truth in making the\nstatement.\nThird, is the intent requirement \xe2\x80\x93 the defendant had to intend for\nthe plaintiff to rely on the statement at issue. Typically, the\ndefendant\xe2\x80\x99s intent to have the plaintiff rely on the misrepresentation\nis for the ultimate purpose of monetary gain.\nWhile the first three elements focus on the defendant, the final two\ndirectly concern the plaintiff.\nThe fourth element is reliance \xe2\x80\x93 that the plaintiff actually and\njustifiably relied on the misrepresentation. Courts usually present this\nas one element, but it is useful to break it down into two subelements: (a) actual reliance, and (b) justifiable reliance.\nThe requirement of actual reliance is an actual causation\nrequirement, and it can be measured by the but-for test. Would the\nplaintiff have avoided undertaking the detrimental action but for the\ndefendant\xe2\x80\x99s misrepresentation? That is, but for the misrepresentation,\nwould the plaintiff have suffered the complained of loss? Actual\nreliance is subjective \xe2\x80\x93 it has to do with what the plaintiff actually\nbelieved.\nThe requirement of justifiable reliance, on the other hand, is\nobjective: It must have been reasonable for the plaintiff to have been\nfooled by the misrepresentation.\nWorking together, the requirements of actual and justifiable reliance\ngreatly cut down on the possible universe of fraud cases that can be\nbrought. Actual and justifiable reliance call for a plaintiff who threads\nthe needle: If the plaintiff is savvy enough to avoid actually being\nswindled, then the plaintiff has no case. If the plaintiff should have been\n\n549\n\n\x0csavvy enough to avoid being swindled, then the plaintiff has no case.\nThus, fraud requires a goldilocks plaintiff: One unaware enough to\nhave been actually duped, but not so gullible as to be objectively\nunreasonable.\nFinally, fraud requires actual damages, an insistence captured in the\nrequirement that the plaintiff relied on the misrepresentation to the\nplaintiff\xe2\x80\x99s detriment.\nCase: Berger v. Wade\nThe following case illustrates how the requirement of justifiable\nreliance can screen out cases the law deems unworthy of\ncompensation. It also reveals another aspect of fraud doctrine \xe2\x80\x93 its\nuse as a defense to enforcement of contractual obligations.\n\nBerger v. Wade\nCourt of Appeals of Ohio, First District\nMarch 28, 2014\nAlfred J. BERGER, Jr., Plaintiff\xe2\x80\x93Appellant, v. Martin WADE,\nDefendant\xe2\x80\x93Appellee/Third\xe2\x80\x93Party Plaintiff, and Christopher\nRose, Third\xe2\x80\x93Party Defendant. No. C\xe2\x80\x93120863.\nPER CURIAM:\n[Alleged fraud victim Martin Wade signed a guaranty for a shortterm business loan of $100,000 evidenced by a promissory note.\nWhen Wade was called upon for payment, he claimed to be the\nvictim of fraud.]\n~Alfred\n\nJ. Berger, Jr., appeals from the trial court\xe2\x80\x99s judgment in\nfavor of defendant-appellee/third-party plaintiff Martin Wade,\non Berger\xe2\x80\x99s claim that Wade had failed to repay a business loan\nthat he had personally guaranteed. Berger contends that the trial\ncourt erred when it found that he had fraudulently induced\nWade into executing the guaranty agreement. We agree and\nreverse.\nIn 2006, third-party defendant Christopher Rose, a local\ndeveloper, approached Wade about investing in The Rookwood\nCorporation, doing business as The Rookwood Pottery\nCompany (\xe2\x80\x9cRookwood\xe2\x80\x9d). By 2009, Wade had invested over $1\n\n550\n\n\x0cmillion in the corporation and was its largest shareholder.\nThough he was not involved in the day-to-day operations of the\ncompany, Wade had access to the corporation\xe2\x80\x99s books, records,\nand financial information.\nIn 2009, Rose obtained a loan commitment for Rookwood from\nthe Ohio Department of Development. Because the proceeds of\nthe Ohio loan took longer than expected to reach the company,\nfunding difficulties imperiled the development. To cover the\nshortfall, Rose sought temporary financing. He approached\nBerger about the possibility of making a short-term loan to the\ncompany. After negotiations between Rose and Berger, Berger\nagreed to lend Rookwood $100,000 to fund operations until the\nproceeds of the Ohio loan were delivered.\nBerger was given the opportunity to examine the books of\nRookwood. Given Rookwood\xe2\x80\x99s poor financial condition, Berger\nwas unwilling to lend the company the funds without additional\nsecurity. Therefore, as a condition of making the loan, Berger\ninsisted that Rose and Wade co-sign the promissory note, and\nthat Rose and Wade personally guarantee the debt.\nThe debt was to be evidenced by a promissory note which\nBerger had drafted. Berger ultimately admitted that he had\ncopied documents originally prepared by a Cincinnati law firm\nfor another transaction that also involved a promissory note and\nguaranty. Though not a lawyer, Berger \xe2\x80\x9cchanged [the\ndocuments] to fit the circumstances\xe2\x80\x9d of the Rookwood deal.\nThe changes took less than ten minutes. The documents\nprovided that Berger would loan the corporation $100,000 in\nAugust 2009. The corporation, Rose, and Wade promised to\nrepay the loan in one month with $10,000 in interest also due at\nthat time. In a separate guaranty agreement, Rose and Wade\npersonally guaranteed the loan repayment.\nRose presented Berger\xe2\x80\x99s note and guaranty to Wade. Despite\nexamining the note for less than three minutes, and the guaranty\nfor less than five, Wade signed the documents. He had not met\nwith or spoken to Berger before signing the documents.\nThe promissory note provided, on its first page, that:\n\n551\n\n\x0cThis Note is secured by a first-priority security\ninterest in the Assets of The Rookwood\nCorporation pursuant to the terms of a Security\nAgreement dated of even date herewith between\nThe Rookwood Corporation and [Berger] (the\n\xe2\x80\x9cSecurity Agreement\xe2\x80\x9d).\nAs it turned out, however, there was no security agreement and,\ntherefore, no security interest existed.~\nThe requirement of justifiable reliance is best understood as\ntesting the credibility of the claim that fraud induced a party to\nact. The necessity that the reliance is justified screens out\npretextual claims or defenses put forward after adverse facts on\nthe ground have rendered a party\xe2\x80\x99s promise unprofitable.\nThe question of justifiable reliance is one of fact, and the court\nmust inquire into the nature of the transaction, the\nrepresentation, and the relationship of the parties.\nWade testified that he would \xe2\x80\x9cprobably not\xe2\x80\x9d have signed the\nnote and guaranty if he had known that the first-priority security\nagreement identified in the note did not exist. He stated that he\nassumed that Berger would enforce the security interest to pay\nthe debt rather than proceed against him.\nYet, the overwhelming weight of the evidence in the record\nreflects that Wade\xe2\x80\x99s assumption and his reliance on the fictitious\nrepresentation were not justified. Wade was a principal investor\nin Rookwood. Before signing the note and guaranty, he had\nexamined the corporation\xe2\x80\x99s financial statements. Although\nBerger\xe2\x80\x99s note stated that it was secured by a first-priority security\ninterest, Wade knew that Rookwood had already given security\ninterests in its assets and real property to another investor and\nto the Ohio development agency. Wade admitted that he had\nalready personally guaranteed the payment of some of those\nloans.\nBefore signing Berger\xe2\x80\x99s note and guaranty, Wade, an\nexperienced certified public accountant and former attorney,\nreviewed the documents, albeit very briefly. He admitted that\nunder the guaranty\xe2\x80\x99s express terms, whether Berger\xe2\x80\x99s security\n\n552\n\n\x0cagreement existed or not, Berger could proceed against Wade\npersonally if the note was not repaid. Wade acknowledged that\nhe had waived the right to require Berger to proceed first against\n\xe2\x80\x9cany other person or any security.\xe2\x80\x9d In light of these facts,\nWade\xe2\x80\x99s assumption that Berger would not elect to proceed\nagainst him for the funds, and his reliance on that assumption,\nwas simply not sustainable.\nWe hold that Wade\xe2\x80\x99s belief that the fictitious security agreement\nwould protect him from having to satisfy the amount due on the\nnote was not justified under the circumstances. Accordingly, we\nconclude that the judgment as to the fraudulent-inducement\ndefense was against the manifest weight of the evidence. The\nthird assignment of error is sustained.~\n\nFraud: Pleading Requirements\nFraud has a procedural component that plays a strong role in shaping\nthe tort in practice. Unlike most tort claims, a claim for fraud must be\npled with \xe2\x80\x9cspecificity.\xe2\x80\x9d This longstanding requirement is entirely\nindependent of the recent \xe2\x80\x9cTwiqbal\xe2\x80\x9d doctrine \xe2\x80\x93 which you may have\nlearned about in your civil procedure class \xe2\x80\x93 that has ratcheted up\npleading requirements in federal courts. See Bell Atlantic Corp. v.\nTwombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662\n(2009).\nFraud\xe2\x80\x99s pleading requirement means that plaintiffs alleging fraud\nmust come right out at the beginning of the lawsuit and explain how\nthey were suckered by the defendant. The standard justification for\nthis requirement is that without it, plaintiffs could go on \xe2\x80\x9cfishing\nexpeditions,\xe2\x80\x9d filing lawsuits on speculation and then using the\npowerful mechanisms of civil discovery to churn up evidence to see\nif there is anything upon which to base a claim.\nThe pleading requirement reflects a congenital difficulty for fraud\ndoctrine. Its substantive foundation is an allegation of the plaintiff\xe2\x80\x99s\nignorance. That seems to invite plaintiffs to use alleged ignorance as a\nshield at the pleading stage, thus creating fertile ground for strategic\nbehavior aimed at garnering low-value settlements from defendants\nsimply wanting to avoid litigation expense. On the other hand, fraud,\n\n553\n\n\x0cin fact, is meant to address situations where a plaintiff suffers losses\non account of a defendant intentionally denying to the plaintiff the\nfull facts, so it seems unjust to require the plaintiff to know\neverything in detail before filing suit. Thus, courts trying to strike the\nright balance are put in a difficult position.\nCase: Committee on Children\xe2\x80\x99s Television v. General\nFoods\nThe following case shows the cause of action for fraud used in a\nnovel way for consumer \xe2\x80\x9cimpact litigation\xe2\x80\x9d \xe2\x80\x93 that is, litigation\nintended to have society-wide effect. The case also shows how the\npleading requirement works to shape the substance of the fraud tort.\n\nCommittee on Children\xe2\x80\x99s Television v.\nGeneral Foods\nSupreme Court of California\nDecember 22, 1983\nCal.3d 197. Committee on Children\xe2\x80\x99s Television, Inc., et al.,\nPlaintiffs and Appellants, v. General Foods Corporation et al.,\nDefendants and Respondents. L.A. No. 31603. Named plaintiffs\nincluded five organizations (The Committee on Children\xe2\x80\x99s\nTelevision, Inc.; the California Society of Dentistry for Children;\nthe American G.I. Forum of California; the Mexican-American\nPolitical Association; the League of United Latin American\nCitizens), as well as individual adults, and individual children.\nOpinion by Broussard, J., with Mosk, Richardson, Kaus,\nReynoso and Grodin JJ., concurring. Separate concurring and\ndissenting opinion by Bird, C. J, not reproduced here.\nJustice ALLEN E. BROUSSARD:\nPlaintiffs appeal from a judgment of dismissal following a trial\ncourt order sustaining demurrers without leave to amend to\ntheir fourth amended complaint. The complaint essentially\ncharges defendants \xe2\x80\x93 General Foods Corporation, Safeway\nStores, and two advertising agencies \xe2\x80\x93 with fraudulent,\nmisleading and deceptive advertising in the marketing of sugared\nbreakfast cereals. The trial court found its allegations insufficient\nbecause they fail to state with specificity the advertisements\n\n554\n\n\x0ccontaining the alleged misrepresentations. We review the\nallegations of the complaint and conclude that the trial court\nerred in sustaining demurrers without leave to amend to\nplaintiffs\xe2\x80\x99 causes of action charging fraud and violation of laws\nagainst unfair competition and deceptive advertising.~\nPlaintiffs filed their original complaint on June 30, 1977, as a\nclass action on behalf of \xe2\x80\x9cCalifornia residents who have been\nmisled or deceived, or are threatened with the likelihood of\nbeing deceived or misled,\xe2\x80\x9d by defendants in connection with the\nmarketing of sugared cereals.\nThe principal defendant is General Foods Corporation, the\nmanufacturer of five \xe2\x80\x9csugared cereals\xe2\x80\x9d \xe2\x80\x93 Alpha Bits,\nHoneycomb, Fruity Pebbles, Sugar Crisp, and Cocoa Pebbles \xe2\x80\x93\nwhich contain from 38 to 50 percent sugar by weight. The other\ncorporate defendants are two advertising agencies \xe2\x80\x93 Benton and\nBowles, Inc., and Ogilvy & Mather International, Inc. \xe2\x80\x93 which\nhandled advertising of these cereals, and Safeway Stores, which\nsold the products to plaintiffs. Finally, the complaint includes as\ndefendants numerous officers and employees of the corporate\ndefendants.~\nParagraph 34 alleges that defendants \xe2\x80\x9cengaged in a sophisticated\nadvertising and marketing program which is designed to\ncapitalize on the unique susceptibilities of children and\npreschoolers in order to induce them to consume products\nwhich, although promoted and labelled as \xe2\x80\x98cereals,\xe2\x80\x99 are in fact\nmore accurately described as sugar products, or candies.\xe2\x80\x9d The\ncomplaint thereafter refers to sugared cereals as \xe2\x80\x9ccandy\nbreakfasts.\xe2\x80\x9d\nParagraph 35 lists some 19 representations allegedly made in\ntelevision commercials aimed at children. Most of these\nrepresentations are not explicit but, according to plaintiffs,\nimplicit in the advertising. Paragraph 35 of the complaint reads\nas follows:\nThe advertising scheme routinely and repeatedly\nemploys and utilizes, in commercials aimed at\nchildren, each of the following representations\nwhich are conveyed both visually and verbally:\n\n555\n\n\x0c(a) Children and young children who regularly\neat candy breakfasts are bigger, stronger, more\nenergetic, happier, more invulnerable, and\nbraver than they would have been if they did\nnot eat candy breakfasts. (b) Eating candy\nbreakfasts is a \xe2\x80\x98fun\xe2\x80\x99 thing for children to do, and\nis invariably equated with entertainment and\nadventure. (c) The sweet taste of a product\nensures or correlates with nutritional merit. (d)\nEating candy breakfasts will make children\nhappy. (e) Bright colors in foods ensure or\ncorrelate with nutritional merit. (f) Candy\nbreakfasts are grain products. (g) Candy\nbreakfasts are more healthful and nutritious for\na child than most other kinds and types of\ncereals. (h) Adding small amounts of vitamins\nand minerals to a product automatically makes it\n\xe2\x80\x98nutritious.\xe2\x80\x99 (i) Candy breakfasts inherently\npossess and/or impart to those ingesting them\nmagical powers, such as the capacity to cause\napes and fantastic creatures to appear or\ndisappear. (j) Candy breakfasts contain adequate\namounts of the essential elements of a growing\nchild\xe2\x80\x99s diet, including protein. (k) The\n\xe2\x80\x98premiums\xe2\x80\x99 (small toys packaged in with the\ncandy breakfast as an inducement to the child)\nare very valuable and are offered free as a prize\nin each box of candy breakfast. (l) Candy\nbreakfasts are the most important part of a\n\xe2\x80\x98well-balanced breakfast\xe2\x80\x99 and are at least as\nnutritious as milk, toast and juice. (m) Candy\nbreakfasts calm a child\xe2\x80\x99s fears and dispel a\nchild\xe2\x80\x99s anxiety. ... (n) Candy breakfasts have\nvisual characteristics which they do not in fact\npossess, such as vivid colors and the capacity to\nglitter or to enlarge from their actual size to a\nlarger size.\n\xe2\x80\x9cIn addition to the foregoing representations\nspecified in Paragraph 35 (a) through (n), in\neach of the commercials for each of the\nproducts specified below the advertising scheme\nrepeatedly, uniformly and consistently utilizes\n\n556\n\n\x0cand relies upon the following representations\nwith respect to particular products: (o) Cocoa\nPebbles are good for a child to eat whenever he\nor she is hungry, and it is a sound nutritional\npractice to eat chocolatey tasting foods, such as\nCocoa Pebbles, for breakfast. (p) Honeycomb\n(i) contains honey and (ii) consists of pieces\nwhich are each at least two (2) inches in\ndiameter and (iii) will make a child big and\nstrong. (q) Alpha-Bits (i) will enable a child to\nconquer his or her enemies, (ii) can be used by a\nchild easily to spell words in his or her spoon,\n(iii) are an effective cure for the child\xe2\x80\x99s anxieties,\nand (iv) have magical powers and can impart\nmagical powers to a child. ... (r) Fruity Pebbles\n(i) contain fruit and (ii) emit auras, rainbows or\nmesmerizing colors. (s) Super Sugar Crisp (i)\nshould be eaten as a snack food without danger\nto dental health, (ii) should be eaten as a\nnutritious snack whenever a child is hungry, (iii)\nmakes a child smart and (iv) is coated with\ngolden sugar and such sugar is very valuable.\xe2\x80\x9d\nPlaintiffs allege that commercials containing these\nrepresentations are broadcast daily. Although the commercials\nchanged every 60 days, \xe2\x80\x9cthey retain consistent themes and each\nconvey ... the representations as set forth.\xe2\x80\x9d Defendants, but not\nplaintiffs, know the exact times, dates, and places of broadcasts.\nPlaintiffs further allege that the same representations appear in\nother media, and on the cereal packages themselves. Paragraph\n42 asserts that defendants concealed material facts:\nIn the advertising scheme planned and\nparticipated in by each and every Defendant,\nnone of the following facts are ever disclosed:\n(a) The percentage of sugar and chemicals\ntogether in the products advertised ranges from\n38% to 50% of the total weight of the product;\n(b) There is no honey in Honeycomb, no fruit\nin Fruity Pebbles, and the premiums packed\ninto the boxes of Alpha Bits and Super Sugar\nCrisp cost no more than a few pennies at most;\n\n557\n\n\x0c(c) Eating candy breakfasts may contribute to\ntooth decay in children and adults; (d) Eating\ncandy breakfasts as a snack will cause tooth\ndecay; (e) Children should brush their teeth\nsoon after eating sugary foods; (f) For many\nchildren, excessive sugar consumption will have\nserious and detrimental health consequences,\nincluding obesity, heart disease, and other\nadverse health consequences; (g) For children\nwith already existing health problems, especially\ndiabetes, consuming candy breakfasts may have\nserious and detrimental health consequences; (h)\nThere is a serious controversy over the adverse\neffects of sugar on the health of children; (i)\nCandy breakfasts are not the most important\npart of a balanced breakfast; (j) If eaten at all,\ncandy breakfasts should not be consumed in\nlarge quantities and whenever a child is hungry;\n(k) Candy breakfasts cost more per serving than\nnon-pre-sweetened breakfast cereals or hot\ncereals and more than other foods of better\nnutritional value than candy breakfasts; (l) A\nchild\xe2\x80\x99s welfare is best served by accepting\nnutritional advice from his or her parents when\nsuch advice conflicts with advice given in\ntelevision commercials; (m) The happy,\nadventure-filled fantasy portrayal of eating\ncandy breakfasts is unrealistic and cannot be\nduplicated by any child.\nSuch concealment, plaintiffs allege, when joined with the\naffirmative misrepresentations listed in paragraph 35, render the\nadvertisements misleading and deceptive.\nThe complaint asserts at length the special susceptibility of\nchildren to defendants\xe2\x80\x99 \xe2\x80\x9cadvertising scheme,\xe2\x80\x9d and explains how\ndefendants take advantage of this vulnerability. It further asserts\nthat, as defendants know, the desires and beliefs of children\ninfluence and often determine the decision of adults to buy\ncertain breakfast foods.~\nThe third through sixth causes of action set out various aspects\nof the tort of fraud.~ Each of these causes of action~ claims\n\n558\n\n\x0ccompensatory damages of $10 million; those counts asserting\nintentional misrepresentation include a prayer for punitive\ndamages. The prayer for relief is extensive, and includes some\nnovel requests. In addition to seeking damages, restitution, and\ninjunctive relief, plaintiffs seek warning labels in stores and on\npackages, creation of funds for research on the health effects of\nsugar consumption by young children, public interest\nrepresentatives on defendants\xe2\x80\x99 boards of directors, and public\naccess to defendants\xe2\x80\x99 research on the health effects of their\nproducts. \xef\x81\x81We discuss plaintiffs\xe2\x80\x99 right to seek damages,\nrestitution, and injunctive relief in this opinion, but take no\nposition on the suitability of the other remedies requested.\xef\x81\x80\nDefendants demurred to the fourth amended complaint for\nfailure to state a cause of action and for uncertainty. The trial\ncourt sustained the demurrers without leave to amend. The trial\njudge explained the basis for his ruling: \xe2\x80\x9c[I]n order to state a\ncause of action for fraud or for breach of warranty, there must\nbe alleged with specificity the basis for the cause and that is, if\nthere are advertisements which contain fraudulent matters, those\nadvertisements must be set out. [\xe2\x80\x93] In paragraph 35, which is the\nheart of the allegations concerning the conveying of the\nrepresentations, we have just a series of very general allegations\nto which there is no reference of an advertisement actually\nmade. ... [\xe2\x80\x93] Paragraph 38 which makes the allegations\nconcerning media dissemination set out no television stations,\nno other media, except for the fact that these ads were run on\ntelevision stations every day in Southern California for a fouryear period. [\xe2\x80\x93] This gives the defendant practically no kind of\ninformation concerning that which the defendant must answer,\nand it doesn\xe2\x80\x99t give the court a sufficient factual basis for its\nadministration of the case.\xe2\x80\x9d~\nPlaintiffs base their third, fourth, fifth and sixth causes of action\non the tort of fraud. Civil Code section 1710 defines that tort:\nA deceit [fraud] ... is either: 1. The suggestion, as\na fact, of that which is not true, by one who\ndoes not believe it to be true; 2. The assertion,\nas a fact, of that which is not true, by one who\n\n559\n\n\x0chas no reasonable ground for believing it to be\ntrue; 3. The suppression of a fact, by one who is\nbound to disclose it, or who gives information\nof other facts which are likely to mislead for\nwant of communication of that fact ....~\n[Witkin explains the pleading requirement of specificity:]\nFraud actions ... are subject to strict\nrequirements of particularity in pleading. The\nidea seems to be that allegations of fraud\ninvolve a serious attack on character, and\nfairness to the defendant demands that he\nshould receive the fullest possible details of the\ncharge in order to prepare his defense.\nAccordingly the rule is everywhere followed that\nfraud must be specifically pleaded. The effect of\nthis rule is twofold: (a) General pleading of the\nlegal conclusion of \xe2\x80\x98fraud\xe2\x80\x99 is insufficient; the\nfacts constituting the fraud must be alleged. (b)\nEvery element of the cause of action for fraud\nmust be alleged in the proper manner (i.e.,\nfactually and specifically), and the policy of\nliberal construction of the pleadings ... will not\nordinarily be invoked to sustain a pleading\ndefective in any material respect. (3 Witkin, Cal.\nProcedure (2d ed. 1971) Pleading, \xc2\xa7 574)\nWitkin adds, however, that:\nIn reading the cases one gains the impression\nthat entirely too much emphasis has been laid\nupon the requirement of specific pleading. The\ncharacterization of some actions as \xe2\x80\x98disfavored\xe2\x80\x99\nhas little to recommend it ... and actions based\non fraud are so numerous and commonplace\nthat the implications of immoral conduct are\nseldom considered more serious than those\ninvolved in other intentional torts. Hence, while\nit seems sound to require specific pleading of\nthe facts of fraud rather than general\nconclusions, the courts should not look askance\nat the complaint, and seek to absolve the\ndefendant from liability on highly technical\n\n560\n\n\x0crequirements of form in pleading. Pleading facts\nin ordinary and concise language is as\npermissible in fraud cases as in any others, and\nliberal construction of the pleading is as much a\nduty of the court in these as in other cases. (3\nWitkin, op. cit. supra, Pleading, \xc2\xa7 575, quoted in\nLacy v. Laurentide Finance Corp. (1972) 28\nCal.App.3d 251, 258, fn. 2.)\nThe specificity requirement serves two purposes. The first is\nnotice to the defendant, to \xe2\x80\x9cfurnish the defendant with certain\ndefinite charges which can be intelligently met.\xe2\x80\x9d The pleading of\nfraud, however, is also the last remaining habitat of the common\nlaw notion that a complaint should be sufficiently specific that\nthe court can weed out nonmeritorious actions on the basis of\nthe pleadings. Thus the pleading should be sufficient \xe2\x80\x9c\xe2\x80\x98to enable\nthe court to determine whether, on the facts pleaded, there is\nany foundation, prima facie at least, for the charge of fraud.\xe2\x80\x99\xe2\x80\x9d\nWe observe, however, certain exceptions which mitigate the\nrigor of the rule requiring specific pleading of fraud. Less\nspecificity is required when \xe2\x80\x9cit appears from the nature of the\nallegations that the defendant must necessarily possess full\ninformation concerning the facts of the controversy,\xe2\x80\x9d; \xe2\x80\x9c[e]ven\nunder the strict rules of common law pleading, one of the\ncanons was that less particularity is required when the facts lie\nmore in the knowledge of the opposite party ... .\xe2\x80\x9d\nAdditionally, in a case such as the present one, considerations of\npracticality enter in. A complaint should be kept to reasonable\nlength, and plaintiffs\xe2\x80\x99 fourth amended complaint, 64 pages long,\nstrains at that limit.~ A complaint which set out each\nadvertisement verbatim, and specified the time, place, and\nmedium, might seem to represent perfect compliance with the\nspecificity requirement, but as a practical matter, it would\nprovide less effective notice and be less useful in framing the\nissues than would a shorter, more generalized version.\nDefendants object to the allegations of misrepresentation on the\nground that the complaint fails to state the time and place of\neach misrepresentation, to identify the speaker and listener, and\n\n561\n\n\x0cto set out the representation verbatim or in close paraphrase.\nThe place and time of the television advertisements, however, is\nfully known to defendant General Foods, but became available\nto plaintiffs only through discovery. That defendant equally\nknows the distribution of cereal box advertisements. A lengthy\nlist of the dates and times of cereal ads on California television\nstations would add nothing of value to the complaint; the same\nis true for a list of California grocers marketing General Foods\ncereals. The language of the complaint \xe2\x80\x93 all ads for sugared\ncereals within a given four-year period \xe2\x80\x93 is sufficient to define\nthe subject of the complaint and provide notice to defendants.\nGeneral Foods also knows the content of each questioned\nadvertisement. Plaintiffs initially lacked such detailed knowledge,\nand although they have now obtained copies of the television\nstoryboards through discovery, quotation or attachment of such\ncopies to the complaint would consume thousands of pages.\nAttachment of the storyboards, moreover, would not redress\ndefendants\xe2\x80\x99 grievance, which is, as we understand it, not that\nthey lacked knowledge of the content of the commercials but\nthat they do not understand what it is in the images and words\nthat gives rise to the alleged misrepresentations.\nFor plaintiffs to provide an explanation for every advertisement\nwould be obviously impractical. We believe, however, that the\ntrial court could reasonably require plaintiffs to set out or attach\na representative selection of advertisements, to state the\nmisrepresentations made by those advertisements, and to\nindicate the language or images upon which any implied\nmisrepresentations are based. This is a method of pleading\nwhich has been endorsed in other cases involving numerous\nmisrepresentations. It represents a reasonable accommodation\nbetween defendants\xe2\x80\x99 right to a pleading sufficiently specific\n\xe2\x80\x9cthat the court can ascertain for itself if the representations ...\nwere in fact material, and of an actionable nature\xe2\x80\x9d, and the\nimportance of avoiding pleading requirements so burdensome\nas to preclude relief in cases involving multiple\nmisrepresentations.~\n\n562\n\n\x0cDefendants also object that the complaint does not indicate that\nany particular child relied upon or even saw any particular\ntelevision advertisement. They point out that although the\ncomplaint does assert that each of the adult plaintiffs purchased\nGeneral Foods\xe2\x80\x99 products at a Safeway Store, it does not state\nwhich advertisements they, or their children, saw and relied\nupon.\nA specific statement of the advertisements seen and relied upon\nby the individual plaintiffs would serve to demonstrate both that\nthey possess a valid cause of action in their individual capacity\nand that they are proper representatives for the class plaintiffs.\nThe realistic setting of the case, however, may make such\nspecific pleading impossible. A long-term advertising campaign\nmay seek to persuade by cumulative impact, not by a particular\nrepresentation on a particular date. Children in particular are\nunlikely to recall the specific advertisements which led them to\ndesire a product, but even adults buying a product in a store will\nnot often remember the date and exact message of the\nadvertisements which induced them to make that purchase.\nPlaintiffs should be able to base their cause of action upon an\nallegation that they acted in response to an advertising campaign\neven if they cannot recall the specific advertisements.~\nAlthough the parties argue primarily the sufficiency and\nspecificity of the pleadings, the underlying controversy is of\nmuch greater dimension. Defendants engaged in a nationwide,\nlong-term advertising campaign designed to persuade children to\ninfluence their parents to buy sugared cereals. Adapted to its\naudience, the campaign sought to persuade less by direct\nrepresentation than by imagery and example. While maintaining\na constant theme, the particular advertisements changed\nfrequently. Plaintiffs now contend that these advertisements\nwere deceptive and misleading, and while we do not know the\nactual truth of those charges, we must assume them true for the\npurpose of this appeal. Yet, if we apply strict requirements of\nspecificity in pleading as defendants argue, the result would be\nto eliminate the private lawsuit as a practical remedy to redress\nsuch past deception or prevent further deception. By directing\ntheir advertisements to children, and changing them frequently,\n\n563\n\n\x0cdefendants would have obtained practical immunity from\nstatutory and common law remedies designed to protect\nconsumers from misleading advertising.\nIt can be argued that administrative investigation and rule\nmaking would be a better method of regulating advertising of\nthis scope and character. The California Legislature, however,\nhas not established the necessary administrative structure. It has\nenacted consumer protection statutes and codified common law\nremedies which in principle apply to all deceptive advertising,\nregardless of complexity and scale, and, we believe, regardless of\nwhether the advertisement seeks to influence the consumer\ndirectly or through his children. Established rules of pleading\nshould not be applied so inflexibly that they bar use of such\nremedies.~\nPlaintiffs should be permitted to amend their complaint on\nbehalf of the parent and child plaintiffs under the causes of\naction for fraud.~\n\nQuestions to Ponder About Committee on Children\xe2\x80\x99s\nTelevision v. General Foods\nA. Does the court strike the right balance with the specificity\nrequirement? That is, does the holding take due account of the need\nto prevent strategic gamesmanship, give defendants the capacity to\nfairly defend themselves, and yet allow meritorious claims to move\nforward?\nB. Do you find it problematic that this case is in court? Should\nlitigation be used in this way to challenge industry-wide practices? Or\nwould this better be left to regulation \xe2\x80\x93 such as through the U.S.\nFood and Drug Administration? Or is there any problem with\nallowing regulation and this kind of litigation to co-exist?\n\nOther Misrepresentation Torts\nIn addition to liability for fraud \xe2\x80\x93 which is premised on an intentional\nmisrepresentation \xe2\x80\x93 the law sometimes allows causes of action for\nmisrepresentations even where there is no intent to deceive. These\ninclude actions for negligently made misrepresentations and even\ninnocently made misrepresentations (what you could call strict-\n\n564\n\n\x0cliability misrepresentation). Some courts even categorize these\ntheories of recovery as particular species of fraud. Here\xe2\x80\x99s a brief look\nat the relevant concepts:\nThe cause of action known as negligent misrepresentation allows a\nclaim where the misrepresentation was made as a result of negligent\nerror. This cause of action is broader than fraud in one sense, since it\nreaches beyond situations involving an intentional falsehood. But in\nother important ways, the cause of action for negligent\nmisrepresentation is narrower, as courts are willing to recognize it\nonly in a limited range of situations. Yet before we can understand\nnegligent misrepresentation and its place in the law, we need first to\nback up and provide some context vis-\xc3\xa0-vis negligence law.\nIf a negligently made misrepresentation causes property damage or\npersonal injury, then there is a cause of action in negligence \xe2\x80\x93 that is,\nthe everyday garden-variety cause of action for negligence, which is\ncovered in Part II of this book. In such a case, there\xe2\x80\x99s no need for a\ntort of negligent misrepresentation to enable recovery. Professor\nKenneth S. Abraham gives the example of one person asking another\nif a ladder is safe to stand on. Suppose I say, \xe2\x80\x9cI\xe2\x80\x99ve inspected the\nladder, and it\xe2\x80\x99s safe.\xe2\x80\x9d And further suppose I did, in fact, inspect the\nladder, but I did so negligently \xe2\x80\x93 that is, not up to the standards of\nthe reasonable person. (For instance, perhaps I just looked the ladder\nover from a distance and didn\xe2\x80\x99t notice the conspicuously absent bolts\non the seventh step.) If you break your leg in a fall from the ladder as\nthe result of relying on my advice, I am liable for your injuries in\nnegligence \xe2\x80\x93 just plain-old negligence. Sure, I made what could be\ndescribed as a \xe2\x80\x9cnegligent misrepresentation,\xe2\x80\x9d but the\nmisrepresentation was merely the mode by which I breached my duty\nof care. (Breach of the duty of care for the negligence cause of action\nis discussed in Chapter 6 of Volume One.)\nThe need for a particular cause of action known as negligent\nmisrepresentation comes up when there is no injury to person or\nproperty, but where the injury is instead purely economic. Frequently\nthe situation is an investment gone wrong: Money is lost, but no\nblood is spilled and nothing tangible has been damaged. In such a\ncase, a regular-old negligence cause of action will not work because\n\n565\n\n\x0cof negligence\xe2\x80\x99s prima facie requirement of an injury to person or\nproperty. The concept that negligence cases cannot proceed on pure\neconomic loss alone is often called the \xe2\x80\x9ceconomic loss rule.\xe2\x80\x9d (The\nrelevant doctrine is discussed in Chapter 9 of Volume One.)\nBearing this in mind, you can see that the cause of action for\nnegligent misrepresentation can either be looked at as an evolution of\nfraud (that is, an offshoot of fraud that lacks the scienter\nrequirement) or as a special form of negligence (that is, one that\nincorporates an exception to the economic loss rule). Either way, the\ntort of negligent misrepresentation tends to be narrow, applying only\nin certain situations. And while the tort varies in its scope among\njurisdictions \xe2\x80\x93 in some states it looms larger than in others \xe2\x80\x93 it is\neverywhere more limited in scope than either fraud or negligence.\nNow that you have that context, you can understand where negligent\nmisrepresentation comes in.\nNegligent misrepresentation\xe2\x80\x99s native habitat, as a tort, is the\ninvestment-gone-wrong scenario. For example, an investor in a landdevelopment deal or a small- to medium-sized company has lost a\nvery large amount of money and is looking for someone to blame. In\nthis scenario, the archetypal negligent misrepresentation claim is the\nclient of an accountant or attorney suing that accountant or attorney\nfor an incorrect representation that the client relied upon to her or\nhis detriment in making the investment.\nHere is a realistic scenario: Suppose an accountant is hired by a\nwould-be investor to review a company\xe2\x80\x99s books, and suppose the\naccountant departs from the standard practice for professional\naccountants in doing this work and thus negligently fails to uncover\nmassive accounting irregularities and balance-sheet problems that\nwould flag the company as a bad investment. The investor (i.e., the\nclient of the accountant) who loses her or his investment because of\nrelying on the negligent accounting work has a good cause of action\nagainst the accountant for negligent misrepresentation.\nThis core example of negligent misrepresentation is probably\nactionable in just about all jurisdictions. Once we start to move away\n\n566\n\n\x0cfrom this core example, however, the jurisdictional differences begin\nto accumulate.\nBeyond accountants and attorneys, causes of action for negligent\nmisrepresentation might also be had against other professional\nsuppliers of information, such as surveyors, public weighers, or real\nestate agents. And outside of these professional contexts, a court\nmight recognize a cause of action for negligent misrepresentation in\nsituations where there is a special relationship of trust between the\nplaintiff and defendant.\nAnother way in which many cases expand outward from the core\nclient-vs-accountant-or-attorney example is in allowing non-clients to\nsue. That is, sometimes a third party to client-professional\nrelationship will be able to pursue a claim. Suppose a company hires\nan accounting firm to audits its books. The report of the audit might\nbe detrimentally relied upon by third parties: If the audit report is\nshown to a would-be investor, that person might rely on the\naccounting firm\xe2\x80\x99s work in deciding whether or not to invest.\nCourts take different approaches in determining whether a third party\n\xe2\x80\x93 that is, one not in contractual privity with the defendant \xe2\x80\x93 may sue\nfor negligent misrepresentation. Courts often allow a cause of action\nwhere the defendant had actual knowledge that the third party was\nrelying on the defendant\xe2\x80\x99s statements. Some courts, however, go\nfurther and allow a cause of action so long as the third party\xe2\x80\x99s\nreliance was foreseeable.\nAs a whole, the law of negligent misrepresentation is often less than\nclear, and it is subject to considerable variation among jurisdictions.\nA different cause of action, one recognized by some courts, is that of\ninnocent misrepresentation. This tort applies where a party made a\nmisrepresentation (even absent intent or negligence), the plaintiff\ndetrimentally relied on the misrepresentation, and the defendant\nbenefited thereby. Alternatively, this can be called an action for\n\xe2\x80\x9cstrict liability misrepresentation.\xe2\x80\x9d\nSuppose sellers of a house represent that their home is free of\ntermites, and suppose they make this representation innocently and\n\n567\n\n\x0cnon-negligently, yet the house in fact has termites. If the sale goes\nthrough, the sellers have benefitted from this innocent\nmisrepresentation because they sold their house for a higher price\nthan they would have had the termite infestation been known. Under\nthese facts, some courts would allow a cause of action for innocent\nmisrepresentation, permitting the buyers to recover the costs of\nrepairs and remediation from the sellers. This has the effect of giving\nthe buyers the expected benefit of their bargain.\n\nBreach of Fiduciary Duty\nThere are many sorts of \xe2\x80\x9cduties\xe2\x80\x9d under the law. In negligence, a\nperson owes a duty of due care to all foreseeable plaintiffs to use\nappropriate cautions to avoid injury. When two parties conclude a\ncontract, one party will owe a contractual duty to the other. Another\nkind of duty under the law is fiduciary duty.\nThe word \xe2\x80\x9cfiduciary\xe2\x80\x9d comes from the Latin fiducia, \xe2\x80\x9cto trust,\xe2\x80\x9d and it\nappears related to fidelis, meaning \xe2\x80\x9cfaithful.\xe2\x80\x9d A fiduciary duty is a very\nhigh duty \xe2\x80\x93 much higher than a contractual duty and much, much\nhigher than the duty of due care. In a fiduciary relationship, one party\nis assumed to be looking out for the other and protecting the others\xe2\x80\x99\ninterests \xe2\x80\x93 thus, \xe2\x80\x9cfiduciary duty.\xe2\x80\x9d\nWhile a contractual duty arises out of a contract, and while a duty of\ndue care arises out of being within injury-range of another person, a\nfiduciary duty only arises in a relationship where \xe2\x80\x9cspecial confidence\nand trust is reposed in the integrity and fidelity of another and there\nis a resulting position of superiority or influence, acquired by virtue\nof this special trust.\xe2\x80\x9d Groob v. KeyBank, 108 Ohio St.3d 348, 351\n(Ohio 2006) (internal quotes omitted).\nWhen one person owes a fiduciary duty to another, that person is\n\xe2\x80\x9cbound to act in good faith and with due regard to the interests of\nthe one reposing confidence.\xe2\x80\x9d Steelvest, Inc. v. Scansteel Service Center,\nInc., 807 S.W.2d 476, 485 (Ky. 1991) (internal quotes omitted). If the\nfiduciary \xe2\x80\x93 the person owing the fiduciary duty \xe2\x80\x93 does not act in\ngood faith and with due regard to the interests of the person to\nwhom the duty is owed and thereby causes damages to that person,\nthe fiduciary is liable for the tort of breach of fiduciary duty.\n\n568\n\n\x0cHere is a blackletter formulation for the tort:\nA plaintiff can establish a prima facie case for\nbreach of fiduciary duty by showing: (1) the\nexistence of a fiduciary duty owed by the\ndefendant to the plaintiff, (2) misconduct by the\ndefendant in contravention of the fiduciary\nduty, (3) damages suffered by the plaintiff\nresulting from the misconduct.\n\nThe key is knowing which relationships count as fiduciary\nrelationships. Fiduciary duties are owed by trustees to their\nbeneficiaries, by attorneys to their clients, and by agents to their\nprincipals. In these fiduciary relationships, the fiduciary duty is oneway: Attorneys owe a fiduciary duty to clients, but clients do not owe\na fiduciary duty to their attorneys. To put it more plainly: Clients can\nscrew over their attorneys. But attorneys are not allowed to screw\nover their clients.\nOther fiduciary duties are bilateral. In a business partnership, partners\nowe each other a fiduciary duty. And in a business joint venture, joint\nventurers owe one another a fiduciary duty.\nIt\xe2\x80\x99s important to understand that in the overall scheme of commercial\nenterprise and human interaction, fiduciary duties are the exception,\nnot the default. Most business transactions do not give rise to a\nfiduciary duty. In a regular \xe2\x80\x9carms-length\xe2\x80\x9d transaction, it is assumed\nthat each party is looking out for itself. Thus, there is no need to\nrecognize a fiduciary duty.\nBut where there is a fiduciary duty, breach of it is, under the eyes of\nthe law, a much graver offense than breaching a mere contractual\nduty. Breaching a contract is breaking one\xe2\x80\x99s word. But breaching a\nfiduciary duty is an act of faithlessness. Correspondingly, breach of\ncontract is just breach of contract. But breach of fiduciary duty is a\ntort, and, as such, it is subject to tort remedies, including, where\nwarranted, punitive damages \xe2\x80\x93 something that is off the table for a\nbreach of contract cause of action.\n\n569\n\n\x0cCase: April Enterprises v. KTTV\nThe following case entertains a claim for breach of fiduciary duty in a\nunique context: a production/distribution deal for children\xe2\x80\x99s\ntelevision.\n\nApril Enterprises v. KTTV\nCourt of Appeals of California, Second Appellate District, Division\nSeven\nOctober 5, 1983\n147 Cal. App. 3d 805. APRIL ENTERPRISES, INC., Plaintiff\nand Appellant, v. KTTV et al., Defendants and Respondents.\nCiv. No. 66885. Opinion by Johnson, J., with Schauer, P. J., and\nThompson, J., concurring.\n\nJustice EARL JOHNSON, JR.:\nThe plaintiff, April Enterprises, (April) appeals from a judgment\ndismissing its complaint without leave to amend.~\nFactual and Procedural Background\n\xef\x81\x81\n\nSince this appeal is based on judgments on the pleadings and\nof nonsuit on the opening statement, the allegations of the\ncomplaint and opening statement are assumed to be true.\nConsequently, many of the \xe2\x80\x9cfacts\xe2\x80\x9d recited in this opinion will be\nsubject to proof in later proceedings.\xef\x81\x80\nIn 1965 April entered into a written contract with respondents,\nKTTV and Metromedia, Inc., (Metromedia/KTTV) for\nproduction of the \xe2\x80\x9cWinchell-Mahoney Time\xe2\x80\x9d television show\n(hereinafter referred to as the show.) The contract set forth the\nrights of the parties with respect to the show\xe2\x80\x99s production and\nsyndication. Under section 4 of the agreement respondents\nowned all of the videotapes of the show. Section 17, dealing\nwith future syndication, provided that both parties had the right\nto initiate syndication of the show with third parties and that\neach party was to receive 50 percent of the net profits from any\nresulting syndication. Subsection C of section 17 provided\nrespondents could erase the videotape of each show six months\nafter its original broadcast.\n\n570\n\n\x0cIn 1968 respondents sent April a new contract which, if\naccepted, would implement the syndication clause of the 1965\ncontract by conferring upon respondents the exclusive right to\ninitiate syndication for a limited period of time. April signed the\ncontract and returned it to respondents.\nThe new 1968 contract altered the rights of the parties in several\nrespects. With respect to respondents, they no longer had the\nright to erase the videotapes of the show. They had the exclusive\nright to initiate syndication but that exclusivity was limited to the\ntime in which the contract remained in effect. It follows that\nunder the new agreement April could not initiate syndication at\nall.\xef\x81\x81As we explain later, however, once the 1968 contract\nexpired April\xe2\x80\x99s rights to initiate syndication were reinstated.\xef\x81\x80\nAlso, April\xe2\x80\x99s compensation was changed: the 1968 contract\nprovided that April would be paid 20 percent of the syndication\nrevenue, rather than the 50 percent compensation April was to\nreceive under the earlier agreement.\nThe 1968 contract provided for automatic termination in five\nyears, or earlier if the shows were not broadcast for a certain\nperiod of time.\nApril alleges that some time in 1969 it attempted to negotiate\nsyndication agreements with various third parties and in that\nconnection offered to purchase the videotapes of the show from\nrespondents. We assume these negotiations were entered even\nthough April had no right to initiate syndication while the 1968\ncontract remained in effect.\nBetween November of 1969 and March of 1970, presumably in\nresponse to April\xe2\x80\x99s efforts to purchase the tapes, respondents\nwrote two letters to April offering to buy the exclusive rights to\nbroadcast and license the show for another two years on terms\ndifferent from those in the 1968 contract. In the second of the\ntwo letters, dated March 31, 1970, respondents also warned\nApril the videotapes would be erased unless April accepted\nrespondents\xe2\x80\x99 new terms. There is no record of any response by\nApril to these letters.\n\n571\n\n\x0cApril alleges that in 1976 it discovered the video tapes had\nactually been erased at some unknown date. Shortly after this\ndiscovery, April filed suit.~\nApril Has~ Stated a Cause of Action for Breach of Fiduciary Duty by a Joint\nVenturer.\nA. Judgment on the Pleadings.\nIn its complaint April alleged that the negotiations leading to\ncreation of the 1965 contract created a joint venture. In the\nopening statement counsel also referred to the 1968 contract.\nApril\xe2\x80\x99s position apparently is that both the 1965 and 1968\ncontracts merely implemented an over-arching oral joint venture\narrangement between the parties.\nRespondents contend neither contract, nor any oral agreement,\ncreated a joint venture; they proffer two arguments in support\nof this contention. First, the clause in the 1965 contract labelling\nApril as an independent contractor coupled with the contract\xe2\x80\x99s\nintegration clause negates the existence of a joint venture. And,\nsecond, the contract taken as a whole details the rights and\nduties of the parties in such a fashion that it negates every\nelement necessary to the creation of a joint venture. We\ndisagree.\n\xe2\x80\x9cA joint venture ... is an undertaking by two or more persons\njointly to carry out a single business enterprise for profit.\xe2\x80\x9d The\nelements necessary for its creation are: (1) joint interest in a\ncommon business; (2) with an understanding to share profits\nand losses; and (3) a right to joint control. \xe2\x80\x9cSuch a venture or\nundertaking may be formed by parol agreement [citations], or it\nmay be assumed as a reasonable deduction from the acts and\ndeclarations of the parties~.\xe2\x80\x9d Whether a joint venture actually\nexists depends on the intention of the parties.\nHere, it cannot be determined as a matter of law that the\ncomplaint fails to allege facts supporting creation of a joint\nventure. April argues that the common enterprise to seek\nsyndication of the show after it was produced and originally\ntelecast was a joint venture and we find that the first amended\ncomplaint sufficiently alleges such a relationship. The requisite\n\n572\n\n\x0cjoint interest in a common business is supplied by the allegations\nthat the parties planned to coproduce the shows in order to\nexploit the market for its syndication and that each contributed\nits own unique talents in furtherance of this objective. The\nrequisite joint control is supplied by the allegation that each\nparty agreed to have equal rights to initiate syndication of the\nshow.\nWe also disagree with respondents\xe2\x80\x99 assertion that the\nrequirement of sharing profits and losses is not met in the\ninstant case. The 1965 contract provides that April and\nMetromedia each receive 50 percent of the profit derived from\nany syndication of the show. April alleges in its complaint that\nthe parties also intended to share losses in the same proportion.\nSince the intention to share losses may be inferred from a\ncontract provision to share profits, the joint venture action is\nnot defeated by the 1965 contract\xe2\x80\x99s failure to specifically provide\nfor the unlikely eventuality that syndication of the show would\nbe a losing proposition. Moreover, where a joint venture\ninvolves the contribution of capital by one party and services by\nthe other, neither party is required to reimburse the other for\nlosses sustained. In the event of loss, the party contributing\ncapital loses his capital and the one contributing labor loses the\nvalue of his efforts. Consequently, if the evidence at trial\nestablishes that in practical effect the parties intended to share\nlosses even though April\xe2\x80\x99s losses would be in the form of loss of\nits labor and Metromedia\xe2\x80\x99s would be in the form of lost capital,\nthe difference in the type of loss sustained would not defeat a\nfinding of joint venture.\nRespondents next argument, that the contract\xe2\x80\x99s labelling of\nApril as an independent contractor forecloses a finding of joint\nventure, fails since the conduct of the parties may create a joint\nventure despite an express declaration to the contrary.\nWe note that where evidence is in dispute the existence or\nnonexistence of a joint venture is a question of fact to be\ndetermined by the jury. Consequently, whether a joint venture\nwas actually created in the instant case is a question of fact to be\ndecided at trial. For purposes of this appeal, however, we hold\n\n573\n\n\x0cthe complaint alleged facts sufficient to support a cause of\naction for breach of fiduciary duty of a joint venturer.\nB. Judgment of Nonsuit.\nRespondents nevertheless contend that any joint venture that\nmay have been created by the 1965 contract was negated in 1968\nbecause the agreement entered into that year gave Metromedia\nthe exclusive right to license and syndicate, thereby removing\nthe requisite control from April.\xef\x81\x81According to the terms of the\n1968 contract, however, Metromedia\xe2\x80\x99s exclusive rights to initiate\nsyndication were time limited. Metromedia had exclusive rights\nonly until the 1968 contract expired. Once that happened\nMetromedia\xe2\x80\x99s exclusive syndication rights were exhausted and\nApril was left with the remaining rights to initiate syndication of\nthe show.\xef\x81\x80 It also provided that April would be paid on the\nbasis of gross receipts, and, according to respondents, if the\nparties intended to share losses as well as profits April would\nhave been paid on the basis of net receipts. We address these\narguments as they relate to the order granting respondents\xe2\x80\x99\nmotion for nonsuit.\nAs we noted earlier, our view of the 1968 contract is that it\nmerely implemented the earlier joint venture during the period\nin which it remained in effect. Moreover, the 1968 contract\nstrengthens April\xe2\x80\x99s assertion of an oral agreement of joint\nventure if it is construed as representing a written\nimplementation of decision to \xe2\x80\x9ctake turns\xe2\x80\x9d syndicating the\nshow, i.e., respondents had exclusive rights to syndicate until the\n1968 agreement terminated, at which time exclusive rights to\ninitiate syndication vested in April.\nA joint venture continues until the purpose for which it was\nformed has been accomplished or it is expressly extinguished.\nAnd a subsequent agreement between joint venturers which\nmerely provides for a different distribution of profits does not\nchange the relationship unless it also expressly extinguishes the\nearlier agreement.\nThere is no evidence before this court that one of the purposes\nof the joint venture-to exploit the market for syndication of the\n\n574\n\n\x0ctelevision show-has been accomplished. Indeed, the 1968\nagreement evidences the parties intended to \xe2\x80\x9ctake turns\xe2\x80\x9d\ninitiating syndication, with April\xe2\x80\x99s turn coming after the 1968\ncontract terminated. Neither is there evidence of express\nextinguishment. Thus, the 1968 agreement, absent evidence that\nmay be introduced at trial to the contrary, does not defeat the\ncause of action based on joint venture and granting the\njudgment of nonsuit was also error.~\nConclusion\nThis case cries out for a full development of the facts through a\ntrial of the action.~ The judgment is reversed and remanded for\nfurther proceedings consistent with the views expressed in this\nopinion.\n\nQuestions to Ponder About April v,. KTTV\nA. Do you agree that the relationship between April Enterprises and\nKTTV should be construed as a joint venture? Do you think the\nparties intended it, in substance, to be that?\nB. The court says a joint venture requires an understanding to share\nboth profits and losses. The contract clearly provided for a sharing of\nprofits in the event the show entered syndication. As for losses, the\ncourt says this requirement can be satisfied for April through the\n\xe2\x80\x9closs of its labor\xe2\x80\x9d contributed to the project. Is this reasoning\ncorrect? Does this holding mean that virtually all profit-sharing\nagreements are joint venture agreements? If so, would that be a good\nthing? If not, what distinguishes the April/KTTV deal as a joint\nventure as opposed to other deals involving profit sharing?\nC. This about what lessons can be learned for the transactional\nattorney: What could KTTV have done differently in putting this deal\ntogether to avoid the possibility of this kind of tort liability?\nHistorical Note on April v. KTTV\nOn remand, April Enterprises won a $17.8-million jury verdict.\nThe person behind April Enterprises was ventriloquist Paul Winchell,\nwho was perhaps best known as the voice of Disney\xe2\x80\x99s Tigger the\nTiger. He did Winchell-Mahoney Time in an era when locally produced\n\n575\n\n\x0cprogramming was common, including locally produced children\xe2\x80\x99s\nshows. Winchell\xe2\x80\x99s show was beloved by many viewers growing up in\nthe Bay Area at that time, who fondly recall a puppet named\nKnucklehead Smiff.\nIn the years following the live production and broadcast of WinchellMahoney Time, Winchell worked to secure a syndication deal. In the\nmeantime, KTTV erased the tapes. Back then, videotape was\nexpensive, and since it was re-usable, recording over old shows was\ncommonplace. An enormous wealth of television ephemera from the\n1960s and 1970s was lost in this way.\nOne of the most famous examples of videotape-erasing is the BBC\xe2\x80\x99s\ndestruction of many early episodes of the television show Doctor Who,\nwhich debuted 1963. Today, Doctor Who is one of the world\xe2\x80\x99s most\nvaluable media franchises. According to a 2013 report on franchise\nlicensing, the BBC, largely because of Doctor Who, was ranked ahead\nof the owners of franchises such as Pok\xc3\xa9mon and Sesame Street.\nThe BBC, which can be quite strict in asserting intellectual property\nrights, has, in an ironic twist, benefitted greatly from fans who made\nunauthorized recordings of the show in its early days. Bootleg tapes,\ntraded for years amongst devoted fans called \xe2\x80\x9cWhovians,\xe2\x80\x9d gave the\nBBC a second chance to exploit the episodes that it had intended to\nabandon and destroy.\nAs for Winchell-Mahoney Time, efforts were made for years to spread\nthe word in search of fans who might have retained tapes of the\nshow. Some have been recovered. Several clips can be found at\nhttp://www.paulwinchell.net/media.html.\nPaul Winchell\xe2\x80\x99s daughter, April, followed her father into show\nbusiness. April Winchell is currently a voice actor and stand-up\ncomic. She previously hosted a talk-radio show in Los Angeles. Paul\nWinchell died in 2005 at age 82.\nProblem Based on April v. KTTV\nSuppose you were representing a media company negotiating with\ntalent over a deal similar to the one in April v. KTTV \xe2\x80\x93 where talent\ndevelops a show using your client\xe2\x80\x99s facilities and staff, for initial\n\n576\n\n\x0cdistribution by your client, with the idea that if the show is eventually\nsyndicated, the profits will be split between your client and talent.\nWould you want the deal to be a joint venture or not? What could\nyou do in terms of drafting to settle the issue one way or another?\n\n577\n\n\x0c31. Defamation\n\xe2\x80\x9cWords are, in my not-so-humble opinion, our most\ninexhaustible source of magic. Capable of both inflicting injury,\nand remedying it.\xe2\x80\x9d\n\xe2\x80\x93 Albus Dumbledore, Harry Potter and the Deathly Hallows, by\nJ.K. Rowling, 2007\n\nIntroduction\nDefamation is all about reputation and falsehoods. As a cause of\naction, it applies when a defendant makes false statements that are\nharmful to a plaintiff\xe2\x80\x99s reputation.\nAt first blush, defamation may seem to be something of an island,\nunconnected to the rest of the doctrinal landscape of torts. But at an\ninstinctual level, it has something in common with the intentional\ntorts of battery, assault, false imprisonment and intentional infliction\nof emotional distress. All these torts might be thought of as a suite of\ndoctrines protecting a person\xe2\x80\x99s right to not be \xe2\x80\x9cmessed with.\xe2\x80\x9d While\nthe tort of battery protects a person\xe2\x80\x99s sense of bodily integrity,\ndefamation and the various privacy torts (covered in the next\nchapter) protect a person\xe2\x80\x99s non-corporeal integrity. Defamation\nrecognizes that we are more than our bodies. Our existence is also\ndefined by our relationships with others. Thus, our protectable\npersonal interests run to the web of interconnected impressions\nabout us held in the imagination of others.\nAlthough simple in concept, American defamation is complex as a\nmatter of legal doctrine. There are two parts to the analysis. First is\nthe common law, which itself is labyrinthine. Second is the First\nAmendment analysis imposed by the U.S. Supreme Court, which\nchanges the requirements for defamation cases where important freespeech values are at play.\n\n578\n\n\x0cThe Basic, Unconstitutionalized Doctrine of\nDefamation\nTo begin to explore the tort of defamation, we will start with a basic,\nblackletter formulation of the tort in its unconstitutionalized form\n(where the First Amendment does not come into play):\nA plaintiff can establish a prima facie case for\ndefamation by showing: (1) A defamatory\nstatement (2) regarding a matter of fact (3) that\nwas of and concerning the plaintiff (4) was\npublished by the defendant, and (5) an extra\ncondition is satisfied, being either that (a) the\nstatement constitutes libel per se, (b) the\nstatement constitutes libel per quod, (c) the\nstatement constitutes slander per se, or\n(d) special damages are proven.\n\nOne thing you should notice about the prima facie case for\ndefamation is that proving the falsity of the statement is not required.\nAt its heart, defamation is about falsehoods, but the prima facie case\n\xe2\x80\x93 in its unconstitutionalized form \xe2\x80\x93 only requires that the plaintiff\nshow the reputation-harming aspect of the defendant\xe2\x80\x99s statement.\nThe issue of falsity is not the plaintiff\xe2\x80\x99s to prove. Instead, commonlaw defamation sees truth as an affirmative defense.\n\nDefamatory Statement\nThe essence of a defamatory statement is that it is reputationharming. \xe2\x80\x9cA communication is defamatory if it tends so to harm the\nreputation of another as to lower him in the estimation of the\ncommunity or to deter third persons from associating or dealing with\nhim.\xe2\x80\x9d Nuyen v. Slater, 372 Mich. 654 (Mich. 1964).\nThe reference point for \xe2\x80\x9creputation\xe2\x80\x9d is the whole community or, at\nleast, some substantial and morally respectable group. Calling\nsomeone a murderer clearly qualifies as reputation-harming, for\ninstance, because pretty much everyone considers committing\nmurder to reflect poorly on someone\xe2\x80\x99s character. But what about\nsomething that is only reputation-harming in certain circles? That\xe2\x80\x99s\nwhere the substantial-and-morally-respectable-group requirement\ncomes in. Suppose someone is falsely said to be Jewish. That\xe2\x80\x99s not\n\n579\n\n\x0cdefamatory \xe2\x80\x93 notwithstanding that such a statement might tend to\nharm one\xe2\x80\x99s reputation among the neo-Nazis. The neo-Nazis are not a\nmorally respectable group. So the fact that a statement harms one\xe2\x80\x99s\nreputation among them can\xe2\x80\x99t make it defamatory.\nThe Per Se Categories\nUnder traditional defamation law, certain kinds of statements are\nconsidered per se defamatory. (The Latin \xe2\x80\x9cper se\xe2\x80\x9d means \xe2\x80\x9cin itself\xe2\x80\x9d\nand can be translated as \xe2\x80\x9cas such.\xe2\x80\x9d) In other words, there is no need\nto debate the issue or ask a jury to determine whether these\nstatements are reputation-harming. Statements from the per se\ncategories are reputation-harming as such. End of discussion.\nThere are four categories of per se defamation: (1) making a\nstatement that is adverse to one\xe2\x80\x99s profession or business, (2) saying\nthat a person has a loathsome disease, (3) imputing guilt of a crime of\nmoral turpitude, (4) imputing to a person a lack of chastity.\nLet\xe2\x80\x99s take these in turn.\nThe first per se category is a statement adverse to one\xe2\x80\x99s profession.\nAn example would be calling a lawyer a liar. Since honesty is essential\nin the legal profession, saying that a lawyer is dishonest is to harm the\nlawyer\xe2\x80\x99s professional reputation. Whether a statement is adverse to\none\xe2\x80\x99s profession clearly depends on the profession. Saying that an\naccountant is \xe2\x80\x9cbad with numbers\xe2\x80\x9d is to make a statement adverse to\nthat person\xe2\x80\x99s profession. But saying that an actor or poet is bad with\nnumbers would not have the same effect.\nThe second per se category is loathsome disease. Leprosy and\nsexually transmitted diseases are leading examples. (The persistence\nof leprosy as a leading example \xe2\x80\x93 even though leprosy these days is\neasily treatable \xe2\x80\x93 highlights the ancientness of this legal doctrine.)\nThere is no list of other diseases that qualify as \xe2\x80\x9cloathsome,\xe2\x80\x9d but\npresumably any disease that would generally cause others to shun the\nsufferer could qualify.\nThe third per se category is imputing guilt of a crime of moral\nturpitude. Categorizing certain crimes as morally turpitudinous is not\njust a defamation concept \xe2\x80\x93 it comes up under multiple areas of law.\n\n580\n\n\x0cIn U.S. immigration law, for instance, a conviction for a crime of\nmoral turpitude can make a non-citizen deportable. And in legal\nethics, a conviction for a crime of moral turpitude can be cause for\ndisbarment or denial of admission to the bar. Despite its crosscategory significance, however, the boundaries of what constitutes a\ncrime of moral turpitude are fuzzy. One court hearing a defamation\ncase has said that \xe2\x80\x9cmoral turpitude involves an act of inherent\nbaseness, vileness or depravity in the private and social duties which\nman does to his fellow man or to society in general, contrary to the\naccepted rule of right and duty between man and law.\xe2\x80\x9d Lega Siciliana\nSocial Club, Inc. v. St. Germaine, 77 Conn. App. 846 (Conn. App. 2003)\n(internal quotes omitted). Recently, in the immigration context, a\ncrime involving moral turpitude has been described as \xe2\x80\x9cconduct that\nshocks the public conscience as being inherently base, vile, or\ndepraved, and contrary to the accepted rules of morality and the\nduties owed between persons or to society in general.\xe2\x80\x9d Da Silva Neto\nv. Holder, 680 F.3d 25, (1st Cir. 2012). As to what crimes are in or out,\nit can be said with a certainty that murder, rape, and mayhem\n(assaults causing permanent injury, such as disfigurement or\ndismemberment) are crimes of moral turpitude. Crimes that involve\nlying, such a perjury and forgery, are also moral-turpitude crimes.\nTheft crimes, however, are more of a toss up \xe2\x80\x93 some being\nturpitudinous, others not. Larceny under false pretenses has been\nheld morally turpitudinous. But simple shoplifting might not be.\nThe fourth category is imputing a lack of chastity. Chastity is\nabstaining from sex altogether, or, for married persons, abstaining\nfrom sex outside of the marriage. Originally, this doctrine only\napplied for female plaintiffs, but modern courts have extended it to\ncover male plaintiffs as well. And the category has also been used to\ncover statements short of alleging sexual intercourse, such as saying\nthat a person has made sexual advances or evinced a willingness to\nengage in sexual intercourse. Different, but within the same sphere of\nsubject matter, some courts have concluded that an allegation of\nimpotence is per se defamatory.\n\n581\n\n\x0cBeyond the Per Se Categories\nTo be defamatory, a statement need not be per se defamatory. Any\nstatement that tends to be reputation-harming can be held\ndefamatory. Statements that have been held to be defamatory outside\nthe per se categories include imputing that someone is mentally ill,\nabuses drugs, is bankrupt or financially irresponsible, or is dishonest.\nCourts \xe2\x80\x9ctake the world as it is\xe2\x80\x9d when deciding what is defamatory,\neven if doing so seems to give credence to wrong-headed thinking.\nFor instance, while there is nothing wrongful about being a victim of\nrape, some courts have held that making a statement that someone is\na rape victim is defamatory. And as of a few years ago, most courts\nheld imputing that someone is of lesbian, gay, or bisexual orientation\nwas defamatory. The current trend, however, is toward holding that\nsuch imputations are not defamatory.\nOther changes in what is considered reputation-harming reflect great\narcs of American history. Calling someone a Communist was\ngenerally not considered defamatory before World War II. But during\nthe Cold War, it was.\n\nRegarding a Matter of Fact\nTo count as defamation, the statement at issue must be regarding a\nmatter of fact. Opinion is off-limits for defamation plaintiffs.\nThe difference between what counts as a factual assertion and what is\nnon-actionable opinion can often be a close issue, but the court will\nconsider the context in which the statement is made, the medium, the\nintended audience, and whether the statement is theoretically\nprovable.\nIn the case of Obsidian Finance Group v. Cox, 2011 WL 2745849 (D.\nOr. 2011), blogger Crystal Cox used a blog called\nobsidianfinancesucks.com to make a variety of withering comments\nabout Obsidian Finance Group and bankruptcy trustee Kevin\nPadrick. Judge Marco A. Hern\xc3\xa1ndez held her blogging to be nonactionable opinion:\n[T]he statements are not sufficiently factual to\nbe susceptible of being proved true or false.\n\n582\n\n\x0cCox repeatedly poses her statements as\nquestions or asserts that she will prove her\naccusations. For example, she asserts that \xe2\x80\x9ca\nWhole Lot\xe2\x80\x9d of the \xe2\x80\x9cTruth\xe2\x80\x9d is \xe2\x80\x9cComing Soon,\xe2\x80\x9d\nthat she \xe2\x80\x9cintend[s] to Expose every Dirty\nDeed,\xe2\x80\x9d that Padrick \xe2\x80\x9cWILL BE EXPOSED,\xe2\x80\x9d\nthat \xe2\x80\x9cYOU [meaning Padrick] will BE Indicted\nSOME TIME, someday,\xe2\x80\x9d and that she \xe2\x80\x9cWILL\nPROVE IT ALL.\xe2\x80\x9d She tells the reader to\n\xe2\x80\x9cSTAY TUNED,\xe2\x80\x9d and she asks \xe2\x80\x9cKevin\nPadrick, Guilty of Tax Fraud?\xe2\x80\x9d She also states\nthat Padrick is a \xe2\x80\x9ccold hearted evil asshole\xe2\x80\x9d and\nis a \xe2\x80\x9cCruel, Evil Discriminating Liar.\xe2\x80\x9d~\nDefendant\xe2\x80\x99s use of question marks and her\nreferences to proof that will allegedly occur in\nthe future negate any tendency for her\nstatements to be understood as provable\nassertions of fact. Her statements contain so\nlittle actual content that they do not assert, or\nimply, verifiable assertions of fact. They are,\ninstead, statements of exaggerated subjective\nbelief such that they cannot be proven true or\nfalse.\nConsidering all of the statements in the record\nunder the totality of circumstances, the\nstatements at issue are not actionable assertions\nof fact, but are constitutionally protected\nexpressions of opinion. Plaintiffs\xe2\x80\x99 motion for\nsummary judgment on the liability of the\ndefamation claim is denied.\n\nThe Cox case points up the fact that the more wild and outlandish the\nlanguage and medium, the less likely the content will be taken as\nfactual. Outsized invective and wanton use of capital letters or bold\ntype seem to move the needle toward the safe zone of protected\nopinion. On the other hand, sobriety of language and prestige of the\nforum make it easier to push toward the red line of actionable\nassertions of fact.\n\n583\n\n\x0cOf and Concerning the Plaintiff\nThe requirement that the statement be of and concerning the plaintiff\nmeans that the statement must somehow identify the plaintiff. This is\neasy in cases where the defendant calls out the plaintiff by name. But\nidentification need not be express. It can be implied.\nSuppose the defendant never uses the plaintiff\xe2\x80\x99s name, but says,\ninstead, \xe2\x80\x9cYou all know who I\xe2\x80\x99m talking about.\xe2\x80\x9d Has the plaintiff been\nidentified? That will be an issue of fact. A jury will have to decide\nwhether the audience would have understood that the defendant was\nreferring to the plaintiff.\nAs with defamatory meaning, identification of the plaintiff can arise\nby accident. This sometimes happens in media that juxtaposes images\nand words, such as television shows or magazines.\nSuppose a magazine runs a story about pathological liars next to a file\nphoto of lawyers exiting a courthouse. If readers tend to think that\nthe lawyers pictured are examples of the pathological liars the story is\ntalking about, then the of-and-concerning-the-plaintiff element of the\ntort is met.\nPublished by the Defendant\nDefamation requires communication, and communication cannot\nhappen without at least two people \xe2\x80\x93 a sender and a receiver. Thus,\nto be actionable, a defamatory statement must be \xe2\x80\x9cpublished\xe2\x80\x9d to at\nleast one person, not including the plaintiff.\nThe word \xe2\x80\x9cpublished\xe2\x80\x9d here is a term of art. A statement is published\nin the defamation sense if it is uttered to a person who hears it. The\nrequirement has nothing to do with publication in a formal sense,\nsuch as by a respected newspaper or book publisher. Uttering\nsomething aloud or writing it on a post-it note will count as\npublication as long as at least one other person hears or reads the\nmessage.\nNote that you can not defame a person by communicating only to\nthat person. Defamation is about reputational harm, not insult. So\nunless someone other than the plaintiff and the defendant perceives\n\n584\n\n\x0cthe statement, there can be no effect on the plaintiff\xe2\x80\x99s reputation, and\nthus there\xe2\x80\x99s no cause of action.\n\nThe Necessity of an \xe2\x80\x9cExtra Condition\xe2\x80\x9d\nOn top of the above elements, defamation needs something more.\nWe have marked this out as the fifth element of the defamation case.\nThere are four different ways to satisfy the extra condition:\nThe \xe2\x80\x9cextra condition\xe2\x80\x9d can be satisfied by\nany one of the following:\n(a) the statement constitutes libel per se\n(b) the statement constitutes libel per quod\n(c) the statement constitutes slander per se\n(d) special damages are proven\n\nHere we encounter the distinction between libel and slander.\nThe word libel refers to defamation that comes in writing or in some\nother permanent, non-ephemeral form. By contrast slander refers to\ndefamation that is uttered as speech or is otherwise ephemeral.\nBecause a written falsehood is presumed to be capable of more\ndamage than a falsehood uttered into the air, the barriers to suing\nover libel are lower than they are to suing over slander.\nYou may wonder whether defamation by radio or television\nbroadcast counts as libel or slander. That\xe2\x80\x99s a good question. The\njurisdictions are split. It\xe2\x80\x99s libel in some, slander in others. The courts\nin Georgia found the question troubling enough to put defamation\nby broadcast under the heading of a newly minted tort, which they\ncall \xe2\x80\x9cdefamacast.\xe2\x80\x9d See, e.g., Jaillett v. Georgia TV Co., 520 S.E.2d 721,\n724 (Ga. App. 1999).\nGiven the disarray over broadcasting, you will not be surprised to\nhear that whether defamation over the internet should be categorized\nas libel or slander remains a largely unresolved question. At least\nsome jurisdictions, however, have categorized internet defamation as\nlibel.\nNow that we have some understanding of \xe2\x80\x9clibel\xe2\x80\x9d and \xe2\x80\x9cslander,\xe2\x80\x9d we\ncan talk about what counts as \xe2\x80\x9cslander per se,\xe2\x80\x9d \xe2\x80\x9clibel per quod,\xe2\x80\x9d and\n\n585\n\n\x0c\xe2\x80\x9clibel per se.\xe2\x80\x9d Although jurisdictions vary, the following are helpful\ngeneralizations:\nA statement is slander per se if it is slander (meaning it doesn\xe2\x80\x99t rise\nto the level of qualifying as libel), and if it fits within one of the per se\ncategories discussed above. To review, those per se categories are\nadverse to one\xe2\x80\x99s profession, having a loathsome disease, guilt of a\ncrime of moral turpitude, and having a lack of chastity. If it fits\nwithin one of those categories, then it qualifies as slander per se, and\nthe final requirement of the defamation case is satisfied.\nA statement is libel per quod if it is libel (as opposed to slander), if\nsome external information is needed to understand its defamatory\nnature, and if it fits within one of the per se categories. The Latin\n\xe2\x80\x9cper quod\xe2\x80\x9d means \xe2\x80\x9cmeaning whereby\xe2\x80\x9d \xe2\x80\x93 it refers to the necessity of\nhaving some external information to understand the meaning. In\nother words, a statement that is libel per quod is not defamatory on\nits face, but it is defamatory once context is taken into account.\nHere\xe2\x80\x99s an example of a libel per quod issue. Imagine that a newspaper\nprints a notice that \xe2\x80\x9cDoris Orband Sydney of Throgs Bay and Basil\nKeane Arbuckle of West Orange Hill are deeply in love and engaged\nto be married, with a ceremony to be held next Saturday.\xe2\x80\x9d Nothing\nabout this engagement notice is defamatory on its face. But taking\ninto account external factors, it might be. Suppose newspaper readers\nknow that Ms. Sydney and Mr. Arbuckle are both married to other\npeople. In that case, the extrinsic facts of their existing marriages\nmakes the engagement notice defamatory because it imputes a lack of\nchastity to the alleged couple. (Botched engagement notices have, in\nfact, been a recurrent source of libel per quod cases.)\nA statement is libel per se if it is libel and if no external information\nis necessary to understand its defamatory meaning. So long as the\ncommunication counts as libel and its defamatory meaning is clear on\nits face, then it fulfills the fifth element\xe2\x80\x99s extra condition and is\nactionable. This means that libel per se qualifies as actionable regardless of\nwhether its content fits within any of the per se categories. If that sounds\nconfusing, you heard it correctly: Despite having \xe2\x80\x9cper se\xe2\x80\x9d in its name,\nlibel per se does not need to fit within one of the per se categories.\n\n586\n\n\x0cThe per se categories are, instead, used for slander per se and libel\nper quod. (Clearly, no one designed these terms for ease of learning.)\nFor an example of libel per se, suppose this is printed in the\nnewspaper: \xe2\x80\x9cOzella Grantham Clifton of Upper Larnwick, a noted\nmethamphetamine addict, is a bankrupt spendthrift.\xe2\x80\x9d This is libel per\nse because it is libel (as opposed to slander), it is reputation-harming,\nand no external information is needed to understand its defamatory\nmeaning. Thus, it won\xe2\x80\x99t matter that the facts attributed to Ozella\nGrantham Clifton don\xe2\x80\x99t fall into any of the per se categories. This\nstatement will be actionable as libel per se.\nNow, if a statement is defamatory, but it doesn\xe2\x80\x99t qualify as slander\nper se, libel per quod, or libel per se, it can still be actionable if the\nplaintiff can prove special damages. In this case, \xe2\x80\x9cspecial\xe2\x80\x9d means\nspecific (as opposed to unique). Special damages are those damages\nthat are provably quantifiable in dollars lost. For instance, if the\nplaintiff is paid on a commission basis and loses sales because of a\nreputation-harming statement, there are special damages. Getting\nfired or not being hired would count as well. What will not count as\nspecial damages is a general lowering of one\xe2\x80\x99s esteem in the\ncommunity.\nCheck-Your-Understanding Questions About the Extra\nCondition\nDo the following satisfy the extra condition required for a prima facie\ndefamation case? If so, on what grounds?\nA. A statement uttered in spoken conversation that accuses the\nplaintiff of being a terrorist sympathizer.\nB. A written statement that, given extrinsic facts known to most in\nthe community, clearly insinuates that the plaintiff committed\nperjury.\nC. A written statement clearly accusing the plaintiff by name of being\na heroin addict.\nD. An oral statement that the plaintiff frequently daydreams of ways\nof inflicting physical injury on her or his boss, along with evidence\n\n587\n\n\x0cshowing that this statement caused the plaintiff\xe2\x80\x99s dismissal from\nemployment.\nE. A whispered statement that the plaintiff is sick with a weaponized\nform of smallpox, readily communicable through the air.\n\nDefamation and the First Amendment\nIn the landmark case of New York Times v. Sullivan, 376 U.S. 254\n(1964), the Supreme Court held that the First Amendment guarantee\nof free speech alters and restricts common-law defamation. Thus,\nthrough New York Times v. Sullivan and subsequent cases, the court\nhas constitutionalized the law of defamation.\nTo perform the constitutional analysis, you must first begin with this\nquestion: Is the plaintiff a public official or public figure, or does the\nstatement involve a matter of public concern? If the answer is yes,\nthen the First Amendment comes into play. If the answer is no, then\nFirst Amendment has nothing to say about the case, and the original\ncommon-law analysis under state law will control.\nWhat the First Amendment does \xe2\x80\x93 if it comes into play \xe2\x80\x93 is change\naround the elements and defenses of the common-law analysis. What\nchanges and how depends on whether the plaintiff is considered a\npublic official or public figure, or, alternatively, a private person.\nIf the plaintiff is a public official or public figure, then, in addition to\nthe common-law elements of defamation, the plaintiff takes on the\nburden of having to prove two additional elements. That is, on top of\nthe five common-law elements of the prima facie case for\ndefamation, the public-official-or-public-figure plaintiff must add two\nmore elements to have a prima face case.\nUnder the first added constitutional element, the publicofficial/public-figure plaintiff must prove that the allegedly\ndefamatory statement is false. Note that under the traditional\ncommon law, falsity is not a prima facie element. Instead, truth is an\naffirmative defense. The constitutionalized form of defamation,\nhowever, shifts the burden on the truth/falsity issue, making it the\nplaintiff\xe2\x80\x99s job to prove up front.\n\n588\n\n\x0cSecond, the public figure or public official plaintiff must prove that\nthe defendant acted with actual malice in making the statement.\n\xe2\x80\x9cActual malice\xe2\x80\x9d is a term of art. It does not mean that the plaintiff\nwas somehow \xe2\x80\x9cmalicious.\xe2\x80\x9d Instead, the actual malice requirement\nspeaks to the level of care used by the defendant, and it signifies a\nstandard above that of negligence. Actual malice means that the\ndefendant either knew the statement was false, or else acted with\nreckless disregard for whether the statement was true or not.\nIf the plaintiff is a private person, but the statement was on a matter\nof public concern, then the plaintiff is given a little extra flexibility as\ncompared with public figures or public officials. The private-person\nplaintiff in a constitutionalized defamation case must still prove the\nfalsity of the statement, but as to the other added element, the\nprivate-person plaintiff has a choice. The private-person plaintiff can\neither (1) prove actual malice or (2) prove negligence plus actual\ninjury suffered by the plaintiff.\nWe can sum this up as blackletter law in this way:\nA plaintiff who is a public official or public\nfigure must, as part of a prima facie case for\ndefamation, additionally prove: (6) that the\nstatement was false, and (7) that the defendant\nacted with actual malice.\nA plaintiff who is a private person suing over\na statement made regarding a matter of\nlegitimate public concern must, as part of a\nprima facie case for defamation, additionally\nprove: (6) that the statement was false, and (7)\neither (a) the defendant acted with actual malice,\nor (b) the defendant was negligent and the\nplaintiff suffered an actual injury.\n\nThe bottom line is that it is very hard to win a lawsuit for defamation\nif you are a public official or public figure, or if the subject is one of\nlegitimate public concern. And it\xe2\x80\x99s hard because the First\nAmendment wants it that way.\nHere is an example that will show you how these elements work with\na set of facts:\n\n589\n\n\x0cExample: Geopolis Gazette \xe2\x80\x93 The Geopolis Gazette\npublishes a story about police corruption that, owing to hasty\nlayout and photo editing, inadvertently implies that Pablo is\none of the people discussed in the story who has bribed\npolice officers. Pablo is a dental assistant who has never held\npublic office or been publicly well-known. He has never\nbribed or attempted to bribe anyone. Because of the\nnewspaper story, Pablo is put on a two-week unpaid\nsuspension at work.\nCan Pablo prevail in a defamation case against the Geopolis\nGazette? Probably yes.\nFirst let\xe2\x80\x99s look at the constitutional analysis. Pablo is not a\npublic figure or public official, but police corruption is clearly\na matter of legitimate public concern. Therefore, the First\nAmendment comes into play. Pablo will be required to prove\nthe falsity of the statement, but he can do this simply by\ntaking the stand and being credible in front of a jury. Next,\nwe look at the actual-malice/negligence issue. The description\nof the editing as \xe2\x80\x9chasty\xe2\x80\x9d suggests the newspaper acted with\nnegligence. Proving actual malice would be more difficult, but\nhappily for Pablo, he will not need to show actual malice.\nNegligence is enough since Pablo can show actual injury: his\nunpaid suspension. Thus, Pablo\xe2\x80\x99s case survives First\nAmendment scrutiny.\nNow let\xe2\x80\x99s look at the remaining common law analysis.\nImplying that someone has bribed police officers would\ncertainly tend to lower that person\xe2\x80\x99s reputation in the\ncommunity, so it\xe2\x80\x99s a defamatory statement. Bribing police\nofficers is a matter of fact, not opinion. And the statement\nwas of and concerning Pablo because the photo in the\ncontext of the layout implied that Pablo was one of the\nbribers. And the statement was published by Geopolis\nGazette in its own pages. All that remains is the \xe2\x80\x9cextra\nelement.\xe2\x80\x9d This is satisfied three different ways. The\ncommunication counts as libel per se, since it was\ncommunicated in written form. But, for argument\xe2\x80\x99s sake,\n\n590\n\n\x0ceven if it were not, the extra requirement would still likely be\nsatisfied because bribery would likely be considered a crime\nof moral turpitude. And even if we put that aside, Pablo can\nallege and prove special damages, since he was given an\nunpaid two-week suspension from work. So, on these facts,\nPablo has a strong defamation claim.\nThe blackletter law of defamation is, admittedly, quite complex. But,\nas you can see, if you work through it systematically, it\xe2\x80\x99s quite\nmanageable.\nCase: Bindrim v. Mitchell\nThis case points up the hazards of ripped-from-the-headlines fiction\nwriting. If you find it surprising, you wouldn\xe2\x80\x99t be alone. When the\ncourt issued this decision it sent shockwaves through the bookpublishing and novel-writing worlds.\n\nBindrim v. Mitchell\nCourt of Appeals of California, Second Appellate District, Division\nFour\nApril 18, 1979\n92 Cal.App.3d 61. PAUL BINDRIM, Plaintiff and Appellant, v.\nGWEN DAVIS MITCHELL et al., Defendants and Appellants.\nCiv. No. 52133. Judge Bernard Jefferson wrote a concurrence,\nnot reproduced here.\nJustice ROBERT KINGSLEY:\nThis is an appeal taken by Doubleday and Gwen Davis Mitchell\nfrom a judgment for damages in favor of plaintiff-respondent\nPaul Bindrim, Ph.D. The jury returned verdicts on the libel\ncounts against Doubleday and Mitchell~. Plaintiff is a licensed\nclinical psychologist and defendant is an author. Plaintiff used\nthe so-called \xe2\x80\x9cNude Marathon\xe2\x80\x9d in group therapy as a means of\nhelping people to shed their psychological inhibitions with the\nremoval of their clothes.\nDefendant Mitchell had written a successful best seller in 1969\nand had set out to write a novel about women of the leisure\nclass. Mitchell attempted to register in plaintiff\xe2\x80\x99s nude therapy\n\n591\n\n\x0cbut he told her he would not permit her to do so if she was\ngoing to write about it in a novel. Plaintiff said she was\nattending the marathon solely for therapeutic reasons and had\nno intention of writing about the nude marathon. Plaintiff\nbrought to Mitchell\xe2\x80\x99s attention paragraph B of the written\ncontract which reads as follows: \xe2\x80\x9cThe participant agrees that he\nwill not take photographs, write articles, or in any manner\ndisclose who has attended the workshop or what has transpired.\nIf he fails to do so he releases all parties from this contract, but\nremains legally liable for damages sustained by the leaders and\nparticipants.\xe2\x80\x9d\nMitchell reassured plaintiff again she would not write about the\nsession, she paid her money and the next day she executed the\nagreement and attended the nude marathon.\nMitchell entered into a contract with Doubleday two months\nlater and was to receive $150,000 advance royalties for her\nnovel.\nMitchell met Eleanor Hoover for lunch and said she was\nworried because she had signed a contract and painted a\ndevastating portrait of Bindrim.\nMitchell told Doubleday executive McCormick that she had\nattended a marathon session and it was quite a psychological\njolt. The novel was published under the name \xe2\x80\x9cTouching\xe2\x80\x9d and it\ndepicted a nude encounter session in Southern California led by\n\xe2\x80\x9cDr. Simon Herford.\xe2\x80\x9d\nPlaintiff first saw the book after its publication and his attorneys\nsent letters to Doubleday and Mitchell. Nine months later the\nNew American Library published the book in paperback.\nThe parallel between the actual nude marathon sessions and the\nsessions in the book \xe2\x80\x9cTouching\xe2\x80\x9d was shown to the jury by\nmeans of the tape recordings Bindrim had taken of the actual\nsessions.~\nPlaintiff asserts that he was libeled by the suggestion that he\nused obscene language which he did not in fact use. Plaintiff\nalso alleges various other libels due to Mitchell\xe2\x80\x99s inaccurate\nportrayal of what actually happened at the marathon. Plaintiff\n\n592\n\n\x0calleges that he was injured in his profession and expert\ntestimony was introduced showing that Mitchell\xe2\x80\x99s portrayal of\nplaintiff was injurious and that plaintiff was identified by certain\ncolleagues as the character in the book, Simon Herford.\nI\nDefendants first allege that they were entitled to judgment on\nthe ground that there was no showing of \xe2\x80\x9cactual malice\xe2\x80\x9d by\ndefendants. As a public figure, plaintiff is precluded from\nrecovering damages for a defamatory falsehood relating to him,\nunless he proved that the statement was made with \xe2\x80\x9cactual\nmalice,\xe2\x80\x9d that is, that it was made with knowledge that it is false\nor with reckless disregard of whether it was false or not. (New\nYork Times Co. v. Sullivan (1964) 376 U.S. 254, 279-280.) The\ncases are clear that reckless conduct is not measured by whether\na reasonably prudent man would have investigated before\npublishing. There must be sufficient evidence to permit the\nconclusion that the defendant in fact entertained serious doubts\nas to the truth of his publication. Thus, what constitutes actual\nmalice focuses on defendants\xe2\x80\x99 attitude toward the truth or falsity\nof the material published and reckless disregard of the truth or\nfalsity cannot be fully encompassed by one infallible definition\nbut its outer limits must be marked by a case-by-case\nadjudication.\nEvidence establishing a reckless disregard for the truth must be\nclear and convincing evidence, and proof by a preponderance of\nevidence is insufficient. (New York Times Co. v. Sullivan (1964)\nsupra., 376 U.S. 254, at pp. 285-286.) Whether or not there was\nsuch malice is a question of fact to be determined by the trier of\nfact.. However, the reviewing court is required to review the\nevidence in a libel action by a public figure, to be sure that the\nprinciples were constitutionally applied. The court has the duty\nto examine the record to determine whether it could\nconstitutionally support a judgment in favor of plaintiff, but this\ndoes not involve a de novo review of the proceedings below\nwherein the jury\xe2\x80\x99s verdict is entitled to no weight.\nThere is clear and convincing evidence to support the jury\xe2\x80\x99s\nfinding that defendant Mitchell entertained actual malice, and\n\n593\n\n\x0cthat defendant Doubleday had actual malice when it permitted\nthe paperback printing of \xe2\x80\x9cTouching,\xe2\x80\x9d although there was no\nactual malice on the part of Doubleday in its original printing of\nthe hardback edition.\nMitchell\xe2\x80\x99s reckless disregard for the truth was apparent from her\nknowledge of the truth of what transpired at the encounter, and\nthe literary portrayals of that encounter.\xef\x81\x81The fact that\n\xe2\x80\x9cTouching\xe2\x80\x9d was a novel does not necessarily insulate Mitchell\nfrom liability for libel, if all the elements of libel are otherwise\npresent.\xef\x81\x80 Since she attended sessions, there can be no\nsuggestion that she did not know the true facts. \xef\x81\x81There is no\nsuggestion that Mitchell was being malicious in the fabrication;\nher intent may have been to be colorful or dramatic.\xef\x81\x80 [Yet\nbecause] \xe2\x80\x9cactual malice\xe2\x80\x9d concentrates solely on defendants\xe2\x80\x99\nattitude toward the truth or falsity of the material published, and\nnot on malicious motives, certainly defendant Mitchell was in a\nposition to know the truth or falsity of her own material, and\nthe jury was entitled to find that her publication was in reckless\ndisregard of that truth or with actual knowledge of falsity.~\nII\n[T]he award for punitive damages against Doubleday may stand.\nA public figure in a defamation case may be awarded punitive\ndamages when there is \xe2\x80\x9cactual malice,\xe2\x80\x9d~ and, as we have said\nabove, actual malice was established for Doubleday.~\nIII\nAppellants claim that, even if there are untrue statements, there\nis no showing that plaintiff was identified as the character,\nSimon Herford, in the novel \xe2\x80\x9cTouching.\xe2\x80\x9d\nAppellants allege that plaintiff failed to show he was identifiable\nas Simon Herford, relying on the fact that the character in\n\xe2\x80\x9cTouching\xe2\x80\x9d was described in the book as a \xe2\x80\x9cfat Santa Claus type\nwith long white hair, white sideburns, a cherubic rosy face and\nrosy forearms\xe2\x80\x9d and that Bindrim was clean shaven and had\nshort hair.~ In the case at bar, the only differences between\nplaintiff and the Herford character in \xe2\x80\x9cTouching\xe2\x80\x9d were physical\nappearance and that Herford was a psychiatrist rather than\n\n594\n\n\x0cpsychologist. Otherwise, the character Simon Herford was very\nsimilar to the actual plaintiff. We cannot say~ that no one who\nknew plaintiff Bindrim could reasonably identify him with the\nfictional character. Plaintiff was identified as Herford by several\nwitnesses and plaintiff\xe2\x80\x99s own tape recordings of the marathon\nsessions show that the novel was based substantially on\nplaintiff\xe2\x80\x99s conduct in the nude marathon.\nDefendant also relies on Middlebrooks v. Curtis Publishing Co. (4th\nCir. 1969) 413 F.2d 141, where the marked dissimilarities\nbetween the fictional character and the plaintiff supported the\ncourt\xe2\x80\x99s finding against the reasonableness of identification. In\nMiddlebrooks, there was a difference in age, an absence from\nthe locale at the time of the episode, and a difference in\nemployment of the fictional character and plaintiff; nor did the\nstory parallel the plaintiff\xe2\x80\x99s life in any significant manner. In the\ncase at bar, apart from some of those episodes allegedly\nconstituting the libelous matter itself, and apart from the\nphysical difference and the fact that plaintiff had a Ph.D., and\nnot an M.D., the similarities between Herford and Bindrim are\nclear, and the transcripts of the actual encounter weekend show\na close parallel between the narrative of plaintiff\xe2\x80\x99s novel and the\nactual real life events. Here, there were many similarities\nbetween the character, Herford, and the plaintiff Bindrim and\nthose few differences do not bring the case under the rule of\nMiddlebrooks. There is overwhelming evidence that plaintiff\nand \xe2\x80\x9cHerford\xe2\x80\x9d were one.\nIV\nHowever, even though there was clear and convincing evidence\nto support the finding of \xe2\x80\x9cactual malice,\xe2\x80\x9d and even though there\nwas support for finding that plaintiff is identified as the\ncharacter in Mitchell\xe2\x80\x99s novel, there still can be no recovery by\nplaintiff if the statements in \xe2\x80\x9cTouching\xe2\x80\x9d were not libelous.\nThere can be no libel predicated on an opinion. The publication\nmust contain a false statement of fact.\nPlaintiff alleges that the book as a whole was libelous and that\nthe book contained several false statements of fact.~ \xef\x81\x81We find it\nunnecessary to discuss each alleged libel separately, since if any\n\n595\n\n\x0cof the alleged libels fulfill all the requirements of libel, that is\nsufficient to support the judgment.\xef\x81\x80\nOur inquiry then, is directed to whether or not any of these\nincidents can be considered false statements of fact. It is clear\nfrom the transcript of the actual encounter weekend proceeding\nthat some of the incidents portrayed by Mitchell are false: i.e.,\nsubstantially inaccurate description of what actually happened. It\nis also clear that some of these portrayals cast plaintiff in a\ndisparaging light since they portray his language and conduct as\ncrude, aggressive, and unprofessional.~\nDefendants contend that the fact that the book was labeled as\nbeing a \xe2\x80\x9cnovel\xe2\x80\x9d bars any claim that the writer or publisher could\nbe found to have implied that the characters in the book were\nfactual representations not of the fictional characters but of an\nactual nonfictional person. That contention, thus broadly stated,\nis unsupported by the cases. The test is whether a reasonable\nperson, reading the book, would understand that the fictional\ncharacter therein pictured was, in actual fact, the plaintiff acting\nas described. (Middlebrooks v. Curtis Publishing Co. (4th Cir. 1969)\nsupra., 413 F.2d 141, 143.) Each case must stand on its own\nfacts. In some cases, such as Greenbelt Pub. Assn. v. Bresler (1970)\nsupra., 398 U.S. 6, an appellate court can, on examination of the\nentire work, find that no reasonable person would have regarded\nthe episodes in the book as being other than the fictional\nimaginings of the author about how the character he had created\nwould have acted. Similarly, in Hicks v. Casablanca Records\n(S.D.N.Y. 1978) 464 F.Supp. 426, a trier of fact was able to find\nthat, considering the work as a whole, no reasonable reader\nwould regard an episode, in a book purporting to be a biography\nof an actual person, to have been anything more than the\nauthor\xe2\x80\x99s imaginative explanation of an episode in that person\xe2\x80\x99s\nlife about which no actual facts were known. We cannot make\nany similar determination here. Whether a reader, identifying\nplaintiff with the \xe2\x80\x9cDr. Herford\xe2\x80\x9d of the book, would regard the\npassages herein complained of as mere fictional embroidering or\nas reporting actual language and conduct, was for the jury. Its\n\n596\n\n\x0cverdict adverse to the defendants cannot be overturned by this\ncourt.\nV\nDefendants raise the question of whether there is \xe2\x80\x9cpublication\xe2\x80\x9d\nfor libel where the communication is to only one person or a\nsmall group of persons rather than to the public at large.\nPublication for purposes of defamation is sufficient when the\npublication is to only one person other than the person\ndefamed. Therefore, it is irrelevant whether all readers realized\nplaintiff and Herford were identical.\nVI\nAppellant Doubleday alleges several charges to the jury were\nerroneous, and that the court improperly refused to give certain\nproffered instructions by them. Doubleday objects that the\ncourt erred when it rejected its instruction that Bindrim must\nprove by clear and convincing evidence that defendants\nintentionally identified Bindrim. Firstly, the \xe2\x80\x9cclear and\nconvincing evidence\xe2\x80\x9d standard applies to the proving that the\nact was done with \xe2\x80\x9cactual malice\xe2\x80\x9d and an instruction to that\neffect was given by the court. Secondly, defendants\xe2\x80\x99 instructions\nthat the jury must find that a substantial segment of the public\ndid, in fact, believe that Dr. Simon Herford was, in fact, Paul\nBindrim, was properly refused. For the tort of defamation,\npublication to one other person is sufficient, ante.~\nPresiding Justice GORDON L. FILES, dissenting:\nThis novel, which is presented to its readers as a work of fiction,\ncontains a portrayal of nude encounter therapy, and its tragic\neffect upon an apparently happy and well-adjusted woman who\nsubjected herself to it. Plaintiff is a practitioner of this kind of\ntherapy. His grievance, as described in his testimony and in his\nbriefs on appeal, is provoked by that institutional criticism.\xef\x81\x81The\nrecord demonstrates the essential truth of the author\xe2\x80\x99s thesis. A\ntape recording of an actual encounter session conducted by\nplaintiff contains this admonition to the departing patients: \xe2\x80\x9c...\nNow, to top that off, you\xe2\x80\x99re turned on, that is you\xe2\x80\x99re about as\nturned on as if you\xe2\x80\x99ve had 50 or 75 gammas of LSD. That\xe2\x80\x99s the\n\n597\n\n\x0cestimate of the degree of the turn-on is. And it doesn\xe2\x80\x99t feel that\nway, because you\xe2\x80\x99re [sic] been getting higher a little bit at a time.\nSo don\xe2\x80\x99t wait to find out, take may word for it, and drive like\nyou\xe2\x80\x99ve had three or four martinis. Drive cautiously.\xe2\x80\x9d\xef\x81\x80 Plaintiff\xe2\x80\x99s\n\xe2\x80\x9cconcession\xe2\x80\x9d that he is a public figure appears to be a tactic to\nenhance his argument that any unflattering portrayal of this kind\nof therapy defames him.\nThe decision of the majority upholding a substantial award of\ndamages against the author and publisher poses a grave threat to\nany future work of fiction which explores the effect of\ntechniques claimed to have curative value.\nThe majority opinion rests upon a number of misconceptions of\nthe record and the law of libel. I mention a few of them.\nDefamation.\nLibel is a false and unprivileged publication which exposes any\nperson to hatred, contempt, ridicule or obloquy, or which causes\nhim to be shunned or avoided or which has a tendency to injure\nhim in his occupation. (Civ. Code, \xc2\xa7 45.) A libel which is\ndefamatory without the necessity of explanatory matter is said to\nbe a libel on its face. Language not libelous on its face is not\nactionable unless the plaintiff alleges and proves that he has\nsuffered special damage as a result thereof. (Civ. Code, \xc2\xa7 45a.)\nWhether or not matter is on its face reasonably susceptible of a\nlibelous meaning is a question of law.\nThe complaint in this action quotes verbatim the portions of the\ndefendant\xe2\x80\x99s novel which are alleged to be libelous. No\nexplanatory matter or special damages are alleged. The only\narguably defamatory matter I can find in that complaint is in the\npassages which portray the fictional therapist using coarse,\nvulgar and insulting language in addressing his patients. Some of\nthe therapeutic techniques described in the quoted passages may\nseem bizarre, but a court cannot assume that such conduct is so\ninappropriate that a reputable therapist would be defamed if that\ntechnique were imputed to him. The alleged defamation\ntherefore is limited to the imputation of vulgar speech and\ninsulting manners.\n\n598\n\n\x0cThe defendants asked the trial court to give an instruction to the\njury identifying the matter which it could consider as\ndefamatory. The trial court refused. Instead, the court sent the\ncase to the jury without distinction between actionable\ndefamation and constitutionally protected criticism. In addition,\nthe trial court\xe2\x80\x99s instructions authorized the jury to award special\ndamages for loss of income which could have resulted from the\nlawful expression of opinion.\nIdentification.\nWhether or not an allegedly defamatory communication was\nmade \xe2\x80\x9cof and concerning the plaintiff\xe2\x80\x9d is an issue involving\nconstitutional rights. (New York Times v. Sullivan (1964) 376 U.S.\n254, 288; see Rest. 2d Torts, \xc2\xa7 580A com. (g).) Criticism of an\ninstitution, profession or technique is protected by the First\nAmendment; and such criticism may not be suppressed merely\nbecause it may reflect adversely upon someone who cherishes\nthe institution or is a part of it.\nDefendants\xe2\x80\x99 novel describes a fictitious therapist who is\nconspicuously different from plaintiff in name, physical\nappearance, age, personality and profession.\nIndeed the fictitious Dr. Herford has [none] of the\ncharacteristics of plaintiff except that Dr. Herford practices\nnude encounter therapy. Only three witnesses, other than\nplaintiff himself, testified that they \xe2\x80\x9crecognized\xe2\x80\x9d plaintiff as the\nfictitious Dr. Herford. All three of those witnesses had\nparticipated in or observed one of plaintiff\xe2\x80\x99s nude marathons.\nThe only characteristic mentioned by any of the three witnesses\nas identifying plaintiff was the therapy practiced.\nPlaintiff was cross-examined in detail about what he saw that\nidentified him in the novel. Every answer he gave on this subject\nreferred to how the fictitious Dr. Herford dealt with his patients.\nPlaintiff has no monopoly upon the encounter therapy which he\ncalls \xe2\x80\x9cnude marathon.\xe2\x80\x9d Witnesses testified without contradiction\nthat other professionals use something of this kind. There does\nnot appear to be any reason why anyone could not conduct a\n\n599\n\n\x0c\xe2\x80\x9cmarathon\xe2\x80\x9d using the style if not the full substance of plaintiff\xe2\x80\x99s\npractices.\nPlaintiff\xe2\x80\x99s brief discusses the therapeutic practices of the\nfictitious Dr. Herford in two categories: Those practices which\nare similar to plaintiff\xe2\x80\x99s technique are classified as identifying.\nThose which are unlike plaintiff\xe2\x80\x99s are called libelous because\nthey are false. Plaintiff has thus resurrected the spurious logic\nwhich Professor Kalven found in the position of the plaintiff in\nNew York Times v. Sullivan, supra., 376 U.S. 254. Kalven\nwrote: \xe2\x80\x9cThere is revealed here a new technique by which\ndefamation might be endlessly manufactured. First, it is argued\nthat, contrary to all appearances, a statement referred to the\nplaintiff; then, that it falsely ascribed to the plaintiff something\nthat he did not do, which should be rather easy to prove about a\nstatement that did not refer to plaintiff in the first place. ...\xe2\x80\x9d\nKalven, The New York Times Case : A Note on \xe2\x80\x9cThe Central\nMeaning of the First Amendment,\xe2\x80\x9d 1964 Sup. Ct. Rev. 191, 199.\nEven if we accept the plaintiff\xe2\x80\x99s thesis that criticism of nude\nencounter therapy may be interpreted as libel of one\npractitioner, the evidence does not support a finding in favor of\nplaintiff.\nWhether or not a publication to the general public is defamatory\nis \xe2\x80\x9cwhether in the mind of the average reader the publication,\nconsidered as a whole, could reasonably be considered as\ndefamatory.\xe2\x80\x9d (Patton v. Royal Industries, Inc. (1968) 263\nCal.App.2d 760, 765.\nThe majority opinion contains this juxtaposition of ideas:\n\xe2\x80\x9cSecondly, defendants\xe2\x80\x99 [proposed] instructions that the jury\nmust find that a substantial segment of the public did, in fact,\nbelieve that Dr. Simon Herford was, in fact, Paul Bindrim was\nproperly refused. For the tort of defamation, publication to one\nother person is sufficient, ante.\xe2\x80\x9d\nThe first sentence refers to the question whether the publication\nwas defamatory of plaintiff. The second refers to whether the\ndefamatory matter was published. The former is an issue in this\ncase. The latter is not. Of course, a publication to one person\n\n600\n\n\x0cmay constitute actionable libel. But this has no bearing on the\nprinciple that the allegedly libelous effect of a publication to the\npublic generally is to be tested by the impression made on the\naverage reader.\nThe jury instruction on identification.\nThe only instruction given the jury on the issue of identification\nstated that plaintiff had the burden of proving \xe2\x80\x9cThat a third\nperson read the statement and reasonably understood the\ndefamatory meaning and that the statement applied to plaintiff.\xe2\x80\x9d\nThat instruction was erroneous and prejudicial in that it only\nrequired proof that one \xe2\x80\x9cthird person\xe2\x80\x9d understood the\ndefamatory meaning.\nThe word \xe2\x80\x9capplied\xe2\x80\x9d was most unfortunate in the context of this\ninstruction. The novel was about nude encounter therapy.\nPlaintiff practiced nude encounter therapy. Of course the novel\n\xe2\x80\x9capplied to plaintiff,\xe2\x80\x9d particularly insofar as it exposed what may\nresult from such therapy. This instruction invited the jury to find\nthat plaintiff was libeled by criticism of the kind of therapy he\npracticed. The effect is to mulct the defendants for the exercise\nof their First Amendment right to comment on the nude\nmarathon.\nMalice.\nThe majority opinion adopts the position that actual malice may\nbe inferred from the fact that the book was \xe2\x80\x9cfalse.\xe2\x80\x9d That\ninference is permissible against a defendant who has purported\nto state the truth. But when the publication purports to be\nfiction, it is absurd to infer malice because the fiction is false.\nAs the majority agrees, a public figure may not recover damages\nfor libel unless \xe2\x80\x9cactual malice\xe2\x80\x9d is shown. Sufficiency of the\nevidence on this issue is another constitutional issue. (St. Amant\nv. Thompson (1968) 390 U.S. 727, 730.) Actual malice is a state\nof mind, even though it often can be proven only by\ncircumstantial evidence. The only apparent purpose of the\ndefendants was to write and publish a novel. There is not the\nslightest evidence of any intent on the part of either to harm\n\n601\n\n\x0cplaintiff. No purpose for wanting to harm him has been\nsuggested.\nThe majority opinion seems to say malice is proved by\nDoubleday\xe2\x80\x99s continuing to publish the novel after receiving a\nletter from an attorney (not plaintiff\xe2\x80\x99s present attorney) which\ndemanded that Doubleday discontinue publication \xe2\x80\x9cfor the\nreasons stated in\xe2\x80\x9d a letter addressed to Gwen Davis. An\nexamination of the latter demonstrates the fallacy of that\ninference.\nThe letter to Davis [Mitchell] asserted that the book violated a\nconfidential relationship, invaded plaintiff\xe2\x80\x99s privacy, libelled him\nand violated a \xe2\x80\x9ccommon law copyright\xe2\x80\x9d by \xe2\x80\x9cusing the\nunpublished words\xe2\x80\x9d of plaintiff. It added \xe2\x80\x9cFrom your said\n[television] appearances, as well as from the book, it is\nunmistakable that the \xe2\x80\x98Simon Herford\xe2\x80\x99 mentioned in your book\nrefers to my client.\xe2\x80\x9d\nThe letters did not assert that any statement of purported fact in\nthe book was false. The only allegation of falsity was this: \xe2\x80\x9cIn\nthese [television] appearances you stated, directly or indirectly,\nthat nude encounter workshops, similar to the one you attended,\nare harmful. The truth is that those attending my client\xe2\x80\x99s\nworkshops derive substantial benefit from their attendance at\nsuch workshops.\xe2\x80\x9d\nThese letters gave Doubleday no factual information which\nwould indicate that the book libelled plaintiff.\nThe letters did not put Doubleday on notice of anything except\nthat plaintiff was distressed by the expression of an opinion\nunfavorable to nude encounter therapy-an expression protected\nby the First Amendment. (See Gertz v. Robert Welch, Inc. (1974)\n418 U.S. 323, 339.)\nFrom an analytical standpoint, the chief vice of the majority\nopinion is that it brands a novel as libelous because it is \xe2\x80\x9cfalse,\xe2\x80\x9d\ni.e., fiction; and infers \xe2\x80\x9cactual malice\xe2\x80\x9d from the fact that the\nauthor and publisher knew it was not a true representation of\nplaintiff. From a constitutional standpoint the vice is the chilling\neffect upon the publisher of any novel critical of any\n\n602\n\n\x0coccupational practice, inviting litigation on the theory \xe2\x80\x9cwhen\nyou criticize my occupation, you libel me.\xe2\x80\x9d\nI would reverse the judgment.\n\nQuestions to Ponder About Bindrim v. Mitchell\nA. Do you agree with the dissent that this decision was bound to\nhave a chilling effect on writers and publishers? Do you think\ndefamation doctrine as applied here impinges on free speech?\nB. What could Mitchell have done to avoid defamation liability?\nCould she have written essentially the same book, with just minor\nchanges? Or would she have had to write a substantially different\nbook?\nC. What did Bindrim do that helped him put together a successful\ncase?\nD. What have you seen in books, movies, television shows, or other\nmedia that appears to have been shaped by concerns about\ndefamation liability?\nCase: Masson v. New Yorker Magazine\nIn the following case the U.S. Supreme Court confronts how much\npoetic license a writer has with quotes for a magazine story about a\nreal person. Reading it will give you a more nuanced feel for how the\nFirst Amendment frustrates defamation actions in order to give the\npress plenty of breathing room.\n\nMasson v. New Yorker Magazine\nSupreme Court of the United States\nJune 20, 1991\n501 U.S. 496. MASSON v. NEW YORKER MAGAZINE,\nINC., ET AL. No. 89-1799.\nJustice ANTHONY KENNEDY delivered the opinion of\nthe Court:\nIn this libel case, a public figure claims he was defamed by an\nauthor who, with full knowledge of the inaccuracy, used\nquotation marks to attribute to him comments he had not made.\n\n603\n\n\x0cThe First Amendment protects authors and journalists who\nwrite about public figures by requiring a plaintiff to prove that\nthe defamatory statements were made with what we have called\n\xe2\x80\x9cactual malice,\xe2\x80\x9d a term of art denoting deliberate or reckless\nfalsification. We consider in this opinion whether the attributed\nquotations had the degree of falsity required to prove this state\nof mind, so that the public figure can defeat a motion for\nsummary judgment and proceed to a trial on the merits of the\ndefamation claim.\nI\nPetitioner Jeffrey Masson trained at Harvard University as a\nSanskrit scholar, and in 1970 became a professor of Sanskrit &\nIndian Studies at the University of Toronto. He spent eight\nyears in psychoanalytic training, and qualified as an analyst in\n1978. Through his professional activities, he came to know Dr.\nKurt Eissler, head of the Sigmund Freud Archives, and Dr.\nAnna Freud, daughter of Sigmund Freud and a major\npsychoanalyst in her own right. The Sigmund Freud Archives,\nlocated at Maresfield Gardens outside of London, serves as a\nrepository for materials about Freud, including his own writings,\nletters, and personal library. The materials, and the right of\naccess to them, are of immense value to those who study Freud\nand his theories, life, and work.\nIn 1980, Eissler and Anna Freud hired petitioner as projects\ndirector of the archives. After assuming his post, petitioner\nbecame disillusioned with Freudian psychology. In a 1981\nlecture before the Western New England Psychoanalytical\nSociety in New Haven, Connecticut, he advanced his theories of\nFreud. Soon after, the board of the archives terminated\npetitioner as projects director.\nRespondent Janet Malcolm is an author and a contributor to\nrespondent The New Yorker, a weekly magazine. She contacted\npetitioner in 1982 regarding the possibility of an article on his\nrelationship with the archives. He agreed, and the two met in\nperson and spoke by telephone in a series of interviews. Based\non the interviews and other sources, Malcolm wrote a lengthy\narticle. One of Malcolm\xe2\x80\x99s narrative devices consists of enclosing\n\n604\n\n\x0clengthy passages in quotation marks, reporting statements of\nMasson, Eissler, and her other subjects.\nDuring the editorial process, Nancy Franklin, a member of the\nfact-checking department at The New Yorker, called petitioner\nto confirm some of the facts underlying the article. According to\npetitioner, he expressed alarm at the number of errors in the few\npassages Franklin discussed with him. Petitioner contends that\nhe asked permission to review those portions of the article\nwhich attributed quotations or information to him, but was\nbrushed off with a never-fulfilled promise to \xe2\x80\x9cget back to\n[him].\xe2\x80\x9d Franklin disputes petitioner\xe2\x80\x99s version of their\nconversation.\nThe New Yorker published Malcolm\xe2\x80\x99s piece in December 1983,\nas a two-part series. In 1984, with knowledge of at least\npetitioner\xe2\x80\x99s general allegation that the article contained\ndefamatory material, respondent Alfred A. Knopf, Inc.,\npublished the entire work as a book, entitled In the Freud\nArchives.\nMalcolm\xe2\x80\x99s work received complimentary reviews. But this gave\nlittle joy to Masson, for the book portrays him in a most\nunflattering light. According to one reviewer:\n\xe2\x80\x9cMasson the promising psychoanalytic scholar\nemerges gradually, as a grandiose egotist \xe2\x80\x93\nmean-spirited, self-serving, full of braggadocio,\nimpossibly arrogant and, in the end, a selfdestructive fool. But it is not Janet Malcolm\nwho calls him such: his own words reveal this\npsychological profile \xe2\x80\x93 a self-portrait offered to\nus through the efforts of an observer and\nlistener who is, surely, as wise as any in the\npsychoanalytic profession.\xe2\x80\x9d Coles, Freudianism\nConfronts Its Malcontents, Boston Globe, May\n27, 1984, pp. 58, 60.\nPetitioner wrote a letter to the New York Times Book Review\ncalling the book \xe2\x80\x9cdistorted.\xe2\x80\x9d In response, Malcolm stated:\n\xe2\x80\x9cMany of [the] things Mr. Masson told me (on\ntape) were discreditable to him, and I felt it best\n\n605\n\n\x0cnot to include them. Everything I do quote Mr.\nMasson as saying was said by him, almost word\nfor word. (The \xe2\x80\x98almost\xe2\x80\x99 refers to changes made\nfor the sake of correct syntax.) I would be glad\nto play the tapes of my conversation with Mr.\nMasson to the editors of The Book Review\nwhenever they have 40 or 50 short hours to\nspare.\xe2\x80\x9d\nPetitioner brought an action for libel under California law in the\nUnited States District Court for the Northern District of\nCalifornia. During extensive discovery and repeated\namendments to the complaint, petitioner concentrated on\nvarious passages alleged to be defamatory, dropping some and\nadding others. The tape recordings of the interviews\ndemonstrated that petitioner had, in fact, made statements\nsubstantially identical to a number of the passages, and those\npassages are no longer in the case. We discuss only the passages\nrelied on by petitioner in his briefs to this Court.\nEach passage before us purports to quote a statement made by\npetitioner during the interviews. Yet in each instance no\nidentical statement appears in the more than 40 hours of taped\ninterviews. Petitioner complains that Malcolm fabricated all but\none passage; with respect to that passage, he claims Malcolm\nomitted a crucial portion, rendering the remainder misleading.\n(a) \xe2\x80\x9cIntellectual Gigolo.\xe2\x80\x9d Malcolm quoted a description by\npetitioner of his relationship with Eissler and Anna Freud as\nfollows:\n\xe2\x80\x9c\xe2\x80\x98Then I met a rather attractive older graduate\nstudent and I had an affair with her. One day,\nshe took me to some art event, and she was\nsorry afterward. She said, \xe2\x80\x9cWell, it is very nice\nsleeping with you in your room, but you\xe2\x80\x99re the\nkind of person who should never leave the\nroom \xe2\x80\x93 you\xe2\x80\x99re just a social embarrassment\nanywhere else, though you do fine in your own\nroom.\xe2\x80\x9d And you know, in their way, if not in so\nmany words, Eissler and Anna Freud told me\nthe same thing. They like me well enough \xe2\x80\x9cin\n\n606\n\n\x0cmy own room.\xe2\x80\x9d They loved to hear from me\nwhat creeps and dolts analysts are. I was like an\nintellectual gigolo \xe2\x80\x93 you get your pleasure from\nhim, but you don\xe2\x80\x99t take him out in public ... .\xe2\x80\x99\xe2\x80\x9d\nIn the Freud Archives 38.\nThe tape recordings contain the substance of petitioner\xe2\x80\x99s\nreference to his graduate student friend, but no suggestion that\nEissler or Anna Freud considered him, or that he considered\nhimself, an \xe2\x80\x9c\xe2\x80\x98intellectual gigolo.\xe2\x80\x99\xe2\x80\x9d Instead, petitioner said:\n\xe2\x80\x9cThey felt, in a sense, I was a private asset but a\npublic liability... . They liked me when I was\nalone in their living room, and I could talk and\nchat and tell them the truth about things and\nthey would tell me. But that I was, in a sense,\nmuch too junior within the hierarchy of analysis,\nfor these important training analysts to be\ncaught dead with me.\xe2\x80\x9d\n(b) \xe2\x80\x9cSex, Women, Fun.\xe2\x80\x9d Malcolm quoted petitioner as describing\nhis plans for Maresfield Gardens, which he had hoped to\noccupy after Anna Freud\xe2\x80\x99s death:\n\xe2\x80\x9c\xe2\x80\x98It was a beautiful house, but it was dark and\nsombre and dead. Nothing ever went on there. I\nwas the only person who ever came. I would\nhave renovated it, opened it up, brought it to\nlife. Maresfield Gardens would have been a\ncenter of scholarship, but it would also have\nbeen a place of sex, women, fun. It would have\nbeen like the change in The Wizard of Oz, from\nblack-and-white into color.\xe2\x80\x99\xe2\x80\x9d In the Freud Archives\n33.\nThe tape recordings contain a similar statement, but in place of\nthe references to \xe2\x80\x9csex, women, fun\xe2\x80\x9d and The Wizard of Oz,\npetitioner commented:\n\xe2\x80\x9c[I]t is an incredible storehouse. I mean, the\nlibrary, Freud\xe2\x80\x99s library alone is priceless in terms\nof what it contains: all his books with his\nannotations in them; the Schreber case\nannotated, that kind of thing. It\xe2\x80\x99s fascinating.\xe2\x80\x9d\n\n607\n\n\x0cPetitioner did talk, earlier in the interview, of his meeting with a\nLondon analyst:\n\xe2\x80\x9cI like him. So, and we got on very well. That\nwas the first time we ever met and you know, it\nwas buddy-buddy, and we were to stay with\neach other and [laughs] we were going to pass\nwomen on to each other, and we were going to\nhave a great time together when I lived in the\nFreud house. We\xe2\x80\x99d have great parties there and\nwe were [laughs] \xe2\x80\x93\n\xe2\x80\x9c... going to really, we were going to live it up.\xe2\x80\x9d\n(c) \xe2\x80\x9cIt Sounded Better.\xe2\x80\x9d Petitioner spoke with Malcolm about the\nhistory of his family, including the reasons his grandfather\nchanged the family name from Moussaieff to Masson, and why\npetitioner adopted the abandoned family name as his middle\nname. The article contains the passage:\n\xe2\x80\x9c\xe2\x80\x98My father is a gem merchant who doesn\xe2\x80\x99t like\nto stay in any one place too long. His father was\na gem merchant, too \xe2\x80\x93 a Bessarabian gem\nmerchant, named Moussaieff, who went to Paris\nin the twenties and adopted the name Masson.\nMy parents named me Jeffrey Lloyd Masson,\nbut in 1975 I decided to change my middle\nname to Moussaieff \xe2\x80\x93 it sounded better.\xe2\x80\x99\xe2\x80\x9d In the\nFreud Archives 36.\nIn the most similar tape-recorded statement, Masson explained\nat considerable length that his grandfather had changed the\nfamily name from Moussaieff to Masson when living in France,\n\xe2\x80\x9c[j]ust to hide his Jewishness.\xe2\x80\x9d Petitioner had changed his last\nname back to Moussaieff, but his then-wife Terry objected that\n\xe2\x80\x9cnobody could pronounce it and nobody knew how to spell it,\nand it wasn\xe2\x80\x99t the name that she knew me by.\xe2\x80\x9d Petitioner had\nchanged his name to Moussaieff because he \xe2\x80\x9cjust liked it.\xe2\x80\x9d \xe2\x80\x9c[I]t\nwas sort of part of analysis: a return to the roots, and your\nfamily tradition and so on.\xe2\x80\x9d In the end, he had agreed with\nTerry that \xe2\x80\x9cit wasn\xe2\x80\x99t her name after all,\xe2\x80\x9d and used Moussaieff as\na middle instead of a last name.\n\n608\n\n\x0c(d) \xe2\x80\x9cI Don\xe2\x80\x99t Know Why I Put It In.\xe2\x80\x9d The article recounts part of a\nconversation between Malcolm and petitioner about the paper\npetitioner presented at his 1981 New Haven lecture:\n\xe2\x80\x9c[I] asked him what had happened between the\ntime of the lecture and the present to change\nhim from a Freudian psychoanalyst with\nsomewhat outr\xc3\xa9 views into the bitter and\nbelligerent anti-Freudian he had become.\n\xe2\x80\x9cMasson sidestepped my question. \xe2\x80\x98You\xe2\x80\x99re\nright, there was nothing disrespectful of analysis\nin that paper,\xe2\x80\x99 he said. \xe2\x80\x98That remark about the\nsterility of psychoanalysis was something I\ntacked on at the last minute, and it was totally\ngratuitous. I don\xe2\x80\x99t know why I put it in.\xe2\x80\x99\xe2\x80\x9d In the\nFreud Archives 53.\nThe tape recordings instead contain the following discussion of\nthe New Haven lecture:\nMasson: \xe2\x80\x9cSo they really couldn\xe2\x80\x99t judge the\nmaterial. And, in fact, until the last sentence I\nthink they were quite fascinated. I think the last\nsentence was an in, [sic] possibly, gratuitously\noffensive way to end a paper to a group of\nanalysts. Uh, \xe2\x80\x93 \xe2\x80\x9d\nMalcolm: \xe2\x80\x9cWhat were the circumstances under\nwhich you put it [in]? ...\xe2\x80\x9d\nMasson: \xe2\x80\x9cThat it was, was true.\n.....\n\xe2\x80\x9c. . . I really believe it. I didn\xe2\x80\x99t believe anybody\nwould agree with me.\n.....\n\xe2\x80\x9c. . . But I felt I should say something because\nthe paper\xe2\x80\x99s still well within the analytic tradition\nin a sense. . . .\n.....\n\xe2\x80\x9c. . . It\xe2\x80\x99s really not a deep criticism of Freud. It\ncontains all the material that would allow one to\n\n609\n\n\x0ccriticize Freud but I didn\xe2\x80\x99t really do it. And then\nI thought, I really must say one thing that I\nreally believe, that\xe2\x80\x99s not going to appeal to\nanybody and that was the very last sentence.\nBecause I really do believe psychoanalysis is\nentirely sterile . . . .\xe2\x80\x9d\n(e) \xe2\x80\x9cGreatest Analyst Who Ever Lived.\xe2\x80\x9d The article contains the\nfollowing self-explanatory passage:\n\xe2\x80\x9cA few days after my return to New York,\nMasson, in a state of elation, telephoned me to\nsay that Farrar, Straus & Giroux has taken The\nAssault on Truth [Masson\xe2\x80\x99s book]. \xe2\x80\x98Wait till it\nreaches the best-seller list, and watch how the\nanalysts will crawl,\xe2\x80\x99 he crowed. \xe2\x80\x98They move\nwhichever way the wind blows. They will want\nme back, they will say that Masson is a great\nscholar, a major analyst \xe2\x80\x93 after Freud, he\xe2\x80\x99s the\ngreatest analyst who ever lived. Suddenly they\xe2\x80\x99ll\nbe calling, begging, cajoling: \xe2\x80\x9cPlease take back\nwhat you\xe2\x80\x99ve said about our profession; our\npatients are quitting.\xe2\x80\x9d They\xe2\x80\x99ll try a short smear\ncampaign, then they\xe2\x80\x99ll try to buy me, and\nultimately they\xe2\x80\x99ll have to shut up. Judgment will\nbe passed by history. There is no possible\nrefutation of this book. It\xe2\x80\x99s going to cause a\nrevolution in psychoanalysis. Analysis stands or\nfalls with me now.\xe2\x80\x99\xe2\x80\x9d In the Freud Archives 162.\nThis material does not appear in the tape recordings. Petitioner\ndid make the following statements on related topics in one of\nthe taped interviews with Malcolm:\n\xe2\x80\x9c. . . I assure you when that book comes out,\nwhich I honestly believe is an honest book,\nthere is nothing, you know, mean-minded about\nit. It\xe2\x80\x99s the honest fruit of research and\nintellectual toil. And there is not an analyst in\nthe country who will say a single word in favor\nof it.\xe2\x80\x9d\n\xe2\x80\x9cTalk to enough analysts and get them right\ndown to these concrete issues and you watch\n\n610\n\n\x0chow different it is from my position. It\xe2\x80\x99s utterly\nthe opposite and that\xe2\x80\x99s finally what I realized,\nthat I hold a position that no other analyst\nholds, including, alas, Freud. At first I thought:\nOkay, it\xe2\x80\x99s me and Freud against the rest of the\nanalytic world, or me and Freud and Anna\nFreud and Kur[t] Eissler and Vic Calef and\nBrian Bird and Sam Lipton against the rest of\nthe world. Not so, it\xe2\x80\x99s me. it\xe2\x80\x99s me alone.\xe2\x80\x9d\nThe tape of this interview also contains the following exchange\nbetween petitioner and Malcolm:\nMasson: \xe2\x80\x9c. . . analysis stands or falls with me\nnow.\xe2\x80\x9d\nMalcolm: \xe2\x80\x9cWell that\xe2\x80\x99s a very grandiose thing to\nsay.\xe2\x80\x9d\nMasson: \xe2\x80\x9cYeah, but it\xe2\x80\x99s got nothing to do with\nme. It\xe2\x80\x99s got to do with the things I discovered.\xe2\x80\x9d\n(f) \xe2\x80\x9cHe Had The Wrong Man.\xe2\x80\x9d In discussing the archives\xe2\x80\x99 board\nmeeting at which petitioner\xe2\x80\x99s employment was terminated,\nMalcolm quotes petitioner as giving the following explanation of\nEissler\xe2\x80\x99s attempt to extract a promise of confidentiality:\n\xe2\x80\x9c\xe2\x80\x98[Eissler] was always putting moral pressure on\nme. \xe2\x80\x9cDo you want to poison Anna Freud\xe2\x80\x99s last\ndays? Have you no heart? You\xe2\x80\x99re going to kill\nthe poor old woman.\xe2\x80\x9d I said to him, \xe2\x80\x9cWhat\nhave I done? You\xe2\x80\x99re doing it. You\xe2\x80\x99re firing me.\nWhat am I supposed to do \xe2\x80\x93 be grateful to\nyou?\xe2\x80\x9d \xe2\x80\x9cYou could be silent about it. You could\nswallow it. I know it is painful for you. But you\ncould just live with it in silence.\xe2\x80\x9d \xe2\x80\x9cWhy should I\ndo that?\xe2\x80\x9d \xe2\x80\x9cBecause it is the honorable thing to\ndo.\xe2\x80\x9d Well, he had the wrong man.\xe2\x80\x99\xe2\x80\x9d In the Freud\nArchives 67.\nFrom the tape recordings, on the other hand, it appears that\nMalcolm deleted part of petitioner\xe2\x80\x99s explanation (italicized\nbelow), and petitioner argues that the \xe2\x80\x9cwrong man\xe2\x80\x9d sentence\nrelates to something quite different from Eissler\xe2\x80\x99s entreaty that\n\n611\n\n\x0csilence was \xe2\x80\x9cthe honorable thing.\xe2\x80\x9d In the tape recording,\npetitioner states:\n\xe2\x80\x9cBut it was wrong of Eissler to do that, you\nknow. He was constantly putting various kinds\nof moral pressure on me and, \xe2\x80\x98Do you want to\npoison Anna Freud\xe2\x80\x99s last days? Have you no\nheart?\xe2\x80\x99 He called me: \xe2\x80\x98Have you no heart?\nYou\xe2\x80\x99re going to kill the poor old woman. Have\nyou no heart? Think of what she\xe2\x80\x99s done for you\nand you are now willing to do this to her.\xe2\x80\x99 I said,\n\xe2\x80\x98What have I, what have I done? You did it.\nYou fired me. What am I supposed to do: thank\nyou? be grateful to you?\xe2\x80\x99 He said, \xe2\x80\x98Well you\ncould never talk about it. You could be silent\nabout it. You could swallow it. I know it\xe2\x80\x99s\npainful for you but just live with it in silence.\xe2\x80\x99\n\xe2\x80\x98Fuck you,\xe2\x80\x99 I said, \xe2\x80\x98Why should I do that? Why?\nYou know, why should one do that?\xe2\x80\x99 \xe2\x80\x98Because\nit\xe2\x80\x99s the honorable thing to do and you will save\nface. And who knows? If you never speak about it and\nyou quietly and humbly accept our judgment, who knows\nthat in a few years if we don\xe2\x80\x99t bring you back?\xe2\x80\x99 Well,\nhe had the wrong man.\xe2\x80\x9d\nMalcolm submitted to the District Court that not all of her\ndiscussions with petitioner were recorded on tape, in particular\nconversations that occurred while the two of them walked\ntogether or traveled by car, while petitioner stayed at Malcolm\xe2\x80\x99s\nhome in New York, or while her tape recorder was inoperable.\nShe claimed to have taken notes of these unrecorded sessions,\nwhich she later typed, then discarding the handwritten originals.\nPetitioner denied that any discussion relating to the substance of\nthe article occurred during his stay at Malcolm\xe2\x80\x99s home in New\nYork, that Malcolm took notes during any of their\nconversations, or that Malcolm gave any indication that her tape\nrecorder was broken.\nRespondents moved for summary judgment. The parties agreed\nthat petitioner was a public figure and so could escape summary\njudgment only if the evidence in the record would permit a\nreasonable finder of fact, by clear and convincing evidence, to\n\n612\n\n\x0cconclude that respondents published a defamatory statement\nwith actual malice as defined by our cases. The District Court\nanalyzed each of the passages and held that the alleged\ninaccuracies did not raise a jury question. The court found that\nthe allegedly fabricated quotations were either substantially true,\nor were \xe2\x80\x9c\xe2\x80\x98one of a number of possible rational interpretations\xe2\x80\x99\nof a conversation or event that \xe2\x80\x98bristled with ambiguities,\xe2\x80\x99\xe2\x80\x9d and\nthus were entitled to constitutional protection. The court also\nruled that the \xe2\x80\x9che had the wrong man\xe2\x80\x9d passage involved an\nexercise of editorial judgment upon which the courts could not\nintrude.\nThe Court of Appeals affirmed, with one judge dissenting. The\ncourt assumed for much of its opinion that Malcolm had\ndeliberately altered each quotation not found on the tape\nrecordings, but nevertheless held that petitioner failed to raise a\njury question of actual malice, in large part for the reasons stated\nby the District Court. In its examination of the \xe2\x80\x9cintellectual\ngigolo\xe2\x80\x9d passage, the court agreed with the District Court that\npetitioner could not demonstrate actual malice because Malcolm\nhad not altered the substantive content of petitioner\xe2\x80\x99s selfdescription.\nThe dissent argued that any intentional or reckless alteration\nwould prove actual malice, so long as a passage within quotation\nmarks purports to be a verbatim rendition of what was said,\ncontains material inaccuracies, and is defamatory. We granted\ncertiorari, and now reverse.\nII\nA\n~The\n\nFirst Amendment limits California\xe2\x80\x99s libel law in various\nrespects. When, as here, the plaintiff is a public figure, he cannot\nrecover unless he proves by clear and convincing evidence that\nthe defendant published the defamatory statement with actual\nmalice, i.e., with \xe2\x80\x9cknowledge that it was false or with reckless\ndisregard of whether it was false or not.\xe2\x80\x9d New York Times Co. v.\nSullivan, 376 U.S. 254, 279-280 (1964). Mere negligence does not\nsuffice. Rather, the plaintiff must demonstrate that the author\n\n613\n\n\x0c\xe2\x80\x9cin fact entertained serious doubts as to the truth of his\npublication,\xe2\x80\x9d or acted with a \xe2\x80\x9chigh degree of awareness of . . .\nprobable falsity[.]\xe2\x80\x9d\nActual malice under the New York Times standard should not be\nconfused with the concept of malice as an evil intent or a motive\narising from spite or ill will. We have used the term actual malice\nas a shorthand to describe the First Amendment protections for\nspeech injurious to reputation, and we continue to do so here.\nBut the term can confuse as well as enlighten. In this respect,\nthe phrase may be an unfortunate one. In place of the term\nactual malice, it is better practice that jury instructions refer to\npublication of a statement with knowledge of falsity or reckless\ndisregard as to truth or falsity. This definitional principle must\nbe remembered in the case before us.\nB\nIn general, quotation marks around a passage indicate to the\nreader that the passage reproduces the speaker\xe2\x80\x99s words\nverbatim. They inform the reader that he or she is reading the\nstatement of the speaker, not a paraphrase or other indirect\ninterpretation by an author. By providing this information,\nquotations add authority to the statement and credibility to the\nauthor\xe2\x80\x99s work. Quotations allow the reader to form his or her\nown conclusions and to assess the conclusions of the author,\ninstead of relying entirely upon the author\xe2\x80\x99s characterization of\nher subject.\nA fabricated quotation may injure reputation in at least two\nsenses, either giving rise to a conceivable claim of defamation.\nFirst, the quotation might injure because it attributes an untrue\nfactual assertion to the speaker. An example would be a\nfabricated quotation of a public official admitting he had been\nconvicted of a serious crime when in fact he had not.\nSecond, regardless of the truth or falsity of the factual matters\nasserted within the quoted statement, the attribution may result\nin injury to reputation because the manner of expression or even\nthe fact that the statement was made indicates a negative\npersonal trait or an attitude the speaker does not hold. John\n\n614\n\n\x0cLennon once was quoted as saying of the Beatles, \xe2\x80\x9cWe\xe2\x80\x99re more\npopular than Jesus Christ now.\xe2\x80\x9d Time, Aug. 12, 1966, p. 38.\nSupposing the quotation had been a fabrication, it appears\nCalifornia law could permit recovery for defamation because,\neven without regard to the truth of the underlying assertion,\nfalse attribution of the statement could have injured his\nreputation. Here, in like manner, one need not determine\nwhether petitioner is or is not the greatest analyst who ever lived\nin order to determine that it might have injured his reputation to\nbe reported as having so proclaimed.\nA self-condemnatory quotation may carry more force than\ncriticism by another. It is against self-interest to admit one\xe2\x80\x99s own\ncriminal liability, arrogance, or lack of integrity, and so all the\nmore easy to credit when it happens. This principle underlies the\nelemental rule of evidence which permits the introduction of\nstatements against interest, despite their hearsay character,\nbecause we assume \xe2\x80\x9cthat persons do not make statements which\nare damaging to themselves unless satisfied for good reason that\nthey are true.\xe2\x80\x9d\nOf course, quotations do not always convey that the speaker\nactually said or wrote the quoted material. \xe2\x80\x9cPunctuation marks,\nlike words, have many uses. Writers often use quotation marks,\nyet no reasonable reader would assume that such punctuation\nautomatically implies the truth of the quoted material.\xe2\x80\x9d Baker v.\nLos Angeles Herald Examiner, 42 Cal. 3d 254 (Cal. 1986). In Baker,\na television reviewer printed a hypothetical conversation\nbetween a station vice president and writer/producer, and the\ncourt found that no reasonable reader would conclude the\nplaintiff in fact had made the statement attributed to him.\nWriters often use quotations as in Baker, and a reader will not\nreasonably understand the quotations to indicate reproduction\nof a conversation that took place. In other instances, an\nacknowledgment that the work is so-called docudrama or\nhistorical fiction, or that it recreates conversations from\nmemory, not from recordings, might indicate that the quotations\nshould not be interpreted as the actual statements of the speaker\nto whom they are attributed.\n\n615\n\n\x0cThe work at issue here, however, as with much journalistic\nwriting, provides the reader no clue that the quotations are being\nused as a rhetorical device or to paraphrase the speaker\xe2\x80\x99s actual\nstatements. To the contrary, the work purports to be nonfiction,\nthe result of numerous interviews. At least a trier of fact could\nso conclude. The work contains lengthy quotations attributed to\npetitioner, and neither Malcolm nor her publishers indicate to\nthe reader that the quotations are anything but the reproduction\nof actual conversations. Further, the work was published in The\nNew Yorker, a magazine which at the relevant time seemed to\nenjoy a reputation for scrupulous factual accuracy. These factors\nwould, or at least could, lead a reader to take the quotations at\nface value. A defendant may be able to argue to the jury that\nquotations should be viewed by the reader as nonliteral or\nreconstructions, but we conclude that a trier of fact in this case\ncould find that the reasonable reader would understand the\nquotations to be nearly verbatim reports of statements made by\nthe subject.\nC\nThe constitutional question we must consider here is whether, in\nthe framework of a summary judgment motion, the evidence\nsuffices to show that respondents acted with the requisite\nknowledge of falsity or reckless disregard as to truth or falsity.\nThis inquiry in turn requires us to consider the concept of\nfalsity; for we cannot discuss the standards for knowledge or\nreckless disregard without some understanding of the acts\nrequired for liability. We must consider whether the requisite\nfalsity inheres in the attribution of words to the petitioner which\nhe did not speak.\nIn some sense, any alteration of a verbatim quotation is false.\nBut writers and reporters by necessity alter what people say, at\nthe very least to eliminate grammatical and syntactical\ninfelicities. If every alteration constituted the falsity required to\nprove actual malice, the practice of journalism, which the First\nAmendment standard is designed to protect, would require a\nradical change, one inconsistent with our precedents and First\nAmendment principles. Petitioner concedes that this absolute\n\n616\n\n\x0cdefinition of falsity in the quotation context is too stringent, and\nacknowledges that \xe2\x80\x9cminor changes to correct for grammar or\nsyntax\xe2\x80\x9d do not amount to falsity for purposes of proving actual\nmalice. We agree, and must determine what, in addition to this\ntechnical falsity, proves falsity for purposes of the actual malice\ninquiry.\nPetitioner argues that, excepting correction of grammar or\nsyntax, publication of a quotation with knowledge that it does\nnot contain the words the public figure used demonstrates\nactual malice. The author will have published the quotation with\nknowledge of falsity, and no more need be shown. Petitioner\nsuggests that by invoking more forgiving standards the Court of\nAppeals would permit and encourage the publication of\nfalsehoods. Petitioner believes that the intentional manufacture\nof quotations does not \xe2\x80\x9crepresen[t] the sort of inaccuracy that is\ncommonplace in the forum of robust debate to which the New\nYork Times rule applies,\xe2\x80\x9d and that protection of deliberate\nfalsehoods would hinder the First Amendment values of robust\nand well-informed public debate by reducing the reliability of\ninformation available to the public.\nWe reject the idea that any alteration beyond correction of\ngrammar or syntax by itself proves falsity in the sense relevant\nto determining actual malice under the First Amendment. An\ninterviewer who writes from notes often will engage in the task\nof attempting a reconstruction of the speaker\xe2\x80\x99s statement. That\nauthor would, we may assume, act with knowledge that at times\nshe has attributed to her subject words other than those actually\nused. Under petitioner\xe2\x80\x99s proposed standard, an author in this\nsituation would lack First Amendment protection if she\nreported as quotations the substance of a subject\xe2\x80\x99s derogatory\nstatements about himself.\nEven if a journalist has tape-recorded the spoken statement of a\npublic figure, the full and exact statement will be reported in\nonly rare circumstances. The existence of both a speaker and a\nreporter; the translation between two media, speech and the\nprinted word; the addition of punctuation; and the practical\nnecessity to edit and make intelligible a speaker\xe2\x80\x99s perhaps\n\n617\n\n\x0crambling comments, all make it misleading to suggest that a\nquotation will be reconstructed with complete accuracy. The use\nor absence of punctuation may distort a speaker\xe2\x80\x99s meaning, for\nexample, where that meaning turns upon a speaker\xe2\x80\x99s emphasis\nof a particular word. In other cases, if a speaker makes an\nobvious misstatement, for example by unconscious substitution\nof one name for another, a journalist might alter the speaker\xe2\x80\x99s\nwords but preserve his intended meaning. And conversely, an\nexact quotation out of context can distort meaning, although the\nspeaker did use each reported word.\nIn all events, technical distinctions between correcting grammar\nand syntax and some greater level of alteration do not appear\nworkable, for we can think of no method by which courts or\njuries would draw the line between cleaning up and other\nchanges, except by reference to the meaning a statement\nconveys to a reasonable reader. To attempt narrow distinctions\nof this type would be an unnecessary departure from First\nAmendment principles of general applicability, and, just as\nimportant, a departure from the underlying purposes of the tort\nof libel as understood since the latter half of the 16th century.\nFrom then until now, the tort action for defamation has existed\nto redress injury to the plaintiff\xe2\x80\x99s reputation by a statement that\nis defamatory and false. As we have recognized, \xe2\x80\x9c[t]he legitimate\nstate interest underlying the law of libel is the compensation of\nindividuals for the harm inflicted on them by defamatory\nfalsehood.\xe2\x80\x9d If an author alters a speaker\xe2\x80\x99s words but effects no\nmaterial change in meaning, including any meaning conveyed by\nthe manner or fact of expression, the speaker suffers no injury\nto reputation that is compensable as a defamation.\nThese essential principles of defamation law accommodate the\nspecial case of inaccurate quotations without the necessity for a\ndiscrete body of jurisprudence directed to this subject alone.\n[W]e reject any special test of falsity for quotations, including\none which would draw the line at correction of grammar or\nsyntax. We conclude, rather, that the exceptions suggested by\npetitioner for grammatical or syntactical corrections serve to\nilluminate a broader principle.~\n\n618\n\n\x0c[T]he statement is not considered false unless it \xe2\x80\x9cwould have a\ndifferent effect on the mind of the reader from that which the\npleaded truth would have produced.\xe2\x80\x9d Our definition of actual\nmalice relies upon this historical understanding.\nWe conclude that a deliberate alteration of the words uttered by\na plaintiff does not equate with knowledge of falsity for\npurposes of New York Times Co. v. Sullivan and Gertz v. Robert\nWelch, Inc. unless the alteration results in a material change in the\nmeaning conveyed by the statement. The use of quotations to\nattribute words not in fact spoken bears in a most important\nway on that inquiry, but it is not dispositive in every case.\nDeliberate or reckless falsification that comprises actual malice\nturns upon words and punctuation only because words and\npunctuation express meaning. Meaning is the life of language.\nAnd, for the reasons we have given, quotations may be a\ndevastating instrument for conveying false meaning. In the case\nunder consideration, readers of In the Freud Archives may have\nfound Malcolm\xe2\x80\x99s portrait of petitioner especially damning\nbecause so much of it appeared to be a self-portrait, told by\npetitioner in his own words. And if the alterations of petitioner\xe2\x80\x99s\nwords gave a different meaning to the statements, bearing upon\ntheir defamatory character, then the device of quotations might\nwell be critical in finding the words actionable.\nD\nThe Court of Appeals applied a test of substantial truth which,\nin exposition if not in application, comports with much of the\nabove discussion. The Court of Appeals, however, went one\nstep beyond protection of quotations that convey the meaning\nof a speaker\xe2\x80\x99s statement with substantial accuracy and concluded\nthat an altered quotation is protected so long as it is a \xe2\x80\x9crational\ninterpretation\xe2\x80\x9d of an actual statement. [W]e cannot accept the\nreasoning of the Court of Appeals on this point.\nIn Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485\n(1984), a Consumer Reports reviewer had attempted to describe\nin words the experience of listening to music through a pair of\nloudspeakers, and we concluded that the result was not an\n\n619\n\n\x0cassessment of events that speak for themselves, but \xe2\x80\x9c\xe2\x80\x98one of a\nnumber of possible rational interpretations\xe2\x80\x99 of an event \xe2\x80\x98that\nbristled with ambiguities\xe2\x80\x99 and descriptive challenges for the\nwriter.\xe2\x80\x9d ~ We refused to permit recovery for choice of language\nwhich, though perhaps reflecting a misconception, represented\n\xe2\x80\x9cthe sort of inaccuracy that is commonplace in the forum of\nrobust debate to which the New York Times rule applies.\xe2\x80\x9d~\nThe protection for rational interpretation serves First\nAmendment principles by allowing an author the interpretive\nlicense that is necessary when relying upon ambiguous sources.\nWhere, however, a writer uses a quotation, and where a\nreasonable reader would conclude that the quotation purports to\nbe a verbatim repetition of a statement by the speaker, the\nquotation marks indicate that the author is not involved in an\ninterpretation of the speaker\xe2\x80\x99s ambiguous statement, but\nattempting to convey what the speaker said. This orthodox use\nof a quotation is the quintessential \xe2\x80\x9cdirect account of events that\nspeak for themselves.\xe2\x80\x9d~ More accurately, the quotation allows\nthe subject to speak for himself.\nThe significance of the quotations at issue, absent any\nqualification, is to inform us that we are reading the statement\nof petitioner, not Malcolm\xe2\x80\x99s rational interpretation of what\npetitioner has said or thought. Were we to assess quotations\nunder a rational interpretation standard, we would give\njournalists the freedom to place statements in their subjects\xe2\x80\x99\nmouths without fear of liability. By eliminating any method of\ndistinguishing between the statements of the subject and the\ninterpretation of the author, we would diminish to a great\ndegree the trustworthiness of the printed word and eliminate the\nreal meaning of quotations. Not only public figures but the\npress doubtless would suffer under such a rule. Newsworthy\nfigures might become more wary of journalists, knowing that\nany comment could be transmuted and attributed to the subject,\nso long as some bounds of rational interpretation were not\nexceeded. We would ill serve the values of the First Amendment\nif we were to grant near absolute, constitutional protection for\nsuch a practice. We doubt the suggestion that as a general rule\nreaders will assume that direct quotations are but a rational\n\n620\n\n\x0cinterpretation of the speaker\xe2\x80\x99s words, and we decline to adopt\nany such presumption in determining the permissible\ninterpretations of the quotations in question here.\nIII\nA\nWe apply these principles to the case before us. On summary\njudgment, we must draw all justifiable inferences in favor of the\nnonmoving party, including questions of credibility and of the\nweight to be accorded particular evidence. So we must assume,\nexcept where otherwise evidenced by the transcripts of the tape\nrecordings, that petitioner is correct in denying that he made the\nstatements attributed to him by Malcolm, and that Malcolm\nreported with knowledge or reckless disregard of the differences\nbetween what petitioner said and what was quoted.~\nB\nWe must determine whether the published passages differ\nmaterially in meaning from the tape-recorded statements so as\nto create an issue of fact for a jury as to falsity.\n(a) \xe2\x80\x9cIntellectual Gigolo.\xe2\x80\x9d We agree with the dissenting opinion in\nthe Court of Appeals that \xe2\x80\x9c[f]airly read, intellectual gigolo\nsuggests someone who forsakes intellectual integrity in exchange\nfor pecuniary or other gain.\xe2\x80\x9d 895 F. 2d, at 1551. A reasonable\njury could find a material difference between the meaning of this\npassage and petitioner\xe2\x80\x99s tape-recorded statement that he was\nconsidered \xe2\x80\x9cmuch too junior within the hierarchy of analysis,\nfor these important training analysts to be caught dead with\n[him].\xe2\x80\x9d\nThe Court of Appeals majority found it difficult to perceive how\nthe \xe2\x80\x9cintellectual gigolo\xe2\x80\x9d quotation was defamatory, a\ndetermination supported not by any citation to California law,\nbut only by the argument that the passage appears to be a report\nof Eissler\xe2\x80\x99s and Anna Freud\xe2\x80\x99s opinions of petitioner. Id., at 1541.\nWe agree with the Court of Appeals that the most natural\ninterpretation of this quotation is not an admission that\npetitioner considers himself an intellectual gigolo but a\nstatement that Eissler and Anna Freud considered him so. It\n\n621\n\n\x0cdoes not follow, though, that the statement is harmless.\nPetitioner is entitled to argue that the passage should be\nanalyzed as if Malcolm had reported falsely that Eissler had given\nthis assessment (with the added level of complexity that the\nquotation purports to represent petitioner\xe2\x80\x99s understanding of\nEissler\xe2\x80\x99s view). An admission that two well-respected senior\ncolleagues considered one an \xe2\x80\x9cintellectual gigolo\xe2\x80\x9d could be as,\nor more, damaging than a similar self-appraisal. In all events,\nwhether the \xe2\x80\x9cintellectual gigolo\xe2\x80\x9d quotation is defamatory is a\nquestion of California law. To the extent that the Court of\nAppeals based its conclusion in the First Amendment, it was\nmistaken.\nThe Court of Appeals relied upon the \xe2\x80\x9cincremental harm\xe2\x80\x9d\ndoctrine as an alternative basis for its decision. As the court\nexplained it: \xe2\x80\x9cThis doctrine measures the incremental\nreputational harm inflicted by the challenged statements beyond\nthe harm imposed by the nonactionable remainder of the\npublication.\xe2\x80\x9d The court ruled, as a matter of law, that \xe2\x80\x9c[g]iven\nthe. . . many provocative, bombastic statements indisputably\nmade by Masson and quoted by Malcolm, the additional harm\ncaused by the \xe2\x80\x98intellectual gigolo\xe2\x80\x99 quote was nominal or\nnonexistent, rendering the defamation claim as to this quote\nnonactionable.\xe2\x80\x9d\nThis reasoning requires a court to conclude that, in fact, a\nplaintiff made the other quoted statements, and then to\nundertake a factual inquiry into the reputational damage caused\nby the remainder of the publication. As noted by the dissent in\nthe Court of Appeals, the most \xe2\x80\x9cprovocative, bombastic\nstatements\xe2\x80\x9d quoted by Malcolm are those complained of by\npetitioner, and so this would not seem an appropriate\napplication of the incremental harm doctrine.\nFurthermore, the Court of Appeals provided no indication\nwhether it considered the incremental harm doctrine to be\ngrounded in California law or the First Amendment. Here, we\nreject any suggestion that the incremental harm doctrine is\ncompelled as a matter of First Amendment protection for\nspeech. The question of incremental harm does not bear upon\n\n622\n\n\x0cwhether a defendant has published a statement with knowledge\nof falsity or reckless disregard of whether it was false or not. As\na question of state law, on the other hand, we are given no\nindication that California accepts this doctrine, though it\nremains free to do so. Of course, state tort law doctrines of\ninjury, causation, and damages calculation might allow a\ndefendant to press the argument that the statements did not\nresult in any incremental harm to a plaintiff\xe2\x80\x99s reputation.\n(b) \xe2\x80\x9cSex, Women, Fun.\xe2\x80\x9d This passage presents a closer question.\nThe \xe2\x80\x9csex, women, fun\xe2\x80\x9d quotation offers a very different picture\nof petitioner\xe2\x80\x99s plans for Maresfield Gardens than his remark that\n\xe2\x80\x9cFreud\xe2\x80\x99s library alone is priceless.\xe2\x80\x9d Petitioner\xe2\x80\x99s other taperecorded remarks did indicate that he and another analyst\nplanned to have great parties at the Freud house and, in a\ncontext that may not even refer to Freud house activities, to\n\xe2\x80\x9cpass women on to each other.\xe2\x80\x9d We cannot conclude as a\nmatter of law that these remarks bear the same substantial\nmeaning as the quoted passage\xe2\x80\x99s suggestion that petitioner\nwould make the Freud house a place of \xe2\x80\x9csex, women, fun.\xe2\x80\x9d\n(c) \xe2\x80\x9cIt Sounded Better.\xe2\x80\x9d We agree with the District Court and the\nCourt of Appeals that any difference between petitioner\xe2\x80\x99s taperecorded statement that he \xe2\x80\x9cjust liked\xe2\x80\x9d the name Moussaieff,\nand the quotation that \xe2\x80\x9cit sounded better\xe2\x80\x9d is, in context,\nimmaterial. Although Malcolm did not include all of petitioner\xe2\x80\x99s\nlengthy explanation of his name change, she did convey the gist\nof that explanation: Petitioner took his abandoned family name\nas his middle name. We agree with the Court of Appeals that the\nwords attributed to petitioner did not materially alter the\nmeaning of his statement.\n(d) \xe2\x80\x9cI Don\xe2\x80\x99t Know Why I Put It In.\xe2\x80\x9d Malcolm quotes petitioner as\nsaying that he \xe2\x80\x9ctacked on at the last minute\xe2\x80\x9d a \xe2\x80\x9ctotally\ngratuitous\xe2\x80\x9d remark about the \xe2\x80\x9csterility of psychoanalysis\xe2\x80\x9d in an\nacademic paper, and that he did so for no particular reason. In\nthe tape recordings, petitioner does admit that the remark was\n\xe2\x80\x9cpossibly [a] gratuitously offensive way to end a paper to a\ngroup of analysts,\xe2\x80\x9d but when asked why he included the remark,\nhe answered \xe2\x80\x9c[because] it was true . . . I really believe it.\xe2\x80\x9d\n\n623\n\n\x0cMalcolm\xe2\x80\x99s version contains material differences from\npetitioner\xe2\x80\x99s statement, and it is conceivable that the alteration\nresults in a statement that could injure a scholar\xe2\x80\x99s reputation.\n(e) \xe2\x80\x9cGreatest Analyst Who Ever Lived.\xe2\x80\x9d While petitioner did, on\nnumerous occasions, predict that his theories would do\nirreparable damage to the practice of psychoanalysis, and did\nsuggest that no other analyst shared his views, no tape-recorded\nstatement appears to contain the substance or the arrogant and\nunprofessional tone apparent in this quotation. A material\ndifference exists between the quotation and the tape-recorded\nstatements, and a jury could find that the difference exposed\npetitioner to contempt, ridicule, or obloquy.\n(f) \xe2\x80\x9cHe Had The Wrong Man.\xe2\x80\x9d The quoted version makes it\nappear as if petitioner rejected a plea to remain in stoic silence\nand do \xe2\x80\x9cthe honorable thing.\xe2\x80\x9d The tape-recorded version\nindicates that petitioner rejected a plea supported by far more\nvaried motives: Eissler told petitioner that not only would\nsilence be \xe2\x80\x9cthe honorable thing,\xe2\x80\x9d but petitioner would \xe2\x80\x9csave\nface,\xe2\x80\x9d and might be rewarded for that silence with eventual\nreinstatement. Petitioner described himself as willing to undergo\na scandal in order to shine the light of publicity upon the actions\nof the Freud Archives, while Malcolm would have petitioner\ndescribe himself as a person who was \xe2\x80\x9cthe wrong man\xe2\x80\x9d to do\n\xe2\x80\x9cthe honorable thing.\xe2\x80\x9d This difference is material, a jury might\nfind it defamatory, and, for the reasons we have given, there is\nevidence to support a finding of deliberate or reckless\nfalsification.\nC\nBecause of the Court of Appeals\xe2\x80\x99 disposition with respect to\nMalcolm, it did not have occasion to address petitioner\xe2\x80\x99s\nargument that the District Court erred in granting summary\njudgment to The New Yorker Magazine, Inc., and Alfred A.\nKnopf, Inc., on the basis of their respective relations with\nMalcolm or the lack of any independent actual malice. These\nquestions are best addressed in the first instance on remand.\n\n624\n\n\x0cThe judgment of the Court of Appeals is reversed, and the case\nis remanded for further proceedings consistent with this\nopinion.\nIt is so ordered.\n\nHistorical Note About Masson v. New Yorker\nAfter remand, a jury found that two quotations were false and one\nwas defamatory. But the jury also found actual malice to be lacking,\nresulting in a victory for the defense.\nJanet Malcolm continued writing for The New Yorker. She is a\ncontroversial figure. Some journalists were critical of Malcolm\xe2\x80\x99s\nhandling of her story about Masson. Others lauded her. Craig\nSeligman, a Malcolm supporter, wrote this for Salon:\nThe public pillorying of Janet Malcolm is one of\nthe scandals of American letters. The world of\njournalism teems with hacks who will go to their\ngraves never having written one sparkling or\nhonest or incisive sentence; why is it Malcolm, a\nvirtuoso stylist and a subtle, exciting thinker,\nwho drives critics into a rage? What journalist of\nher caliber is as widely disliked or as often\naccused of bad faith? And why did so few of her\ncolleagues stand up for her during the circus of\na libel trial that scarred her career? \xe2\x80\xa6 Dryden\nfamously noted the \xe2\x80\x9cvast difference betwixt the\nslovenly butchering of a man, and the fineness\nof a stroke that separates the head from the\nbody, and leaves it standing in its place.\xe2\x80\x9d\nMalcolm\xe2\x80\x99s blade gleams with a razor edge. Her\ncritics tend to go after her with broken bottles.\n\nIn 1989, as the Masson case was working its way through the courts,\nMalcolm wrote about journalistic ethics in The Journalist and the\nMurderer, published as a two-part series in The New Yorker and later as\na book. In the work, Malcolm indicted all journalists as being\n\xe2\x80\x9cmorally indefensible,\xe2\x80\x9d writing:\n[The journalist] is a kind of confidence man,\npreying on people\xe2\x80\x99s vanity, ignorance or\nloneliness, gaining their trust and betraying\n\n625\n\n\x0cthem without remorse. Like the credulous\nwidow who wakes up one day to find the\ncharming young man and all her savings gone,\nso the consenting subject of a piece of\nnonfiction learns \xe2\x80\x93 when the article or book\nappears \xe2\x80\x93 his hard lesson.\n\nQuestions to Ponder About Masson v. New Yorker\nA. How would you characterize Malcolm\xe2\x80\x99s conduct? Was she\n\xe2\x80\x9creworking\xe2\x80\x9d quotes or \xe2\x80\x9cmaking them up\xe2\x80\x9d?\nB. How would you characterize Malcolm? Is she a hero, a villain,\nneither, or both?\nC. Does this case change your view of journalism \xe2\x80\x93 magazine\njournalism or The New Yorker in particular? Would you have thought\nquotes in a magazine like The New Yorker were verbatim? Or have you\nhave assumed that writers take some latitude in the wording?\nD. Should persons quoted by journalists have a cause of action for\nbeing deliberately and substantially misquoted \xe2\x80\x93 even if this is not\ndone in a reputation-harming way?\nE. Besides potential defamation liability, are there are other\nconstraints on journalist behavior with regard to material in quotes?\nIf so, what would they be?\n\nDefamation Privileges\nAs difficult as it is for a plaintiff to win a prima facie case for\ndefamation, particularly in its constitutionalized form, there are still\nmore hurdles to successfully obtaining a judgment. Defamation\ndefendants have powerful array of affirmative defenses to use.\nFirst, there are absolute privileges. An absolute privilege protects\nanything said in official meetings of the legislature. That includes the\nfloor of Congress or the state assembly chamber, as well as what\nhappens in committee hearings.\nAbsolute privilege also applies to statements made in the course of\ncourt proceedings and in court documents. This makes civil and\ncriminal litigation a huge safe harbor for defamation. This applies to\nlawyers, judges, jurors, and witnesses. For instance, an attorney could\n\n626\n\n\x0ctell the most malicious lies to the judge or jury, and absolutely no\ndefamation liability would result. Of course, such behavior could get\na lawyer disbarred. But that is a matter of rules of court and canons\nof legal ethics \xe2\x80\x93 tort law will not enter the fray. Yet once a lawyer\nsteps outside and meets the press on the courthouse steps, the shields\nare down and defamation liability can attach to whatever is said.\nIn addition to matters of absolute privilege, there are affirmative\ndefenses that the courts have categorized as qualified privileges.\nThe most prominent is probably the \xe2\x80\x9cfair reporting privilege,\xe2\x80\x9d a\ncommon-law doctrine pre-dating New York Times v. Sullivan that\nallows for accurate reporting of defamatory statements made in\npublic records, in the courtroom, or in similar official contexts. The\nprivilege is \xe2\x80\x9cqualified\xe2\x80\x9d because malice or unfairness on the part of the\ndefendant can cause the privilege to be exceeded. Courts have\nrecognized other qualified privileges as well, including a limited\nprivilege for employers providing references for their former\nemployees.\n\n627\n\n\x0c32. Privacy Torts\n\xe2\x80\x9cI never said, \xe2\x80\x98I want to be alone.\xe2\x80\x99 I only said \xe2\x80\x98I want to be let\nalone!\xe2\x80\x99 There is all the difference.\xe2\x80\x9d\n\xe2\x80\x93 Greta Garbo, c. 1955\n\nIntroduction\nThe value people place on their privacy is famously reflected in the\nConstitution. But it is also reflected in tort law.\nBack in 1890, in one of the most cited law review articles of all time,\nfuture U.S. Supreme Court Justice Louis D. Brandeis and his friend\nSamuel D. Warren argued that there existed a common-law right of\nprivacy: Samuel D. Warren & Louis D. Brandeis, The Right of Privacy, 4\nHARV. L. REV. 193 (1890). Courts followed that lead in construing\ntort law to protect the right of privacy. Then, around the middle of\nthe 20th Century, a few writers began to break up the right of privacy\ninto separate torts. Chief among them was William L. Prosser, who\nidentified four separate torts within \xe2\x80\x9cright of privacy.\xe2\x80\x9d See William L.\nProsser, Privacy, 48 CAL. L. REV. 383 (1960).\nIn this chapter, we will discuss three of the four privacy torts that\nProsser identified: (1) false light, (2) intrusion upon seclusion, and (3)\npublic disclosure of embarrassing facts.\nThe fourth tort that Prosser identified, appropriation of name or\nlikeness (or \xe2\x80\x9cthe right of publicity\xe2\x80\x9d), concerns the right of people \xe2\x80\x93\noften celebrities \xe2\x80\x93 to exclusively control the use of their name and\nimage on merchandise, in advertising, and in other means of\ncommercial exploitation. The right-of-publicity cause of action has\nevolved to go beyond notions of privacy and has been increasingly\ndiscussed in terms of analogies drawn to intellectual property. It is\nnot covered in this chapter.\nThe three torts of false light, intrusion, and public disclosure all\nprotect various aspects of what you might informally call a person\xe2\x80\x99s\nright \xe2\x80\x9cnot to be messed with\xe2\x80\x9d or \xe2\x80\x9cto be let alone.\xe2\x80\x9d\n\n628\n\n\x0cThe tort of false light is very similar to defamation, except that it is\nharnessed to ideas of privacy and dignity rather than reputation. It\nallows a cause of action where a defendant spreads a highly offensive,\nfalse statement to the public.\nThe tort of intrusion upon seclusion provides a cause of action\nagainst the most stereotypical invasions of privacy, such as when\nsomeone spies or peeps on someone.\nThe tort of public disclosure allows suit against defendants who\nspread to the public embarrassing facts about the plaintiff that, while\ntrue, are none of anyone\xe2\x80\x99s business.\nTaken together, defamation and the privacy torts seek to protect a\nperson\xe2\x80\x99s non-corporeal integrity \xe2\x80\x93 that part of ourselves that is\nreflected in what people thinks about us. Like defamation, the privacy\ntorts routinely implicate First Amendment values, and they are often\nbrought against media defendants. Because of this, a rich\nconstitutional jurisprudence has developed to constantly patrol the\nperimeters of these torts.\nFalse Light\nHere is the blackletter statement for a claim for false light:\nA prima face case for false light is established\nwhere the defendant makes (1) a public\nstatement (2) with actual malice (3) placing the\nplaintiff in a (4) false light (5) that is highly\noffensive to the reasonable person.\n\nAs you can see, false light is very similar to defamation. Both concern\nfalsehoods told about the plaintiff. In fact, some jurisdictions have\nrejected the false light cause of action as being needlessly duplicative\nof defamation. Yet there are some key differences between the\ndoctrines. And because of those differences, there are some\nsituations in which there will be liability for defamation but not for\nfalse light, and vice versa.\nThe most important difference is that false light does not require\nreputational harm. For false light, a plaintiff can sue over a false\nstatement even if it is reputation-enhancing rather than being\n\n629\n\n\x0creputation-harming. Saying that someone is a war hero, for instance,\nwhen the person actually never served in the military, would be an\nexample of a falsehood that is not reputation-harming but\nnonetheless could be considered highly offensive.\nNotice also that false light requires that the statement be made to the\npublic \xe2\x80\x93 a much higher threshold than defamation\xe2\x80\x99s requirement of\nonly one other person receiving the communication.\nFirst Amendment values are just as much implicated by the tort of\nfalse light as they are with defamation, and because of this, all the\nFirst Amendment limits to defamation apply to false light. But note\nthat the common-law structure of the false light tort, as it is typically\nset forth by the courts, has built-in First Amendment compliance:\nFalsity and actual malice must be proved as part of the prima facie\ncase.\nIntrusion Upon Seclusion and Public Disclosure\nIntrusion upon seclusion and public disclosure are quite different\nfrom false light. To sum them up as concisely as possible, you can\nthink of intrusion upon seclusion as the tort of peeping or creeping, and\npublic disclosure as the tort of blabbing.\nHere is the blackletter for each:\nA prima facie case for intrusion upon\nseclusion is established where the defendant\neffects (1) an intrusion, physical or otherwise,\n(2) into a zone where the plaintiff has a\nreasonable expectation of privacy, which is (3)\nhighly offensive to the reasonable person.\nA prima facie case for public disclosure is\nestablished where the defendant effects (1) a\npublic disclosure of (2) private facts, which is (3)\nhighly offensive to the reasonable person.\n\nThe public disclosure tort, in particular, is limited by a\nnewsworthiness privilege, and it necessarily engages First\nAmendment concerns which courts will apply along the lines of the\nteachings of New York Times v. Sullivan and its progeny.\n\n630\n\n\x0cCase: Shulman v. Group W\nThis case looks at both intrusion and disclosure as they come up in\nthe course of producing and broadcasting a ride-along reality show.\n\nShulman v. Group W\nSupreme Court of California\nJune 1, 1998\n18 Cal.4th 200. RUTH SHULMAN et al., Plaintiffs and\nAppellants, v. GROUP W PRODUCTIONS, INC., et al.,\nDefendants and Respondents. No. S058629.\nJustice KATHRYN M. WERDEGAR:\nOn June 24, 1990, plaintiffs Ruth and Wayne Shulman, mother\nand son, were injured when the car in which they and two other\nfamily members were riding on interstate 10 in Riverside County\nflew off the highway and tumbled down an embankment into a\ndrainage ditch on state-owned property, coming to rest upside\ndown. Ruth, the most seriously injured of the two, was pinned\nunder the car. Ruth and Wayne both had to be cut free from the\nvehicle by the device known as \xe2\x80\x9cthe jaws of life.\xe2\x80\x9d\nA rescue helicopter operated by Mercy Air was dispatched to\nthe scene. The flight nurse, who would perform the medical care\nat the scene and on the way to the hospital, was Laura\nCarnahan. Also on board were the pilot, a medic and Joel\nCooke, a video camera operator employed by defendants Group\nW Productions, Inc., and 4MN Productions. Cooke was\nrecording the rescue operation for later broadcast.\nCooke roamed the accident scene, videotaping the rescue. Nurse\nCarnahan wore a wireless microphone that picked up her\nconversations with both Ruth and the other rescue personnel.\nCooke\xe2\x80\x99s tape was edited into a piece approximately nine minutes\nlong, which, with the addition of narrative voice-over, was\nbroadcast on September 29, 1990, as a segment of On Scene:\nEmergency Response.\nThe segment begins with the Mercy Air helicopter shown on its\nway to the accident site. The narrator\xe2\x80\x99s voice is heard in the\n\n631\n\n\x0cbackground, setting the scene and describing in general terms\nwhat has happened. The pilot can be heard speaking with rescue\nworkers on the ground in order to prepare for his landing. As\nthe helicopter touches down, the narrator says: \xe2\x80\x9c[F]our of the\npatients are leaving by ground ambulance. Two are still trapped\ninside.\xe2\x80\x9d (The first part of this statement was wrong, since only\nfour persons were in the car to start.) After Carnahan steps from\nthe helicopter, she can be seen and heard speaking about the\nsituation with various rescue workers. A firefighter assures her\nthey will hose down the area to prevent any fire from the\nwrecked car.\nThe videotape shows only a glimpse of Wayne, and his voice is\nnever heard. Ruth is shown several times, either by brief shots\nof a limb or her torso, or with her features blocked by others or\nobscured by an oxygen mask. She is also heard speaking several\ntimes. Carnahan calls her \xe2\x80\x9cRuth,\xe2\x80\x9d and her last name is not\nmentioned on the broadcast.\nWhile Ruth is still trapped under the car, Carnahan asks Ruth\xe2\x80\x99s\nage. Ruth responds, \xe2\x80\x9cI\xe2\x80\x99m old.\xe2\x80\x9d On further questioning, Ruth\nreveals she is 47, and Carnahan observes that \xe2\x80\x9cit\xe2\x80\x99s all relative.\nYou\xe2\x80\x99re not that old.\xe2\x80\x9d During her extrication from the car, Ruth\nasks at least twice if she is dreaming. At one point she asks\nCarnahan, who has told her she will be taken to the hospital in a\nhelicopter: \xe2\x80\x9cAre you teasing?\xe2\x80\x9d At another point she says: \xe2\x80\x9cThis\nis terrible. Am I dreaming?\xe2\x80\x9d She also asks what happened and\nwhere the rest of her family is, repeating the questions even after\nbeing told she was in an accident and the other family members\nare being cared for. While being loaded into the helicopter on a\nstretcher, Ruth says: \xe2\x80\x9cI just want to die.\xe2\x80\x9d Carnahan reassures her\nthat she is \xe2\x80\x9cgoing to do real well,\xe2\x80\x9d but Ruth repeats: \xe2\x80\x9cI just want\nto die. I don\xe2\x80\x99t want to go through this.\xe2\x80\x9d\nRuth and Wayne are placed in the helicopter, and its door is\nclosed. The narrator states: \xe2\x80\x9cOnce airborne, Laura and [the\nflight medic] will update their patients\xe2\x80\x99 vital signs and establish\ncommunications with the waiting trauma teams at Loma Linda.\xe2\x80\x9d\nCarnahan, speaking into what appears to be a radio microphone,\ntransmits some of Ruth\xe2\x80\x99s vital signs and states that Ruth cannot\n\n632\n\n\x0cmove her feet and has no sensation. The video footage during\nthe helicopter ride includes a few seconds of Ruth\xe2\x80\x99s face,\ncovered by an oxygen mask. Wayne is neither shown nor heard.\nThe helicopter lands on the hospital roof. With the door open,\nRuth states while being taken out: \xe2\x80\x9cMy upper back hurts.\xe2\x80\x9d\nCarnahan replies: \xe2\x80\x9cYour upper back hurts. That\xe2\x80\x99s what you were\nsaying up there.\xe2\x80\x9d Ruth states: \xe2\x80\x9cI don\xe2\x80\x99t feel that great.\xe2\x80\x9d Carnahan\nresponds: \xe2\x80\x9cYou probably don\xe2\x80\x99t.\xe2\x80\x9d\nFinally, Ruth is shown being moved from the helicopter into the\nhospital. The narrator concludes by stating: \xe2\x80\x9cOnce inside both\npatients will be further evaluated and moved into emergency\nsurgery if need be. Thanks to the efforts of the crew of Mercy\nAir, the firefighters, medics and police who responded, patients\xe2\x80\x99\nlives were saved.\xe2\x80\x9d As the segment ends, a brief, written epilogue\nappears on the screen, stating: \xe2\x80\x9cLaura\xe2\x80\x99s patient spent months in\nthe hospital. She suffered severe back injuries. The others were\nall released much sooner.\xe2\x80\x9d\nThe accident left Ruth a paraplegic. When the segment was\nbroadcast, Wayne phoned Ruth in her hospital room and told\nher to turn on the television because \xe2\x80\x9cChannel 4 is showing our\naccident now.\xe2\x80\x9d Shortly afterward, several hospital workers came\ninto the room to mention that a videotaped segment of her\naccident was being shown. Ruth was \xe2\x80\x9cshocked, so to speak, that\nthis would be run and I would be exploited, have my privacy\ninvaded, which is what I felt had happened.\xe2\x80\x9d She did not know\nher rescue had been recorded in this manner and had never\nconsented to the recording or broadcast. Ruth had the\nimpression from the broadcast \xe2\x80\x9cthat I was kind of talking\nnonstop, and I remember hearing some of the things I said,\nwhich were not very pleasant.\xe2\x80\x9d Asked at deposition what part of\nthe broadcast material she considered private, Ruth explained: \xe2\x80\x9cI\nthink the whole scene was pretty private. It was pretty\ngruesome, the parts that I saw, my knee sticking out of the car. I\ncertainly did not look my best, and I don\xe2\x80\x99t feel it\xe2\x80\x99s for the public\nto see. I was not at my best in what I was thinking and what I\nwas saying and what was being shown, and it\xe2\x80\x99s not for the public\nto see this trauma that I was going through.\xe2\x80\x9d\n\n633\n\n\x0cRuth and Wayne sued the producers of On Scene: Emergency\nResponse, as well as others.~ The first amended complaint\nincluded two causes of action for invasion of privacy, one based\non defendants\xe2\x80\x99 unlawful intrusion by videotaping the rescue in\nthe first instance and the other based on the public disclosure of\nprivate facts, i.e., the broadcast.~\nWe conclude summary judgment was proper as to plaintiffs\xe2\x80\x99\ncause of action for publication of private facts, but not as to\ntheir cause of action for intrusion.~\nDiscussion\nInfluenced by Dean Prosser\xe2\x80\x99s analysis of the tort actions for\ninvasion of privacy (Prosser, Privacy (1960) 48 Cal.L.Rev. 381)\nand the exposition of a similar analysis in the Restatement\nSecond of Torts sections 652A-652E~ , California courts have\nrecognized both of the privacy causes of action pleaded by\nplaintiffs here: (1) public disclosure of private facts, and (2)\nintrusion into private places, conversations or other matters.~\nWe shall review the elements of each privacy tort, as well as the\ncommon law and constitutional privilege of the press as to each,\nand shall apply in succession this law to the facts pertinent to\neach cause of action.\nI. Publication of Private Facts\nThe claim that a publication has given unwanted publicity to\nallegedly private aspects of a person\xe2\x80\x99s life is one of the more\ncommonly litigated and well-defined areas of privacy law. In\nDiaz v. Oakland Tribune, Inc. (1983) 139 Cal.App.3d 118, 126, the\nappellate court accurately discerned the following elements of\nthe public disclosure tort: \xe2\x80\x9c(1) public disclosure (2) of a private\nfact (3) which would be offensive and objectionable to the\nreasonable person and (4) which is not of legitimate public\nconcern.\xe2\x80\x9d That formulation does not differ significantly from\nthe Restatement\xe2\x80\x99s, which provides that \xe2\x80\x9c[o]ne who gives\npublicity to a matter concerning the private life of another is\nsubject to liability to the other for invasion of his privacy, if the\nmatter publicized is of a kind that [\xc2\xb6] (a) would be highly\n\n634\n\n\x0coffensive to a reasonable person, and [\xc2\xb6] (b) is not of legitimate\nconcern to the public.\xe2\x80\x9d\nThe element critical to this case is the presence or absence of\nlegitimate public interest, i.e., newsworthiness, in the facts\ndisclosed.~ We conclude, inter alia, that lack of newsworthiness\nis an element of the \xe2\x80\x9cprivate facts\xe2\x80\x9d tort, making newsworthiness\na complete bar to common law liability. We further conclude\nthat the analysis of newsworthiness inevitably involves\naccommodating conflicting interests in personal privacy and in\npress freedom as guaranteed by the First Amendment to the\nUnited States Constitution, and that in the circumstances of this\ncase-where the facts disclosed about a private person\ninvoluntarily caught up in events of public interest bear a logical\nrelationship to the newsworthy subject of the broadcast and are\nnot intrusive in great disproportion to their relevance-the\nbroadcast was of legitimate public concern, barring liability\nunder the private facts tort.\nThe Diaz formulation, like the Restatement\xe2\x80\x99s, includes as a tort\nelement that the matter published is not of legitimate public\nconcern. Diaz thus expressly makes the lack of newsworthiness\npart of the plaintiff\xe2\x80\x99s case in a private facts action.~ The Diaz\napproach is consistent with the tort\xe2\x80\x99s historical development, in\nwhich defining an actionable invasion of privacy has generally\nbeen understood to require balancing privacy interests against\nthe press\xe2\x80\x99s right to report, and the community\xe2\x80\x99s interest in\nreceiving, news and information.\nWe therefore agree with defendants that under California\ncommon law the dissemination of truthful, newsworthy material\nis not actionable as a publication of private facts. If the contents\nof a broadcast or publication are of legitimate public concern,\nthe plaintiff cannot establish a necessary element of the tort\naction, the lack of newsworthiness.~\nNewsworthiness \xe2\x80\x93 constitutional or common law \xe2\x80\x93 is also\ndifficult to define because it may be used as either a descriptive\nor a normative term. \xe2\x80\x9cIs the term \xe2\x80\x98newsworthy\xe2\x80\x99 a descriptive\npredicate, intended to refer to the fact there is widespread public\ninterest? Or is it a value predicate, intended to indicate that the\n\n635\n\n\x0cpublication is a meritorious contribution and that the public\xe2\x80\x99s\ninterest is praiseworthy?\xe2\x80\x9d (Comment, The Right of Privacy:\nNormative-Descriptive Confusion in the Defense of Newsworthiness\n(1963) 30 U. Chi. L.Rev. 722, 725.) A position at either extreme\nhas unpalatable consequences. If \xe2\x80\x9cnewsworthiness\xe2\x80\x9d is\ncompletely descriptive-if all coverage that sells papers or boosts\nratings is deemed newsworthy-it would seem to swallow the\npublication of private facts tort, for \xe2\x80\x9cit would be difficult to\nsuppose that publishers were in the habit of reporting\noccurrences of little interest.\xe2\x80\x9d (Id. at p. 734.) At the other\nextreme, if newsworthiness is viewed as a purely normative\nconcept, the courts could become to an unacceptable degree\neditors of the news and self-appointed guardians of public taste.\nThe difficulty of finding a workable standard in the middle\nground between the extremes of normative and descriptive\nanalysis, and the variety of factual circumstances in which the\nissue has been presented, have led to considerable variation in\njudicial descriptions of the newsworthiness concept. As one\ncommentator has noted, the newsworthiness test \xe2\x80\x9cbears an\nenormous social pressure, and it is not surprising to find that the\ncommon law is deeply confused and ambivalent about its\napplication.\xe2\x80\x9d (Post, The Social Foundations of Privacy: Community and\nSelf in the Common Law Tort (1989) 77 Cal.L.Rev. 957, 1007.)\nWithout attempting an exhaustive survey, and with particular\nfocus on California decisions, we review some of these attempts\nbelow.~\nOur prior decisions have not explicitly addressed the type of\nprivacy invasion alleged in this case: the broadcast of\nembarrassing pictures and speech of a person who, while\ngenerally not a public figure, has become involuntarily involved\nin an event or activity of legitimate public concern. We\nnonetheless draw guidance from those decisions, in that they\narticulate the competing interests to be balanced. First, the\nanalysis of newsworthiness does involve courts to some degree\nin a normative assessment of the \xe2\x80\x9csocial value\xe2\x80\x9d of a publication.\nAll material that might attract readers or viewers is not, simply\nby virtue of its attractiveness, of legitimate public interest. Second,\nthe evaluation of newsworthiness depends on the degree of\n\n636\n\n\x0cintrusion and the extent to which the plaintiff played an\nimportant role in public events (ibid.), and thus on a comparison\nbetween the information revealed and the nature of the activity\nor event that brought the plaintiff to public attention. \xe2\x80\x9cSome\nreasonable proportion is ... to be maintained between the events\nor activity that makes the individual a public figure and the\nprivate facts to which publicity is given. Revelations that may\nproperly be made concerning a murderer or the President of the\nUnited States would not be privileged if they were to be made\nconcerning one who is merely injured in an automobile\naccident.\xe2\x80\x9d (Rest.2d Torts, \xc2\xa7 652D, com. h, p. 391.)~\nCourts balancing these interests in cases similar to this have\nrecognized that, when a person is involuntarily involved in a\nnewsworthy incident, not all aspects of the person\xe2\x80\x99s life, and not\neverything the person says or does, is thereby rendered\nnewsworthy. \xe2\x80\x9cMost persons are connected with some activity,\nvocational or avocational, as to which the public can be said as a\nmatter of law to have a legitimate interest or curiosity. To hold\nas a matter of law that private facts as to such persons are also\nwithin the area of legitimate public interest could indirectly\nexpose everyone\xe2\x80\x99s private life to public view.\xe2\x80\x9d This principle is\nillustrated in the decisions holding that, while a particular event\nwas newsworthy, identification of the plaintiff as the person\ninvolved, or use of the plaintiff\xe2\x80\x99s identifiable image, added\nnothing of significance to the story and was therefore an\nunnecessary invasion of privacy. (See~ Gill v. Curtis, 38 Cal.2d at\np. 279 (use of plaintiffs\xe2\x80\x99 photograph to illustrate article on love);\nMelvin v. Reid, 112 Cal.App. at pp. 291-292 (identification of\nplaintiff as former prostitute); Barber v. Time, Inc., 348 Mo. at pp.\n1207-1208 (use of plaintiff\xe2\x80\x99s name and photograph in article\nabout her unusual medical condition); Vassiliades v. Garfinckel\xe2\x80\x99s\nBrooks Bros., 492 A.2d at pp. 589-590 (use of plaintiff\xe2\x80\x99s\nphotograph to illustrate presentations on cosmetic surgery).) For\nthe same reason, a college student\xe2\x80\x99s candidacy for president of\nthe student body did not render newsworthy a newspaper\xe2\x80\x99s\nrevelation that the student was a transsexual, where the court\ncould find \xe2\x80\x9clittle if any connection between the information\ndisclosed and [the student\xe2\x80\x99s] fitness for office.\xe2\x80\x9d (Diaz, 139\n\n637\n\n\x0cCal.App.3d at p. 134.) Similarly, a mother\xe2\x80\x99s private words over\nthe body of her slain son as it lay in a hospital room were held\nnonnewsworthy despite undisputed legitimate public interest in\nthe subjects of gang violence and murder. (Green v. Chicago\nTribune Co. (1996) 286 Ill.App.3d 1).)\nConsistent with the above, courts have generally protected the\nprivacy of otherwise private individuals involved in events of\npublic interest \xe2\x80\x9cby requiring that a logical nexus exist between\nthe complaining individual and the matter of legitimate public\ninterest.\xe2\x80\x9d The contents of the publication or broadcast are\nprotected only if they have \xe2\x80\x9csome substantial relevance to a\nmatter of legitimate public interest.\xe2\x80\x9d~ This approach accords\nwith our own prior decisions, in that it balances the public\xe2\x80\x99s\nright to know against the plaintiff\xe2\x80\x99s privacy interest by drawing a\nprotective line at the point the material revealed ceases to have\nany substantial connection to the subject matter of the\nnewsworthy report.~ This approach also echoes the Restatement\ncommentators\xe2\x80\x99 widely quoted and cited view that legitimate\npublic interest does not include \xe2\x80\x9ca morbid and sensational\nprying into private lives for its own sake ....\xe2\x80\x9d\nAn analysis measuring newsworthiness of facts about an\notherwise private person involuntarily involved in an event of\npublic interest by their relevance to a newsworthy subject matter\nincorporates considerable deference to reporters and editors,\navoiding the likelihood of unconstitutional interference with the\nfreedom of the press to report truthfully on matters of\nlegitimate public interest. In general, it is not for a court or jury\nto say how a particular story is best covered. The constitutional\nprivilege to publish truthful material \xe2\x80\x9cceases to operate only\nwhen an editor abuses his broad discretion to publish matters\nthat are of legitimate public interest.\xe2\x80\x9d~ Our analysis thus does\nnot purport to distinguish among the various legitimate\npurposes that may be served by truthful publications and\nbroadcasts. As we said in Gill v. Hearst, \xe2\x80\x9cthe constitutional\nguarantees of freedom of expression apply with equal force to\nthe publication whether it be a news report or an entertainment\nfeature ....\xe2\x80\x9d Thus, newsworthiness is not limited to \xe2\x80\x9cnews\xe2\x80\x9d in the\nnarrow sense of reports of current events. \xe2\x80\x9cIt extends also to\n\n638\n\n\x0cthe use of names, likenesses or facts in giving information to the\npublic for purposes of education, amusement or enlightenment,\nwhen the public may reasonably be expected to have a legitimate\ninterest in what is published.\xe2\x80\x9d~\nFinally, an analysis focusing on relevance allows courts and\njuries to decide most cases involving persons involuntarily\ninvolved in events of public interest without \xe2\x80\x9cbalanc[ing]\ninterests in ad hoc fashion in each case\xe2\x80\x9d. The articulation of\nstandards that do not require \xe2\x80\x9cad hoc resolution of the\ncompeting interest in each ... case\xe2\x80\x9d (Gertz v. Robert Welch,Inc.\n(1974) 418 U.S. 323) is favored in areas affecting First\nAmendment rights, because the relative predictability of results\nreached under such standards minimizes the inadvertent chilling\nof protected speech, and because standards that can be applied\nobjectively provide a stronger shield against the unconstitutional\npunishment of unpopular speech.\nOn the other hand, no mode of analyzing newsworthiness can\nbe applied mechanically or without consideration of its proper\nboundaries. To observe that the newsworthiness of private facts\nabout a person involuntarily thrust into the public eye depends,\nin the ordinary case, on the existence of a logical nexus between\nthe newsworthy event or activity and the facts revealed is not to\ndeny that the balance of free press and privacy interests may\nrequire a different conclusion when the intrusiveness of the\nrevelation is greatly disproportionate to its relevance. Intensely\npersonal or intimate revelations might not, in a given case, be\nconsidered newsworthy, especially where they bear only slight\nrelevance to a topic of legitimate public concern. (See Kapellas, 1\nCal.3d at pp. 37-38 (public interest in free flow of information\nwill outweigh interest in individual privacy \xe2\x80\x9c[i]f the publication\ndoes not proceed widely beyond the bounds of propriety and\nreason in disclosing facts about those closely related to an\naspirant for public office ...\xe2\x80\x9d)~.)~\nTurning now to the case at bar, we consider whether the\npossibly private facts complained of here-broadly speaking,\nRuth\xe2\x80\x99s appearance and words during the rescue and evacuation-\n\n639\n\n\x0cwere of legitimate public interest. If so, summary judgment was\nproperly entered.~\nWe agree at the outset with defendants that the subject matter\nof the broadcast as a whole was of legitimate public concern.\nAutomobile accidents are by their nature of interest to that great\nportion of the public that travels frequently by automobile. The\nrescue and medical treatment of accident victims is also of\nlegitimate concern to much of the public, involving as it does a\ncritical service that any member of the public may someday\nneed. The story of Ruth\xe2\x80\x99s difficult extrication from the crushed\ncar, the medical attention given her at the scene, and her\nevacuation by helicopter was of particular interest because it\nhighlighted some of the challenges facing emergency workers\ndealing with serious accidents.\nThe more difficult question is whether Ruth\xe2\x80\x99s appearance and\nwords as she was extricated from the overturned car, placed in\nthe helicopter and transported to the hospital were of legitimate\npublic concern. Pursuant to the analysis outlined earlier, we\nconclude the disputed material was newsworthy as a matter of\nlaw. One of the dramatic and interesting aspects of the story as a\nwhole is its focus on flight nurse Carnahan, who appears to be\nin charge of communications with other emergency workers, the\nhospital base and Ruth, and who leads the medical assistance to\nRuth at the scene. Her work is portrayed as demanding and\nimportant and as involving a measure of personal risk (e.g., in\ncrawling under the car to aid Ruth despite warnings that gasoline\nmay be dripping from the car).10 The broadcast segment makes\napparent that this type of emergency care requires not only\nmedical knowledge, concentration and courage, but an ability to\ntalk and listen to severely traumatized patients. One of the\nchallenges Carnahan faces in assisting Ruth is the confusion,\npain and fear that Ruth understandably feels in the aftermath of\nthe accident. For that reason the broadcast video depicting\nRuth\xe2\x80\x99s injured physical state (which was not luridly shown) and\naudio showing her disorientation and despair were substantially\nrelevant to the segment\xe2\x80\x99s newsworthy subject matter.\n\n640\n\n\x0cPlaintiffs argue that showing Ruth\xe2\x80\x99s \xe2\x80\x9cintimate private, medical\nfacts and her suffering was not necessary to enable the public to\nunderstand the significance of the accident or the rescue as a\npublic event.\xe2\x80\x9d The standard, however, is not necessity. That the\nbroadcast could have been edited to exclude some of Ruth\xe2\x80\x99s\nwords and images and still excite a minimum degree of viewer\ninterest is not determinative. Nor is the possibility that the\nmembers of this or another court, or a jury, might find a\ndifferently edited broadcast more to their taste or even more\ninteresting. The courts do not, and constitutionally could not, sit\nas superior editors of the press.\nThe challenged material was thus substantially relevant to the\nnewsworthy subject matter of the broadcast and did not\nconstitute a \xe2\x80\x9cmorbid and sensational prying into private lives for\nits own sake.\xe2\x80\x9d (Rest.2d Torts, \xc2\xa7 652D, com. h, p. 391, italics\nadded.) Nor can we say the broadcast material was so lurid and\nsensational in emotional tone, or so intensely personal in\ncontent, as to make its intrusiveness disproportionate to its\nrelevance. Under these circumstances, the material was, as a\nmatter of law, of legitimate public concern. Summary judgment\nwas therefore properly entered against Ruth on her cause of\naction for publication of private facts.~\nOne might argue that, while the contents of the broadcast were\nof legitimate interest in that they reflected on the nature and\nquality of emergency rescue services, the images and sounds that\npotentially allowed identification of Ruth as the accident victim\nwere irrelevant and of no legitimate public interest in a\nbroadcast that aired some months after the accident and had\nlittle or no value as \xe2\x80\x9chot\xe2\x80\x9d news. (See Briscoe, 4 Cal.3d at p. 537\n(While reports of the facts of \xe2\x80\x9clong past\xe2\x80\x9d crimes are\nnewsworthy, identification of the actor in such crimes \xe2\x80\x9cusually\nserves little independent public purpose.\xe2\x80\x9d).) We do not take that\nview. It is difficult to see how the subject broadcast could have\nbeen edited to avoid completely any possible identification\nwithout severely undercutting its legitimate descriptive and\nnarrative impact. As broadcast, the segment included neither\nRuth\xe2\x80\x99s full name nor direct display of her face. She was\nnonetheless arguably identifiable by her first name (used in\n\n641\n\n\x0crecorded dialogue), her voice, her general appearance and the\nrecounted circumstances of the accident (which, as noted, had\npreviously been published, with Ruth\xe2\x80\x99s full name and city of\nresidence, in a newspaper).~ In a video documentary of this\ntype, however, the use of that degree of truthful detail would\nseem not only relevant, but essential to the narrative.\nII. Intrusion\nOf the four privacy torts identified by Prosser, the tort of\nintrusion into private places, conversations or matter is perhaps\nthe one that best captures the common understanding of an\n\xe2\x80\x9cinvasion of privacy.\xe2\x80\x9d It encompasses unconsented-to physical\nintrusion into the home, hospital room or other place the\nprivacy of which is legally recognized, as well as unwarranted\nsensory intrusions such as eavesdropping, wiretapping, and\nvisual or photographic spying. It is in the intrusion cases that\ninvasion of privacy is most clearly seen as an affront to\nindividual dignity. \xe2\x80\x9c[A] measure of personal isolation and\npersonal control over the conditions of its abandonment is of\nthe very essence of personal freedom and dignity, is part of what\nour culture means by these concepts. A man whose home may\nbe entered at the will of another, whose conversations may be\noverheard at the will of another, whose marital and familial\nintimacies may be overseen at the will of another, is less of a\nman, has less human dignity, on that account. He who may\nintrude upon another at will is the master of the other and, in\nfact, intrusion is a primary weapon of the tyrant.\xe2\x80\x9d (Bloustein,\nPrivacy as an Aspect of Human Dignity: An Answer to Dean Prosser\n(1964) 39 N.Y.U. L.Rev. 962, 973-974, fn. omitted.)~\n~The\n\naction for intrusion has two elements: (1) intrusion into a\nprivate place, conversation or matter, (2) in a manner highly\noffensive to a reasonable person. We consider the elements in\nthat order.\nWe ask first whether defendants \xe2\x80\x9cintentionally intrude[d],\nphysically or otherwise, upon the solitude or seclusion of\nanother,\xe2\x80\x9d that is, into a place or conversation private to Wayne\nor Ruth. \xe2\x80\x9c[T]here is no liability for the examination of a public\nrecord concerning the plaintiff, ... [or] for observing him or even\n\n642\n\n\x0ctaking his photograph while he is walking on the public highway\n....\xe2\x80\x9d~ To prove actionable intrusion, the plaintiff must show the\ndefendant penetrated some zone of physical or sensory privacy\nsurrounding, or obtained unwanted access to data about, the\nplaintiff. The tort is proven only if the plaintiff had an\nobjectively reasonable expectation of seclusion or solitude in the\nplace, conversation or data source.\nCameraman Cooke\xe2\x80\x99s mere presence at the accident scene and\nfilming of the events occurring there cannot be deemed either a\nphysical or sensory intrusion on plaintiffs\xe2\x80\x99 seclusion. Plaintiffs\nhad no right of ownership or possession of the property where\nthe rescue took place, nor any actual control of the premises.\nNor could they have had a reasonable expectation that members\nof the media would be excluded or prevented from\nphotographing the scene; for journalists to attend and record the\nscenes of accidents and rescues is in no way unusual or\nunexpected.~\nTwo aspects of defendants\xe2\x80\x99 conduct, however, raise triable\nissues of intrusion on seclusion. First, a triable issue exists as to\nwhether both plaintiffs had an objectively reasonable\nexpectation of privacy in the interior of the rescue helicopter,\nwhich served as an ambulance. Although the attendance of\nreporters and photographers at the scene of an accident is to be\nexpected, we are aware of no law or custom permitting the press\nto ride in ambulances or enter hospital rooms during treatment\nwithout the patient\xe2\x80\x99s consent. Other than the two patients and\nCooke, only three people were present in the helicopter, all\nMercy Air staff. As the Court of Appeal observed, \xe2\x80\x9c[i]t is neither\nthe custom nor the habit of our society that any member of the\npublic at large or its media representatives may hitch a ride in an\nambulance and ogle as paramedics care for an injured stranger.\xe2\x80\x9d\nSecond, Ruth was entitled to a degree of privacy in her\nconversations with Carnahan and other medical rescuers at the\naccident scene, and in Carnahan\xe2\x80\x99s conversations conveying\nmedical information regarding Ruth to the hospital base. Cooke,\nperhaps, did not intrude into that zone of privacy merely by\nbeing present at a place where he could hear such conversations\n\n643\n\n\x0cwith unaided ears. But by placing a microphone on Carnahan\xe2\x80\x99s\nperson, amplifying and recording what she said and heard,\ndefendants may have listened in on conversations the parties\ncould reasonably have expected to be private.~\nWhether Ruth expected her conversations with Nurse Carnahan\nor the other rescuers to remain private and whether any such\nexpectation was reasonable are, on the state of the record before\nus, questions for the jury. We note, however, that several\nexisting legal protections for communications could support the\nconclusion that Ruth possessed a reasonable expectation of\nprivacy in her conversations with Nurse Carnahan and the other\nrescuers. A patient\xe2\x80\x99s conversation with a provider of medical\ncare in the course of treatment, including emergency treatment,\ncarries a traditional and legally well-established expectation of\nprivacy.~\nWe turn to the second element of the intrusion tort,\noffensiveness of the intrusion. In a widely followed passage, the\nMiller court explained that determining offensiveness requires\nconsideration of all the circumstances of the intrusion, including\nits degree and setting and the intruder\xe2\x80\x99s \xe2\x80\x9cmotives and\nobjectives.\xe2\x80\x9d (Miller, 187 Cal.App.3d at pp. 1483-1484; cited, e.g.,\nin Hill, 7 Cal.4th at p. 26. The Miller court concluded that\nreasonable people could regard the camera crew\xe2\x80\x99s conduct in\nfilming a man\xe2\x80\x99s emergency medical treatment in his home,\nwithout seeking or obtaining his or his wife\xe2\x80\x99s consent, as\nshowing \xe2\x80\x9ca cavalier disregard for ordinary citizens\xe2\x80\x99 rights of\nprivacy\xe2\x80\x9d and, hence, as highly offensive. (Miller, 187 Cal.App.3d\nat p. 1484.)\nWe agree with the Miller court that all the circumstances of an\nintrusion, including the motives or justification of the intruder,\nare pertinent to the offensiveness element. Motivation or\njustification becomes particularly important when the intrusion\nis by a member of the print or broadcast press in the pursuit of\nnews material.17 Although, as will be discussed more fully later,\nthe First Amendment does not immunize the press from liability\nfor torts or crimes committed in an effort to gather news, the\nconstitutional protection of the press does reflect the strong\n\n644\n\n\x0csocietal interest in effective and complete reporting of events, an\ninterest that may-as a matter of tort law-justify an intrusion that\nwould otherwise be considered offensive. While refusing to\nrecognize a broad privilege in newsgathering against application\nof generally applicable laws, the United States Supreme Court\nhas also observed that \xe2\x80\x9cwithout some protection for seeking out\nthe news, freedom of the press could be eviscerated.\xe2\x80\x9d (Branzburg\nv. Hayes (1972) 408 U.S. 665, 681.~)\nIn deciding, therefore, whether a reporter\xe2\x80\x99s alleged intrusion into\nprivate matters (i.e., physical space, conversation or data) is\n\xe2\x80\x9coffensive\xe2\x80\x9d and hence actionable as an invasion of privacy,\ncourts must consider the extent to which the intrusion was,\nunder the circumstances, justified by the legitimate motive of\ngathering the news. Information-collecting techniques that may\nbe highly offensive when done for socially unprotected reasonsfor purposes of harassment, blackmail or prurient curiosity, for\nexample-may not be offensive to a reasonable person when\nemployed by journalists in pursuit of a socially or politically\nimportant story. Thus, for example, \xe2\x80\x9ca continuous surveillance\nwhich is tortious when practiced by a creditor upon a debtor\nmay not be tortious when practiced by media representatives in\na situation where there is significant public interest [in discovery\nof the information sought].\xe2\x80\x9d (Hill, Defamation and Privacy Under\nthe First Amendment (1976) 76 Colum. L.Rev. 1205, 1284, fn.\nomitted.)\nThe mere fact the intruder was in pursuit of a \xe2\x80\x9cstory\xe2\x80\x9d does not,\nhowever, generally justify an otherwise offensive intrusion;\noffensiveness depends as well on the particular method of\ninvestigation used. At one extreme, \xe2\x80\x9c \xe2\x80\x98routine ... reporting\ntechniques,\xe2\x80\x99 \xe2\x80\x9c such as asking questions of people with\ninformation (\xe2\x80\x9cincluding those with confidential or restricted\ninformation\xe2\x80\x9d) could rarely, if ever, be deemed an actionable\nintrusion. At the other extreme, violation of well-established\nlegal areas of physical or sensory privacy-trespass into a home or\ntapping a personal telephone line, for example-could rarely, if\never, be justified by a reporter\xe2\x80\x99s need to get the story. Such acts\nwould be deemed highly offensive even if the information\nsought was of weighty public concern; they would also be\n\n645\n\n\x0coutside any protection\nnewsgathering.\n\nthe\n\nConstitution\n\nprovides\n\nto\n\nBetween these extremes lie difficult cases, many involving the\nuse of photographic and electronic recording equipment.\nEquipment such as hidden cameras and miniature cordless and\ndirectional microphones are powerful investigative tools for\nnewsgathering, but may also be used in ways that severely\nthreaten personal privacy. California tort law provides no bright\nline on this question; each case must be taken on its facts.\nOn this summary judgment record, we believe a jury could find\ndefendants\xe2\x80\x99 recording of Ruth\xe2\x80\x99s communications to Carnahan\nand other rescuers, and filming in the air ambulance, to be \xe2\x80\x9c\n\xe2\x80\x98highly offensive to a reasonable person.\xe2\x80\x99 \xe2\x80\x9cWith regard to the\ndepth of the intrusion, a reasonable jury could find highly\noffensive the placement of a microphone on a medical rescuer\nin order to intercept what would otherwise be private\nconversations with an injured patient. In that setting, as\ndefendants could and should have foreseen, the patient would\nnot know her words were being recorded and would not have\noccasion to ask about, and object or consent to, recording.\nDefendants, it could reasonably be said, took calculated\nadvantage of the patient\xe2\x80\x99s \xe2\x80\x9cvulnerability and confusion.\xe2\x80\x9d\nArguably, the last thing an injured accident victim should have\nto worry about while being pried from her wrecked car is that a\ntelevision producer may be recording everything she says to\nmedical personnel for the possible edification and entertainment\nof casual television viewers.\nFor much the same reason, a jury could reasonably regard\nentering and riding in an ambulance-whether on the ground or\nin the air-with two seriously injured patients to be an egregious\nintrusion on a place of expected seclusion. Again, the patients, at\nleast in this case, were hardly in a position to keep careful watch\non who was riding with them, or to inquire as to everyone\xe2\x80\x99s\nbusiness and consent or object to their presence. A jury could\nreasonably believe that fundamental respect for human dignity\nrequires the patients\xe2\x80\x99 anxious journey be taken only with those\n\n646\n\n\x0cwhose care is solely for them and out of sight of the prying eyes\n(or cameras) of others.\nNor can we say as a matter of law that defendants\xe2\x80\x99 motive-to\ngather usable material for a potentially newsworthy storynecessarily privileged their intrusive conduct as a matter of\ncommon law tort liability. A reasonable jury could conclude the\nproducers\xe2\x80\x99 desire to get footage that would convey the \xe2\x80\x9cfeel\xe2\x80\x9d of\nthe event-the real sights and sounds of a difficult rescue-did not\njustify either placing a microphone on Nurse Carnahan or\nfilming inside the rescue helicopter. Although defendants\xe2\x80\x99\npurposes could scarcely be regarded as evil or malicious (in the\ncolloquial sense), their behavior could, even in light of their\nmotives, be thought to show a highly offensive lack of\nsensitivity and respect for plaintiffs\xe2\x80\x99 privacy. A reasonable jury\ncould find that defendants, in placing a microphone on an\nemergency treatment nurse and recording her conversation with\na distressed, disoriented and severely injured patient, without the\npatient\xe2\x80\x99s knowledge or consent, acted with highly offensive\ndisrespect for the patient\xe2\x80\x99s personal privacy comparable to, if\nnot quite as extreme as, the disrespect and insensitivity\ndemonstrated in Miller.\nTurning to the question of constitutional protection for\nnewsgathering, one finds the decisional law reflects a general\nrule of nonprotection: the press in its newsgathering activities\nenjoys no immunity or exemption from generally applicable\nlaws.~\n\xe2\x80\x9cIt is clear that the First Amendment does not invalidate every\nincidental burdening of the press that may result from the\nenforcement of civil and criminal statutes of general\napplicability. Under prior cases, otherwise valid laws serving\nsubstantial public interests may be enforced against the press as\nagainst others, despite the possible burden that may be\nimposed.\xe2\x80\x9d California\xe2\x80\x99s intrusion tort~ appl[ies] to all private\ninvestigative activity, whatever its purpose and whoever the\ninvestigator, and impose no greater restrictions on the media\nthan on anyone else. (If anything, the media enjoy some degree\nof favorable treatment under the California intrusion tort, as a\n\n647\n\n\x0creporter\xe2\x80\x99s motive to discover socially important information\nmay reduce the offensiveness of the intrusion.) These laws serve\nthe undisputedly substantial public interest in allowing each\nperson to maintain an area of physical and sensory privacy in\nwhich to live. Thus, defendants enjoyed no constitutional\nprivilege, merely by virtue of their status as members of the\nnews media, to eavesdrop in violation of section 632 or\notherwise to intrude tortiously on private places, conversations\nor information.\nCourts have impliedly recognized that a generally applicable law\nmight, under some circumstances, impose an \xe2\x80\x9cimpermissible\nburden\xe2\x80\x9d on newsgathering; such a burden might be found in a\nlaw that, as applied to the press, would result in \xe2\x80\x9ca significant\nconstriction of the flow of news to the public\xe2\x80\x9d and thus\n\xe2\x80\x9ceviscerate[]\xe2\x80\x9d the freedom of the press. No basis exists,\nhowever, for concluding that either section 632 or the intrusion\ntort places such a burden on the press, either in general or under\nthe circumstances of this case. The conduct of journalism does\nnot depend, as a general matter, on the use of secret devices to\nrecord private conversations.~ More specifically, nothing in the\nrecord or briefing here suggests that reporting on automobile\naccidents and medical rescue activities depends on secretly\nrecording accident victims\xe2\x80\x99 conversations with rescue personnel\nor on filming inside an occupied ambulance. Thus, if any\nexception exists to the general rule that \xe2\x80\x9cthe First Amendment\ndoes not guarantee the press a constitutional right of special\naccess to information not available to the public generally\xe2\x80\x9d, such\nexception is inapplicable here.18\nAs should be apparent from the above discussion, the\nconstitutional protection accorded newsgathering, if any, is far\nnarrower than the protection surrounding the publication of\ntruthful material; consequently, the fact that a reporter may be\nseeking \xe2\x80\x9cnewsworthy\xe2\x80\x9d material does not in itself privilege the\ninvestigatory activity. The reason for the difference is simple:\nThe intrusion tort, unlike that for publication of private facts,\ndoes not subject the press to liability for the contents of its\npublications.~\n\n648\n\n\x0cAs to constitutional policy, we repeat that the threat of\ninfringement on the liberties of the press from intrusion liability\nis minor compared with the threat from liability for publication\nof private facts. Indeed, the distinction led one influential\ncommentator to assert flatly that \xe2\x80\x9c[i]ntrusion does not raise first\namendment difficulties since its perpetration does not involve\nspeech or other expression.\xe2\x80\x9d (Nimmer, 56 Cal.L.Rev. at p. 957.)\nSuch a broad statement is probably not warranted; a liability\nrule, for example, that punished as intrusive a reporter\xe2\x80\x99s merely\nasking questions about matters an organization or person did\nnot choose to publicize would likely be deemed an\nimpermissible restriction on press freedom. But no\nconstitutional precedent or principle of which we are aware\ngives a reporter general license to intrude in an objectively\noffensive manner into private places, conversations or matters\nmerely because the reporter thinks he or she may thereby find\nsomething that will warrant publication or broadcast.~\nGeorge, C. J., and Kennard, J., concurred.\nJustice JOYCE L. KENNARD, concurring:\nApplying existing California tort law, the plurality opinion holds\nthat to establish a cause of action for invasion of privacy by\npublication of private facts the plaintiff must show that a private\nfact was publicly disclosed, that the disclosure would be\noffensive and objectionable to a reasonable person, and that the\nprivate fact was not newsworthy. I agree that here summary\njudgment was properly entered against plaintiffs on that cause of\naction. There is, however, a tension between the plurality\nopinion\xe2\x80\x99s rule of liability for publication of private facts and\nsome aspects of the United States Supreme Court\xe2\x80\x99s current First\nAmendment jurisprudence. In my view, the potential clash in\nthis area of law between personal privacy interests and the First\nAmendment\xe2\x80\x99s guarantee of freedom of speech and of the press\nwarrants a more detailed examination than the plurality opinion\nhas undertaken.~\nI leave open the possibility that the plurality opinion\xe2\x80\x99s\n\xe2\x80\x9cnewsworthiness\xe2\x80\x9d rule may require further adjustment and\nrevision in the future when we are presented with a case in\n\n649\n\n\x0cwhich its application, unlike the situation here, would affirm\nliability for the publication of truthful private facts.\nMosk, J., concurred.\nJustice MING W. CHIN, concurring and dissenting:\nI concur in part I of the plurality opinion. The newsworthy\nnature of the disclosure absolutely precludes plaintiffs\xe2\x80\x99 recovery\nunder this theory, and summary judgment for defendants on this\ncause of action was therefore proper.\nI dissent, however, from the plurality\xe2\x80\x99s holding that plaintiffs\xe2\x80\x99\n\xe2\x80\x9cintrusion\xe2\x80\x9d cause of action should be remanded for trial. The\ncritical question is whether defendants\xe2\x80\x99 privacy intrusion was \xe2\x80\x9c\n\xe2\x80\x98highly offensive to a reasonable person.\xe2\x80\x99 \xe2\x80\x9c (Plur. opn., ante, at p.\n231, italics added.) As the plurality explains, \xe2\x80\x9cthe constitutional\nprotection of the press does reflect the strong societal interest in\neffective and complete reporting of events, an interest that mayas a matter of law-justify an intrusion that would otherwise be\nconsidered offensive.\xe2\x80\x9d (Id. at p. 236, italics added.) I also agree with\nthe plurality that \xe2\x80\x9cInformation-collecting techniques that may be\nhighly offensive when done for socially unprotected reasons-for\npurposes of harassment, blackmail or prurient curiosity, for\nexample-may not be offensive to a reasonable person when employed\nby journalists in pursuit of a socially or politically important\nstory.\xe2\x80\x9d (Id. at p. 237, italics added.)\nAlthough I agree with the plurality\xe2\x80\x99s premises, I disagree with\nthe conclusion it draws from those premises.~ Ruth\xe2\x80\x99s\nexpectations notwithstanding, I do not believe that a reasonable\ntrier of fact could find that defendants\xe2\x80\x99 conduct in this case was\n\xe2\x80\x9chighly offensive to a reasonable person,\xe2\x80\x9d the test adopted by\nthe plurality. Plaintiffs do not allege that defendants, though\npresent at the accident rescue scene and in the helicopter,\ninterfered with either the rescue or medical efforts, elicited\nembarrassing or offensive information from plaintiffs, or even\ntried to interrogate or interview them. Defendants\xe2\x80\x99 news team\nevidently merely recorded newsworthy events \xe2\x80\x9cof legitimate\npublic concern\xe2\x80\x9d (plur. opn., ante, at p. 228 ) as they transpired.\nDefendants\xe2\x80\x99 apparent motive in undertaking the supposed\n\n650\n\n\x0cprivacy invasion was a reasonable and nonmalicious one: to\nobtain an accurate depiction of the rescue efforts from start to\nfinish. The event was newsworthy, and the ultimate broadcast\nwas both dramatic and educational, rather than tawdry or\nembarrassing.\nNo illegal trespass on private property occurred, and any\ntechnical illegality arising from defendants\xe2\x80\x99 recording Ruth\xe2\x80\x99s\nconversations with medical personnel was not so \xe2\x80\x9chighly\noffensive\xe2\x80\x9d as to justify liability. Recording the innocuous,\ninoffensive conversations that occurred between Ruth and the\nnurse assisting her (see plur. opn., ante, at p. 211 ) and filming\nthe seemingly routine, though certainly newsworthy, helicopter\nride (id. at pp. 211-212 ) may have technically invaded plaintiffs\xe2\x80\x99\nprivate \xe2\x80\x9cspace,\xe2\x80\x9d but in my view no \xe2\x80\x9chighly offensive\xe2\x80\x9d invasion\nof their privacy occurred.\nWe should bear in mind we are not dealing here with a true\n\xe2\x80\x9cinterception\xe2\x80\x9d-e.g., a surreptitious wiretap by a third party-of\nwords spoken in a truly private place-e.g., in a psychiatrist\xe2\x80\x99s\nexamining room, an attorney\xe2\x80\x99s office, or a priest\xe2\x80\x99s confessional.\nRather, here the broadcast showed Ruth speaking in settings\nwhere others could hear her, and the fact that she did not realize\nshe was being recorded does not ipso facto transform\ndefendants\xe2\x80\x99 newsgathering procedures into highly offensive\nconduct within the meaning of the law of intrusion.\nIn short, to turn a jury loose on the defendants in this case is\nitself \xe2\x80\x9chighly offensive\xe2\x80\x9d to me. I would reverse the judgment of\nthe Court of Appeal with directions to affirm the summary\njudgment for defendants on all causes of action.\nMosk, J., concurred.\nJustice JANICE ROGERS BROWN, concurring and\ndissenting:\nI concur in the plurality\xe2\x80\x99s conclusion that summary judgment\nshould not have been granted as to the cause of action for\nintrusion, and I generally concur in its analysis of that cause of\naction. I respectfully dissent, however, from the conclusion that\nsummary judgment was proper as to plaintiff Ruth Shulman\xe2\x80\x99s\n\n651\n\n\x0ccause of action for publication of private facts. For the reasons\ndiscussed below, I would hold that there are triable issues of\nmaterial fact as to that cause of action as well.~\nIn this case, a straightforward application of the Kapellas\nnewsworthiness test leads to one inescapable conclusion-that, at\nthe very least, there are triable issues of material fact on the\nquestion of newsworthiness. The private facts broadcast had\nlittle, if any, social value. (Kapellas, 1 Cal.3d at p. 36.) The public\nhas no legitimate interest in witnessing Ruth\xe2\x80\x99s disorientation and\ndespair. Nor does it have any legitimate interest in knowing\nRuth\xe2\x80\x99s personal and innermost thoughts immediately after\nsustaining injuries that rendered her a paraplegic and left her\nhospitalized for months-\xe2\x80\x9dI just want to die. I don\xe2\x80\x99t want to go\nthrough this.\xe2\x80\x9d The depth of the broadcast\xe2\x80\x99s intrusion into\nostensibly private affairs was substantial. (Ibid. ) As the plurality\nlater acknowledges in analyzing \xe2\x80\x9cthe depth of the intrusion\xe2\x80\x9d for\npurposes of Ruth\xe2\x80\x99s intrusion cause of action, \xe2\x80\x9c[a]rguably, the last\nthing an injured accident victim should have to worry about\nwhile being pried from her wrecked car is that a television\nproducer may be recording everything she says to medical\npersonnel for the possible edification and entertainment of\ncasual television viewers. [\xc2\xb6] For much the same reason, a jury\ncould reasonably regard entering and riding in an ambulancewhether on the ground or in the air-with two seriously injured\npatients to be an egregious intrusion on a place of expected\nseclusion.... A jury could reasonably believe that fundamental\nrespect for human dignity requires the patients\xe2\x80\x99 anxious journey\nbe taken only with those whose care is solely for them and out\nof sight of the prying eyes (or cameras) of others.\xe2\x80\x9d (Plur. opn.,\nante, at p. 238.) There was nothing voluntary about Ruth\xe2\x80\x99s\nposition of public notoriety. (Kapellas, 1 Cal.3d at p. 36.) She was\n\xe2\x80\x9cinvoluntarily caught up in events of public interest\xe2\x80\x9d (plur. opn.,\nante, at p. 215 ), all the more so because defendants appear to\nhave surreptitiously and unlawfully recorded her private\nconversations with Nurse Laura Carnahan. (See id. at pp. 233235.)~\nIn short, I see no reason to abandon our traditional\nnewsworthiness test, which has produced consistent and\n\n652\n\n\x0cpredictable results over the course of nearly three decades. As I\nhave explained, a straightforward application of that test\ndemonstrates there are triable issues of material fact on the\nquestion of newsworthiness and, hence, that summary judgment\nshould not have been granted on Ruth\xe2\x80\x99s cause of action for\npublication of private facts.\nFor the reasons discussed above, I would affirm the judgment\nof the Court of Appeal in its entirety.\nBaxter, J., concurred.\n\nQuestions to Ponder About Shulman v. Group W\nA. How should we regard the potential privacy interest a person has\nin a moment of tragedy? How does it compare, in terms of privacy\ninterests, to private-moment archetypes such as a penitent\xe2\x80\x99s\nconfession or a couple\xe2\x80\x99s honeymoon night? If we should regard it as\nhighly private, what is it about having a near-death experience and\nmaking the transition to life with paraplegia that makes it highly\nprivate?\nB. Do you agree with the court\xe2\x80\x99s characterization of the footage as\nnewsworthy because of the legitimate public interest in emergency\nrescue services?\nC. If the public interest in the functioning of emergency rescue\nservices makes particular instances of individuals\xe2\x80\x99 interactions with\nthose services newsworthy, then what else would be newsworthy by\nthat definition? Is there a public interest in the efficacy of services\nrendered in a county hospital? If so, does that make newsworthy the\nreporting of patient\xe2\x80\x99s diagnoses and treatments? How about the\nfunction of the public schools \xe2\x80\x93 is there a public interest in that? And\nif so, would the reporting of students\xe2\x80\x99 grades be justified? If not,\nwhat justifies a distinction, and where should the line be drawn?\n\n653\n\n\x0cAftermatter\nUnmarked Edits Generally\n\n(For both volumes)\nVarious edits are not marked in the text. They have been left\nunmarked because to mark them would have made the text\nsubstantially less readable.\nIn general, whole citations and portions of citations have been\nliberally removed from the readings. Parallel citations have been\nremoved generally. Spaces have been added or deleted in cases where\nthe observed style was unconventional and jarring. In cases where\ncase names were printed in roman type, case names have generally\nbeen italicized. Where quotation marks occurred around a\nblockquote, they have generally been removed. Lengthy portions of\nquoted material have sometimes been re-set as blockquotes. Dashes\nand ellipses have been set in a uniform typographical style regardless\nof how they appeared in the original document. Official headnote\nreferences have been eliminated. In addition, I have sought to\nremove all indicia of additions to any text made by unofficial\npublishers. Footnote references and footnotes have been removed\nwithout notation.\nThe author attributions at the beginning of case material, in general,\nare not attributable to the original source. Formatting of citations has\nbeen changed here and there to conform to conventions and norms.\nFor example, in various places the spelled-out word \xe2\x80\x9csection\xe2\x80\x9d has\nbeen replaced with the \xc2\xa7 symbol, including in Rowland v. Christian,\nBeswick v. CareStat, the text discussing California Civil Code \xc2\xa7 847, and\nIssacs v. Monkeytown, U.S.A. Typesetting for citations may have been\nchanged, such as from lower-case to small-caps for titles of journals,\nfor example in Tarasoff v. UC Regents and Weirum v. RKO. Harris v.\nScott, at least as the opinion was reproduced in the reporter volume,\nhad unconventional punctuation and spacing in citations; thus, those\nwere changed to be more conventional.\n\n654\n\n\x0cCase citations have generally been changed so that where the court\nuses a secondary-reference citation style, if it is the first reference in\nthe case as it appears in edited form in this casebook, the secondaryreference cite has been replaced with the full citation as is appropriate\nfor use on first reference. In some cases, punctuation was changed to\naccommodate cites that were eliminated without notation.\n\nIdiosyncratic Unmarked Edits in this Volume\nIdiosyncratic unmarked edits were made as follows:\nIsaacs v. Monkeytown, U.S.A: Some of what appear to be typos have\nbeen corrected, including missing punctuation and oddly capitalized\nwords, which have been corrected to lower case. Officially cited as\n\xe2\x80\x9cIsaacs v. Powell.\xe2\x80\x9d Supplied italicization in a blockquote was\nremoved and reset in roman text, with the note about the italicization\nremoved.\nSilkwood v. Kerr-McGee (in Chapter 13, Strict Liability): In the transcript\nof Spence\xe2\x80\x99s argument, the paragraphing is my own. Some of the\npunctuation has been changed to enhance readability, and some\ncapitalization may be different as well. See the \xe2\x80\x9cRights Information\xe2\x80\x9d\nsection in the front matter of this book for information about the\n\xe2\x80\x9cFACTS\xe2\x80\x9d section.\nDOJ Press Release on Toyota Unintended Acceleration: The original press\nrelease referred to Toyota as \xe2\x80\x9cTOYOTA\xe2\x80\x9d in all capital letters. The\nall-caps style was replaced with regular capitalization to enhance\nreadability.\nFDA v. Phusion Products LLC: A list of references was omitted\nwithout notation.\nLeichtman v. WLW Jacor: Spaces added into citation.\nSousanis v. Northwest Airlines: The word \xe2\x80\x9cthe\xe2\x80\x9d was changed to \xe2\x80\x9cshe\xe2\x80\x9d to\nreverse what appears to be a transcription error possibly attributable\nto the reporter rather than the court. The original passage appearing\nin the reporter volume is \xe2\x80\x9ca chronic back condition that worsens if\nthe is forced to sit for too long.\xe2\x80\x9d The changed version is \xe2\x80\x9ca chronic\nback condition that worsens if she is forced to sit for too long.\xe2\x80\x9d\n\n655\n\n\x0cBoring v. Google: Section heading removed without notation.\nIntel Corp. v. Hamidi: Brackets were changed to parentheses; paragraph\nbreaks were removed without notation.\nKirby v. Sega: The citation format of the statute cite was altered.\nSilkwood v. Kerr-McGee (in Chapter 25, Punitive Damages): In the\ntranscript of Spence\xe2\x80\x99s argument, the paragraphing is my own. Some\nof the punctuation has been changed to enhance readability, and\nsome capitalization may be different as well.\nGreat Lakes Dredge Dock Company v. Tanker Robert Watt Miller:\nHeadings within the case originally were lettered or numbered. These\nletters and numbers have been removed without notation.\nKohl v. United States: Paragraphing and cite formats were changed\nwithout annotation. Cites were truncated to omit portions of cites\nreferencing omitted portions from quotes.\nDobson v. Dobson: Brackets were changed to parentheses to avoid the\nappearance that insertions were the casebook\xe2\x80\x99s and not the court\xe2\x80\x99s.\nCalbom v. Knudtzon: The character \xe2\x80\x9cs\xe2\x80\x9d was replaced with \xe2\x80\x9c\xc2\xa7\xe2\x80\x9d in\nmultiple places.\nCommittee on Children\xe2\x80\x99s Television v. General Foods: Material from\nfootnotes was worked into the text without annotation, and the text\nwas changed to accommodate this.\nObsidian Finance Group v. Cox: Citations omitted without notation.\nMasson v. New Yorker: Citations reformatted.\n\n656\n\n\x0c"